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In the Disciplinary Matter Involving James J. HANLON

In the Disciplinary Matter Involving Hanlon

2005-04-15

No. S-11351

937

947

110 P.3d 937

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.

In the Disciplinary Matter Involving James J. HANLON.

In the Disciplinary Matter Involving James J. HANLON. No. S-11351. Supreme Court of Alaska. April 15, 2005. Robert C. Erwin, Erwin & Erwin, LLC, Anchorage, for Appellant. Mark Woelber, Assistant Bar Counsel, Anchorage, for Alaska Bar Association. Before: BRYNER, Chief Justice, MATTHEWS, EASTAUGH, FABE, and CARPENETI, Justices.

5864

37872

OPINION CARPENETI, Justice. I. INTRODUCTION The Alaska Bar Association Disciplinary Board recommended suspending James J. Hanlon for three years for misconduct that included knowingly providing misleading information to a client and bar investigators and failing to diligently pursue client matters. He appeals the severity of the penalty, arguing that his cooperation with the disciplinary committee and the effect of the suspension on his practice and family are mitigating factors that, when combined with other mitigating factors, favor a less severe penalty. We hold that Hanlon's cooperation with the disciplinary committee and the negative effects of the suspension do not mitigate his misconduct and suspend Hanlon from the practice of law for three years. II. FACTS AND PROCEEDINGS A. Facts 1. The Martin matter In 1995 Hanlon handled a divorce case for Keith Martin, who filed a grievance against Hanlon, claiming that his representation had been inadequate. The bar determined that this grievance was unfounded. In response to Martin's grievance, Hanlon sent him a consent form that would have allowed Hanlon to withdraw his representation of Martin, but Martin did not sign the form. Hanlon did not move to withdraw from representation and remained Martin's counsel of record, but did no further work on the case. Hanlon later realized that he had failed to file certain paperwork related to Martin's case, including proposed findings of fact and conclusions of law, a proposed divorce decree, and a proposed child support order. Martin's divorce therefore remained unfinalized, unbeknownst to Martin, who then remarried several months later. Martin did not discover that he remained married to his first wife until sometime in 1996, when he attempted to sell a car. Martin was forced to obtain a divorce nunc pro tunc. 2. The Rednall matter Joanne Rednall was a state employee who was injured on the job. She hired Hanlon to file a claim on her behalf in 1993. In 1996 Rednall filed a grievance against Hanlon, asserting that he had neglected her claim and failed to respond to her inquiries regarding the case. After the Alaska Bar Association contacted Hanlon regarding this matter, he sent a letter on July 12, 1996, stating: "I believe that Ms. Rednall's claims against me may be largely resolved in the settlement of her claim. I am waiting for her to return the release in exchange for a settlement amount that she agreed to." On July 26, 1996, Hanlon apparently convinced Rednall to sign and notarize a "Compromise and Release" of all of her claims for the lump sum of $1,600.00. This purported agreement stated that Ms. Rednall specifically acknowledges that she has been informed of her right to secure the assistance of counsel, by James J. Hanlon, who has fully informed her of her rights and represented Ms. Rednall's interests in negotiation of this agreement as stated above. Ms. Rednall's counsel agrees that this compromise and release agreement is a fair and equitable settlement of this claim. Neither Hanlon nor the opposing party or its counsel signed the purported agreement. On October 24, 1996, in response to a further inquiry made by the bar several weeks earlier, Hanlon wrote another letter in response. He noted Rednall's complaints, and offered a "chronology" of Rednall's claim. Hanlon claimed that it "took some time" to locate the nurse who allegedly gave Rednall the wrong vaccine, and that she admitted to fault but was judgment-proof. Hanlon conceded that "I did not pursue Ms. Rednall's claim with all the vigor that I should have, did not always keep her informed of the status of her case and didn't always return her telephone calls or do so in a timely manner." But he claimed that he "did make several efforts . over the more than two years I had this claim to resolve Ms. Rednall's claim and am glad to report that we did resolve the claim." On November 25, 1996 the bar responded to Hanlon's letters, stating that although Rednall had expressed a desire to dismiss her grievance against him, "the nature of her complaints, and your response, suggest that additional information' is necessary." The bar noted Hanlon's vague references to a "claim" and "settlement," and Rednall's belief that the state had settled with her, but stated that it had checked the relevant court records and "it appears that there was no claim" against -either the state or any of its employees. The bar voiced its "concern that you represented to [Rednall] that you had settled her case when, in fact, you furnished the funds yourself in order to prevent further action against you," and accordingly gave Hanlon twenty days to furnish his complete files on the Rednall matter, , as well as an explanation of the claim, the name of any opposing counsel, copies of any settlement checks and disbursement documents, and his final bill and fee calculation. In response to the bar's ultimatum, Han-lon's attorney furnished Hanlon's Rednall files to the bar on January 3,1997. Hanlon's attorney admitted that "[n]o case was ever filed against any party," that "[t]here was no attorney on the other side of the 'case' and no 'settlement check' was received from another source," that "[t]he Compromise and Release was prepared solely by James Han-lon," and that all funds paid to Rednall came from Hanlon. Hanlon's attorney admitted that "settlement of the case was undertaken by James Hanlon in order to avoid a claim of malpractice based on delay and to provide his client with some recovery for her claim." B. Proceedings On December 14, 2001 Bar Counsel petitioned the bar's local Area Hearing Committee ("the committee") to conduct a formal hearing on the allegations against Hanlon, and to recommend an appropriate disciplinary action to the bar's Disciplinary Board ("the board"). Hanlon submitted an answer to the bar's petition. In response to the Martin-related allegations, Hanlon admitted that he had represented Martin and failed to move for withdrawal from representation following Martin's grievance against him, but denied that Martin had believed that his divorce was final. Hanlon denied that he had acted with neglect on the Martin case, and insisted that he had no ability to, or was prohibited from concluding Martin's divorce, as it would have been "a breach of professional conduct" to "proceed on behalf of a client who had filed a grievance against him for not adequately representing his interest." Hanlon further denied that his actions or omissions caused Martin any distress, embarrassment, or inconvenience. Additionally, Hanlon argued that the Martin grievance was barred by a five-year statute of limitations under Alaska Bar Rule 18. Responding to the Rednall-related allegations, Hanlon admitted that he had represented Rednall in her personal injury claim, and that she had filed an earlier grievance against him for neglecting her claim and failing to respond to her inquiries about the claim. Hanlon also acknowledged his July 12 and October 24, 1996 letters to the bar. But Hanlon denied that they had "confirmed the validity" of Rednall's charges. Hanlon also denied the bar's claims that "he never filed any claim" on Rednall's behalf, that "[b]y the time Rednall filed her grievance, the statutory limitation periods on [Rednall's] civil claims had expired," and that Hanlon had failed to inform the bar and Rednall of either of these facts. Hanlon's denial of these charges was based on his reasoning that "there was no civil claim to be filed under the facts of this case and the Petitioner's exclusive remedy was for worker's compensation." Hanlon also insisted that "Ms. Rednall had no basis for a legal malpractice claim against him." Hanlon admitted that his October 24, 1996 letter on the Rednall matter was "designed to convince Bar Counsel that he had successfully concluded a two-year effort to resolve Rednall's injury claim." But he denied that his letter of July 12, 1996 was "designed to lead Bar Counsel to believe that he was still working on the settlement of Rednall's injury claims and only waiting for her to sign a release." Hanlon also denied that the representations in his two letters were "deceptive and false," that the $1,600 that Rednall received under the "compromise and release" was paid by Hanlon personally, that Rednall did not learn that she had not actually settled with the state until the initiation of disciplinary proceedings, and that Hanlon had "fabricated the 'compromise and release' to prevent Rednall from learning about and filing a malpractice claim against him." Hanlon claimed that the Rednall claim was barred by the statute of limitations in Bar Rule 18. Hanlon then admitted that "he did pay Red-nall $1,600 from his own pocket and did not disclose the source of such funds," but he denied that he had violated any rules of professional conduct, because "his actions did not harm Rednall," and he "then immediately informed the Bar Association of his conduct and offered to make amends." The bar moved for summary judgment on the issue of whether Hanlon had violated the specified ethics rules, and asked that the committee "move on to hear the crux of this case: the sanction." Hanlon opposed sum mary judgment, suggesting that the bar had failed to prove its claims by the requisite clear and convincing evidence. Hanlon argued that his letters to the bar did not express, or left unclear, his state of mind in concluding the Rednall matter as he did. Referring specifically to Rednall's "claim and settlement," Hanlon argued that "[t]he Hearing Committee could infer [his] words to mean that settlement of the claim in question was Mrs. Rednall's claim against Mr. Han-lon." Likewise, Hanlon argued that his intent "cannot be gleaned from letters written by his counsel." Hanlon also distinguished several previous discipline cases as having been "considered on written stipulations of the facts by the attorney and the Bar." However, several weeks later, Hanlon and the bar agreed to a "Stipulation on Background Facts, Disciplinary Violations and Controlling Law," to the committee. Hanlon admitted to negligent professional lapses in his representation of Martin and Rednall, and intentional ethical violations in responding to the bar's inquiry into the Rednall matter, and in fabricating Rednall's "settlement." Hanlon stipulated to the fact that both his July and October 1996 letters were "evasive and false" and that he fabricated the purported agreement in an attempt to avoid malpractice liability for not actively pursuing Rednall's claim. The stipulation noted that the damages resulting from Hanlon's behavior were uncertain, but that his deceptive conduct to the bar and Rednall potentially interfered with the attorney discipline process and undermined public confidence in the integrity of the legal profession. The stipulation also listed several aggravating and mitigating factors in Hanlon's ease, and concluded that the "mitigating factors outweigh aggravating factors." The only issue left unresolved by Hanlon's stipulation was the appropriate penalty. Hanlon and the bar stipulated that in light of the uncertain damages and the applicable mitigating factors, suspension rather than disbarment would be the appropriate sanction. The committee held a Sanctions Hearing on October 31, 2002, and issued a report and recommended sanction on September 4, 20,03. The. committee determined that Han-lon's negligent handling of both Martin's and Rednall's claims merited reprimand. The committee also agreed that suspension was the appropriate penalty for Hanlon's dishonest acts and statements in the Rednall ease. The committee noted that while the harm that Hanlon had caused Rednall did not amount to "serious injury or potentially serious injury," his conduct was "extremely egregious," and "undermined the attorney discipline process and caused loss of public confidence in the integrity of the legal profession." The committee pronounced itself "deeply troubled by the deceptive and dishonest conduct exhibited" by Hanlon, and noted that although Hanlon's dishonest conduct would normally result in disbarment, in light of the parties' stipulation and Alaska case law, it recommended he be suspended for three years. Hanlon appealed the committee's recommendation to the Bar's Board of Governors, arguing that the three-year suspension was excessive. The board unanimously adopted the findings, conclusions, and recommendations of the Hearing Committee. Hanlon appeals. III. STANDARD OF REVIEW We independently review the entire record in attorney disciplinary proceedings. We apply our independent judgment to questions of law and questions concerning the appropriateness of sanctions. We examine each case individually, "guided but not constrained by the American Bar Association's Standards for Imposing Lawyer Sanctions, and by the sanctions imposed in comparable disciplinary proceedings." In imposing attorney sanctions, we perform a three-step analysis: first -we address the first three prongs of the ABA Standards by determining (1) the duty violated, (2) the lawyer's mental state, and (3) the extent of the actual or potential injury. Next we examine the recommended sanction under the ABA Standards for the misconduct found in the first step. Finally, once we determine the recommended sanction, we decide whether and how the sanction should be affected by aggravating or mitigating factors. We independently review the evidence related to aggravating and mitigating circumstances, but give great weight to a disciplinary board's factual findings. IV. DISCUSSION A. Hanlon's Ethical Violations and Presumptive Punishment Are Undisputed. Hanlon has stipulated (1) that he violated Bar Rule 15(a)(3) when he supplied the bar with "misleading or deceptive" representations regarding the Rednall matter, and that he violated Alaska Rule of Professional Conduct (ARPC) 8.4(c) when he "fabricated the compromise and release to unilaterally effect 'settlement' of a possible malpractice claim against him for failing to timely pursue Red-nail's injury claims;" (2) that he acted with the intent to deceive Rednall and the bar in committing these violations; and (3) that his deceptive conduct "potentially caused interference in a legal proceeding by undermining the attorney discipline process, and actually caused loss of public confidence in the integrity of the legal profession." The committee and board agreed. The first step of the ABA sanction process is therefore not at issue. The committee also agreed with Hanlon and the bar that Hanlon's appropriate presumptive punishment is suspension under ABA Standard 6.12. This issue is undisputed, and therefore the second step of our sanction process is also not at issue. Thus, the only issue in this case is step three, the selection of an appropriate sanction in light of Hanlon's conduct and the mitigating and aggravating factors. B. The Mitigating Factors in Hanlon's Favor Do Not Outweigh the Aggravating Factors Supporting a Relatively Severe Penalty. We have noted in the past that "there is no 'magic formula' for determining how aggravating and mitigating circumstances affect an otherwise appropriate sanction." Rather, "[e]ach case presents different circumstances which must be weighed against the nature and gravity of the lawyer's misconduct." Hanlon and the bar stipulated that the mitigating circumstances of this case (the remoteness of Hanlon's one prior ethical violation, his cooperation with bar counsel, the long delay between his misdeeds and the bar inquiry, his good character and reputation, and his remorse) outweigh the aggravating circumstances (Hanlon's prior violation, his selfish motive in misleading Rednall and the bar, and his pattern of misconduct and multiple offenses). Despite this stipulation, the parties sharply disagree as to the appropriate period of suspension. Hanlon argues on appeal that the committee's discipline was too severe in light of mitigating factors such as his admission of misconduct to the bar, good character and reputation, and remorse; the harm to his career, family, and personal life that a three-year suspension is likely to cause; and relevant case law from other jurisdictions. We disagree. 1. Hanlon's "cooperation" with the bar is not a mitigating factor. American Bar Association Standard 9.32(e) allows mitigation where an attorney offers a "full and free disclosure" of wrongdoing, or exhibits a "cooperative attitude" toward the disciplinary proceedings. Han-lon's stipulation and appellate briefing suggest that despite his "initial misleading statements to the Bar," his later cooperation in the bar's disciplinary process ought to mitigate his punishment. "While cooperation and disclosure are to be strongly encouraged, not every act of that sort deserves full mitigative effect." A lawyer's admission of wrongdoing, when made only in response to an inquiry into that same wrongdoing, should not be considered a mitigating factor. We have stated that where am attorney "turned himself in only after his misconduct was discovered by his law partner," his "claim of 'voluntary disclo sure' carries little weight." If disclosure prompted by a partner's discovery of wrongdoing is not mitigative, then disclosure prompted by a bar investigation is even less so. In In re Whitt the defendant supplied false information and fabricated documents to bar investigators. The Washington Supreme Court held that "[t]he aggravating factor of providing falsified information during a disciplinary proceeding will not be mitigated because a wrongdoer makes an admission after being accused of deception," and that attorneys "should not be rewarded for 'coming clean' after lying in the disciplinary proceedings." The court explained that "[a] holding to the contrary would encourage unscrupulous attorneys to defraud the disciplinary process and, if caught, only then admit their wrongdoings." This reasoning accords with our own in Buckalew and Mann, and we find it persuasive in this case. Hanlon admitted wrongdoing only after it became clear that the bar was going to discover his earlier deceitful non-cooperation. Indeed, contrary to his assertions on appeal, Hanlon's non-cooperation with the bar was hardly only "initial," and his eventual disclosures were not "fully and freely" given. Hanlon first sent the bar the July 12, 1996 letter which deceptively referred to a "settlement" with Rednall and then sent another letter on October 24, 1996 stating that he had "resolved" Rednall's claim without disclosing the fact that he personally provided the funds for the payment to Rednall. Both letters were sent in response to bar inquiries and Hanlon attempted to mislead both the bar and Rednall for a considerable time; the October 24 letter was sent more than three months after the bar's initial inquiry and nearly three months after Hanlon convinced Rednall to sign the "settlement." Hanlon provided the Rednall file to the bar only in response to the bar's November 25, 1996 directive. Furthermore, even after submitting his Rednall file to the bar, admitting that he had never filed any case on Rednall's behalf, and admitting that he had forged the "settlement" to avoid a malpractice charge, Hanlon continued to litigate his case in an adversarial fashion. Hanlon's answer to the bar's petition denied much of his alleged wrongdoing, as well as the accompanying harm to Martin and Rednall to which he later stipulated. Hanlon's answer also falsely stated that he had "immediately informed the Bar Association of his conduct and offered to make amends." Hanlon opposed summary judgment on the wrongdoing and harm issues, and insisted that his conduct had been "fluid and open to interpretation." In light of this record, we find Hanlon's argument that he deserves mitigation for cooperating with the bar to be unpersuasive, and accordingly, hold that Hanlon's alleged cooperation with the bar is not a mitigating factor. Indeed, Hanlon's behavior in responding to the bar's inquiry triggers three aggravating factors enumerated by ABA Standard 9.22:(1) bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with rules or orders of the disciplinary agency; (2) submission of false evidence, false statements, or other deceptive practices during the disciplinary process; and (3) refusal to acknowledge the wrongful nature of his conduct. These aggravating factors could have potentially led to Hanlon's disbarment. However, for the reasons dis cussed below, we feel a sanction less than disbarment is appropriate in this case. 2. The effects of a three-year suspension on Hanlon's career, personal reputation, and family are not mitigating factors. Hanlon also argues that the disciplinary inquiry "in some ways is always personal and depends upon the particular persona of the lawyer involved," and "[wjhat the Bar Association los[t] track of in its analysis of this case is the person involved in this process." Hanlon stresses his marriage'and seven children, his ten-year solo practice, and his involvement in church and prison ministry activities. Hanlon argues that "[ejvery lawyer [ ] makes mistakes in his career," and he did so in this case "because he was a human being and he was afraid for his future and the future of his family." Hanlon insists that he is already "disgraced at home and church," and "reviled in reputation," and argues that a three-year suspension would force him "to close his office and seek a new career employment to support himself and his family," and suggests that this would be counterproductive, in the sense that "he won't ever make a mistake as a lawyer again because he won't be one." However, even assuming that a three-year suspension would effectively end Hanlon's career, that fact cannot carry the weight that Hanlon gives it. As Hanlon himself admits, "[t]he primary purpose of lawyer discipline is to protect the public." We have stated that "[i]t is the solemn duty of this court to regulate the practice of law in this state and to see that the integrity of the profession is maintained by disciplining attorneys who indulge in practices inconsistent with the high ethical standards demanded of all members of the bar." Similarly, in recommending Hanlon's suspension the committee stressed that "the interests of the public and the Bar Association will be served by this level of discipline." Neither Alaska law nor the ABA Standards regard the likely effects of a penalty on a lawyer's business, family, and personal reputation as mitigating factors. Nor should they. As the Arizona Supreme Court has suggested, if the effect of sanctions upon an attorney's practice and livelihood were considered mitigating factors, they would apply in virtually every case. While a few courts have weighed the family effects of attorney discipline as a sanction-mitigating factor, they have done so only in fairly extreme circumstances ' that are not present in this case. The general rule is that "the risk of damage to a lawyer's livelihood is a natural consequence of any disciplinary proceeding against him." And "every suspension carries with it 'pain' for the suspended attorney. This 'pain' is a necessary element of any suspension because it serves as both a general and specific deterrent to future misconduct." Thus, we hold that the potential effect of the suspension on Hanlon's practice, reputation, or personal life is not a mitigating factor. 3. The remaining mitigating factors do not require departure from the committee's recommendation of a three-year suspension. In light of our rejection of the previous proposed mitigating factors, we must determine whether the remaining mitigators are sufficient to warrant a lesser sanction than a three-year suspension. Hanlon and his character witnesses insist that his unethical conduct was aberrational and unlikely to recur, and that Hanlon feels great remorse. Hanlon's stipulation also points out that his one prior ethical violation was minor and "remote in time and circumstances." The bar does not dispute these points. A good prior record, remorsefulness, and the unlikelihood of recurring violations are undeniably factors that mitigate attorney disciplinary cases. However, the extent of this mitigation differs from ease to case; as noted earlier there is no "magic formula" for imposing disciplinary sanctions. Some cases in other jurisdictions suggest that these mitigating factors may reduce suspensions for similar unethical acts to less than three years. But in numerous other cases, courts have imposed long suspensions despite the presence of these factors, although such mitigating factors have been relied upon to reduce sanctions of disbarment to suspensions. Indeed, in Whitt, violations very similar to Hanlon's resulted in disbarment, although after the court had rejected significant mitigating factors. Because we accept the undisputed mitigating factors in Hanlon's case, we hold that the lesser sanction of a three-year suspension is sufficient and appropriate. Such a sanction is in line with our own case law given the severity of Hanlon's offense and our duty to protect the public and maintain the integrity of the legal profession. We have recognized that "even minor violations of law by a lawyer may tend to lessen public confidence in the legal profession." And we have a "duty to discipline lawyers who indulge in practices inconsistent with the high ethical standards imposed upon the legal profession in this state." These principles, together with the severity of Hanlon's misconduct and the "great weight" we give findings made by the board, support imposition of a three-year suspension in this case. V. CONCLUSION We suspend James J. Hanlon from the practice of law for three years. . In re Wiederholt, 24 P.3d 1219, 1222 (Alaska 2001). . In re Friedman, 23 P.3d 620, 625 (Alaska 2001). . Id. . Id. . Id. . Id. . Id. at 632. . Alaska Bar Rule 15(a) states in relevant part: "the following acts or omissions by a member of the Alaska Bar Association . will constitute misconduct and will be grounds for discipline .: . (3) knowing misrepresentation of any facts or circumstances surrounding a grievance." . Alaska Rule of Professional Conduct 8.4 states in relevant part: "MISCONDUCT. It is professional misconduct for a lawyer to . (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation. ' . ABA Standard 6.1 states in relevant part: Absent aggravating or mitigating circumstances, . the following sanctions are generally appropriate in cases involving conduct that is prejudicial to the administration of justice or that involves dishonesty, fraud, deceit, or misrepresentation to a court: 6.11 Disbarment is generally appropriate when a lawyer, with the intent to deceive the court, makes a false statement, submits a false document, or improperly withholds material information, and causes serious or potentially serious injury to a party, or causes a significant or potentially significant adverse effect on the legal proceeding. 6.12 Suspension is generally appropriate when a lawyer knows that false statements or documents are being submitted to the court or that material information is improperly being withheld, and takes no remedial action, and causes injury or potential injury to a party to the legal proceeding, or causes an adverse or potentially adverse effect on the legal proceeding. Hanlon made false statements and submitted false documents with an intent to deceive Red-nall and the bar, thus implicating section 6.1 l's disbarment sanction. However, Hanlon and the bar stipulated that the proper sanction was suspension under 6.12. While his deception may have caused some legal injury to Rednall and may have had an adverse impact on a legal proceeding, disbarment was not deemed to be warranted because the injury was not necessarily "serious" nor was the adverse impact necessarily "significant." . Friedman, 23 P.3d at 633 (citing In re Buckalew, 731 P.2d 48, 54 (Alaska 1986)). . Buckalew, 731 P.2d at 54. . ABA Standard 9.32 lists "[fjactors which may be considered in mitigation," including: (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; (j) delay in disciplinary proceedings; (k) imposition of other penalties or sanctions; (Z) remorse; (m) remoteness of prior offenses. . ABA Standard 9.22 lists "[fjactors which may be considered in aggravation," including: (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 of conduct; (h) vulnerability of victim; (i) substantial experience in the practice of law; (j) indifference to making restitution. . The committee recognized that disbarment is sometimes an appropriate penalty for deceiving clients or the bar. The committee concluded that suspension was the more appropriate penalty for Hanlon's Rednall conduct because the harm to Rednall did not "satisfy the definition of 'serious injury or potential serious injury' " under ABA Standards § 4.6 or 6.1. Unlike other client deception cases, Hanlon's conduct "did not include trust funds, conversion," or "a pattern of offenses," and Hanlon recognized the wrongfulness of his conduct, accepted responsibility, and experienced remorse. The committee thus recommended suspension rather than disbarment for Hanlon's actions after "considering the stipulation of counsel and the disbarment cases cited by the parties." Hanlon, by contrast, apparently presumed that only suspension was applicable to his case from the outset, and thus views a three-year suspension as relatively severe. . Buckalew, 731 P.2d at 55. . In re Morrill, 904 P.2d 395, 397 (Alaska 1995) (Rabinowitz, J., dissenting) (quoting Hearing Committee findings). . In re Buckalew, 731 P.2d at 55 (emphasis in original). Cf. In re Mann, 853 P.2d 1115, 111 9-20 & n. 12 (Alaska 1993) (imposing only three-year suspension for normally serious violation of misappropriation of client funds, where attorney "voluntarily turned himself in to the Sitka police and the Alaska Bar Association before anyone discovered his misappropriation," where in absence of such self-disclosure, attorney's crime "easily could have gone undetected."). . 149 Wash.2d 707, 72 P.3d 173 (2003). . Id. at 180. . Id. . See supra Part II.A-B. . See, e.g., In re Peartree, 180 Ariz. 518, 885 P.2d 1083, 1085 (Ariz.1994) (intentional obstruction of disciplinary proceedings aggravated unethical termination of representation of client, warranting disbarment); Florida Bar v. Weisser, 721 So.2d 1142, 1145-46 (Fla.1998) (material misrepresentations at bar disciplinary proceedings and refusal to acknowledge wrongfulness of misconduct further support disbarment for unauthorized practice of law). . In re Preston, 616 P.2d 1, 5 (Alaska 1980) (quoting Disciplinary Bd. of the Haw. Supreme Court v. Bergan, 60 Haw. 546, 592 P.2d 814, 818 (Haw.1979)); (People ex rel. MacFarlane v. Harthun, 195 Colo. 38, 581 P.2d 716, 718 (Colo.1978)); see also Buckalew, 731 P.2d at 51-52 (affirming that court has duty to maintain integrity and ethical standards of bar and adopting ABA Standards for Imposing Lawyer Sanctions). . In re Shannon, 179 Ariz. 52, 876 P.2d 548, 567 (1994). . In In re Tapper, 102 A.D.2d 332, 477 N.Y.S.2d 16 (N.Y.App.Div.1984), an attorney was suspended from practicing law for six months for falsely reporting his car was stolen even though "in many instances of false swearing the attorney is suspended for one year." Id. at 334, 477 N.Y.S.2d 16. Because of the attorney's personal problems, including his wife's lengthy illness and death, -his inability to practice for much of the past year due to his own illness, and because he was the sole provider for his deaf son and had "no viable alternative to making a living," the court held that "any lengthy suspension would result in severe deprivation." Id. The court also noted a number of other mitigating factors, including the fact that the conduct was an "isolated act of aberrant behavior" in a career marked by "activities on behalf of the community and charitable organizations," and that the attorney was entitled to recover insurance benefits similar to the benefits he would have been entitled to had his car been stolen. Id. . Ely v. Whitlock, 238 Va. 670, 385 S.E.2d.893, 896 (1989). . Shannon, 876 P.2d at 567. . But note our suggestion in In re Mann, 853 P.2d 1115, 1119-20 & n. 15 (Alaska 1993), that unprompted self-disclosure, cooperation with authorities, and public apology are telling indications of remorse. . In re Friedman, 23 P.3d 620, 633 (Alaska 2001). . See, e.g., In re Barratt, 663 N.E.2d 536, 538-41 (Ind.1996) (imposing one-year suspension on attorney who created false letter and offered false testimony to avoid discipline in another matter, considering his twenty-year practice without pri- or violations, bar activities, and expressions of remorse); In re Solarsh, 205 A.D.2d 73, 74-75, 618 N.Y.S.2d 21 (N.Y.App.Div.1994) (imposing six-month suspension for attorney who neglected two matters and then lied and submitted false documents to clients to forestall their inquiries, in light of lack of prior ethical violations, generally good reputation, complete cooperation in disciplinary process, clear remorse, lack of personal gain, heavy stresses at time of violation, and "substantial negative consequences" already incurred). . See, e.g., People v. Anderson, 817 P.2d 1035, 1037 (Colo.1991) (imposing three-year suspension for attorney's "pattern of misconduct and neglect" in representing clients despite prior record of good conduct, remorse, and cooperation with grievance committee); In re Pirro, 305 A.D.2d 22, 23-24, 759 N.Y.S.2d 527 (N.Y.App.Div.2003) (imposing three-year suspension for tax fraud, despite attorney's "previously unblemished record," "deep remorse," "excellent reputation for professionalism and altruism," full cooperation with investigation, and completion of nearly two-years of interim suspension); Office of Disciplinary Counsel v. Chung, 548 Pa. 108, 695 A.2d 405, 407-08 (1997) (imposing five-year suspension on attorney for false statements to federally insured bank, despite extensive community involvement, excellent reputation, remorse, and eight-year period since prior misdeed). . Anderson, 817 P.2d at 1037; Chung, 695 A.2d at 408. . In re Whitt, 149 Wash.2d 707, 72 P.3d 173, 175 (2003). In Whitt, the attorney failed to respond to her client's repeated telephone calls and requests that she depose certain witnesses, agreed to dismiss the client's case with prejudice without informing the client of the dismissal, allegedly submitted false information and fabricated documents in order to mislead a subsequent bar inquiry into the client's complaint, and displayed indifference towards returning $339.75 in residual funds that she owed the client. Id. at 175-6. The attorney did not cause her client "serious or potentially serious injuty," id. at 179, and admitted her falsifications when challenged by the bar. Id. at 176-77. The court rejected remorse and personal and emotional problems as mitigating factors. Id. at 181. . In cases involving worse ethical violations than those at issue here, we have imposed harsher sanctions. See In re Buckalew, 731 P.2d 48, 49 (Alaska 1987) (imposing disbarment on attorney who failed to oppose opponent's summary judgment motion, failed to inform client when unopposed motion was granted, falsely informed client that opponent had "settled" and offered false "settlement" document, and then embezzled funds from other clients' trust accounts to make fake "settlement payments" to client); In re Stump, 621 P.2d 263, 264 (Alaska 1980) (imposing five-year suspension on attorney who falsified document for use in pending litigation in which he was named as defendant, and falsely affirmed authenticity of document while under oath on three separate occasions), superseded on other grounds, Buckalew, 731 P.2d at 51. Conversely, in cases involving lesser ethical violations than those at issue here, we have imposed lighter sanctions. See In re West, 805 P.2d 351, 352-53, 359-60 (Alaska 1991) (imposing ninety-day suspension on attorney who encouraged client to forge recently deceased husband's signature on settlement offer and then notarized this signature, finding that resultant harm was minor or nonexistent and attorney acted only to further client's interests); In re Walton, 676 P.2d 1078, 1079-80, 1085-86 (Alaska 1984) (imposing eighteen-month suspension for falsifying eviden-tiary document attached to complaint, similarly done to further client's interests). . West, 805 P.2d at 355 (quoting Model Code of Prof'l Responsibility EC 1-5 (1980)). . Buckalew, 731 P.2d at 51 n. 7 (citing In re Preston, 616 P.2d 1, 4-5 (Alaska 1980)). . In re Friedman, 23 P.3d 620, 632 (Alaska 2001).

11443909

Bruce L. MURRAY, Appellant, v. STATE of Alaska, Appellee

Murray v. State

2002-09-13

No. A-7210

821

837

54 P.3d 821

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.

Bruce L. MURRAY, Appellant, v. STATE of Alaska, Appellee.

Bruce L. MURRAY, Appellant, v. STATE of Alaska, Appellee. No. A-7210. Court of Appeals of Alaska. Sept. 13, 2002. Paul E. Malin, Assistant Public Defender, Barbara K. Brink, Public Defender, Rex Lamont Butler and Dan S. Bair, Rex Lamont Butler and Associates, Anchorage, for Appellant. Marcelle K. McDannel, Assistant District Attorney, Susan A. Parkes, District Attor ney, W.H. Hawley, Jr., 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.

9886

59716

OPINION STEWART, Judge. In 1998, Bruce L. Murray was convicted of second-degree weapons misconduct for knowingly possessing a firearm during the commission of a felony drug offense. When this case was last before us, we remanded for the superior court to consider whether the State had proven a nexus between Murray's possession of a 44 magnum handgun and his commission of two felony drug offenses (possessing an ounce or more of marijuana with intent to distribute and maintaining a building for keeping or distributing controlled substances ). Murray argues that Superior Court Judge Larry D. Card erred in finding the required nexus on remand. He contends that Judge Card's decision rests on a clearly erroneous factual finding and that Judge Card applied an incorrect legal standard. We agree that the factual finding Murray attacks is clearly erroneous. We remand for reconsideration. Facts and proceedings In our previous decision, we discussed the facts of Murray's case at length. On August 13, 1997, officers responded to Murray's hotel room looking for a dead body. Although the officers did not find a body, Murray told the officers that his girlfriend, Jeannie Joy, was in possession of cocaine and was driving around town in his Chevy Blazer. When the officers stopped Joy in the Blazer, they contacted Murray, and he consented to a search of the Blazer. During the search, the officers found marijuana and a crack pipe. Murray later arrived at the scene and told the officers that he had given Joy the marijuana to sell and that he had about a quarter pound of marijuana and a handgun aft his residence. The officers obtained a search warrant for Murray's residence and found: (1) a bag containing 170.9 grams (approximately 6 ounces) of "bud" marijuana in a living room closet; (2) a gram scale and a sereening tin (used to separate "bud" from "shake") in the kitchen; (8) marijuana residue in a bedroom drawer and on the sereening tin; (4) a loaded A4 magnum handgun inside a fur-lined case in the bedside table drawer; and (5) a gun cleaning kit and boxes of ammunition in a bucket in the bedroom. The officers later found a marijuana "bud" in the handgun case. Murray was tried in a bench trial before Judge Card. In ruling that Murray committed second-degree misconduct involving a weapon, Judge Card noted: [AJt one time, a firearm anywhere near a quantity of drugs was sufficient. But the [Court] of Appeals [has] reversed that. And . it appears that there should be at least some logical relevance. And in this case, the place where the drugs were located was also the place where the firearm was located. It's not like the firearm was: here in Anchorage and the drugs were in Kenai or Denali or in the back of a car. And so there was a logical correlation, even though [Murray made] statements that there had been . a burglary . One{'s] stash of marijuana is a valuable item, and people have been known to break into homes and places where they are kept; . committing robberies, committing murders to get those drugs or ask[ing] for those or demanding those drugs and any money. So, the firearm was a necessary component. Murray appealed on several grounds, and we remanded the case so that the trial court could enter specific findings on whether a nexus existed between Murray's possession of the firearm and Murray's commission of the drug offenses. On remand, the superior court noted that its original factual findings were intended to address the nexus issue and incorporated its original findings into the remand order. The court also emphasized the following facts: The marijuana itself had been found in a closet of the same bedroom [as the gun] and Mr. Murray indicated that he had personally bought the gun to protect the home since the home had been burglarized.... [Hle was purchasing it by inference . for the safety of his marijuana, his weighing materials, and the fact that he was effectively trying to keep safe his stash of marijuana. There's no question [that] the role of the handgun is not active in that he is not actively putting the gun into play by . wearing it at the time he is conducting a drug transaction, but it's more passive in that it emboldens him to maintain his marijuana possession and the amount which he is possessing in his home. It helps make his home more secure to keep the marijuana in his possession.... The substantial amount of drugs in this instant case as well as Mr. Murray's status as a felon leads the court to believe that the nexus requirement is met beyond a reasonable doubt Discussion Before turning to the appropriate legal standard in this case, we address Murray's challenges to the superior court's factual findings on remand. We uphold a trial court's factual findings unless they are clearly erroneous. Murray first challenges the superior court's finding that both the marijuana and the firearm were located in the master bedroom. In its memorandum, the State concedes that the superior court "mistakenly mentioned that the drugs were found in Murray's bedroom closet, rather than in a living room closet." Having reviewed the trial ree-ord, we agree with the State's concession. Anchorage Police Officers Kevin Iverson and Steven Hebbe testified during the trial that they recovered the marijuana from the living room closet and that they recovered the gun from a bedside table drawer in the master bedroom. The trial court's finding that both the drugs and the firearm were located in the bedroom was clearly erroneous. Because the proximity of the firearm to the drugs is relevant to the trial court's nexus finding, we remand for reconsideration of the nexus issue. Murray also challenges the superior court's factual finding that Murray possessed approximately half a pound of marijuana instead of 170.9 grams. Although we do not believe this distinction affected the court's ultimate ruling on the nexus issue, we note for purposes of remand that the parties stipulated at trial that Murray possessed 170.9 grams, approximately six ounces, of marijuana. Turning to the nexus issue, we believe the superior court also may have applied an incorrect legal standard in finding the nexus in this case. Alaska Statute 11.61.195(a)(1) provides that a person commits the crime of second-degree misconduct involving weapons if the person knowingly "possesses a firearm during the commission of [misconduct involving a controlled substance in the first-, see-ond-, third-, or fourth-degree]." In Collins v. State, we stated that AS 11.61.195(a)(1) "requires proof of a nexus between a defendant's possession of the firearm and the defendant's commission of the felony drug offense." However, we did not define the exact contours of the required nexus. To assist the court on remand, we will provide more explicit guidance. In its brief, the State argues that there is always a sufficient nexus under AS 11.61.195(a)(1) when someone possesses drugs and a firearm in close physical proximity. Several state courts also have focused on the physical proximity of the drugs and the firearm in construing statutes similar to AS 11.61.195(a)(1). Some states assume a nexus between the firearm and the drugs if the offender was in actual possession of the firearm during the offense but require proof of a nexus if the offender only had constructive possession of the firearm during the offense. Other states require that the defendant be in actual possession of the firearm during the commission of the offense as an additional requirement or a substitute to the nexus requirement. For example, in Gardner v. State, the Delaware Supreme Court held that the elements of possessing a firearm during the commission of a felony offense were not satisfied as a matter of law because the gun was found in the bedroom, the drugs were found in the basement and living room, and the State did not introduce any evidence that the drugs seized were ever in the bedroom or that the bedroom was ever the scene of drug trafficking. Accordingly, the defendant did not actually possess the firearm "during the commission of a felony." In analyzing our nexus requirement, we note that a test based solely on physical proximity would allow convictions under AS 11.61.195(@a)(1) of those who commit a drug offense in their residence and also possess in their residence a locked antique gun, an unloaded hunting rifle, or a firearm for the general protection of the residence. We do not believe this was the intent of the legislature. Instead, we believe that, in enacting AS 11.61.195(a)(1), the legislature intended to penalize those who possess a firearm in furtherance of a drug offense. Accordingly, to establish the nexus that we required in Collins, the State must prove that the defendant's possession of the firearm aided, advanced, or furthered the commission of the drug offense. Possession of drugs and a firearm alone is insufficient for such a finding-even if the drugs and firearm were located in close physical proximity. However, while the physical proximity of a firearm to drugs, with nothing more, is insufficient to support a nexus finding, the fact-finder may consider physical proximity when determining whether the State has proven that a firearm was possessed in furtherance of a drug offense. Federal circuit courts have identified the following factors as relevant in deciding whether a firearm was possessed in furtherance of a drug offense: (1) the type of drug activity conducted, (2) the accessibility of the firearm, (8) the type of firearm, (4) whether the firearm was stolen, (5) the status of the defendant's possession (legitimate or illegal), (6) whether the firearm was loaded, (7) the proximity of the firearm to drugs or drug profits, and (8) the time and cireamstances under which the gun was found. We agree that these factors might be relevant to a nexus determination under AS 11.61.195(a)(1). However, we caution courts not to apply them in a mechanical manner. We do not intend these factors as an exhaustive list, and we only recognize them as relevant to the extent that they show the defendant's possession of the firearm aided, advanced, or furthered the commission of the drug offense. In his original findings, Judge Card concluded that the required nexus between the firearm and Murray's possession of the marijuana was established by the fact that the firearm and the drugs were located in the same house. But this, without more, is insufficient to establish the nexus. In his findings on remand, Judge Card apparently relied on the mistaken assertion that the firearm and the marijuana were located in the same bedroom when he concluded that the presence of the firearm had "embolden[ed]" Murray to engage in felony marijuana possession. In fact, the marijuana was located in another part of the house. Moreover, Murray stated that he purchased the gun for his girlfriend so that she might be protected if there was a break-in. Murray's assertion was corroborated by police testimony that, even when Murray was actively looking for the gun so that he could turn it over to the officers, he 'looked in a bucket on the floor before locating the gun in the bedside table drawer. This evidence tends to undereut any conclusion that Murray possessed the weapon with the purpose of furthering his drug felony. Many citizens of Alaska possess firearms to protect their homes. If the firearm in Murray's residence was purchased and used solely for home protection, then it would not have the required nexus to Murray's drug offense. In other words, the nexus is not proved simply because Murray's household possessions included drugs. To rule otherwise would be contrary to our conclusion in Collins that AS 11.61.195(a)(1) was not intended to punish a "cocaine user [who] also happens to be a gun owner." For these reasons, we vacate Judge Card's ruling and remand this case for reconsideration of the nexus issue. Conclusion The decision of the superior court on Murray's conviction for second-degree weapons misconduct is VACATED and the case is REMANDED for further consideration in light of this opinion. We retain jurisdiction of this case. 203 Ariz. 357 Herb ENCINAS, a married man, d/b/a Moon Valley Builders, Petitioner, v. The Honorable J. Kenneth MANGUM, Judge of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondent Judge, Aida C. Suarez, an unmarried person; Moses Shepard, an unmarried person, Real Parties in Interest. No. 1 CA-SA 01-0247. Court of Appeals of Arizona, Division 1, Department E. Jan. 17, 2002. Reconsideration Denied Feb. 20, 2002. Review Denied June 25, 2002. Petitioner brought contract action against mother. The Superior Court, Marico-pa County, No. CV 99-18701, J. Kenneth Mangum, J., ordered that non-lawyer son could ask questions and make arguments on behalf of mother. Petitioner challenged order by special action. The Court of Appeals, Lankford, J., held that trial court's order allowed an unauthorized person to practice law. Jurisdiction accepted; relief granted. 1. Appeal and Error ¢-41(1) Special action jurisdiction was appropriate to review trial court's interlocutory order allowing non-lawyer son to ask questions and make arguments on behalf of defendant mother in contract action, as issue was one of statewide importance, and petitioner had no remedy by way of appeal. 17B A.R.S. Special Actions Rules of Proc., Rule 1(a). 2. Attorney and Client ¢-11(2.1) Trial court order permitting non-lawyer son to ask questions and make arguments in court on behalf of defendant mother in contract action allowed unauthorized practice of law, and thus exceeded trial court's jurisdic- tion. 17A ARS. Sup.Ct.Rules, Rule 81(a), subd. 8. 3. Attorney and Client 6262 Non-lawyer son's actions in questioning and making arguments on behalf of defendant mother in contract action did not constitute self-representation, despite familial relationship and speculative interest as heir to mother's estate, where son was not a party. 4, Attorney and Client ¢-11(2.1) Legal assistance of defendant mother by non-lawyer son was not justified in contract action by contention that mother spoke little English and suffered from partial hearing loss. 5. Attorney and Client ¢-11(2.1) Constitutional Law ¢-305(2) Refusal to allow non-lawyer son to provide legal representation to defendant mother in contract action did not violate mother's due process right to be heard; mother had right to represent herself or hire a lawyer. U.8.C.A. Const. Amend. 14. The Eagleburger Law Group By Seot G. Teasdale, G. Gregory Eagleburger, Phoenix, Attorneys for Petitioner. Aida C. Suarez and Moses Shepard, Phoenix, In Propria Persona. OPINION LANKFORD, Judge. 11 In this special action, Petitioner Herb Encinas challenges the superior court's order allowing a non-lawyer to ask questions and make arguments on behalf of his mother. Petitioner contends this order improperly permits the unauthorized practice of law. By order, we previously accepted jurisdiction and granted relief, indicating that a decision would follow. Our decision holds that the order was improper because it is inconsistent with the supreme court's exercise of its exclusive jurisdiction over who may practice law in Arizona. [ 2 The underlying case is a contract action by Petitioner Encinas against Real Party in Real Party in Interest Interest Suarez. ENCINAS v. MANGUM Ariz. 827 Cite as 54 P.3d 826 (Ariz.App. Div. 1 2002) Shepard is Suarez's son. He responded as self-professed "Counsel for Defendant" by filing an answer and a motion to dismiss. T8 The trial court struck these pleadings sua sponte because "Mr. Shepard is not admitted to practice law in Arizona and he gains no authority to act by virtue of being the Defendant's son." In a later minute entry, however, a newly assigned trial judge allowed "Mr. Shepard to participate as her assistant, to function as her attorney in fact, to ask questions, etc." The trial judge denied Petitioner's motion for reconsideration and clarified his earlier ruling, stating that "Mr. Shepard is not Ms. Suarez's attorney but may help her in asking questions and making arguments. He may not sign doeu-ments on her behalf. He may not claim attorneys fees or any other reimbursement that a pro per cannot claim." Petitioner then filed this special action. [1] 14 Special action jurisdiction is appropriate in this case. The issue is one of statewide importance. See generally Robert B. Van Wyck & Lynda C. Shely, Unauthorized Practice of Low: Should We Just Give Up?, 35 Ariz. Att'y 22 (Jan.1999). Petitioner also has no remedy by way of appeal from this interlocutory order. See Ariz. RP. Spec. Act. 1(a). 15 The question presented is whether the court's order was improper in light of the supreme court's exercise of its exclusive jurisdiction over who may practice law in Arizona. See In re Creasy, 198 Ariz. 539, 1 7, 12 P.3d 214, 216 (2000) (discussing history of court's authority over the practice of law); Hunt v. Maricopa County Emp. Merit Sys. Comm'n, 127 Ariz. 259, 261-62, 619 P.2d 1036, 1088-39 (1980) (the supreme court's authority over the practice of law arises under article III of the Arizona Constitution). The supreme court has adopted Rule 31(a)(8), which limits the "privilege to practice" to active members of the State Bar. Ariz. R. Sup.Ct. 31(a)(8). Therefore, if the 1. For example, Shepard was permitted to address the court on Suarez's behalf at a Rule 16 pretrial conference. See Ariz. R. Civ. P. 16. 2.. Moreover, by doing so, the order may place Petitioner's counsel at risk of unethical conduct trial court authorized Shepard-who is not a member of the bar-to practice law, the court exceeded its jurisdiction. T6 The supreme court has defined the practice of law as those acts, whether performed in court or in the law office, which lawyers customarily have carried out from day to day through the centuries.... Such acts include, but are not limited to, one person assisting or advising another in the preparation of documents or writings which affect, alter, or define legal rights; the direct or indirect giving of advice relative to legal rights or liabilities; the preparation for another of matters for courts, administrative agencies and other judicial and quasi-judicial bodies and officials as well as the acts of representation of another before such a body or officer. They also include rendering to another any other advice or services which are and have been customarily given and performed from day to day in the ordinary practice of members of the legal profession, either with or without compensation. State Bar of Ariz. v. Ariz. Land Title & Trust Co., 90 Ariz. 76, 95, 366 P.2d 1, 14 (1961). [2] 17 The superior court's order allowed Shepard to practice law as defined by our supreme court. It permits Shepard to ask questions and make arguments in court on behalf of Suarez. This representation is the practice of law. We need not visit the "outer boundaries of the term" to conclude that this conduct constitutes the "practice of law." Hackin v. State, 102 Ariz. 218, 221, 427 P.2d 910, 918 (1967). "It cannot be disputed that one who represents another in court, be he an indigent or not, is, under our adversary process, going to the very core of the practice of law, a fact with which even the most uninformed persons are well aware." Id. The superior court erred by allowing an unauthorized person to practice law." by "assisting" in the unauthorized practice of law. Supreme Court Rule 42, Ethical Rule 5.5(b) provides that a lawyer shall not "assist a person who is not a member of the bar in the performance of activity that constitutes the unauthorized practice of law." The Arizona State 828 Aric. [3] %8 The real parties in interest argue that Shepard's actions constitute permissible self-representation, see Commor v. Cal-As Prop., Inc., 187 Ariz. 58, 56, 668 P.2d 896, 899 (App.1983), because he has a future interest in his mother's property. This argument lacks merit. Shepard is not a party. Neither his familial relationship nor his speculative interest as a prospective heir entitles him to represent Suarez. See Haberkorn v. Sears, Roebuck & Co., 5 Ariz.App. 897, 399, 427 P.2d 378, 380 (1967) (non-lawyer husband may not represent wife in a court of law, despite any community interest); Block v. Benifield, 1 Ariz. App. 412, 417, 408 P.2d 559, 564 (1965) (non-lawyer plaintiff could represent self but not co-plaintiff family members). [4] 19 They further argue that Suarez requires her son's assistance because she speaks little English and suffers from a partial hearing loss. First, these limitations do not require the legal assistance which the court authorized. See Lisbon v. Merino, No. 95CO067, 1997 WL 4385830, at *3 (Ohio App. Jul. 30, 1997) (discussing trial judge's ethical duty to prevent the unauthorized practice of law and upholding a ruling forbidding defendant's husband to sit with, assist or advise her during a hearing). Second, these circumstances do not necessitate assistance from Shepard. A court interpreter has been appointed in this case. The hearing loss appears to be raised for the first time in this special action. We decline to address issues not raised in the trial court. See Martin v.Super. Ct., 185 Ariz. 258, 261, 660 P.2d 859, 862 (1983). Moreover, the record indicates that Suarez has been able to respond during pretrial hearings, and the suggestion that Suarez suffers from hearing loss requiring assistance is thus not supported by the record before us. [5] 110 Finally, the real parties in interest contend that the trial court's order must be upheld to ensure Suarez's due process right to be heard. We disagree. Suarez may represent herself. Suarez may hire a lawyer. The fact that she may not be able to Bar Committee on Professional Conduct has concluded that a lawyer who negotiates or participates in arbitration with one engaged in the unauthorized practice of law violates Ethical 54 PACIFIC REPORTER, 3d SERIES afford a lawyer in this civil action does not violate due process,. See State ex rel. Corbin v. Hovatter, 144 Ariz. 480, 481, 698 P.2d 225, 226 (App.1985) (an indigent's right to appointed counsel is recognized only where the litigant may lose his physical liberty if he loses the litigation (citing Lassiter v. Dep't of Soc. Serv., 452 U.S. 18, 101 S.Ct. 2158, 68 LEd.2d 640 (1981))); In re Kory L., 194 Ariz. 215, 217-18, 979 P.2d 548, 545-46 (App. 1999) (same). {11 The court's order exceeded its jurisdiction. Accordingly, we grant relief and vacate the order. CONCURRING: JON W. THOMPSON, Presiding Judge, and DANIEL A. BARKER, Judge. 203 Ariz. 359 Barbara C. COLLETTE and Scott E. Mac-Farland, wife and husband; Holly L. Scofield, a single woman, Plaintiffs-Appellants, v. TOLLESON UNIFIED SCHOOL DISTRICT, NO. 214; Stephen Knight and Joyce Lee Knight, husband and wife; Kino Flores and Anna Flores, Defendants-Appellees. No. 1 CA-CV 01-0490. Court of Appeals of Arizona, Division 1, Department B. Sept. 12, 2002. Injured motorists brought action against school district for injuries suffered in automobile accident with student who left school in violation of its modified closed-campus pol- Rule 5.5(b). Op. Ariz. State Bar 199-07. Participation in litigation is as problematic as participation in arbitration. COLLETTE v. THE DISTRICT Ariz. 829 Cite as 54 P.3d 828 (Ariz.App. Div. 1 2002) icy and caused accident. The Superior Court, Maricopa County, Nos. CV99-019845, CV99-020434, CV99-020524, Michael J. O'Melia, J., granted summary judgment in favor of school district, and motorists appealed. The Court of Appeals, Rayes, Judge Pro Tem-pore, in a matter of first impression, held that: (1) legal relationship between district and its student did not impose a duty upon the district to control student; (2) district's modified closed-campus policy was not a duty assumed for the protection of third persons; and (8) district was not liable to injured motorists based upon student lunch-hour time schedules. Affirmed. 1. Schools ¢289.8(1) Legal relationship between school district and its student did not impose a duty upon the district to control student, who left school in violation of its modified closed-campus policy and caused automobile accident; school district had no power to restrain student from leaving campus or to control student's operation of his motor vehicle, it only had power to impose discipline after student had violated the modified closed-campus policy, and injured motorists presented no evidence that a high school student who was off campus in violation of school rules posed an unreasonable risk of harm. 2. Negligence ¢»210, 1692 A negligence action may not be maintained in the absence of a duty recognized by law, and the existence of a duty is a question of law for the court. 3. Negligence ¢=211, 214 "Duty "is a concept that arises from the recognition that relations between individuals may impose upon one person a legal obligation for the benefit of another; it is an expression of the sum total of those policy considerations that lead the law to grant protection to a particular plaintiff from a particular defendant. See publication Words and Phrases {or other judicial constructions and definitions. 4. Negligence ¢>210 Courts will find a duty, in general, if reasonable persons would recognize it and agree that it exists. 5. Negligence ¢~214 The relationship between individuals that results in a legal obligation is usually a direct one between the plaintiff and defendant. 6. Negligence ¢>213, 214 There is no requirement that a foreseeable plaintiff be personally known to the defendant for a duty to exist. 7. Negligence 6-220 There is no common law duty to control the conduct of a third person so as to prevent harm from befalling another. Restatement (Second) of Torts § 314. 8. Negligence ¢>210, 212 Knowledge of a risk of harm and the ability to take some action to ameliorate that risk do not alone impose a duty to act. Restatement (Second) of Torts § 314. 9. Schools $~89.8(1) School district's modified elosed-campus policy was not a duty assumed for the protection of third persons, and thus, district was not liable to motorists who were injured by student who left school in violation of its modified closed-campus policy and caused automobile accident, where the district's duty in promulgating and enforcing a modified closed-campus policy for its students was not voluntarily assumed, but already existed. 10. Schools $-169 High school students are not persons of dangerous propensities who are likely to cause bodily harm if not controlled. 11. Schools $169 Students are not the prisoners of the school; they are members of the community who regularly come and go among us in the activities of daily life. 12. Schools $=89.8(1) School district was not liable to motor- ists, who were infured in automobile accident by student who was allegedly hurrying back 830 Aric. to school from off-campus lunch, based upon student lunch-hour time schedules, even if such schedules were negligently imposed, because school had no duty to the injured motorists. 13. Schools $-89.8(1) Even if school owed duty to motorists who were injured in automobile accident with student who had left school in violation of its modified closed-campus policy, motorists failed to establish a breach of duty because student's sneaking off campus did not increase the ordinary risk of vehicular harm that motorists would have faced if student left campus with permission, and imposing a time limit on lunch, as done by virtually all schools and most employers, did not create an unreasonable risk of harm. Shughart Thomson Kilroy Goodwin Raup, P.C. By Brian M. Goodwin, Rudolph J. Gerber, Lori V. Berke, Phoenix, Attorneys for Appellants Collette and MacFarland. Herzog and O'Connor, P.C. By Mark O'Connor, Jody Busicky, Scottsdale, Attorneys for Appellant Scofield. Sanders & Parks, P.C. By Steven D. Leach, J. Steven Sparks, Michele L. Forney, Phoenix, Attorneys for Defendant-Appellees. OPINION RAYES, Judge Pro Tempore.* T1 This appeal stems from three consolidated actions. Barbara Collette and Scott MacFarland, wife and husband, and Holly L. Scofield ("appellants") appeal from the trial court's grant of summary judgment to defendants-appellees Tolleson Unified School District No. 214, Stephen Knight, and Kino Flores (collectively "the District"). For the reasons that follow, we affirm. * The Honorable Douglas L. Rayes, Judge Pro Tem-pore of the Court of Appeals, Division One, has been authorized to participate in this appeal by order of the Chief Justice of the Arizona Supreme Court pursuant to Arizona Constitution, Article 6, Section 31 and ARS. § 12-145 through 12-147 (1992 and Supp.2001). 54 PACIFIC REPORTER, 3d SERIES STANDARD OF REVIEW 12 Summary judgment is appropriate when there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Orme Sch. v. Reeves, 166 Ariz. 301, 305, 802 P.2d 1000, 1004 (1990). Our review of summary judgment is de novo. Great Am. Mortgage, Inc. v. Statewide Ins. Co., 189 Ariz. 128, 125, 988 P.2d 1124, 1126 (App.1997). In conducting our review, we view the facts in the light most favorable to the party against whom summary judgment was entered. Id. at 124, 938 P.2d at 1125. FACTUAL AND PROCEDURAL HISTORY 13 Appellants were injured in an automobile accident on November 19, 1998, at approximately 12:10 p.m., when the car Scofield was driving was struck by a car operated by Zachary Thomason, a student at Westview High School. Four other students were passengers in Thomason's car. The students were returning to school from Desert Sky Mail, about five miles away, where they had driven during their school lunch break. The scheduled lunch period for these students began at 11:20 a.m. and ended fifty minutes later at 12:10 p.m. T4 Westview had a modified closed-campus policy. That is, students were not to leave campus during the day without checking out and, in order to check out, needed specific parental permission. Students who violated the policy were subject to disciplinary action. Freshmen were not permitted to leave during school hours, including lunch; sophomores, juniors, and seniors with at least a 3.0 grade point average and their parents' permission were permitted to leave campus at lunch. An identification card or "lunch pass" was required to be presented by the students upon leaving and re-entering campus. The policy was intended to reward 1. Stephen Knight was the principal of Westview High School, a school within the District, and Kino Flores was the superintendent of the District. COLLETTE v. THE DISTRICT Ariz. 831 Cite as 54 P.3d 828 (Ariz.App. Div. 1 2002) students for academic achievement and good behavior. T5 Thomason did not have a lunch pass and neither did two other members of the group. After the students decided to drive to the mall for lunch, Thomason went to get his car, which was parked off campus. He proceeded to a campus entrance where a security guard was stationed. When the guard asked Thomason for his pass, he admitted he did not have one. As Thomason continued to walk on, the guard told him he could not leave. Thomason told the guard he needed some books from his car for his next class. The guard again told him he could not leave campus, and Thomason replied, "Well, I need the books, so, basically, I'm going off." The guard made no further attempt to stop Thomason, but did admonish him to come back quickly. The other members of the group left campus through an unguarded gate and joined Thomason, who drove to the mall. T 6 The students ate funch at the mall food court and then began the trip back to campus. The students gave conflicting testimony as to whether they were in a hurry to get back to class on time. Because we must view the record most favorably to appellants, we accept as true that Thomason was in a hurry. The accident happened while Thomason was driving westbound on Thomas Road when he pulled into the eastbound lane to pass other westbound vehicles. As he attempted to return to his lane of travel, he lost control of his vehicle, which then collided with Sco-field's eastbound car. The investigating officer estimated Thomason's speed prior to impact was approximately seventy-two miles per hour. T7 The District sought summary judgment, alleging a lack of duty to appellants, and the trial court agreed. Appellants timely appealed. DISCUSSION 18 Appellants contend the trial court erred by granting summary judgment, and raise two arguments on appeal. First, they claim that the District, by virtue of its modified closed-campus policy, had a duty to pro- tect the general public from the negligent driving of students who left campus. Second, they argue that the District created an unreasonable risk of harm to the motoring public by placing rigid time constraints on student lunch breaks. We first consider the duty issue. Determining the Existence of a Duty [1-4] 19 A negligence action may not be maintained in the absence of a duty recognized by law, and the existence of a duty is a question of law for the court. Markowitz v. Arizona Parks Bd., 146 Ariz. 352, 354, 706 P.2d 364, 366 (1985). "Duty" is a concept that arises from the recognition that relations between individuals may impose upon one person a legal obligation for the benefit of another. Ontiveros v. Borak, 136 Ariz. 500, 508, 667 P.2d 200, 208 (1988). It is an ex- pression of the sum total of those policy considerations that lead the law to grant protection to a particular plaintiff from a particular defendant. Id. Courts will find a duty, in general, if reasonable persons would recognize it and agree that it exists. Id. [5] "10 The relationship between individuals that results in a legal obligation is usually a direct one between the plaintiff and defendant. Id. In this case, appellants do not contend that they had any direct relationship with the District. They maintain, however, that the parties need not be connected or know each other for a duty to arise, citing Rudolph v. Arizona B.A.S.S. Federation, 182 Ariz. 622, 898 P.2d 1000 (App.1995). [6] 111 This argument misconstrues Ru-doiph. Admittedly, there is no requirement that a foreseeable plaintiff be personally known to the defendant for a duty to exist. Id. at 624, 898 P.2d at 1002. For example, when one motorist negligently injures another on a public highway, liability is obviously not dependent upon whether they know each other. Id. at 625, 898 P.2d at 1008. Their relationship begins with their joint status as motorists, which places them within the foreseeable risk of negligent driving by other motorists. The general duty of reasonable care arises from this relationship and becomes fixed when it is breached and causes damage. The result is a direct relationship 832 Aric. between tortfeasor and injured victim. Id. Rudolph applied these concepts to find that the organizer of a fishing tournament had a duty to exercise reasonable care in designing and conducting the tournament so as not to injure other users of the lake. Id. {12 In this case, the District did not directly injure appellants; they were injured by Thomason, one of the District's students. We therefore must determine whether to recognize a legal relationship between appellants and the District that gives rise to a duty. Appellants contend that the District's special relationship with Thomason imposed a duty upon the District to control Thoma-son's conduct so as to prevent injury to them under the cireamstances of this case. [7,81 13 There is no common law duty to control the conduct of a third person so as to prevent harm from befalling another. Restatement (Second) of Torts ("Restatement") § 314 (1965) Davis v. Mangelsdorf, 188 Ariz. 207, 208, 678 P.2d 951, 952 (App.1988). Knowledge of a risk of harm and the ability to take some action to ameliorate that risk do not alone impose a duty to act. Restatement § 314; see also Markowitz, 146 Ariz. at 356, 706 P.2d at 868 (no consequences for negli-genee even in light of foreseeable risk if there is no duty). 1 14 Section 315 of the Restatement provides an exception to the general rule of non-liability when "a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person's conduct." Restatement § 815 (1965); Cooke v. Berlin, 153 Ariz, 220, 224, 785 P.2d 830, 884 (App.1987), disapproved on 2. Appellants cite Grimm v. Arizona Board of Pardons & Paroles, 115 Ariz. 260, 564 P.2d 1227 (1977), for the proposition that a custodian must take affirmative measures to avoid increasing danger to third persons from the known conduct of persons under the custodian's control. Grimm, however, applied Restatement § 319 (1965) governing the duty of "those in charge of persons having dangerous propensities," that is, individuals likely to cause bodily harm to others if not controlled. Id. at 267, 564 P.2d at 1234. There is no evidence that Thomason had any dangerous propensities or that the District knew or should have known that he was likely to cause bodily harm if not controlled. 54 PACIFIC REPORTER, 3d SERIES other grounds by Dunn v. Carruth, 162 Ariz. 478, 481, 784 P.2d 684, 687 (1989). 1 15 Appellants do not argue that they had a special relationship with the District that gave them a right to the District's protection. Rather, their claim is predicated upon section 315(a) of the Restatement-the special relationship between the District and its students. Appellants ask us to find that relationship as one which imposed a duty upon the District to control Thomason and prevent him from harming them." Appellants argue, and we agree, that a school district has a statutory and common law duty to its students.} While the standard of care that must be met to fulfill that duty has been the subject of several Arizona cases, no reported Arizona case has yet considered the question raised here. T16 The only conduct of the District at issue here is the alleged negligent enforcement of its modified closed-campus policy. Nothing happened to Thomason while at school that affected his ability to drive a car. Nor was Thomason's driving part of any school activity. CJ Bishop v. State Dep't of Corrections, 172 Ariz. 472, 476, 887 P.2d 1207, 1211 ' (App.1992) (because school recruited students for youth conference, it thereby assumed a duty of care to them). The car Thomason was driving had not been provided to him by the District and the District had no reason to believe Thomason was an incompetent or dangerous driver. Tho-mason was driving on a public street with a valid driver's license for a personal purpose. 117 Plainly, the District had no power to control Thomason's actual operation of his vehicle. Appellants are really arguing that the District's duty to supervise its students 3. Arizona Revised Statutes ("A.RS.") § 15-341(A)(13), (14), and (17) (Supp.2001) requires the governing board of the school district to hold students to strict account for disorderly conduct on school property; discipline students for disorderly conduct on the way to and from school; and provide for adequate supervision over pupils in instructional and noninstructional activities. The duty of ordinary care owed by a school district and teacher to students while under their charge is recognized in Chavez v. Tolleson Elementary, 122 Ariz. 472, 475, 595 P.2d 1017, 1020 (App.1979). COLLETTE v. THE DISTRICT Ariz. 8383 Cite as 54 P.3d 828 (Ariz.App. Div. 1 2002) gave rise to a duty to appellants to keep Thomason from driving his car at the particular time this accident happened. We do not believe reasonable persons would agree that such a duty exists, and decline to impose such a duty in this case for both practical and policy reasons. 18 As a practical matter, we see no benefit in imposing a duty upon a school district concerning the conduct of students over which it has no control. The District has no power or authority to decide which students are authorized to operate motor vehicles on public highways. Nor does it have the power to prevent, revoke, or restrict a student's off-campus driving privileges, or even to prevent a student from choosing to drive without a license. The most the District can do is to impose discipline upon a student for the violation of school rules involving motor vehicles in and around campus or prohibit a student from driving a motor vehicle onto the school campus. 119 The ability to impose discipline after the fact is significantly different from the power to control a student's conduct before the fact* Once a student removes himself from school grounds, with or without permission, his decision to drive is outside the supervisory power of school officials. This court has recognized, in another context involving the control of the conduct of a minor, the futility of imposing a duty when there is no concomitant power to discharge it. Pfoff By and Through Staleup v. Iistrup, 155 Ariz. 373, 373-74, 746 P.2d 1808, 1808-04 (App. 1987) (recognizing that a non-custodial parent living 120 miles away lacked power to control his child). 120 Moreover, appellants' argument proposes an unreasonable duty on schools with potentially broad ramifications. The duty of control that appellants seek to impose hereto prevent student driving at any time that a student is supposed to be in school-could, if recognized, encompass an even broader range of potential student conduct. School districts might thereby be called upon to 4. For example, school officials are not authorized to physically restrain a high school student to prevent that student from leaving campus. ARS. § 15-843(b)(3) (Supp.2001) (physical defend their student supervision policies and actions in a variety of other contexts and settings, and all other aspects of a school's schedule could be subject to challenge. We do not believe a school district should be under a duty to anticipate and protect against such eventualities. 121 The Arizona cases relied upon by appellants that address the liability of schools and school districts are inapposite because they are based upon the undisputed duty of care or supervision owed to a student. This court has twice held, in automobile accident cases, that a school or school district does not, as a matter of law, breach the duty of student supervision by failing to have, or to enforce, a closed campus policy. Rogers By and Through Standley v. Retrum, 170 Ariz. 399, 403, 825 P.2d 20, 24 (App.1991); Tollenaar v. Chino Valley Sch. Dist., 190 Ariz. 179, 180, 945 P.2d 1810, 1811 (App. 1997). The basis for these decisions was that the students were not exposed to an unreasonable, or increased, risk of harm simply by driving during school hours as opposed to non-school hours. 22 Appellants' analogy to Rudolph is also misplaced. In that case, the organizer of a fishing tournament, as a user of the lake, was held to have a duty to design the tournament and make rules for the conduct of its members so as to avoid increasing the risk of harm to all other users of the lake. Here, the District was not a user of the highway. Thomason was not involved in any school activity in which the District made rules for use of the public highway which would affect other motorists such as appellants. Thoma-son's driving was governed by the general laws regulating the operation of a motor vehicle, which were in turn unaffected by any school rule. 123 Reported cases from other jurisdictions that have considered similar arguments for the imposition of a duty upon a school district for the negligence of a student driver have declined to find such a duty. In the» first of these, Thompson v. Ange, 88 A.D.2d force by certificated or classified school personnel is permitted only in self-defense, defense of others, and defense of property). 834 Ariz. 193, 448 N.Y.S8.2d 918, 920 (1981), the court refused to impose liability upon school authorities for the negligence of a licensed student driver while driving his own car on a public road. The student was traveling from his high school to a vocational training center, during school hours and in violation of school rules. Id. In finding no duty, the court noted that the violation of school rules did not increase the risk of an accident; indeed, the risk existed regardless of any school rule: "With or without rules, neither [the school board nor the district] has any duty to members of the driving public to keep their student . off the public highways with his automobile during school hours." Id. at 921. 124 The Indiana Court of Appeals followed Ange in Wickey v. Sparks, 642 N.E.2d 262 (Ind.Ct.App.1994). Wickey also involved an automobile accident caused by a high school student. Id. at 264. After completing morning vocational classes, students were allowed to drive to the high school for afternoon classes if they had parental permission and a valid driver's license. Id. The student handbook required safe driving and compliance with all traffic laws. Students were required to return to school by a certain time and were instructed to use a route that was deemed "safer" by school officials. Id. at 264-65. 125 Finding no duty to the motorist injured by the student's driving, the Indiana court balanced three factors: the relationship of the parties, the reasonable foreseeability of harm, and public policy. Id. at 266-68. First, the court found no legal relationship between school authorities and the general public. Id. at 266. Second, there was no evidence that a student driving during school hours created the foreseeability of increased harm to the public any more than if that student, or any other licensed driver for that matter, had been driving on the public highway at any other time for any other reason. '5. One justice specially concurred in the result to make clear that he would have ended the court's analysis with the determination that the school district's duty could not exceed a parent's duty. He would not have taken the additional step of establishing an analogy to the parent-child relationship because doing so might impose unwar- 54 PACIFIC REPORTER, 3d SERIES Id. at 267. Finally, as a matter of public policy, the court did not believe that schools should be insurers of their students' conduct or be liable for students' negligent acts away from school. Id. 126 The California Supreme Court reached a similar result in Hoff v. Vacaville Unified School District, 19 Cal 4th 925, 80 Cal.Rptr.2d 811, 968 P.2d 522, 525 (1998), in which a pedestrian was struck by a student motorist when the student, who was exiting a high school parking lot, jumped the curb with his car. The pedestrian sued the school district and advanced the same argument as appellants, that the special relationship between the school district and the student imposed upon the district a duty to exercise reasonable care to control the student so as to protect all persons who were foreseeably endangered by his conduct. Id. 80 Cal. Rptr.2d 811, 968 P.2d at 527. 127 The California Supreme Court rejected the existence of such a broad duty, finding that the district's duty to supervise students did not run to the off-campus, non-student, pedestrian. Id. 80 Cal. 811, 968 P.2d at 528-29. The court held that the relationship of the district to its student was analogous to that of a parent to a child. Thus, any duty school employees owed to off-campus students could not be greater than the duty the students' parents would owe to those same individuals, and there could be no liability when school personnel neither knew, nor reasonably should know, that a particular student had a tendency to drive recklessly. Id." 1 28 The most recent court to consider this issue was Gylten v. Swalboski, 246 F.3d 1139 (8th Cir.2001) (applying Minnesota law). In Gylten, the student, a licensed driver, had been asked to drive himself and another member of the football team to practice at another school because the usual school bus transportation was not available. Id. at 1141. The student driver had an accident en route, ranted liability in cases where district employees knew or should have known of a child's tendencies to behavior that might injure a non-student in these same circumstances. Id. For the same reasons of caution, we also decline to establish that analogy as law in this case. COLLETTE v. THE DISTRICT Aric. $35 Cite as 54 P.3d 828 (Ariz.App. Div. 1 2002) and the injured motorist sued the school district. In affirming the district court's finding that no duty existed, the appeals court cited with approval the Ange, Wickey, and Hoff cases. Id. at 1148-44. As in those cases, the court found no special relationship between the district and the non-student plaintiff. There was no evidence the district knew or should have known that the student was anything but an average licensed driver with parental permission to drive to school. There was no evidence that he had a history of careless driving, and the district did not provide the vehicle. Id. at 1144. 1 29 In each of these four cases, the nexus between student driving and a school activity or educational function was even stronger than it is in this case. The no-duty decisions of these courts reflect the unwillingness as a matter of policy to extend a school district's responsibility to persons in the position of appellants. We agree with these decisions for the reasons discussed above, and we also find, as in Ange, that imposing a duty here would extend the legal consequences "beyond a controllable degree." 448 N.Y.S.2d at 921. Accord Rodrigues v. Besser Co., 115 Ariz. 454, 460, 565 P.2d 1815, 1821 (App.1977) (recognizing that a determination as to duty involves a multitude of policy considerations and a finding of no duty means the burden of holding otherwise is too great). 1 30 We also base our decision upon another requirement for the imposition of a duty that we find lacking here and that is a finding that Thomason posed an "unreasonable" risk of harm. See Alkambra Sch. Dist. v. Superior Court (Nichols), 165 Ariz. 88, 41, 796 P.2d 470, 473 (1990) (duty requires the 6. The extent of the potential burden which appellants seek to place upon the District is best illustrated by their own expert's view of the undertaking necessary for the District to meet the standard of care before it could set a simple Iunch break policy: "undertake a comprehensive study of traffic conditions near and surrounding the campus to ascertain the impact of their modified closed campus policy on nearby traffic volumes and roadway capacities [and] . evaluate and study distances of actual student destinations during the lunch period." 7. Although we will accept for purposes of argument that the District did recognize this, we note that the record does not support so broad a exercise of care for protection against unreasonable risks of harm). Here, appellants presented no evidence that a high school student who is off campus in violation of school rules poses an unreasonable risk of harm. We hold that the legal relationship between the District and its student Thoma-son did not impose a duty upon the District to control Thomason so as to prevent him from injuring appellants under the facts of this case. Assumption of Duty [9] (131 Appellants also argue that the District's modified closed-campus policy was a duty assumed by the District for appellants' protection as described in Restatement § 324A (1965), 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 third person upon the undertaking. Appellants contend that the District "recognized that enforcement of its modified and supervised closed-campus policy was necessary for the protection of students and other motorists." " However, as discussed previ- construction. Appellants cite the deposition testimony of a representative of the District to support their argument that the District knew its policy was intended to protect the public. The excerpt quotes an assistant principal to the effect that the school practices a "good neighbor policy" towards the neighboring community whereby it attempts to provide protection to the general public against certain risks. In the excerpt quoted by appellants, the assistant principal was addressing the school's concern for student conduct that might not be that of a "good neighbor;" she was not discussing student driving. Indeed, the assistant principal clearly recognized the impossibility of the District controlling off-campus conduct and repeatedly emphasized that the Dis- 886 Ariz. 54 PACIFIC REPORTER, 3d SERIES ously, the District's "recognition" that enforcement of its student supervision policies also acted to protect the public is not, by itself, enough to impose a duty to act for the protection of the public. Markowitz 146 Ariz. at 856, 706 P.2d at 368. 132 In any case, § 324A is inapplicable here. This section operates to create a duty from a voluntary undertaking by one who otherwise has no duty to act. See Barnum v. Rural Fire Prot. Co., 24 Ariz.App. 288, 237, 587 P.2d 618, 622 (1975) (applying Restatement § 323, a related aspect of voluntary undertakings). The District's duty in promulgating and enforcing a modified closed-campus policy for its students was not voluntarily assumed, but already existing. [10,11] 133 In addition, because appellants do not argue that subsections (b) or (c) of § 324A apply in this case, a duty under § 824A could be found only if the District's failure to exercise reasonable care to keep students confined to campus at specific times increased the risk of harm from their conduct. Appellants' argument is tantamount to asking us to find that a high school student, when not at school and under the school's supervision, poses an increased risk of harm to the community as a matter of law. We see no basis for such a determination. High school students are not persons of "dangerous propensities" who are "likely to cause bodily harm" if not controlled. There is no evidence that students who sometimes break attendance rules are a danger to the public. Students are not the prisoners of the school; they are members of the community who regularly come and go among us in the activities of daily life. 34 Moreover, no necessary connection has been established here between a student who leaves campus in violation of the rules and negligent driving. No evidence was presented that a student who leaves with permission is less likely to be involved in an automobile accident than one who does not. Many students drive to and from school, to and from jobs, for errands, and for pleasure. trict's policy was to discipline only that conduct which affected the entire student body. In so doing, they expose themselves and others to the risk of motor vehicle accidents, and it cannot be said as a matter of law that student driving is qualitatively more risky during a daytime school lunch break than at any other time a student driver might be on the road. We are unwilling to hold that students outside the reach of school supervision pose an increased risk of harm to the general public. "Rush Hour" Mentality [12] 135 Appellants contend that the District's "rigid time limit" for lunch created a "rush-hour" mentality for student drivers. They claim that the District should have known that students were regularly driving to Desert Sky Mall for lunch and that not enough time was allocated for them to make such a trip safely. They further contend that the time schedule issue makes this case similar to Bishop and Rudolph. 1 36 Again, we disagree. The time schedules in both Bishop and Rudolph were relevant to whether a duty had been breached, not whether one existed. Because we hold that the District had no duty to appellants, the District cannot be liable to them based upon student Iunch-hour time schedules, even if such schedules might be "negligently" imposed. Markowitz, 146 Ariz. at 356, 706 P.2d at 368. No Breach of Duty [13] 187 Even if this court accepted appellants' argument that the District owed them a duty, summary judgment would nonetheless be appropriate. The evidence viewed most favorably to appellants fails to establish a breach of duty. Thomason's sneaking off campus did not increase the ordinary risk of vehicular harm that appellants would have faced if Thomason left campus with permission. Imposing a time limit on lunch, as done by virtually all schools and most employers, did not create an unreasonable risk of harm. This case is indistinguishable from Rogers and Tollenaar. Here, as in those 8. As discussed above in note 6, the burden appellants would have us impose on the District in determining the length of the lunch break is not reasonable. FLANDERS v. MARICOPA COUNTY Ariz. 837 Cite as 54 P.3d 837 (Ariz.App. Div. 1 2002) cases, appellants were exposed only to the ordinary risks of vehicular collision that "members of our mobile society face . whenever they are in cars." Rogers, 170 Ariz. at 408, 825 P.2d at 24. CONCLUSION T38 The judgment of the trial court is affirmed. CONCURRING: WILLIAM F. GARBARINO, Presiding Judge and EDWARD C. VOSS, Judge. . AS 11.61.195(a)(1). . See AS 11.71.040(a)(2), AS 11.71.190(b). . AS 11.71.040(a)(5). . See Murray v. State, 12 P.3d 784, 787-88 (Alaska App.2000). . AS 11.61.195(a)(1). . See Murray, 12 P.3d at 794-95; see also Collins v. State, 977 P.2d 741, 753 (Alaska App.1999). . Chilton v. State, 611 P.2d 53, 55 (Alaska 1980). . See id. . 977 P.2d 741 (Alaska App.1999). . Id. at 748, 753. . See id. at 753. . See State v. Blanchard, 776 So.2d 1165, 1173 (La.2001); Commonwealth v. Montaque, 23 S.W.3d 629, 632-33 (Ky.2000). . See Barnett v. State, 691 A.2d 614, 617-18 (Del.1997); Mack v. State, 312 A.2d 319, 322 (Del.1973); State v. Smith, 601 So.2d 263, 267 (Fla.Dist.Ct.App.1992); State v. Garza, 256 Neb. 752, 592 N.W.2d 485, 494 (1999). . 567 A.2d 404 (Del.1989). . Id. at 413-14. . Id.; Del.Code Ann. tit. 11, § 1447(a). . See United States v. Timmons, 283 F.3d 1246, 1253 (11th Cir.2002); United States v. Wahl, 290 F.3d 370, 376 (D.C.Cir.2002); United States v. Lomax, 293 F.3d 701, 705 (4th Cir.2002); United States v. Mackey, 265 F.3d 457, 462 (6th Cir.2001); United States v. Basham, 268 F.3d 1199, 1206-08 (10th Cir.2001); United States v. Ceballos-Torres, 218 F.3d 409, 414-415 (5th Cir.2000); see also State v. Blanchard, 776 So.2d 1165, 1173 (La.2001) (listing similar factors as relevant to a nexus determination). . Collins, 977 P.2d at 748, 753.

10411196

John B. FARLEIGH, Petitioner, v. MUNICIPALITY OF ANCHORAGE, Respondent; Klass KARELS, Bruce Adams, and John W. Cramer, Petitioners, v. MUNICIPALITY OF ANCHORAGE, Respondent

Farleigh v. Municipality of Anchorage

1986-11-21

Nos. S-1162, S-1183

637

641

728 P.2d 637

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.

John B. FARLEIGH, Petitioner, v. MUNICIPALITY OF ANCHORAGE, Respondent. Klass KARELS, Bruce Adams, and John W. Cramer, Petitioners, v. MUNICIPALITY OF ANCHORAGE, Respondent.

John B. FARLEIGH, Petitioner, v. MUNICIPALITY OF ANCHORAGE, Respondent. Klass KARELS, Bruce Adams, and John W. Cramer, Petitioners, v. MUNICIPALITY OF ANCHORAGE, Respondent. Nos. S-1162, S-1183. Supreme Court of Alaska. Nov. 21, 1986. Jeffrey M. Feldman, Gilmore & Feldman, Anchorage, for petitioner Farleigh. Susan Orlansky, Asst. Public Defender, and Dana Fabe, Public Defender, Anchorage, for petitioners Karels, Adams, and Cramer. Scott J. Sidell, Asst. Municipal Prosecutor, Anchorage, for respondent. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

1793

11214

OPINION RABINOWITZ, Chief Justice. Petitioners in this case were each arrested and subsequently convicted for driving while intoxicated (DWI). Petitioners each made motions to suppress the results of breathalyzer tests administered to them on the ground that the police failed to preserve a breath sample. Their cases were stayed in the district court pending the outcome of a case before the court of appeals raising the same issue. FACTS AND PROCEEDINGS. On August 6, 1982, the court of appeals issued Municipality of Anchorage v. Serrano, 649 P.2d 256, 258 (Alaska App.1982), holding that results of a breathalyzer test must be suppressed where the prosecution did not make reasonable efforts to preserve a breath sample or take other steps to allow a defendant to verify the results of the test. The court of appeals further ruled that its decision should be applied "mainly prospectively." Id. at .260. The court of appeals clarified its retroactivity holding in a subsequent opinion, applying Serrano to only three categories of cases: 1) cases formally consolidated with the cases decided in Serrano and its companion case, Cooley v. Municipality of Anchorage, 649 P.2d 251 (Alaska App.1982); 2) cases in which the trial court had already ordered suppression on or before August 6, 1982; and 3) cases in which breathalyzer tests were administered after August 6, 1982. State v. Lamb, 649 P.2d 971, 972 (Alaska App.1982) (per curiam) (reversing post-August 6, 1982 district court order which had suppressed results of breathalyzer test administered to defendant prior to August 6, 1982). Based on the court of appeals' retroactivity holding in Lamb, the district court denied petitioners' motions to suppress because their breathalyzer tests were administered prior to August 6, 1982, the trial court had not ordered suppression in their cases, and their cases had not been consolidated with Serrano or Cooley. Subsequently, petitioners each pled nolo conten-dré to DWI charges, preserving their rights to appeal the suppression issue pursuant to Cooksey v. State, 524 P.2d 1251 (Alaska 1974). Petitioners then appealed to the court of appeals, which held that they should not receive the benefit of Serrano. Farleigh v. Municipality of Anchorage, MO & J No. 903 (Court of Appeals, September 11, 1985). This court granted petitioners' subsequent petition for hearing. DISCUSSION. We conclude that the court of appeals improperly denied retroactive application of the Serrano rule to petitioners' cases. The court of appeals purported to base its holding on our decision in State v. Glass, 596 P.2d 10, 12 (Alaska 1979), to apply the rule announced therein mainly prospectively due to substantial reasonable reliance on the prior standard of law. Serrano, 649 P.2d at 260. We conclude that since the rule in Serrano is based on due process considerations which go to a defendant's right to a fair trial, it must be applied to all cases raising the suppression issue that were pending at the time the decision in Serrano was issued. In Serrano, the court of appeals held that due process required the prosecution to take reasonable steps to preserve breath samples, stating that "[t]he ability of the defendant to 'cross-examine' these tests is critical to his case and to the integrity of the criminal justice system." 649 P.2d at 259. Recently we held that due process requirements rendered the breathalyzer test results inadmissible at a driver's license revocation proceeding, absent reasonable steps by the state to preserve the breath sample or to provide some other means for defendant to independently verify the test results. Champion v. Department of Public Safety, 721 P.2d 131 (Alaska 1986). We reiterated the purposes served by this rule: As in a criminal prosecution for driving while intoxicated, the breath test is of central importance in the administrative license revocation proceeding. The ability of the defendant to evaluate these tests is critical to his ability to present his case. To deny a driver a reasonable opportunity to test the reliability and credibility of the breath test is to deny him a meaningful and fundamentally fair hearing. Id. at 133 (citations omitted). We have weighed certain criteria in determining the extent to which a new rule of law should be applied retroactively: (1) the purpose to be served by the new standards; (2) the extent of the reliance by law enforcement authorities on the old standards; and (3) the effect on the administration of justice of a retroactive application of the new standards. State v. Glass, 596 P.2d at 13, quoting Judd v. State, 482 P.2d 273, 277-78 (Alaska 1971); Lauderdale v. State, 548 P.2d 376, 383 (Alaska 1976). Review of our prior decisions indicates that the purpose to be served by the new rule is of critical importance in determining the extent to which the new rule is to be applied retroactively. In Lauderdale v. State, we held that due process required suppression of breathalyzer test results if the state did not produce the ampoules used in the test. 548 P.2d at 381. We held that this rule should apply retroactively to the named litigants and to all pending cases in which defendants had taken breathalyzer tests and had sought production of the breathalyzer ampoules. Id. at 383, 384. In reaching at this result, we pointed out that the purpose of the new rule was to afford the defendant a fair trial. Id. at 383. On the other hand, law enforcement officials had relied in good faith on the old standard and hundreds of prior drunk driving cases had been disposed of where the breathalyzer test had been used. Id. These factors weighed against broader retroactive application of the rule to all cases which had been tried and disposed of prior to the announcement of the new rule. Id. In State v. Glass, we held that the rule suppressing warrantless electronic monitoring of a conversation between a police informant and a defendant was to be applied prospectively to activity occurring on or after the date of decision. 596 P.2d at 11-12. We first analyzed the purpose criteria: A review of the decisions of the Supreme Court of the United States dealing with retroactivity questions indicates that the starting point in analysis is the purpose criterion. Where the purpose of the new rule is primarily related to the integrity of the verdict, the application thereof has generally been extended to all cases.... On the other hand, where the purpose of a new constitutional standard is not .to minimize arbitrary or unreliable fact findings, but to serve other ends, retroactive application has generally been denied. Id. at 14, quoting Rutherford v. State, 486 P.2d 946, 952-53 (Alaska 1971) (footnotes omitted). We also stated that the purpose criterion pointed "decisively away" from retroactive application since exclusion of the tape recordings served not to ensure defendants a fair trial, but rather to deter police misconduct and to preserve judicial integrity by not making courts party to invasions of constitutional rights. Id. at 13-14. Finally, in Howe v. State, 611 P.2d 16 (Alaska 1980), we reversed the defendant's conviction in view of our holding in Houston v. State, 602 P.2d 784, 795-96 (Alaska 1979), that a defendant is entitled to have his attorney present during a court-ordered psychiatric examination, even though our decision in Houston was announced subsequent to Howe's conviction. (In Howe, the defendant appealed on the ground that he was improperly denied the right to have counsel present during the examination, and the psychiatrist's testimony played a key role in his conviction). We held that Howe was entitled to retroactive application of the rule: Since the finding of Howe's guilt could have been affected by the court's ruling, the considerations which we found persuasive in denying retroactivity to our opinion in State v. Glass, 583 P.2d 872 (Alaska 1978), involving surreptitious monitoring of conversations, are not applicable. Howe, 611 P.2d at 17 n. 1 (citation omitted). These authorities indicate that where a new rule serves to ensure defendants a fair trial, it must be retroactively applied at least to any case which was not finally disposed of at the time the rule was announced, provided that the defendant raised the point in the trial court. The Serrano rule clearly serves to ensure defendants a fair trial. Consequently, since petitioners' cases were not finally disposed of at the time Serrano was announced, and since each had moved to suppress the results of his breathalyzer test on the ground that the police failed to preserve a breath sample, petitioners are entitled to receive the benefit of the Serrano decision. REVERSED. . Our holding makes it unnecessary for us to decide whether there were arrangements and understandings between the parties that would entitle petitioners to receive the benefit of the Serrano decision notwithstanding the court of appeals' holding regarding retroactivity. . We retroactively applied the new rule to the named litigant and to cases under advisement by the court at that time. 596 P.2d at 12. . We further pointed out that law enforcement officials had reasonably relied on pre-Glass law and that retroactive application of Glass would have a substantial negative effect on the administration of justice. Id. at 14-15. . We have denied broader retroactive application of a new rule going to defendant's right to a fair trial on grounds of reasonable reliance by law enforcement officials on the old rule and potential impact on the administration of justice. See Lauderdale, 548 P.2d at 383. The United States Supreme Court, however, "has regularly given complete retroactive effect to new constitutional rules whose major purpose 'is to overcome an aspect of the criminal trial that substantially impairs its truth-finding function and -so raises serious questions about the accuracy of guilty verdicts in past trials.' " United States v. Johnson, 457 U.S. 537, 544, 102 S.Ct. 2579, 2583, 73 L.Ed.2d 202, 210 (1982) (citations omitted). In so doing, the Court has applied such rules to defendants whose convictions had been finally appealed at the time the new rule was announced. E.g., Arsenault v. Massachusetts, 393 U.S. 5, 89 S.Ct. 35, 21 L.Ed.2d 5 (1968) (per curiam). Moreover, the Court has given complete retroactive effect to such rules notwithstanding "good-faith reliance by state or federal authorities on prior constitutional law or accepted practice, . [or] severe impact on the administration of justice." Williams v. United States, 401 U.S. 646, 653, 91 S.Ct. 1148, 1152, 28 L.Ed.2d 388, 395 (1971).

8976221

STATE of Alaska, DIVISION OF ELECTIONS, and Laura Glaiser, Director of the Division of Elections, Petitioners, v. Ray METCALFE, Respondent

State, Division of Elections v. Metcalfe

2005-04-15

No. S-11618

976

982

110 P.3d 976

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.

STATE of Alaska, DIVISION OF ELECTIONS, and Laura Glaiser, Director of the Division of Elections, Petitioners, v. Ray METCALFE, Respondent.

STATE of Alaska, DIVISION OF ELECTIONS, and Laura Glaiser, Director of the Division of Elections, Petitioners, v. Ray METCALFE, Respondent. No. S-11618. Supreme Court of Alaska. April 15, 2005. Jan Hart DeYoung, Assistant Attorney General, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for Appellant. Ray Metcalfe, pro se, Anchorage, Appellee. Before: BRYNER, Chief Justice, MATTHEWS, EASTAUGH, FABE, and CARPENETI, Justices.

3411

21916

OPINION CARPENETI, Justice. I. INTRODUCTION The superior court granted a preliminary injunction to a third-party political candidate based upon a claim of uneonstitutionality of state ballot access laws. The injunction compelled the State of Alaska to include, despite the candidate's noncompliance with such laws, the candidate's name and party on the November 2004 general ballot for United States Senator. We heard the state's petition for review on an expedited basis in order to provide a ruling before the final ballot printing deadline. Because there was no clear showing of probable success on the constitutional claim, we issued an expedited order reversing the superior court and thereby vacating the preliminary injunction. This opinion explains the rationale behind that order. II.FACTS AND PROCEEDINGS A political candidate seeking elected office in Alaska earns placement on a general ballot in one of two ways: (1) by submitting a nominating petition, or (2) by winning the primary election of a recognized political party. A nominating petition must contain signatures of eligible voters equal to one percent of the number of voters in the previous gubernatorial election, and it qualifies only that candidate for that given election. In contrast, the winner of the primary election of a recognized political party automatically earns that party's spot on the general ballot. A political group becomes a recognized "political party" when (1) its nominated candidate receives three percent of the vote in the prior gubernatorial election, or (2) it obtains party membership equal to three percent of the number of voters in the previous gubernatorial election. Ray Metcalfe is the chairman and founder of the Republican Moderate Party (RMP). In 1998 he obtained the necessary signatures to submit a nominating petition for his candidacy for governor. In that election, Metcalfe ran on behalf of the RMP though it was not yet a recognized political party. Metcalfe won over six percent of the vote; accordingly, the RMP earned official party status until at least the next gubernatorial election, in 2002. In the 2000 and 2002 elections, the RMP's access to the primaries enabled it to field numerous candidates for the state legislature — one of whom was elected to the state senate — and for governor. In addition to the RMP, the Republican, Democratic, Alaska Independence, Libertarian, and Green Parties were officially recognized and fielded candidates in the November 2002 gubernatorial election. The RMP's candidate in that race polled only 0.65% of the total votes cast. As a result of that performance, the state sent Metcalfe a letter on February 12, 2003, indicating that the RMP's vote result did not meet AS 15.60.010(21)'s three percent threshold for party recognition by way of earned votes. The letter also noted that the RMP's membership of 3,151 registered voters (roughly 1.36% of the votes east for governor in the 2002 election) was below the 6,945 voters (three percent of the votes cast for governor) required to secure recognition based on membership. Accordingly, the letter revoked the RMP's status and stated that re-application would be necessary. Metcalfe re-applied on June 27, 2003. However, by the July 7, 2004 deadline, the RMP's membership remained well below the requisite amount, so Metcalfe's application was not accepted. Metcalfe had also filed a notice of a nominating petition on May 24, 2004. He was told to submit the signatures of 2,329 registered voters (one percent of total votes cast for governor) by August 24 to qualify as a candidate for the general election. Met-calfe did not submit any signatures to the state. On July 13, 2004, Metcalfe filed a complaint and request for a preliminary injunction. The briefing schedule was expedited due to the impending election, and the superior court heard oral arguments on August 9. On August 13, Judge Christen held that Met-calfe had demonstrated a "probability of success on the merits" on his claim that the statutory requirements for recognition as a political party were unconstitutional. The superior court issued a preliminary injunction and ordered the state to place Metcalfe's name on the general election ballot as the RMP candidate for the U.S. Senate. The state filed a petition for review. Before the ballot printing deadline, we heard oral arguments and issued an order on September 14, reversing the superior court's order and vacating the preliminary injunction, noting that this opinion would follow. III. STANDARD OF REVIEW We review an order granting a preliminary injunction under the abuse of discretion standard. IV. DISCUSSION Metcalfe Failed To Demonstrate Probable Success on the Merits of His Constitutional Claim. The showing required to obtain a preliminary injunction depends on the nature of the threatened injury. If the plaintiff faces the danger of "irreparable harm" and if the opposing party is adequately protected, then we apply a "balance of hardships" approach in which the plaintiff "must raise 'serious' and substantial questions going to the merits of the case; that is, the issues raised cannot be 'frivolous or obviously without merit.' " If, however, the plaintiffs threatened harm is less than irreparable or if the opposing party cannot be adequately protected, then we demand of the plaintiff the heightened standard of a "clear showing of probable success on the merits." We apply the latter test in this instance. Even assuming that Metcalfe faced "irreparable injury," we see simply no way for the state's interests to be adequately protected. We have said that such protection exists where "the injury that will result from the injunction can be indemnified by a bond or where it is relatively slight in comparison to the injury which the person seeking the injunction will suffer if the injunction is not granted." Here, a preliminary injunction will prevent the state from administering an election pursuant to its own election laws. As discussed below, these laws exist to further a legitimate state goal — to require a political group to first demonstrate some political support before compelling the state to recognize it as a political party and bestow upon it the benefits concomitant with recognition. This interest cannot be guaranteed by a bond, nor is it slight when compared with Metcalfe's interests; issuance of this injunction is a zero-sum event, where one party will invariably see unmitigated harm to its interests. Accordingly, we require Metcalfe to demonstrate a clear showing of probable success on the merits. Metcalfe claims that the three percent requirement set by AS 15.60.010(21) for recognition as a political party is an unconstitutional infringement on ballot access, violating the free speech and equal protection provisions of the Alaska Constitution. We have recognized that restrictions on ballot access interfere with the rights of candidates and voters. At least two fundamental rights are implicated — the right to vote and the right to associate freely in pursuit of political beliefs. We have noted the importance of competition in the political marketplace, and that "[n]ew 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 done in the past." In light of these considerations, we review ballot access restrictions with strict scrutiny. First, we require the state to show a compelling interest in order to justify infringements of these rights. Second, we inquire into whether less restrictive alternatives would have adequately protected the asserted governmental interests. In the context of ballot access eases, strict scrutiny leaves more room for a finding of constitutionality. As the Ninth Circuit stated, "unlike other areas in which strict scrutiny has been employed, its invocation in election law eases has not preordained their outcome. In fact, the [Supreme] Court has repeatedly stressed that there is no 'litmus-paper test' for evaluating constitutional challenges to ballot-access restrictions." We also note that a duly-enacted statute is entitled to a presumption of constitutionality. Thus, the language of heightened scrutiny guides our analysis; it does not sound a death knell for the state. The seminal Alaska ballot access opinions are the Vogler cases. Those cases were in response to a similar constitutional challenge by a third-party gubernatorial candidate against then-effective ballot access laws. In Vogler I, we struck down as unconstitutional a statute that required nominating petitions to contain signatures totaling at least three percent of the total votes cast in the previous election. This figure seemed especially burdensome in light of the fact that the state had until recently required only one thousand signatures; this statutory change reflected nearly a five-fold increase on the old requirement. We suggested that a figure of one percent — roughly equivalent to the old requirement — was less burdensome, and held the three percent figure unconstitutional under the test above. The legislature subsequently placed the requirement for nominating petitions at one percent. Vogler II presented essentially the same constitutional challenge brought by Metcalfe. That challenge was based on the former version of AS 15.60.010(21), which required obtaining ten percent of the votes cast in order to be recognized. Though this court split in its rationale, we unanimously held this figure to be unconstitutional. We first noted the interests at stake in denying some political groups official recognition: diminished political capital by not being able to participate in the primary election and limited ability to raise funds under the campaign finance laws. We then noted the countervailing state interest in regulating ballot access: to require "some preliminary showing of a significant modicum of support before printing the name of a political organization's candidate on the ballot." This is an interest "in avoiding confusion, deception, and even frustration of the democratic process at the general election." We found this interest sufficiently important under the constitutional test. The plurality nevertheless struck down the law, noting that a "great majority of states" place polling requirements for parties at "5% or less" and that the state offered no explanation why Alaska's requirement should be substantially more burdensome. The legislature subsequently placed the requirement at its present level of three percent. We view this analysis — comparing Alaska's ballot-access requirements with the requirements of other states — as one reasonable way to determine whether less restrictive alternatives exist. As the state here has shown a compelling interest in requiring potential political parties to demonstrate a "significant modicum of support," as it did in the Vogler cases, we turn to the question of whether less restrictive alternatives to the current three percent barrier exist. We begin by noting the difficulty of this analysis when the statute establishes a numerical line, because it is always theoretically possible to say that a requirement of "one less" (even one less voter) is "less restrictive." But line-drawing always involves close cases at the margins, and we cannot quantify with mathematical precision where the constitutional line is to be found. We are guided by O'Callaghan v. State, which accorded deference to the legislature in making election decisions. There, we noted that the state need not put forth "a particularized showing" in defending the interests underlying its election laws: To require States to prove actual voter confusion, ballot overcrowding, or the presence of frivolous candidacies as a predicate to the imposition of reasonable ballot access restrictions would invariably lead to endless court battles over the sufficiency of the "evidence" marshalled by a State to prove the predicate. Such a requirement would necessitate that a State's political system sustain some level of damage before the legislature could take corrective action. Legislatures, we think, should be permitted to respond to potential deficiencies in the electoral process with foresight rather than reaetively, provided that the response is reasonable and does not significantly impinge on constitutionally protected rights.[ ] Thus, we paraphrase our inquiry: Did the legislature act reasonably in determining that three percent of the voters in the previous election is the lowest appropriate standard to determine that a group has a "significant modicum of support"? In light of the deference we accord to the legislature on such issues, and because the three percent figure remains in the mainstream of the practices of other states, Met-calfe has failed to demonstrate that he is entitled to a preliminary injunction based on a "clear probability of success on the merits." Nor can we discern any valid legal ground in the superior court's opinion leading to the conclusion that the legislature acted unreasonably in enacting a three percent polling requirement. The superior court, relying on Metcalfe's arguments, put forth two grounds to suggest that the legislature's requirement was unreasonable. The first focuses on the relationship between the "three percent" polling or membership requirement for political parties and the "one percent" signature requirement for individual candidates' nominating petitions. We implicitly found this latter requirement to be constitutional in Vogler I. The superior court viewed these differing levels of needed support as an unexplained "discrepancy." In other words, if one percent was sufficient to protect the state's interests vis-a-vis individual candidates, then one percent should also be sufficient to protect the state's interests vis-a-vis political parties. Although the state justified the difference by showing that the designation 'political party" carries additional ramifications beyond one-time access to a general ballot, the superior court dismissed this showing as "insufficient." We cannot agree. We find sufficient differences between the purposes and the effects of the two procedures to warrant differing showings of support. Implicit in the two Vogler opinions is the conclusion that these processes are not equivalent and that each is governed by its own inquiry — after all, we separated the inquiries into two opinions and indicated no concern that the law demanded a higher showing of support for a political party than for an individual candidate. Today we make this conclusion explicit. A nominating petition results in the placement of one candidate on one general ballot. In contrast, the recognition of a political party has lasting implications — that party, among other things, obtains increased powers under the campaign-finance laws, gains access to primary elec tions, and earns automatic placement on general election ballots (permitting it to freely field slates of candidates for several years). It seems entirely reasonable, in light of these benefits, for the state to demand more from a political party than an individual candidate. Its interests in requiring a "substantial modicum" of support are incrementally more threatened by a new recognized party than by a new individual candidate. We therefore conclude that this difference between the requirements for ballot access for individuals and parties is not a valid ground upon which to find that the legislature acted unreasonably in demanding three percent from parties. The superior court's second reason for finding the legislature's three percent requirement unreasonable was based on fairness. The court found it unfair that an "affiliated" candidate, whose party must meet the three percent threshold, faces a greater burden than an "unaffiliated" candidate, who need only submit a nominating petition that meets the one percent requirement. But the three percent requirement does not apply to an "affiliated" candidate — it applies to his or her would-be political party. If the party fails to qualify, the option of filing a nominating petition continues to be available, just as it is for an "unaffiliated" candidate. Thus, we cannot agree that "affiliated" candidates are disadvantaged when compared with "unaffiliated" candidates. Because Metcalfe failed to show that the legislature acted unreasonably in setting a three percent requirement for political party status, he failed to establish a clear probability of success on the merits of his claim. Thus, he was not entitled to a preliminary injunction. V. CONCLUSION For these reasons, we REVERSED the order of the superior court and VACATED the issuance of the preliminary injunction. . See AS 15.25.140-.200. . See AS 15.25.010-.130. . AS 15.25.160. . AS 15.25.100. . Former AS 15.60.010(21). This statute was amended by ch. 50, § 9, SLA 2004, and the change took effect on November 3, 2004. As this case involves the November 2, 2004 election, the prior version of the statute applies. . State v. Kluti Kaah Native Vill. of Copper Ctr., 831 P.2d 1270, 1272 n. 4 (Alaska 1992). . Id. at 1273 (citations omitted). . Id. at 1272 (quoting A.J. Indus., Inc. v. Alaska Pub. Serv. Comm'n, 470 P.2d 537, 540 (Alaska 1970), modified in other respects, 483 P.2d 198 (Alaska 1971)). . Because we find that the state's interests cannot be adequately protected, we need not determine the nature of the harm plaintiff stands to suffer. . State v. United Cook Inlet Drift Ass'n, 815 P.2d 378, 378-79 (Alaska 1991). . The superior court erroneously concluded that the state's interests could be adequately protected merely because the dispute could be resolved before the general election ballots were to be printed. This conclusion ignores the state's interest in the consistent administration of elections according to a considered statutory scheme. Thus, the superior court wrongly noted that the plaintiff need only prevail under the "balancing of hardships" test. It went on, however, to hold that Metcalfe would also prevail under the "probable success" test. Because we find no legal basis for this conclusion, as explained below, we reverse. . Metcalfe also argues that the recent amendment to these ballot access requirements, see ch. 50, § 9, SLA 2004 (effective date Nov. 3, 2004), is unconstitutional. Because this amendment was not effective at the time of this suit — and would not be effective until after the November election — Metcalfe was not affected by its provisions, and we decline to pass on its constitutionality. . Freedom of speech is protected by Article I, section 5 of the Alaska Constitution, which is at least as broad as the First Amendment to the United States Constitution. Mickens v. City of Kodiak, 640 P.2d 818, 820 (Alaska 1982). Equal protection is guaranteed by Article I, section 1 of the Alaska Constitution, which we have interpreted in some instances as broader than its federal counterpart. See State v. Anthony, 810 P.2d 155, 157 (Alaska 1991); State v. Erickson, 574 P.2d 1, 11-12 (Alaska 1978). Presumably because the United States Supreme Court has upheld more restrictive statutes under federal law, Jenness v. Fortson, 403 U.S. 431, 91 S.Ct. 1970, 29 L.Ed.2d 554 (1971), Metcalfe only argues infringements of rights protected by the Alaska Constitution. . Vogler v. Miller, 651 P.2d 1, 3 (Alaska 1982) (Vogler I). . Id. . Id. (quoting Williams v. Rhodes, 393 U.S. 23, 32, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968)). . See generally Sonneman v. State, 969 P.2d 632, 638 (Alaska 1998); see also Vogler I, 651 P.2d at 4. . Vogler v. Miller, 660 P.2d 1192, 1193 (Alaska 1983) (Vogler II). . Id. at 1194. . Lightfoot v. Eu, 964 F.2d 865, 869 (9th Cir.1992) (citations omitted). . State, Dep't of Revenue v. Andrade, 23 P.3d 58, 71 (Alaska 2001). . Vogler I, 651 P.2d at 6. . Id. at 2, 5. . Id. at 5-6. . See AS 15.25.160, as amended by ch. 85, § 26, SLA 1986. . Vogler II, 660 P.2d at 1193. . Id. at 1196. . Id. at 1194-95, 1196-97 (Rabinowitz, J., concurring). . Id. at 1195 (quoting Jenness v. Fortson, 403 U.S. 431, 442, 91 S.Ct. 1970, 29 L.Ed.2d 554 (1971)). . Id. . Id.; see also Vogler I, 651 P.2d at 4. . Vogler II, 660 P.2d at 1195-96. . See former AS 15.60.010(21) as amended by ch. 85, § 44, SLA 1986. . 914 P.2d 1250 (Alaska 1996). . Id. at 1254 (quoting Munro v. Socialist Workers Party, 479 U.S. 189, 195-96, 107 S.Ct. 533, 93 L.Ed.2d 499 (1986)). . Metcalfe concedes that at least twenty-two other states presently place a polling requirement at three percent or higher. Moreover, we are aware of no case from another jurisdiction holding a polling requirement for political party recognition equal to or less than three percent unconstitutional. . 651 P.2d at 5. . See AS 15.13.070. . See AS 15.25.010-.130. . See AS 15.25.100. . The superior court also noted that the legislature defined "political party" more expansively in campaign finance laws than in ballot access laws. See former AS 15.13.070. Whatever support this discrepancy might lend to Metcalfe's argument, we ignore it because the analysis is outmoded — prior to this action, the legislature eliminated this discrepancy by amending the campaign-finance laws to incorporate the ballot-access definition. See ch. 108, § 18, 19, SLA 2003 (effective Sept. 14, 2003). Thus, the RMP did not qualify as a political party under any standard in Alaska.

8976366

Fred A. BAKER, Appellant, v. STATE of Alaska, Appellee

Baker v. State

2005-04-15

No. A-7882

996

1006

110 P.3d 996

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.

Fred A. BAKER, Appellant, v. STATE of Alaska, Appellee.

Fred A. BAKER, Appellant, v. STATE of Alaska, Appellee. No. A-7882. Court of Appeals of Alaska. April 15, 2005. See also, 30 P.3d 118. Paul Malin, Assistant Public Defender, and Barbara K. Brink, Public Defender, Anchorage, for Appellant. Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for Ap-pellee. Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.

6149

37435

OPINION COATS, Chief Judge. A jury convicted Fred A. Baker of felony driving while intoxicated , felony refusal to take a breath test, driving with license revoked, and criminal mischief in the third degree. Superior Court Judge Gregory J. Moytka sentenced Baker to 11½ years' imprisonment. In his written judgment, Judge Motyka made this sentence consecutive to Baker's former sentence for felony driving while intoxicated and felony refusal to take a breath test, a sentence of 5 years of imprisonment, resulting in a composite sentence of 16½ years of imprisonment. On appeal, Baker argues that Judge Moty-ka erred in denying his motion to dismiss which was based on Criminal Rule 45, the Speedy Trial Rule. We conclude that Judge Motyka did not err in denying Baker's motion to dismiss. Baker raises several arguments about his sentence. In his most important argument, Baker argues that Judge Motyka did not, in his oral sentencing remarks, state that he was imposing the sentence consecutively to Baker's former sentence. He argues that we should hold that Judge Motyka therefore imposed the sentence to be served concurrently with his former sentence, resulting in a composite sentence of 11½ years of imprisonment. We agree with Baker for the reasons explained in this opinion. Baker also argues that .Judge Motyka made several errors in imposing his sentence and that his sentence is excessive. We conclude that Judge Motyka made errors in imposing the sentence. We therefore remand the case to allow Judge Motyka to reconsider the sentence. Factual background On May 4, 1999, Anchorage Police Officer Richard Steiding observed Fred A. Baker driving erratically. Baker stopped abruptly at 13th Avenue, proceeded through the parking lot of the Carrs supermarket at the speed of 15-20 miles per hour, cut across the parking lot, and drove down the sidewalk, traveling eastbound on 13th Avenue. Officer Steiding pursued Baker and located the vehicle parked in the Carrs parking lot, parked in front of a "No Parking" sign. Anchorage Police Officer Joel Breiner arrived to assist and subsequently arrested Baker. Officer Breiner transported Baker to a police substation for processing. - Baker twice refused to take a breath test. Baker asked for an independent test and was transported to Alaska Regional Hospital, where he insisted on'having only a urine test. Baker's urine tested positive for alcohol, cocaine and marijuana. While he was being taken to the magistrate for a bail hearing, Baker began growling and biting the backseat of the officer's patrol car. The officers restrained Baker, but he remained combative despite the restraints. Baker was indicted on one count each of felony driving while intoxicated and felony refusal to submit to a chemical test. He was also charged with driving while license revoked, and third-degree criminal mischief. A jury convicted Baker of all the charges. Judge Motyka did not err in denying Baker's Criminal Rule U5 motion to dismiss Baker's motion to dismiss turns on the events of October 11 and 12,1999. On October 11, 1999, Baker appeared at a trial call before District Court Judge Natalie K. Finn. Baker's counsel told the court that she would be unavailable for trial October 13 through October 26. The prosecutor informed the court that the State had witnesses who would be unavailable from October 6 through 18 and October 21 through December 5. Judge Finn concluded that the parties would be unavailable until December 6, and started to set a trial call on that date. But Baker interjected and stated that he did not agree to a continuance. He stated that he wanted to go to trial immediately. Baker's attorney told the court that she had explained to Baker that if he wanted to have another attorney represent him on short notice, he could go to trial the next day. Judge Finn explained to Baker that the State was ready for trial and he was not. She explained that he could start his trial the next day with a new attorney who was unfamiliar with his case, or he could move for a continuance — which would toll Rule 45 until December 6. Judge Finn told Baker he should discuss his options with his attorney. After discussing the matter with, his attorney, Baker stated that he was not willing to agree to waive any additional time under Criminal Rule 45. He asked to go to trial immediately.- After some discussion, Judge Finn stated that the parties could pick a jury on October 15 (a Friday) and present evidence on October 19 and 20. She entered an order setting trial for October 15. Baker's attorney explained that she had never been in this position before and would talk to the supervising attorneys in her office about how to handle Baker's case. She explained that having a client go to trial on such short notice with a different attorney was not a normal procedure. Apparently that same afternoon, presiding Superior Court Judge Elaine M. Andrews issued an order setting trial in Baker's case for October 12, 1999. The parties received notice on October 11 by telephone. The next day, Baker's attorney filed a notice with the court that she would be unavailable from October 13, 1999 through October 26, 1999. The State responded with the dates when its witnesses would be unavailable. Judge Andrews recalculated Criminal Rule 45, and set trial for December 7, 1999. Baker, now represented by a new attorney, filed a motion to dismiss under Criminal Rule 45 on that date. Baker waived time from that date to allow the motion to be decided and to allow the matter to be reset for trial if necessary. Judge Motyka denied Baker's motion to dismiss and Baker was convicted in a jury trial. In rejecting Baker's Criminal Rule 45 motion to dismiss, Judge Motyka found that Baker's attorney had moved for a continuance from October 13 through October 26. He found that because the attorney had moved for this continuance, the State was put in a position of having its witnesses unavailable through December 5, 1999. He found that because of Baker's counsel's unavailability that Rule 45 was tolled from October 13 through December 5, 1999. Baker's contention on appeal is that Judge Motyka erred in making this finding. To understand Baker's argument, we first turn to the wording of Criminal Rule 45(d)(2) which excludes from Criminal Rule 45 "[t]he period of delay resulting from . [a] continuance granted at the timely request or with the consent of the defendant and the defendant's counsel." Baker reads the rule to mean that his attorney could not consent to a continuance which would exclude time under Criminal Rule 45 unless Baker also consented to the continuance. Baker relies on our decision in State v. Jeske. stated: In Jeske, we When defense counsel has requested or consented to a continuance, a judge setting the date for the defendant's trial is entitled to rely upon the fact that [Criminal Rule 45] is tolled during that continuance, at least until the judge is affirmatively apprised of the defendant's objection to the continuance. Once it is clear that the defendant has not consented and will not consent to the continuance, Rule 45(d)(2) directs the trial judge to restart the Rule 45 clock.[ ] Baker argues that in the October 11 hearing he made it clear that he would not agree to a continuance under Criminal Rule 45. He argues that it was therefore clear that when his attorney informed the court that she would be unavailable from October 13 to 26 in response to Judge Andrews' order setting his trial for October 12, that he did not agree to a continuance. Baker argues that since he did not consent to a continuance, none of the period of delay which resulted from the continuance should have been excluded from calculating Criminal Rule 45. He therefore argues that he was not brought to trial within the time period authorized by Criminal Rule 45 and his case should therefore be dismissed. One problem with Baker's argument is that he relies on the language in Jeske v. State, where we state that "[o]nce it is clear that the defendant has not consented and will not consent to the continuance, Rule 45(d)(2) directs the trial judge to restart the Rule 45 clock." Baker assumes that Jeske holds that Criminal Rule 45(d)(2) requires the defendant to consent to any continuance requested by defense counsel. But this reading of Jeske overlooks Footnote 1 in that case. In Footnote 1, we specifically declined to resolve whether Criminal Rule 45(d)(2) requires the consent of both the attorney and the defendant to exclude delay caused by a continuance. We stated that we would only "assume, for purposes of deciding this ease, that Rule 45(d)(2) requires the defendant's consent to any continuance requested by defense counsel." And we again conclude that it is unnecessary to decide whether Baker needed to consent to the continuance to resolve the present case. Even if we assume that Baker had to consent to any continuance before the period of delay resulting from the continuance could be excluded under Criminal Rule 45, in Jeske we pointed out that "this court and the Alaska Supreme Court have repeatedly stated that the trial court can rely on a defense attorney's request for a continuance and need not seek a separate, personal consent from the defendant unless the defendant affirmatively objects to the defense attorney's action." Therefore Judge Andrews was authorized to rely on Baker's attorney's notice of unavailability as a representation that the attorney still represented Baker and that the attorney (and Baker) needed a continuance because Baker's attorney would not be available for the trial date which Judge Andrews had set. Baker attempts to distinguish Jeske by pointing out that in the -October 11 hearing he asked for an immediate trial. But Baker had asked for. an immediate trial based upon his attorney's representation that she believed that she could get another attorney to represent Baker on extremely short notice. In context, whether she would be able to do this seems highly questionable. She would be asking another attorney in her office, who was unfamiliar with the case, to take over a felony-level trial on one-day's notice. In court, Baker's attorney did not appear to know which attorney might take over the case. She acknowledged that this was an unusual situation and she would have to consult with her supervisors to determine how to proceed. Under these circumstances, it would not be surprising if Baker's attorney was unable to get another attorney to take over Baker's case on short notice and Baker would have to agree to a continuance. Therefore, even if we assume that Judge Andrews was aware of or should have been aware of Baker's objection to the continuance on October 11, she was entitled to rely on Baker's counsel's later request for a continuance. And Baker has not shown that he did anything subsequent to his counsel's filing for a continuance to bring to Judge Andrews' attention that he had any objection to the continuance. Therefore, Judge Motyka's finding that the time which resulted from Baker's motion for a continuance resulted in the period of delay from October 13, 1999 through December 5, 1999 is supported by the record and supports his conclusion that Criminal Rule 45 was not violated. We accordingly affirm Judge Mo-tyka's decision denying Baker's Criminal Rule 45 motion. Sentencing issues Baker raises several issues concerning his composite sentence. Baker's composite sentence resulted from two incidents where Baker drove while intoxicated. The Kenai Case On April 5,1999, motorists reported seeing Baker drive through a red light, over curbs, and in excess of 80 miles per hour. Soldot-na Police Officer Joseph Shoemaker saw Baker lose control of his car just before he stopped him. Shoemaker concluded that Baker was intoxicated and arrested him. At the police station, Baker yelled and screamed while the officer read the implied consent warning. Baker refused to submit to a breath test. On the way to a correctional facility, Baker managed to release his safety belt and to bring his handcuffed hands in front of him. He cursed at Officer Shoemaker and threatened the officer and his family. Baker was ultimately convicted for felony driving while intoxicated and felony refusal to submit to a breath test. Both offenses are class C felonies. Baker was a third felony offender for purposes of presumptive sentencing. Superior Court Judge Jonathan H. Link initially sentenced Baker to the 3-year presumptive term for each offense. Judge Link concluded that AS 28.35.032(p)(5) required him to impose the sentence for the breath test refusal consecutively to the driving while intoxicated sentence. He therefore sentenced Baker to consecutive 3-year terms, a composite sentence of 6 years of imprisonment. Baker appealed his sentence to this court. In Baker v. State, we concluded that AS 28.35.032(p)(5) required only the mandatory minimum sentence for breath test refusal to be imposed consecutively (in Baker's case 120 days). We therefore remanded the case to Judge Link for resentencing. By the time of resentencing, Judge Link was aware of the facts and the sentence in Baker's Anchorage case. Judge Link found that Baker was a worst offender, pointing out that Baker had been convicted of approximately 19 or 20 prior misdemeanors. Judge Link imposed a composite sentence of 5 years of imprisonment. He imposed the two 3-year presumptive sentences and made 2 years of the refusal to take the chemical test conviction consecutive to the driving while intoxicated conviction. Judge Link specifically refused to make this sentence concurrent to the Anchorage sentence. He stated that any adjustment would have to come from an adjustment to the Anchorage sentence. The Anchorage case Baker was arrested on the Kenai case on April 5, 1999. He was released on bond on April 16. He was arrested on the Anchorage case on May 4. We have previously discussed the facts of this case. A jury convicted Baker of felony driving while intoxicated, a class C felony; refusal to take a chemical test, a class C felony; driving with license revoked, a class A misdemeanor; and criminal mischief in the third degree, a class A misdemeanor. Baker was a third-felony offender for purposes of presumptive sentencing, and therefore faced a presumptive term of 3 years of imprisonment on each of the two class C felonies. Baker's prior criminal record Baker was 37 years old at the time he committed the Anchorage offenses. Baker's first felony conviction took place in 1981 when he was 19 years old. He was convicted of possession of marijuana for sale and sentenced to 120 days in jail. In the 1980s, Baker accumulated approximately 12 misdemeanor offenses. Most of these offenses are for driving without an operator's license or for driving while his license was suspended. In 1990, Baker was convicted of his second felony offense, making a false statement on a title application. Baker was sentenced to 1 year suspended and placed on 3 years' probation. But his probation was revoked in 1992 and Baker was ordered to serve 1 year of imprisonment. In September 1991, Baker was convicted of misconduct involving a weapon in the first degree, then a class C felony. He was sentenced to 3 years with 1 year suspended. In 1997, Baker committed his first driving while intoxicated offense. In this ease, Baker was involved in a motor vehicle collision. Less than a month later, Baker was convicted of his second driving while intoxicated offense and for driving while his license was suspended. Two months later, Baker again drove while his license was suspended. Baker's Kenai offenses occurred April 5, 1999 and his Anchorage offenses occurred less than 30 days after. Sentencing on the Anchorage case The State gave notice of several aggravating factors: that Baker had previously been convicted of a more serious class of felony offense, that Baker had three or more prior felony convictions, that Baker's conduct in the driving while intoxicated offense was among the most serious conduct included in the definition of the offense, that Baker was on release on another felony charge, and that Baker had a prior history of similar offenses. Baker only contested the most serious conduct aggravator. But Judge Mo-tyka found all five aggravating factors. In sentencing Baker, Judge Motyka considered Baker's prior criminal history. He concluded that Baker was a worst offender with poor prospects for rehabilitation. He pointed out that Baker had consistently failed on probation. He considered Baker's actions and his sentence at that time (6 years). He pointed out, at the time that Baker committed the Anchorage offenses, he had just been released on felony driving while intoxicated and refusal charges knowing that he faced a substantial sentence in the Kenai case. Yet he had committed similar offenses in Anchorage. He concluded that this sequence of events showed that Baker was completely out of control. Judge Motyka imposed a sentence of 5 years for felony .driving while intoxicated, 5 years for felony refusal to take the chemical test, 1 year for license revoked and 6 months for criminal mischief in the third degree. Judge Motyka imposed these sentences consecutively to each other for a composite sentence on the Anchorage case of 11½ years of imprisonment. Why we conclude that, as a matter of laiv, Baker's Anchorage sentence is concurrent with his Kenai sentence In his "written judgment in the Anchorage case, Judge Motyka expressly provided that Baker's sentence of 11½ years of imprisonment was to be served consecutively to the sentence in the Kenai case. Since the Kenai sentence, after Judge Link revised it, totaled 5 years of imprisonment, this would result in Baker receiving a composite sentence of 1'6½ years of imprisonment. But Baker argues that Judge Motyka never stated that the Anchorage sentence would be served consecutively to the Kenai sentence in his oral sentencing remarks. Baker points out that the Alaska Supreme Court and this court have repeatedly held that a judge's oral sentencing remarks control over any conflicting provision in the written judgment. Baker contends that because Judge Motyka did not explicitly state during his sentencing remarks whether he intended to impose the Anchorage sentence consecutively or concurrently to the Kenai sentence, the sentences are concurrent as a matter of law. Baker relies on Griffith v. State. In its brief, the State does not appear to challenge Baker's legal conclusions. Rather, the State asserts that Judge Motyka's sentencing remarks establish "a clear intent to impose the more severe sentence reflected in the written judgment." The State argues that Judge Motyka emphasized that Baker's Anchorage offenses were distinct from the Kenai offenses and that the Anchorage case had to be viewed "on its own merits." The State points out that Judge Motyka rejected Baker's suggestion that the Kenai sentence was a sufficient punishment for both cases. The State also points out that Judge Motyka specifically referred to the fact that Baker committed the Anchorage offenses while he was out on bail on the Kenai case and concluded that Baker was undeterable. Until 1982, AS 12.55.025(e) provided that if "the [sentencing] court does not specify, the [defendant's] sentences of imprisonment shall run concurrently." But in 1982, the legislature amended AS 12.55.025(e). We interpreted this amended statute to express a legislative preference for consecutive sentences. (AS 12.55.025(e) was repealed by the legislature in 2004. But AS 12.55.025(e) was in effect when Baker committed his crime and was sentenced. We therefore decide the ease under the statute which was in effect at that time.) In Griffith v. State, we construed the 1982 version of AS 12.55.025(e). In Griffith, the State pointed out that the former statute created a presumption in favor of concurrent sentences, and that this presumption no longer existed under the 1982 revision. But we concluded that despite the altered presumption, "in those situations where the sentencing judge has discretion to impose concurrent sentences he should make findings to justify the imposition of a consecutive sentence." It appears that Griffith is the only published case where we have addressed the findings which a court had to make in order to impose consecutive sentences under the 1982 version of AS 12.55.025(e). And in Griffith, we stated that the trial judge had to make findings which justified the consecutive sentence. Therefore the Griffith decision retained the rule that a sentencing judge must specify that a sentence is consecutive in order to impose a sentence consecutively. In this appeal, as we have pointed out, the State has not argued for a different rule. Rather, the State has argued that Judge Motyka's sentencing remarks clearly establish his intent to impose his sentence consecutively to the Kenai sentence. But we see Judge Motyka's sentencing remarks as, at best, ambiguous. Judge Motyka certainly stated that he saw Baker's Anchorage offense as distinct from the Kenai offense and rejected Baker's suggestions that the Kenai sentence was sufficient punishment for both cases. But Judge Motyka imposed a sentence of 11½ years of imprisonment. This was a sentence substantially greater than the Kenai sentence (which at that time was 6 years of imprisonment). Had Judge Motyka imposed a sentence of 5 or 6 years of imprisonment, the State would have a stronger argument that his sentencing remarks demonstrated his intent to impose the Anchorage sentence consecutively to the Kenai sentence. Judge Motyka clearly set out his intent to punish Baker separately for the Anchorage' case. But Judge Motyka imposed a sentence of 11⅜ years of imprisonment for the Anchorage case — a sentence which, even when imposed concurrently, represented substantial additional punishment for the Anchorage case. Judge Motyka's sentencing remarks are, therefore, consistent with imposing a concurrent sentence in the Anchorage case. In interpreting Judge Motyka's sentencing remarks, we also note that a composite term of 16½ years of imprisonment would make Baker's sentence comparable to the sentences imposed in serious drunk driving homicide cases. Yet Judge Motyka gave no indication he considered Baker's offenses as comparable in seriousness to vehicular homicide. Consequently, we conclude that it is reasonable to. interpret Judge Motyka's remarks as imposing a sentence of 11½ years to be served concurrently with the Kenai sentence. Because we interpret Judge Motyka's sentencing remarks as imposing Baker's Anchorage sentence concurrent to the Kenai sentence, Judge Motyka had no authority, in the written judgment, to increase Baker's sentence by imposing the sentence consecutively to the Kenai sentence. Such a modification would constitute an illegal increase in Baker's sentence and violate Baker's double jeopardy rights. Therefore, Judge Moty-ka's oral sentencing remarks in which he imposed the Anchorage sentence concurrent with the Kenai sentence are controlling. Judge Motyka did not err in finding that Baker's conduct ivas among the most serious conduct included in the definition of Baker's driving while intoxicated offense. Baker contends that Judge Motyka erred in finding the aggravating factor that Baker's conduct was among the most serious conduct included in the definition of the offense of driving while intoxicated. In concluding that the State had met the burden of proving this aggravator by clear and convincing evidence, Judge Motyka found that Baker had a high blood alcohol level and that the evidence showed that Baker was also under the influence of cocaine. He pointed out that Baker drove on the sidewalk and could have easily injured or killed any number of people with his actions. Judge Motyka's findings are supported by the record. Judge Motyka erred in finding that Baker had 'previously been convicted of a more serious felony On appeal, Baker contends that Judge Mo-tyka erred in finding that Baker had previously been convicted of a more serious felony. Baker did not raise this contention in the trial court, but on appeal the State concedes that Judge Motyka erred in making this finding. We accept the State's concession. Baker's former conviction for weapons misconduct was a class C felony, the same as his current convictions for felony driving while intoxicated and felony refusal to take a breath test. Judge Motyka erred in concluding that he was required by law to impose Baker's 3-year presumptive sentence for felony refusal to take a breath test consecutively to the sentence for felony driving while intoxicated Baker contends that Judge Motyka erred in concluding that he was required to impose a minimum of two consecutive 3-year presumptive sentences. Judge Motyka made his decision before we issued our decision in Baker v. State where we concluded that AS 28.35.032(p)(5) required only the mandatory minimum sentence for breath test refusal to be imposed consecutively. We therefore conclude that Judge Motyka erred in imposing his sentence under the assumption that he was required to impose a minimum of six years of imprisonment. We remand the case to Judge Motyka to reconsider his sentence Because we have found that Judge Motyka erred in finding the aggravating factor that Baker had previously been convicted of a more serious felony and that he erred in concluding that he was required by law to impose a minimum sentence of 6 years of imprisonment, we remand the case to allow Judge Motyka to reconsider his sentence. We have concluded that we should not address Baker's claim that his sentence is excessive at this time. On remand, in deciding an appropriate sentence to impose, Judge Motyka should consider Baker's offenses in relation to sentences which defendants have received for other similar offenses. Conclusion We conclude that the trial judge did not err in denying Baker's motion to dismiss under Criminal Rule 45. We conclude that we must interpret the trial court's sentencing remarks as imposing Baker's Anchorage sentence concurrently with his Kenai sentence. In light of our conclusion that the trial court committed error in imposing Baker's sentence, we remand the sentence to allow the trial court to reconsider its sentence. The conviction is AFFIRMED. The sentence is VACATED and this case is remanded to the superior court for resentencing in conformity with this opinion. MANNHEIMER, Judge, concurring. . AS 28.35.030(a)(1), (n). . AS 28.35.032(a), (p). . AS 28.15.291(a). . AS 11.46.484(a)(1). . 823 P.2d 6 (Alaska App.1991). . Id. at 9. . Id. . Id. at 8 (citations omitted). . Baker v. State, Memorandum Opinion and Judgment No. 4702 at 2 (Alaska App. May 7, 2003), 2003 WL 21019346 at *1. . Id. at 2, 2003 WL 21019346 at * 1. . AS 28.35.030(a)(1) or (2), (n); AS 28.35.032(a), (p). . 30 P.3d 118 (Alaska App.2001). . Id. at 120. . AS 12.55.155(c)(7). . AS 12.55.155(c)(15). . AS 12.55.155(c)(10). . AS 12.55.155(c)(12). . AS 12.55.155(c)(21). . Graybill v. State, 822 P.2d 1386, 1388 (Alaska App.1991); Figueroa v. State, 689 P.2d 512, 514 (Alaska App.1984); Whittlesey v. State, 626 P.2d 1066, 1067-68 (Alaska 1980). . 675 P.2d 662, 664 (Alaska App.1984), overruled on other grounds, State v. Andrews, 707 P.2d 900 (Alaska App.1985), affirmed 723 P.2d 85 (Alaska 1986). . Quoted in Andrews, 707 P.2d at 906 n. 8. . See ch. 143, § 1, SLA 1982. . Andrews, 707 P.2d at 910. . Ch. 125, § 7, SLA 2004. . 675 P.2d at 664. See also Wells v. State, 706 P.2d 711 (Alaska App.1985). . Id. . See Puzewicz v. State, 856 P.2d 1178 (Alaska App.1993) (Puzewicz had a record of driving while intoxicated convictions and had failed at attempts at alcohol treatment. We upheld a sentence of 18 years with 5 years suspended for two counts of second degree murder.); Pusich v. State, 907 P.2d 29 (Alaska App.1995) (The defendant was convicted of one count of manslaughter and one count of first-degree assault for killing three people and seriously injuring a fourth. Pu-sich had an extensive history of driving while intoxicated with extreme recklessness. We upheld a sentence of 25 years with 7 years suspended.) . U.S. Const, amend. V; Alaska Const, art. I § 9. . AS 12.55.155(c)(7). . Marks v. State, 496 P.2d 66, 67 (Alaska 1972). . 30 P.3d 118. . AS 12.55.005(1); Williams v. State, 809 P.2d 931, 935 (Alaska App.1991).

10565948

Robert R. SMALLEY et al., Appellants, v. JUNEAU CLINIC BUILDING CORPORATION, Appellee; JUNEAU CLINIC BUILDING CORPORATION, Cross-Appellant, v. Robert R. SMALLEY et al., Cross-Appellees

Smalley v. Juneau Clinic Building Corp.

1972-02-14

Nos. 1310, 1311

1296

1306

493 P.2d 1296

493

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:27:45.297490+00:00

CAP

Before BONEY, C. J., and RABIN-OWITZ and ERWIN, JJ.

Robert R. SMALLEY et al., Appellants, v. JUNEAU CLINIC BUILDING CORPORATION, Appellee. JUNEAU CLINIC BUILDING CORPORATION, Cross-Appellant, v. Robert R. SMALLEY et al., Cross-Appellees.

Robert R. SMALLEY et al., Appellants, v. JUNEAU CLINIC BUILDING CORPORATION, Appellee. JUNEAU CLINIC BUILDING CORPORATION, Cross-Appellant, v. Robert R. SMALLEY et al., Cross-Appellees. Nos. 1310, 1311. Supreme Court of Alaska. Feb. 14, 1972. R. J. Annis, Juneau, for appellants Hansen and Smalley. Michael M. Holmes, Faulkner, Banfield, Boochever & Doogan, Juneau, for Juneau Clinic Bldg. Corp.. Allan A. Engstrom, Davidson, Engstrom & Evans, Juneau, for Nola Gibson. Before BONEY, C. J., and RABIN-OWITZ and ERWIN, JJ.

5618

34806

OPINION RABINOWITZ, Justice. These appeals arise out of a fairly complex factual setting involving the leasing by a closely held corporation of a building to a medical partnership which at the inception of the lease was composed of the majority of the shareholders of the lessor corporation. In 1957 the Juneau Clinic Building Corporation built a single story concrete medical building, containing approximately 7,100 square feet of useable space, in downtown Juneau. The corporation conducted no business other than that related to the ownership and rental of this building. On August 1, 1960, the corporation and the Juneau Clinic, a medical partnership composed of Doctors C. C. Carter, William M. Whitehead, and Jack W. Gibson, entered into a 10-year lease agreement. The lease was in writing and was signed by the parties. However, it was not acknowledged. Rent, in the amount of $3,800 was to be paid monthly. In November 1967, the corporation sued Doctors Robert R. Smalley, Peter O. Hansen, and the estate of Doctor Gibson for nonpayment of rent under the lease. The pertinent facts which preceded the corporation's initiation of this litigation are as follows. The doctors and staff of the Juneau Clinic partnership occupied the building under the lease from August of 1960 until June 30, 1967. During that period the number of doctors in the partnership fluctuated. At the time Smalley was recruited to the partnership in May of 1960, there were five other physicians who were members of the partnership. When Hansen arrived in 1964, there were six other physicians. However, during a period of about six months in 1965 and 1966, four doctors left the clinic or gave notice of intent to leave. A fifth, Gibson, was expelled from the partnership for a short period in October of 1965. Despite intensive recruitment efforts, there were only three physicians practicing at the clinic by the beginning of 1967. As the number of physicians diminished, the remaining doctors were forced to work long hours to compensate for high overhead costs. On June 30, 1967, Gibson withdrew from the partnership. Smalley and Hansen then assessed the partnership's financial situation, found it to be disastrous, and immediately ceased practicing at the clinic building. One part-time and two full-time employees were kept on the premises for the purpose of collecting receivables and transmitting patients' records. These employees occupied two small offices in the clinic, remaining there until March 15, 1968. Thereafter the corporation sued Smalley, Hansen, and the estate of Gibson for rent due until the expiration of the lease on July 31, 1970. The superior court granted Smalley, Hansen, and Gibson's motion for partial summary judgment, holding the lease void because it lacked acknowledgment. The corporation then amended its complaint, alleging it was due rent for January and March of 1967 and for the period July 1967 through April 1968. The trial court subsequently granted motion for summary judgment, holding that the assets of the Juneau Clinic partnership were first liable for payment of any judgment obtained by plaintiff for rent, and that Smal-ley and Hansen, doing business as the Juneau Clinic, were solely liable for any rental payments found due to the plaintiff. After all parties had rested, the court directed a verdict in favor of the corporation for $37,500. Smalley and Hansen appeal from the court's determination that $3,800 was a reasonable monthly rental and its refusal to apply the "indemnification" agreements against Gibson's estate. The corporation appeals from the court's determination that the lease is void and unenforceable. Gibson's estate urges affirmance of the lower court's decisions in every respect. We first turn to the issue of whether the trial court's invalidation of the 1960 lease was erroneous. Resolution of this question necessarily controls the disposition of other issues raised in these appeals. The superior court found the lease to be invalid because it was not acknowledged. The trial court's decision was based on an interpretation of AS 34.15.150(a) which provides in part: A conveyance executed in the state of land or an interest in land in the state shall be acknowledged before a judge, clerk of the superior court, notary public, postmaster, or commissioner in the state or proved in accordance with § 210 or 220 of this chapter. This statute applies to a lease for a terfn of years. In the case at bar the corporation does not challenge such application. Moreover, we find the statutory definition of "conveyance" is sufficiently broad to include a lease. In this regard, AS 34.15.350 provides in part: "[Cjonveyance" includes every instrument in writing by which an estate or interest in real property, including royalty and other interests in minerals, is created, alienated, mortgaged or encumbered, or by which the title to real property is affected, except a will. Also of significance is the fact that the United States Supreme Court, speaking through Justice Holmes, has held that a lease was a conveyance under an earlier but similar Alaska recording statute. Waskey v. Chambers, 224 U.S. 564, 32 S.Ct. 597, 56 L.Ed. 885 (1912). The more difficult question here is the effect of the parties' failure to comply with the statutory requirement that the lease be acknowledged. The trial court concluded that such failure rendered the instrument invalid. The court noted that acknowledgment, which had previously been permissive, was made mandatory in 1953, replacing a requirement that deeds and conveyances be signed by two witnesses. The trial court also stated that: As a matter of policy, my interpretation is that this was intended to surround the making of an instrument of this kind with formality that would impress upon the parties . . . the seriousness of dealing in land in this manner, and that it was the legislature's intention that no instrument thus failing should be valid, even if between parties, much less as to third parties, without the existence of that formality. We agree that this question must ultimately be decided as a matter of policy. However, we are unable to agree with the trial court's interpretation of the effect of lack of an acknowledgment as between the parties to the lease in the circumstances of this case. Before discussing the policy issues involved, we think it appropriate to consider prior Alaska case law and the legislative history of AS 34.15.150(a). While there are no post-statehood cases construing AS 34.15.150(a), a number of Alaska territorial decisions were concerned with the various predecessor statutes which required that a deed or conveyance be executed before two signing witnesses. The corporation cites these cases for the proposition that failure to comply with the acknowledgment requirement does not make an instrument invalid as between the par ties to it, but rather only precludes its rec-ordation and thus its effectiveness as against third persons. Cross-appellee Gibson artfully seeks to distinguish them on various grounds. In Morency v. Floyd, 2 Alaska 194, 197 (1904), the territorial district court held that an unwitnessed, unacknowledged, and unrecorded deed could yet be sufficient, as between grantor and grantee, to convey legal title. Morency, however, contained strong elements of estoppel, and the court specifically referred to estoppel in announcing its holding. In Eadie v. Chambers, 172 F. 73, 77 (9th Cir. 1909), the court held that a deed which had been witnessed by only one person was nonetheless valid as between the parties to the deed. However, on appeal to the Supreme Court of the United States, the case was reversed on separate grounds, which made it unnecessary for the court to decide the validity of the deed. In James v. Nelson, 9 Alaska 117, 130, 90 F.2d 910, 915 (9th Cir. 1937), the court found that acknowledgments are not essential to the validity of an instrument, as between the immediate parties and their privies. This rule is particularly applicable in cases where, as here, a deed is relied upon as creating an estoppel. However, as Gibson points out, the acknowledgment requirement which James construed was the pre-1953 permissive requirement. The case did not concern the mandatory two witness requirement, which we have found is analogous to the post-1953 mandatory acknowledgment requirement. In addition, James relied on estop-pel, as the quotation above indicates. Two cases seem to uphold Smalley, Hansen, and Gibson's position, but these two must be qualified. In Rolando v. Zesch, 7 Alaska 437 (1926), the territorial court found a lease to be void as between the original parties where certain formalities were not observed, among them the two witness requirement. However, there were so many irregularities in the execution of the lease that it is inaccurate to say the case concerned only the two witness requirement. The second case is Whitehead v. Foxhill, 13 Alaska 726, 105 F.Supp. 966, 967 (1952), which involved an unwit-nessed, unrecorded deed which was subsequently lost. The court stated that the document was "ineffective as a conveyance" but "valid as a contract to convey." However, the court went on to hold that the first grantee had an equitable right to demand conveyance from a subsequent grantee who had purchased the land from the common grantor. Significantly, the first grantee was not limited to money damages but was able to demand specific performance of the contract to convey. Thus, the case is not authority for the proposition that an unacknowledged lease is without legal effect. Thus, review of the applicable case law ' in Alaska demonstrates that the cases are split. There is no consistent line of decisions clearly enunciating a decisive statement of the law as to the legal effect of failure to comply with the acknowledgment statute or its predecessors, the statutes requiring two witnesses. We turn next to the legislative history of AS 34.15.150(a). As noted above, prior to 1953 Alaska law required attestation by two witnesses and permitted ack nowledgment. The 1953 amendment deleted the two witness requirement and substituted a provision making acknowledgment mandatory. The trial court found in this legislative action an intent to surround the making of such instruments with formalities so as to impress upon the parties the seriousness of dealing in land. The main implication of the trial court's finding, namely, that unacknowledged leases will be void between the parties, has no discernible logical basis upon which we can choose between attestation and acknowledgment as means of impressing seriousness upon the parties. The clearest link which could be found between the legislative change and the judicial result obtained below would be evidence that prior to 1953 courts treated non-compliance with the mandatory two witness requirement as fatal to a lease's validity. If this were so, we could more readily conclude that the legislature had intended the same consequences to accompany the new mandatory requirement of acknowledgment. But, as our review of the cases indicated, we do not find that pre-1953 decisions follow such a trend. Rather, the cases evidence a split, with the majority upholding the validity of the agreements despite noncompliance with the two witness requirement. Another possible legislative intent which might be assigned to the statute is that the legislature intended that no instrument that was unacknowledged could be recorded, although if signed by the parties it would be valid as between them. Taking this approach, the 1953 amendment requiring acknowledgment could be viewed as reflective of the legislature's judgment that acknowledgment would be a more effective way than attestation to eliminate clouds on titles and disputes concerning legitimacy. This interpretation is consistent with various policy considerations we consider persuasive. For we think it is a reasonable premise that the parties to agreements such as the lease in this case consider themselves bound by such agreements. Certainly where the parties carry out the various terms of the agreement (occupy, pay rent, etc.) over a period of many years, as occurred in the instant case, the inference that they considered the agreement binding is entitled to considerable weight. Limiting the effect of non-acknowledgment to the parties' relations with third persons would preserve the inference that the parties consider themselves bound, while at the same time requiring compliance with the acknowledgment provisions for those who wish to protect their interest in the unacknowledged instrument against strangers to the agreement. These policy considerations comport with the general rule that the purpose of acknowledgment is usually to allow an instrument to be recorded or to be introduced into evidence without further proof of execution. Both these purposes can be ascribed to the Alaska acknowledgment rule, since an unacknowledged conveyance cannot be recorded and may not be read in evidence without further proof of the conveyance. We therefore conclude that failure to comply with the mandatory acknowledgment requirement of AS 34.15.150(a), while affecting recordation and admissibility, does not have the effect of making the conveyance void as between the parties. The trial court's contrary determination in the case at bar was erroneous. One additional facet concerning the purported invalidity of the lease in question remains to be discussed. The trial court specifically declined to consider whether the lease was invalid under the statute of frauds in view of its decision that the lease was void because of noncompliance with the acknowledgment statute. Since we have held that the lease was not void as between the parties to it by reason of noncompliance with the acknowledgment statute, it is necessary to consider whether the lease is rendered void by operation of Alaska's statute of frauds. The lease agreement was entered into in August 1960. At that time the applicable law provided in part: 1. Except as otherwise provided in this section, an agreement, promise or undertaking shall not be enforceable by action unless it or some note or memorandum thereof be in writing and subscribed by the party to be charged, or by his lawful agent, if such agreement, promise or undertaking is one of the following : (f) An agreement for leasing for a longer period than one year . 3. A contract or promise which is subject to subdivision 1 of this section which does not satisfy the requirements of that subdivision, but which is otherwise valid, is enforceable if . (d) The party against whom enforcement is sought admits, voluntarily or involuntarily, in his pleadings or at any other stage of this or any other action or proceeding, the making of an agreement 4. It shall not be permissible to raise the defense of Statute of Frauds unless the party raising the same denies the existence of an agreement, or a material part thereof, in his verified answer or reply, provided, that if the original party to an agreement be deceased, this requirement shall not apply as against his personal representative. The lease in the instant case satisfies the requirements set out in Section 1, for it is written and it is signed by the parties to be charged (here, their predecessors in interest). Smalley, Hansen, and Gibson, however, raise the argument that the lease did not satisfy the requirements of section 58-2-4 A.C.L.A.1949 which provided: No estate or interest in real property, other than a lease for a term not exceeding one year, nor any trust or power concerning such property, can be created, transferred, or declared otherwise than by operation of law, or by a conveyance or other instrument in writing subscribed by the party creating, transferring, or declaring the same, or by his lawful agent under written authority, and executed with such formalities as are required by law. On the basis of this statute, they argue that the lease was not "executed with such formalities as are required by law" — i. e., it was not acknowledged and thus no interest in property was created. Resolution of the latter contention depends on whether the exceptions of section 58-2-2 are found to apply to section 58-2-4. If they do not, and section -58-2-4 is read standing alone, then we would have to hold the lease void because of its lack of acknowledgment. We decline to reach this result because prior decisions which considered section 58-2-4 and its predecessors treated that statute as part of the statute of frauds, and therefore subject to its exceptions. Geist v. O'Connor, 13 Alaska 15, 92 F.Supp. 451, 456 (1950); Weiss v. Girtz, 6 Alaska 547 (1922); Treat v. Ellis, 6 Alaska 290, 305-313 (1920). We conclude that in determining this statute of frauds question sections 58-2-2 and 58-2-4 must be read together. Thus, section 58-2-2 furnishes exceptions to the operation of section 58-2-4. Study of the record shows that Smalley, Hansen, and the estate of Gibson have admitted the making of the lease in question. In these circumstances, we hold that the lease is not violative of the statute of frauds. This conclusion makes it unnecessary to decide the further issue as to whether the corporation lessor sufficiently performed under the lease to take the lease out of the ambit of the statute of frauds. As alternatives to their arguments that the lease was void for lack of acknowledgment and for noncompliance with the statute of frauds, Smalley and Hansen have also advanced the doctrines of impossibility of performance and frustration of purpose to excuse their noncompliance with the terms of the 1960 lease agreement. Since we have held that the lease is not rendered invalid for lack of acknowledgment or noncompliance with the statutes of frauds, we must now consider whether Smalley and Hansen should be excused from their lease obligations by application of either of these doctrines of impossibility or frustration. Although impossibility and frustration are separate defenses, here they can be dealt with together because we hold both inapplicable to the lease agreement for similar reasons. At the times Smalley and Hansen joined the Juneau Clinic partnership, they were aware that each partner had the right under the partnership agreement to withdraw from the partnership, and thus the contingency of withdrawals by partners was foreseen and not unanticipated. Additionally, the lease specifically provided that individual partners would continue to be liable under the lease should dissolution, by partner withdrawal, occur. Under such circumstances, neither the doctrine of impossibility of performance nor the doctrine of frustration of purpose is available to Smalley and Hansen. Our holdings in regard to the issues of lease validity and the inapplicability of the asserted defenses of impossibility of performance and frustration of purpose require that the trial court's directed verdict be set aside and the case remanded for a new trial. On retrial, one of the likely issues for jury resolution will be the proper amount of damages to be awarded under the lease. This issue in turn involves determination of the question of whether the corporate lessor undertook reasonable measures to mitigate Smalley and Hansen's damages under the lease. This is not to be taken as an intimation on our part that the sole issues on retrial will be those pertaining to damages. One final issue remains to be decided in these appeals. Smalley and Hansen appeal from the superior court's partial judgment rendered in favor of the estate of Gibson regarding the effect of the so-called "in demnification" agreements entered into by Gibson with Smalley and Hansen. In granting Gibson's motion for partial summary judgment, the trial court stated in part that as between defendants Gibson, Smalley and Hansen, the assets of the Juneau Clinic partnership are first liable for payment of any judgment obtained by plaintiff for rental of the subject clinic premises; . . . that defendants Smalley and Hansen, d/b/a Juneau Clinic are solely liable to plaintiff for rental of the subject premises after June of 1967 . . . Determination of this issue revolves around two agreements which involved Smalley and Hansen. On October 18, 1965, by unanimous vote of the other partners and pursuant to procedures provided for in the partnership agreement, Gibson was expelled from the partnership. Four days later he was readmitted to the partnership. In consideration of his readmission, Gibson entered into two separate agreements. In the first, Gibson and Smalley, along with their wives, agreed that in the event that Dr. Akiyama or Dr. Hansen do hereafter withdraw from the partnership, or are expelled, or die, or become disabled from continuing in the partnership, or in the event that either of them should be among the partners remaining at the time a final dissolution and winding up of the partnership occurs, then, in any such event, Dr. and Mrs. Gibson and Dr. and Mrs. Smalley do hereby agree, as of the date of such event, to hold Dr. Akiyama and Dr. Hansen harmless from all liabilities, claims and demands of any nature and description existing against said partnership on the date of such event, including but not limited to any further obligation under that certain lease dated August 1, 1960, between Juneau Clinic Building Corp., as lessor, and C. C. Carter, William M. Whitehead and J. W. Gibson, all co-partners, as lessees, and any obligations due withdrawing partners of this partnership, its predecessor partnership or succeeding partnerships. In the second agreement, Gibson promised: In the event that Dr. Smalley should be among the partners remaining at the time a final dissolution and winding up of the partnership occurs, then, in such event, Dr. Smalley shall be relieved of any further obligation under [the lease] Gibson's estate now contends that because Gibson left the partnership on June 20. 1967, he cannot be held liable for any partnership debts accrued after that date. This argument has some merit under the trial court's determination that the lease was void (and hence Smalley and Hansen were not liable under the lease, but only were liable for the reasonable rental of the premises as holdover tenants), but it is unpersuasive in light of our determination that the lease was valid as between the parties. The lease obligation pre-exist-ed Gibson's departure from the partnership, since such obligations arise as of the time a valid lease is entered into. In agreeing to hold his partners harmless from any lease obligation liabilities existing against the partnership, Gibson bound himself in a way that he cannot escape under the facts of this case. For in construing these agreements, we must attempt to give effect to the intent of the parties. We think that the intent of the two agreements gauged by the agreements themselves, was to establish that, in the event they remained partners until dissolution, Smalley and Hansen were to be held harmless against any claims for rent arising from the lease. Admittedly the agreements did not specifically envision the possibility that Gibson might not remain a partner. Yet his withdrawal did not in any way lesson or relieve him of his duty to hold Smalley and Hansen harmless. The plain language of the agreements indicates that Gibson agreed to hold Smalley and Hansen harmless "as of the date of [dissolution]" whether or not he was a partner at that time. Our holding as to the effect of the "indemnification" agreements requires that we decide a second facet of the trial court's construction of these agreements. This point concerns whether the trial court correctly decided that the assets of the Juneau Clinic partnership are first liable for payment of any judgment obtained by the corporate lessor for rental of the clinic premises. Gibson argues that at most the agreements were "limited to the personal liability of Hansen and Smalley and did not go to the assets of ' the Juneau Clinic partnership." But the language of the agreements may also be construed so as to lead one to the conclusion that they were meant to protect the partnership interests of Smalley and Hansen, as well as those individuals personally. Given these circumstances we have previously held that where uncertainty or ambiguity exists in the language employed in an agreement, the intent of the parties thereto "may be ascertained from the language and conduct of the parties, the objects sought to be accomplished and the surrounding circumstances at the time the contract was negotiated." Pepsi Cola Bottling Co. v. New Hampshire Ins. Co., 407 P.2d 1009, 1013 (Alaska 1965). Since we find the two agreements ambiguous as to whether it was the intent of the parties to provide that the assets of the Juneau Clinic partnership were to be made first liable for the payment of a judgment for rent, we hold that under the criteria of Pepsi Cola this issue was an inappropriate one for resolution by summary judgment. At the new trial evidence will have to be adduced to properly resolve this issue. Reversed and remanded for a new trial. CONNOR, J., not participating. . Carter, president, and Gibson, secretary, signed on behalf of the corporation. Carter, Gibson and Whitehead, co-partners doing business under the name "Juneau Clinic," signed as lessees. The stock of the corporation was closely held, with Gibson, Whitehead, and Carter holding a majority interest. . Doctors could be full ("senior") partners, junior partners or associates. Smal-ley and Hansen eventually became full partners. Gibson, whose administratrix was a defendant below, was a full partner. . Apparently in an effort to keep the partnership functioning, an agreement in October 1965, between .Gibson, Smalley, Dr. Henry I. Akiyama (a partnership member at that time), and Hansen was signed after Gibson's expulsion. In return for Gibson's readmittance to the partnership, he and Smalley agreed that in the event that either Akiyama or Hansen should be among the partners remaining at the time a final dissolution and winding up of the partnership occurs, then, in any such event, Dr. and Mrs. Gibson and Dr. and Mrs. Smalley do hereby agree, as of the date of such event, to hold Dr. Akiyama and Dr. Hansen harmless from all liabilities, claims and demands of any nature and description existing against said partnership on the date of such event, including but not limited to any further obligation under that certain lease dated August 1, 1960 . At the same time, in a separate agreement, and in return for Smalley's "successful effort to have Gibson reinstated to the partnership," Gibson agreed to hold Smalley harmless from any continuing obligation under the lease for the building if Smalley was a partner at the time of dissolution of the partnership. . Projected gross income with two members was $17,920 monthly, while projected gross expenses totalled $19,200 monthly. . Gibson signed the lease as a lessee. Smalley and Hansen obligated themselves to perform as lessees under the lease by signing the partnership agreement which provided both that the partnership was bound by the lease and that new members woud be bound by the terms of the partnership agreement. In addition, the lease itself provided that it would enure to the benefit of and be binding upon each of the partners above named and any other person admitted to the partnership . (emphasis added) . This partial summary judgment had the effect of holding the "indemnification" agreements between Gibson, Smalley, and Hansen, see note 3 supra, to be meaningless insofar as this case is concerned. . That amount represented the reasonable rental value of the premises for the 10-month period, July 1, 1967, through April 30,1968, less $500, the agreed rental value of some equipment the plaintiff had sold. The defendants were found liable for ten months' rent because their employees had occupied for nine months after Gibson left, and the court found a one month notice period was required to terminate the tenancy. . As noted above, acknowledgment was made mandatory in 1953, at which time the two witness requirement was dropped. Before 1953, then, the two witness requirement occupied the same position that acknowledgement occupies today. The pre-1953 statutes requiring two witnesses are contained in Civil Code of Alaska ch. 11, § 82 (Carter's Codes 1900) ; § 508 CBA (1913) ; § 2818 CLA (1933) ; § 22-3-9 ACLA (1949). . Waskey v. Chambers, 224 U.S. 564, 32 S.Ct. 597, 56 L.Ed. 885 (1912). . The lease was not under seal; there were no subscribing witnesses; the certificate of acknowledgment did not indicate that the subscribing partners were known to the officer to be the persons who executed the lease; and one of the lessors and one of the lessees subscribed by attorneys and the authorization for such did not appear on the document. .Although the case does indicate that a distinction can be made between deeds which comply with statutory form requirements and those which do not, (i. e., the former conveys the land, while the latter gives rise in the grantee to an equitable right to demand conveyance) this distinction is of no importance to the case at bar. . § 22-3-9 ACLA (1949). . SLA 1953, ch. 29, § 1, codified in § 22-3-9 AOLA Cum.Supp. (1958). . E. g., Lillard v. Walsh, 172 Cal.App.2d 674, 342 P.2d 82, 85 (1959) ; Houck v. Darling, 238 Or. 484, 395 P.2d 445, 446 (1964). .AS 34.15.260. . § 58-2-2 ACLA (Cum.Supp.1958). . See Merl F. Thomas Sons, Inc. v. State, 396 P.2d 76, 79 (Alaska 1964) (impossibility), citing 6 Williston, Contracts § 1963, at 5511 (rev. ed. 1938), for the proposition that an unanticipated circumstance, the risk of which should not be thrown upon the promisor, may make performance so difficult from that expected as to excuse the promisor from his duty to perform; Jones v. Fuller-Garvey Corp., 386 P.2d 838 (Alaska 1963) (frustration) ; United States v. Buffalo Coal Mining Co., 345 F.2d 517, 518 (9th Cir. 1965) (frustration) ; Megan v. Updike Grain Corp., 94 F.2d 551, 553-554 (8th Cir. 1938). . Coffin v. Fowler, 483 P.2d 693, 696 (Alaska 1971) ; compare Jones v. Fuller-Garvey Corp., 386 P.2d 838 (Alaska 1963), where we applied the contract law doctrine of frustration of purpose in deciding a landlord-tenant problem. .Under the pleadings, it is conceivable that Smalley and Hansen will be able to marshall a sufficient evidentiary and legal basis to persuade the trial court that there is a jury issue regarding estop-pel of the corporate lessor from claiming rentals under the lease. Smalley and Hansen attempted to raise the estoppel issue in a somewhat nebulous fashion relying chiefly on the fact that the major stockholders of the closely held lessor corporation were prominent members of the lessee partnership. Additionally, Smalley and Hansen point to the fact that the withdrawals of Whitehead and Gibson caused the decline of the partnership's medical practice, and that since Gibson, the major stockholder in the corporation, persuaded them to remain to the last in the unprofitable medical partnership, it would be inequitable to allow the corporate lessor to hold them to the terms of the lease. .As previously indicated, this partial summary judgment had the effect of holding the "indemnification" agreements between Gibson, Smalley, and Hansen, see notes 3 and 6 supra, meaningless insofar as this case is concerned. . Richman v. Joray Corp., 183 F.2d 667, 670-671 (4th Cir. 1950). . Port Valdez Co. v. City of Valdez, 437 P.2d 768, 771 (Alaska 1968). . In Pepsi Cola Bottling Co. v. New Hampshire Ins. Co., 407 P.2d 1009, 1013 (Alaska 1965), we said : We are in agreement with those authorities which hold that where the terms of a [contract] are clear and unambiguous, the intent of the parties must be ascertained from the instrument itself, and that where there is uncertainty or ambiguity, intent may be ascertained from the language and conduct of the parties, the objects sought to be accomplished and the surrounding circumstances at the time the contract was negotiated (footnote omitted). See also Port Valdez Co. v. City of Valdez, 437 P.2d 768, 771 (Alaska 1968) ; Erwin, . "Parol Evidence or Not Parol Evidence in Alaska," 8 Alaska L.J. 20 (1970).

10446374

Thomas NELSON, Appellant, v. STATE of Alaska, Appellee

Nelson v. State

1981-01-09

No. 4098

502

505

617 P.2d 502

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.

Thomas NELSON, Appellant, v. STATE of Alaska, Appellee.

Thomas NELSON, Appellant, v. STATE of Alaska, Appellee. No. 4098. Supreme Court of Alaska. Jan. 9, 1981. Jim Douglas, Offices of Fred J. Baxter, Juneau, for appellant. William L. Mackey, Dist. Atty., Kodiak, 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.

1442

8800

OPINION MATTHEWS, Justice. Thomas Nelson entered a plea of guilty to a charge of burglary not in a dwelling. The charges concerned a drinking bout by Nelson and two friends which culminated in a break in at a pharmacy. Some drugs and petty cash were taken; the trio was apprehended on the scene at about 10:30 o'clock at night after a "prowler" call to the Kodiak Police Department. Nelson was initially sentenced, to serve five years in prison, which is the maximum for the charge. The sentence was suspended and he was placed on probation for five years. Probation was to expire on November 2, 1981. As part of the conditions of probation, he was admitted to an alcoholism program as an inpatient on November 2, 1976. On December 23, 1976, he was released to outpatient status, which lasted two more months. In July, 1977, he pled guilty to an OMVI charge; in August, he was accused of breaking and entering a residence, but evidently no charges were filed. About this time, Nelson and his wife were obtaining counselling at a local mental health clinic, and he appeared to be making progress there. A petition to revoke probation based on his drinking and the alleged unauthorized entry was filed, but before a hearing was held Nelson left town. Apparently, after leaving Kodiak, Nelson went to Washington state, then took a job in a cannery at Sand Point, Alaska. Eventually, Nelson turned himself in to the authorities in February, 1978; in April, he admitted to three counts of the petition to revoke probation. Pending reimposition of sentence, Nelson was placed in an Anchorage rehabilitative facility. On May 9, 1978, after a month there, he went AWOL, got drunk, and was arrested for malicious destruction by local police. On May 12, 1978, a probation revocation hearing was held in Kodiak. The court at the hearing expressed concern that the initial five-year sentence might have been overly severe. The court therefore ordered Nelson imprisoned for three years and denied eligibility for parole. This appeal followed. When Nelson was originally sentenced to serve five years in prison for the crime of burglary not in a dwelling the court did not mention parole eligibility. Nelson, by operation of law, would have been eligible for parole after serving one-third of the five year period of confinement. AS 33.15.080; AS 33.15.230. Execution of Nelson's sentence was suspended pursuant to AS 12.55.-080 and Nelson was placed on probation. Another statute, AS 33.05.070(b), provided that if Nelson's probation were revoked he could be required to serve the sentence imposed, "or any lesser sentence. . . ." Nel son's probation was revoked and, while he was given a shorter term to serve, three years, his eligibility for parole date was extended from 1.67 years under the original sentence to three years under the revocation order. An increase in the minimum period of incarceration required before becoming eligible for parole is an increase in the sentence. Shagloak v. State, 582 P.2d 1034, 1036-38 (Alaska 1978); Faulkner v. State, 445 P.2d 815, 819 (Alaska 1968). When Nelson was originally sentenced he was in jeopardy in the constitutional sense. Thereafter, the prohibition of the fifth amendment of the United States Constitution against double jeopardy prevented any amendment to his sentence which had the effect of increasing it. Shagloak v. State, 582 P.2d 1034, 1037 (Alaska 1978); Faulkner v. State, 445 P.2d 815, 820 (Alaska 1968). The revocation order increased the minimum period that Nelson must spend in jail from 1.67 years to 3 years and to that extent violated his double jeopardy rights. Moreover, the increase also violated the command of AS 33.05.070(b) that the court upon revocation of probation may order the defendant to serve the sentence originally imposed, or a lesser sentence, but not a greater one. The case is remanded for imposition of all or a portion of the sentence originally imposed and suspended. . After his return from Sand Point, the petition to revoke probation was amended to include two counts based on the unauthorized departure and failure to check in with his probation officer. Nelson admitted these violations and the drinking, but did not admit committing the crime. . AS 33.05.070(b) provides: (b) As speedily as possible after arrest the probationer shall be taken before the court for the district having jurisdiction over him. Thereupon the court may revoke the probation and require him to serve the sentence imposed, or any lesser sentence, and, if imposition of sentence was suspended, may impose any sentence which might originally have been imposed. .We express no opinion on whether the initial five-year sentence was excessive, nor as to whether reimposition of the entire amount at this time would be proper. The trial court may find it useful, in determining an appropriate disposition on remand, to refer to the ABA Standards Relating to Probation, § 5.1 (Approved Draft 1970), particularly to the references provided in the Commentary at 51-58. See generally Gilligan v. State, 560 P.2d 17 (Alaska 1977); Martin v. State, 517 P.2d 1399, 1403 (Alaska 1974).

10451513

Dennis L. BADEN, Appellant, v. STATE of Alaska, Appellee

Baden v. State

1980-10-31

No. 4968

1127

1128

617 P.2d 1127

617

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

Dennis L. BADEN, Appellant, v. STATE of Alaska, Appellee.

Dennis L. BADEN, Appellant, v. STATE of Alaska, Appellee. No. 4968. Supreme Court of Alaska. Oct. 31, 1980. David C. Backstrom, Deputy Public Defender, Fairbanks, and Brian Shortell, Public Defender, Anchorage, for appellant. Paul E. Olson, Asst. Dist. Atty., Harry L. Davis, Dist. Atty., Fairbanks, and Avrum M. Gross, Atty. Gen., Juneau, for appellee. Before RABINOWITZ, C. J., CONNOR, BURKE and MATTHEWS, JJ., and DIMOND, Senior Justice.

151

963

OPINION PER CURIAM. The supplemental judgment of the superior court revoking the defendant's probation and revising his sentence is AFFIRMED on the authority of State v. Sears, 553 P.2d 907 (Alaska 1976), and Gonzales v. State, 586 P.2d 178 (Alaska 1978). CONNOR, J., dissents, joined by DIMOND, Senior Justice.

8976087

Maria CLEMENT, as Co-Personal Representative of the Estate of Mary A. Fulton, Deceased, Appellant, v. Mike FULTON, as Co-Personal Representative of the Estate of Mary A. Fulton, Deceased, and Sisters of Providence in Washington, d/b/a Providence Alaska Medical Center, Appellees

Clement v. Fulton

2005-04-08

No. S-11077

927

937

110 P.3d 927

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.

Maria CLEMENT, as Co-Personal Representative of the Estate of Mary A. Fulton, Deceased, Appellant, v. Mike FULTON, as Co-Personal Representative of the Estate of Mary A. Fulton, Deceased, and Sisters of Providence in Washington, d/b/a Providence Alaska Medical Center, Appellees.

Maria CLEMENT, as Co-Personal Representative of the Estate of Mary A. Fulton, Deceased, Appellant, v. Mike FULTON, as Co-Personal Representative of the Estate of Mary A. Fulton, Deceased, and Sisters of Providence in Washington, d/b/a Providence Alaska Medical Center, Appellees. No. S-11077. Supreme Court of Alaska. April 8, 2005. Thomas S. Gingras, and Erin K. Egan, Eide, Miller & Pate, P.C., Anchorage, for Appellant. Laurel J. Peterson, Laurel J. Peterson, P.C., Anchorage, for Appellee Mike Fulton. Before: BRYNER, Chief Justice, MATTHEWS, EASTAUGH, FABE, and CARPENETI, Justices.

5683

35784

OPINION EASTAUGH, Justice. I. INTRODUCTION Mary Fulton died several days after a hospital allegedly failed to diagnose and treat her medical condition, leukemia. She was survived by her husband and two minor children. The children contend that the superior court misallocated the wrongful death settlement proceeds paid by the hospital. Because the court did not clearly err in rejecting the children's assertion that Mary Fulton's life expectancy would have been only one year even if she had been correctly diagnosed, we affirm the allocation. II. FACTS AND PROCEEDINGS Mary Fulton was the primary breadwinner in the Fulton family; she supported her husband, Michael Fulton, and her two minor children, Savannah and Christopher. On November 25, 1999, Mary sought treatment for headaches and weight loss at Providence Alaska Medical Center. As a result of a blood test mix-up, the hospital failed to diagnose her true medical condition, and she was discharged. She actually had acute leukemia. She returned to the hospital on November 29 and died on November 30, five days after she first sought treatment, following a hemorrhage in her right temporal lobe. Mary's estate, through co-personal representatives Maria Clement and Michael Fulton, sued the hospital for damages under Alaska's survivorship and wrongful death statutes, claiming the hospital misdiagnosed her condition and failed to give her proper care, causing her death. Maria Clement is one of Mary's adult daughters. The estate and the hospital eventually agreed to settle the lawsuit for $500,000, but no agreement was reached on how to allocate the settlement funds between Mary Fulton's two minor children and her husband. In November 2002 Michael Fulton moved for superior court approval of the amount of the proposed settlement and for allocation of the settlement proceeds to the three surviving statutory dependents in accordance with Horsford v. Estate of Horsford. Statutory dependents are the statutory beneficiaries recognized in the Alaska Wrongful Death Act, AS 09.55.580. Under Horsford, wrongful death settlement proceeds are allocated based upon the life expectancy of the decedent and the years each statutory dependent could reasonably expect to receive significant benefits from the decedent. Michael claimed that application of the Horsford formula would entitle him to sixty-three percent of the settlement. Clement, on behalf of the minor children, opposed Michael's proposed allocation because she asserted that, among other reasons, his allocation assumed Mary had a full life expectancy. Arguing in part that "[i]t is incorrect to apply a normal life expectancy for Mary Fulton when she more likely than not would only have survived another year," Clement urged the superior court to depart from the Horsford formula and allocate the proceeds on equitable grounds. She also contended that Michael should not share in the settlement at all because Mary had intended to divorce him. She argued that Michael should receive nothing because he had emotionally and physically abused the children. After hearing evidence on February 11 and 27, 2008 and oral argument, Superior Court Judge Sen K. Tan approved the proposed settlement with the hospital and allocated the proceeds among the three beneficiaries. In allocating the proceeds, the superior court held that "this is not a case where the Hors-ford formula should be applied." Observing that the Horsford formula "is not a hard and fast rule and . can be modified for longer periods of dependency, [and] expectations of contribution beyond the age of majority," or abandoned if necessary, the superior court concluded that the children's need for mental health treatment justified a departure from the formula. The court balanced the needs of the children against the needs of Michael Fulton, a seasonal worker with a sporadic work history, and allocated forty-five percent of the settlement to Michael, twenty percent to Christopher, and thirty-five percent to Savannah. The court denied Clement's reconsideration motion. She now appeals. III. DISCUSSION A. Standard of Review We review for clear error the factual findings that supply the foundational basis upon which to apply Horsford in allocating a wrongful death action recovery. We will reverse a finding of fact as clearly erroneous when we are left with a definite and firm conviction based on the totality of the record that the superior court has made a mistake. To the extent the superior court, in determining the most equitable allocation, deviates from the allocation strictly compelled by the Horsford formula or chooses not to apply the formula, we apply an abuse of discretion standard of review and will not reverse unless the allocation is clearly unjust. B. It Was Not Clear Error for the Superior Court To Reject Clement's Assertion that Mary Had a Life Expectancy of Only One Year. In contending that it was error to allocate anything, or so much, to Michael, Clement argues that the superior court erred in finding that Mary had a life expectancy of more than one year. Mary's life expectancy is one factor potentially relevant to determining the expected years of dependency of her minor children and husband. Under the Horsford formula, the superior court allocates wrongful death damages among the beneficiaries based on each beneficiary's expected years of reasonably significant dependency. The number of years each beneficiary is expected to be dependent on the decedent out of the total number of years of dependency determines the beneficiary's share of the settlement proceeds. The formula assumes that the annual pecuniary loss for each statutory beneficiary is equal. Michael's proposed allocation assumed that he would predecease Mary; it therefore used his life expectancy, not Mary's, to estimate the duration of his dependency. Michael's proposal calculated each minor child's expected dependency to the age of majority. Based on the beneficiaries' relative years of expected dependency and the Horsford formula, Michael's proposal allocated sixty-three percent of the proceeds to Michael, twenty-four percent to Savannah, and thirteen percent to Christopher. Clement's written opposition to Michael's proposed allocation asked the superior court to "abandon" the Horsford formula and divide the proceeds "equitably," allocating nothing to Michael. She based this argu ment in part on her assertion that it was incorrect to assign a normal life expectancy to Mary "when she more likely than not would have survived only another year," even if the hospital had not been negligent. The superior court eventually rejected the allocations proposed by both sides. Recognizing that it could modify the formula to reflect the needs of the children, it allocated forty-five percent to Michael, thirty-five percent to Savannah, and twenty percent to Christopher. Although the court never explicitly stated what life expectancy it attributed to Mary, it was clearly greater than one year, given the settlement share the court allocated to Michael. 1. It was not clear error to give little weight to the unsworn reports. On appeal, Clement argues that it was clear error for the superior court not to find that Mary had a life expectancy of only one year. She asserts that the superior court improperly discredited or disregarded two medical reports that, she argues, indicated a "high likelihood" that Mary would have died within one year even if the hospital had not been negligent. Clement maintains that no evidence presented to the superior court would indicate otherwise. The two reports to which Clement refers are unsworn medical reports prepared by Dr. John Kiraly and Dr. David Spindle. Before the estate and the hospital agreed to settle the lawsuit, Michael's lawyer had submitted both reports to representatives of the hospital and to counsel for Clement, the co-personal representative. Clement argues that Michael's use of the reports in that way results in an admission under Alaska Evidence Rule 801(d)(2)(C) as a statement by a person authorized by the party to make a statement concerning the subject. We held in Frazier v. H.C. Price/CIRI Construction JV that, under Evidence Rule 801(d)(2)(C), unsworn medical reports prepared at the ap-pellee's request were not hearsay. We concluded that the appellee had "vouched for the credibility and competence of the physicians" who prepared the medical reports when it asked the appellant to submit to examination by clinic physicians of the appellee's choice. Clement regards the reports as both (1) legally binding on Michael, because they were Evidence Rule 801(d)(2)(C) admissions, and (2) factually conclusive, because she reads them to establish that Mary's probable life expectancy was one year. She thus describes Dr. Kiraly's report as concluding that Mary "likely would have succumbed to acute leukemia and died within one year." She likewise asserts that his report "finds that Mary Fulton had a life expectancy of only one year due to her acute leukemia." Referring collectively to both reports, she asserts that they "concluded that it was likely that Mary Fulton would succumb to her illness within one year." The superior court ultimately admitted the reports into evidence, but indicated that it would give them little weight because they contained unsworn opinions offered without sworn testimony to explain them. Following the hearing, the court issued its written decision in which it found: There is also an allegation that Mary Fulton was very ill, and in any event would have passed away in about a year or so. No medical doctors testified on this issue. The Clement representative would have this court draw this conclusion from the reports and documents submitted. This court has considered the evidence and finds that such a conclusion would be too speculative. In many instances, proper medical treatment may bring many diseases into remission, or prolong the life of the afflicted. The main question Clement poses to us on appeal is whether it was clear error for the superior court to reject Clement's assertion that Mary would have lived only one year. Our independent review of the two medical reports persuades us that it was not clear error. In allocating wrongful death damages, the superior court should, absent reliable evidence to the contrary, assume that the decedent had a full life expectancy. When evidence is offered that deviates from that assumption, the court must weigh all of the evidence, including evidence of the decedent's normal life expectancy. The evidence Clement offered did not compel a finding that it was reliable and conclusive, or even very probative. It consisted of unsworn expert opinions prepared for the wrongful death lawsuit. The reports focused on the short-term consequences of the missed diagnosis rather than Mary's long-term prognosis. They seem to primarily address a causal relationship between Mary's death and the hospital's conduct. The authors never explained Mary's precise underlying medical condition, nor did they elaborate on the potential effect of available therapy. Dr. Kiraly's report merely quoted the remission and relapse rates of leukemia patients generally. The court had no opportunity to question the authors regarding Mary's specific chances for survival. The reports themselves recognize that Mary could have lived longer, perhaps much longer, than one year had she received proper medical care. Dr. Spindle's report expresses an opinion that the misdiagnosis "might well have been prevented [enabling] her to have a much longer life with the correct medical treatment." This evidence alone was sufficient to support the superior court's finding. Furthermore, Dr. Kiraly's report expresses an opinion that the misdiagnosis prevented Mary from receiving therapy "that may have averted her premature death." His report also states that it appeared that Mary "lost the opportunity for both short-term and long-term survivals as a result of missed diagnosis." The court could have permissibly read the reference to her "long-term" survival to imply that proper care would have made long-term survival a realistic possibility. Dr. Kiraly's report also states that "twenty to thirty percent of patients [who receive chemotherapy] may be expected to remain in long-term remission, whereas 70-80% will usually relapse within one year and succumb to their disease.". Dr. Kiraly did not discuss factors that would indicate whether Mary was in one group or the other. His statement that many patients will "usually" relapse within one year and succumb to their disease, read at face value, literally only offers an opinion that relapse will usually occur within one year and offers no opinion about when death will ensue. If this is how the superior court read this passage in Dr. Kiraly's opinion, it would have been a permissible reading. The dissent states that "the only evidence in the record specific to Mary Fulton indicated that her life expectancy would not be normal." But neither doctor indicated what her life expectancy would have been, whether her disease probably would have caused her to die in the near future, or even whether she would die before Michael (whose life expectancy was the basis for his proposal). Certainly neither report directly states that Mary Fulton would have died within one year regardless of the misdiagnosis, and Dr. Spindle's report instead notes the lost possibility of a, "much longer life." It was not clear error, therefore, for the superior court to regard Clement's conclusion that Mary would have lived no longer than about a year as "too speculative." Nor did the court inappropriately speculate when discussing the potential effect of treatment. The superior court's observation that "proper medical treatment may bring many diseases into remission, or prolong the life of the afflicted" echoes the experts' own statements. Clement also briefly contends that the superior court "erred in concluding that Mary Fulton had a normal life expectancy." This argument is unavailing for several reasons. First, it is unpersuasive on the merits. As we saw above, Dr. Spindle's opinion that Mary might have lived a "much longer life" supports the superior court's apparent finding that Mary might have lived much longer than one year and its express finding that it was "too speculative" to conclude that Mary would have lived no longer than a year. Likewise, Dr. Kiraly's report contains passages (discussed above) that support the court's express finding. This argument also subtly, but unfairly, recasts the way the case was presented to the superior court and the arguments Clement made below. The issue as the parties presented it below was whether to deviate from Horsford, not whether to follow Horsford. This had the effect of putting the burden on Clement to affirmatively persuade the court that Mary would have lived only about one year, i.e., would not have lived much longer. Consequently, Clement affirmatively contended below that the evidence established that Mary's life expectancy was only about one year, not that there was no evidence she would have had a normal life expectancy. She cited Dr. Kiraly's report in her pre-hearing written opposition to Michael's proposed allocation and affirmatively contended that it established that Mary's life expectancy was only about one year. And at the outset of the hearing, her lawyer referred again to Dr. Kiraly's report to support her affirmative contention, but did not argue that there was no evidence of normal life expectancy, or that, absent any such evidence, Michael should lose. Clement then undertook to show why the Horsford formula should not be followed, and began calling witnesses who testified in support of her "equitable argument" — that Michael should take nothing because Michael would not support the children and had abused or harmed them, that Mary and he had separated, and that Mary planned to divorce him.' All the hearing testimony concerned these allegations; none of it concerned Mary's (or Michael's) life expectancy. During the final arguments below, she asserted that she had offered evidence establishing that there was a "strong probability" Mary would have lived only about a year. After the court ruled against her, she sought reconsideration on the ground the court erred in discounting the opinion of Dr. Kiraly. She did not argue that Michael had failed to discharge any burden of persuasion with respect to life expectancy or that there was no evidence that Mary would have had a normal life expectancy (or, more relevantly, that Mary would have had a long life or outlived Michael). At no time did Clement assert that Michael failed to establish either that his life expectancy was 30.5 years or that a person Mary's age would outlive him. She never contended that Michael's proposed allocation was deficient because he failed to offer evidence that a person with Mary's underlying medical condition Would live less than the 30.5 years assumed by Michael's damages expert. Thus, Clement did not affirmatively argue below that there was no evidence bringing Mary within Horsford, but instead affirmatively argued only that Dr. Kiraly's report should have convinced the superior court to depart from Horsford. As the parties presented it, the allocation dispute therefore turned on whether the superior court was persuaded by the two reports. It was not. As we concluded above, that was a permissible choice. Moreover, Clement's argument below was not nuanced; it was effectively all or nothing, because her focus was on preventing Michael from receiving any part of the settlement. Clement used her contention that Mary would have lived only one year to set the stage for her argument that the superior court should altogether "abandon" Horsford, and, applying equitable principles, award everything to the children. Clement did not contend below that Mary might have had a somewhat shorter-than-normal life-span. That position would have been inconsistent with avoiding Horsford and preventing Michael from recovering anything. It was critical to her approach that the court find that Mary would have lived only about one year. Consistent with the way the dispute was argued, the superior court did not affirmatively find that Mary would have had a normal life expectancy; it . only found that Clement had not established that Mary would have lived only about one year. It therefore inverts the case as it was tried to say that the superior court erred in concluding that Mary would have lived a normal life expectancy. What the court really did was find that the reports did not require the court to accept Clement's "speculative" position that Mary would have died within a year. That finding was not clearly erroneous. 2. Clement does not assert and did not preserve a claim that the superior court prevented Dr. Kiraly from testifying. The dissent argues that the superior court contributed to the lack of credible evidence of Mary's life expectancy by denying Clement the opportunity to have Dr.. Kiraly testify telephonically. But Clement raises no such contention on appeal, and the record establishes that she did not preserve any such argument below, either at the hearing or in her reconsideration motion. After both sides had called and examined all of their witnesses at the evidentiary hearing, Clement's lawyer advised the court that he had no additional witnesses. The parties' lawyers then presented their oral arguments on the allocation issues. Michael's lawyer argued, among other things, that "This is an allocation with regards to the statutory [dependents] and I've heard nothing that should deviate from . Horsford at this point." In his opposing argument, Clement's lawyer referred to Dr. Kiraly's opinion letter submitted with Clement's pre-hearing memorandum opposing Michael's proposed allocation. He argued that the letter expressed an opinion that Mary would have had a twenty to thirty percent chance of remaining in long-term remission. He therefore contended, among other things, that Horsford did not apply. In reply, Michael's lawyer relied on Dr. Spindle's report to argue that proper treatment might have prevented the hemorrhage that caused Mary's death and allowed time to treat the underlying disease. He also argued that it was "spurious" to say that anyone had "come here and testified under oath — in fact these guys haven't — that she would have been anything other than the 20 percent . " The superior court immediately stated that it.would not rely on the unsworn letters. Clement's lawyer then asked the court, if it did not accept the letters as admissions by Michael, to reopen the hearing to allow Dr. Kiraly's testimony. The court again stated that it would give his letter little weight if it were admitted; it then gave Clement an opportunity to apply "further" and to explain why Clement's lawyer had not offered testimony from Dr. Kiraly earlier. When counsel again offered to call Dr. Kiraly, the court admitted both letters as evidence to remove "the issue" and stated that Dr. Kiraly's letter was unsworn and would be given "very little weight." The court then asked the lawyers if there were "[a]nything further?" Clement's lawyer did not again ask to be allowed to call Dr. Kiraly. He did not object to the proce dure the court adopted when it admitted the two letters into evidence after indicating it would give them "little weight." Nor, after the court stated that it would give the reports little weight, did Clement's lawyer ask for leave to present testimony from Dr. Kiraly to explain his letter or in lieu of it. Clement therefore did not preserve any possible claim that the court erroneously prevented her from calling Dr. Kiraly as a witness. It also cannot be said that the superior court prevented Clement from offering better evidence from Dr. Kiraly, because there is no indication what he might have said. Clement made no offer of proof to establish that he would testify to anything beyond what he had stated in his letter. When a court excludes unspecified evidence, a party's failure to make an offer of proof acts as waiver to any claim of error. Alaska Evidence Rule 103(a)(2) requires a party to show that "the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked." The letter does not clearly express an opinion that Mary Fulton would have lived no more than one year if she had been properly diagnosed and treated. Because there was no offer of proof, Clement did not preserve any contention that Dr. Kiraly, if permitted to testify, would have offered an opinion that Mary would probably have lived no more than a year, or any other period. Finally, Clement does not argue that there was a genuine factual dispute about Mary Fulton's life expectancy that requires remand and more evidence. She only argues that, as a matter of law, Dr. Kiraly's letter establishes that Mary Fulton would have died within one year. That was also her position below. The superior court therefore cannot be regarded as having prevented her from offering better telephonic testimony from Dr. Ki-raly. C. The Superior Court Did Not Other- . wise Abuse Its Discretion in Allocating the Settlement Proceeds. Clement also argues that the superi- or court erred by failing to adjust the allocation for other reasons. Alleging that Michael physically and emotionally abused Savannah and Christopher, she argues that Michael's misconduct requires an equitable adjustment of the allocation in favor of the minor children. Although Horsford permits the court to modify or abandon its formula "if there is evidence of circumstances indicating a longer period of dependency," it requires that the allocation approximate the actual losses of each beneficiary. It assumes that the annual pecuniary loss of each statutory beneficiary is equal, but this assumption is not justified in every case. Here the superior court recognized that Savannah's health problems required special attention and would probably require treatment beyond her age of majority. The allocation therefore accounted for those needs. The court also considered Christopher's need for future counseling "to assist in his transition to his new environment and into adulthood." These were unquestionably relevant factors. It was not error, however, for the court to disregard the other factors advanced by Clement. Whether Michael had abused the children is not relevant to the determination of their actual losses for their mother's death. Moreover, with regard to allegations of "patterns of physical and emotional abuse," Judge Tan found only that there were "instances of inappropriate discipline of the children by Michael." In the superior court, Clement also offered evidence that Mary and Michael had separated and that Mary intended to divorce him. She briefly suggests on appeal that this evidence is an "additional factor" we should consider in reviewing the allocation. But her appellate briefs provide no substantive discussion of this proposition. It is therefore waived, and we do not consider it. IV. CONCLUSION The superior court did not clearly err in failing to find that Mary Fulton, even if properly diagnosed, would not have lived more than one year. Nor did it err in disregarding factors other than the children's future needs in allocating the settlement proceeds. We therefore AFFIRM the court's allocation of the proceeds. . AS 09.55.570; AS 09.55.580. . Horsford v. Estate of Horsford, 561 P.2d 722 (Alaska 1977). Wrongful death damages are assessed under the Horsford formula rather than in accordance with Alaska's laws of intestate succession. Id. at 726. . Id. at 725, 727. . Id. at 728. . Donnybrook Bldg. Supply, Inc. v. Interior City Branch, First Nat'l Bank of Anchorage, 798 P.2d 1263, 1266 (Alaska 1990). . Horsford, 561 P.2d at 724 (reviewing superior court's determination of "the most equitable allocation of the settlement proceeds between the competing beneficiaries"). . Cf. Estate of Brandon, 902 P.2d 1299, 1307 (Alaska 1995) ("We apply an abuse of discretion standard in reviewing a trial court order approving a settlement of a minor's claims and distributing proceeds of a minor's settlement under Civil Rule 90.2."). . Horsford, 561 P.2d at 727. The record does not reflect whether or how the settlement with Providence was allocated between the wrongful death claim and the survivorship claim. Under the laws of intestacy, fifty percent of a survivor-ship recovery would be distributed to Michael and twenty-five percent would be distributed to each child. Nor does the record indicate how much of the settlement remunerated the family for non-economic losses such as pain and suffering and loss of consortium that are not governed by the Horsford formula. Because no party argues that the settlement reflected anything other than pecuniary losses, we need not consider whether the Horsford formula should not have been applied to the whole settlement. . Id. at 725. . Michael's proposed distribution added the expected years of dependency for Michael (30.5), Savannah (11.79), and Christopher (6.34) to arrive at the total number of years of dependency, 48.63 years. It then calculated the percentage of the total each beneficiary's dependency represented. Because Michael's 30.5 years represented 63 percent of the total, his proposal allocated 63 percent of the settlement proceeds to Michael. His damages expert reversed the children's years of dependency, and therefore reversed their proposed allocations, but Michael's memorandum proposal accurately stated their proposed allocations. . Clement also contended during the superior court hearing that there was a "strong probability" Mary had approximately a one-year life expectancy and that therefore each beneficiary had lost only one year of dependence. This contention would have implied that the settlement proceeds should be allocated equally among the beneficiaries, but Clement expressly relied on it only to support her argument that the court should "abandon" Horsford and award little or nothing to Michael. . See Horsford, 561 P.2d at 728 (allowing for adjustment or abandonment of formula where evidence indicates longer period of dependency). See also State, Dep't of Fish & Game v. Kacyon, 31 P.3d 1276, 1282 (Alaska 2001) (recognizing that Horsford is not the exclusive allocation method). . Evidence Rule 801(d)(2)(C) provides: "A statement is not hearsay if the statement is offered against a party and is a statement by a person authorized by the party to make a statement concerning the subject." . Frazier v. H.C. Price/CIRI Constr. JV, 794 P.2d 103, 105 (Alaska 1990). . Id. . Hinchey v. Hinchey, 722 P.2d 949, 953 n. 9 (Alaska 1986); Morrison v. State, 516 P.2d 402, 406 (Alaska 1973). . Levar v. Elkins, 604 P.2d 602, 604 (Alaska 1980). . Clement's lawyer told the superior court that Mary had acute myelogenous leukemia. Neither report uses that term. Dr. Kiraly's report states that "it appears that the patient had acute leukemia." Dr. Spindle's report does not refer to leukemia. . Op. at 936-937 (emphasis in original). . A court can take judicial notice of mortality tables and should not deviate from them unless credible contrary evidence is admitted. Morrison v. State, 516 P.2d 402, 406 (Alaska 1973) ("[W]hile the mortality table is not binding on the court, there must be some evidence in order to justify a departure from the table."). . Op. at 936. . Walden v. Dep't. of Transp., 27 P.3d 297, 304 (Alaska 2001). . Horsford, 561 P.2d at 726-28. . 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.").

10421880

Russell S. BOWELL, Appellant, v. STATE of Alaska, Appellee

Bowell v. State

1986-12-05

No. A-1175

1220

1226

728 P.2d 1220

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.

Russell S. BOWELL, Appellant, v. STATE of Alaska, Appellee.

Russell S. BOWELL, Appellant, v. STATE of Alaska, Appellee. No. A-1175. Court of Appeals of Alaska. Dec. 5, 1986. William A. Davies, Asst. Public Defender, Fairbanks, and Dana Fabe, Public Defender, Anchorage, for appellant. Cynthia M. Hora, 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.

3728

22217

OPINION SINGLETON, Judge. Russell S. Bowell was convicted by a jury of kidnapping in violation of AS 11.41.-300(a)(1), and first-degree sexual assault in violation of AS 11.41.410(a)(1). Bowell appeals, challenging his conviction. We affirm Bowell's conviction, but remand to permit the trial court to consider Bowell's motion for a new trial. FACTS James D. Thomas, Bowell's codefendant, sexually assaulted B.S. in the back of a vehicle driven by Bowell. B.S. testified that she had been walking when she observed two men she later learned to be Bowell and Thomas in a Toyota driving slowly by her. Thomas asked her if she wanted a ride, and she accepted. The vehicle apparently had no rear seats. B.S. entered it and sat on the floor where she observed a pit bull, whose name she later learned was "Crusher." Thomas got into the back with her and put the dog in the passenger seat. B.S. testified that Thomas told her that she would have to pay for her ride, and asked her if she knew how to "give a good blow job." B.S. asked to be let out of the vehicle, but was not permitted to leave. B.S. testified that Thomas forced her to engage in vaginal, oral and anal intercourse during the following three hours. She also testified that Thomas told Bowell that when he (Thomas) was through, it would be Bowell's turn. Bowell then told Thomas to hurry up because they were running low on "octane." Thomas also threatened B.S. with a gun, as well as threatening that he was going to get a chainsaw, cut off her arms and legs and leave her in a snowbank. Bowell corroborated B.S.'s testimony in part, by testifying that he remembered hearing Thomas mention something about a chainsaw. In B.S.'s view, Bowell assisted Thomas in coercing the intercourse by responding to Thomas' request to stop and start the car, by obtaining a gun for Thomas to use to overcome B.S.'s resistance, and by keeping "Crusher" out of the back of the car. The most pointed example of this assistance occurred when Thomas told Bowell that B.S. was not cooperating, and asked him to hand back the gun. B.S. testified that Bowell took the gun out of the glove compartment, loaded it, and handed it back to Thomas who placed it against B.S.'s neck. DISCUSSION The theory of the prosecution identified Bowell as a principal to B.S.'s kidnapping, reasoning that his driving the vehicle and ignoring her pleas to be released, constituted the restraint required for a conviction of kidnapping. AS 11.41.300(a)(1)(C) (a person commits the crime of kidnapping if [he] restrains another person with intent to . sexually assault the restrained person or place the restrained person . in apprehension that any person will be subjected to . sexual assault). Bowell does not challenge his conviction for kidnapping on appeal. The state also theorized that Bowell was an accomplice to Thomas' first-degree sexu al assault of B.S. Bowell vigorously attacks his conviction on this count. He reasons that the accomplice statute is constitutionally defective for failing to require a culpable mental state. Alternatively, he argues, that if a culpable mental state is required by the statute, that fact was not sufficiently communicated to the jury in the relevant jury instructions. Bowell concedes that he did not object to the instructions at trial, and therefore must establish plain error in order to prevail on this part of his argument. Alaska R.Crim.P. 47(b). Finally, Bowell argued that the trial court should have granted a judgment of acquittal on this issue. We will address each of Bowell's arguments in turn. Bowell reasons that AS 11.16.110(2)(B) creates a legal accountability for a person who aids or abets another person in the commission of a criminal offense, but is deficient in failing to provide a "mental element" for "aiding or abetting." Alaska Statute 11.16.110 provides as follows: Legal accountability based upon the conduct of another: Complicity. A person is legally accountable for the conduct of another constituting an offense if . (2) with intent to promote or facilitate the commission of the offense, the person . (B) aids or abets the other in planning or committing the offense. The state counters that Bowell has misread the statute, and that the introductory language to AS 11.16.110(2)(B), "with intent to promote or facilitate the commission of the offense" supplies the mens rea for accomplice liability, while "aids or abets" describes the actus reus of the offense. The state's position finds support in the 1977 Commentary to the Tentative Draft of the Alaska Criminal Code Revision Part II at 25, and in the Commentary to the Model Penal Code provision from which our statute is derived, A.L.I., Model Penal Code and Commentaries Part I § 2.06 (1985). The Commentary states in relevant part: Subsection (3)(a) requires that the actor have the purpose of promoting or facilitating the commission of the offense, i.e., that he have as his conscious objective the bringing about of conduct that the Code has declared to be criminal. This is not to say that he must know of the criminality of the conduct; there is no more reason here to require knowledge of the criminal law than there is with the principal actor. But he must have the purpose to promote or facilitate the particular conduct that forms the basis for the charge, and thus he will not be liable for conduct that does not fall within this purpose. Id. § 2.06 at 310-11 (footnote omitted). In summary, in order to be liable as an accomplice for Thomas' sexual assault on B.S., it was necessary that the state prove beyond a reasonable doubt that Bowell was aware that Thomas intended to have sexual intercourse with B.S. and, intending to facilitate Thomas in achieving his goal, performed some act of aid or encouragement. While the statute interpreted in this way will adequately provide both the mens rea and an actus reus for most offenses, it does present certain difficulties in connection with crimes such as first-degree sexual assault, which include the circumstances surrounding an offender's conduct as an element of the offense. The Commentary to the Model Penal Code discusses this problem as follows: There is a deliberate ambiguity as to whether the purpose requirement [the requirement that in order to be guilty as an accomplice, the actor have the purpose of promoting or facilitating the commission of the offense] extends to cir cumstance elements of the contemplated offense or whether, as in the case of attempts, the policy of the substantive offense on this point should control. The reasoning is the same as in the case of conspiracy, which is set forth in some detail in Section 5.03 Comment 2(c)(ii). The result, therefore, is that the actor must have a purpose with respect to the proscribed conduct or the proscribed result, with his attitude towards the circumstances to be left to resolution by the courts. His attitude towards the criminality of the conduct, see Section 2.02(9),. is irrelevant here as it is in the other cases, subject of course to the limitation of Section 2.04(3) (ignorance or mistake of fact or law). A.L.I., Model Penal Code and Commentaries Part I § 2.06 n. 37, at 311 (1985). Under current law, the state's burden to establish a culpable mental state in order to convict a person as an accomplice is a matter of first impression. See Hensel v. State, 604 P.2d 222 (Alaska 1979) (considering the issue of the requisite mental state for accomplice liability under prior law). In Reynolds v. State, 664 P.2d 621 (Alaska App.1983), we held that the state must prove a culpable mental state regarding the "circumstance" — lack of consent— in order to convict a principal of the offense of first-degree sexual assault. "In order to prove a violation of AS 11.41.-410(a)(1), the state must prove that the defendant knowingly engaged in sexual intercourse and recklessly disregarded his victim's lack of consent." 664 P.2d at 625. Similar reasoning leads us to conclude that the state must prove the same element in order to convict a person of first-degree sexual assault as an accomplice. In other words, in order to convict Bowell as an accomplice of Thomas' first-degree sexual assault of B.S., the state was required to prove that Bowell knew that Thomas intended to engage in sexual intercourse with B.S., that he intentionally engaged in conduct facilitating Thomas' efforts, and that at the time he aided Thomas, he recklessly disregarded B.S.'s lack of consent to Thomas' overtures. Bowell next argues that the jury instructions were inadequate in describing the culpable mental state necessary for a finding of accomplice liability to first-degree sexual assault. The jury was instructed that in order to find Russell Bowell guilty of first-degree sexual assault, it had to find: As to Russell Scott Bowell: 1. That the event in question occurred at or near Fairbanks, in the Fourth Judicial District, State of Alaska, and on or about the 4th day of February, 1985; 2. That the defendant, James D. Thomas, knowingly engaged in sexual penetration with B.S.; 3. That the penetration occurred without the consent of B.S.; 4. That Russell Scott Bowell aided or abetted James D. Thomas in the sexual penetration; and 5. That James D. Thomas recklessly disregarded B.S.'s lack of consent to the sexual penetration. Bowell claims error because this instruction does not specify a mental state for Bowell's acts. Rather, the only mental state for the jury to consider under this instruction is whether or not Thomas recklessly disregarded B.S.'s nonconsent to intercourse. Bowell is correct that this instruction is incomplete regarding the required mens rea for accomplice liability. Since he did not object to this instruction at trial, he must establish plain error in order to prevail. Alaska R.Crim.P. 47(b). We note that Bowell did more than fail to object to the instruction at trial. It was his counsel who suggested that the mental state as to Bowell should be that Thomas recklessly disregarded B.S.'s lack of consent to the intercourse. Under the totality of the circumstances, we are satisfied that no plain error occurred. We are also satisfied that the other instructions given, coupled with the parties' arguments, adequately presented the issue to the jury. See, e.g., Reynolds v. State, 664 P.2d at 627-28. See also Cupp v. Naughten, 414 U.S. 141, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973) (single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge). The other instructions given informed the jury on accomplice liability: An accomplice is one who in some manner, knowingly and with criminal intent, aids, abets, assists or participates in a criminal act. A person need not commit every element of the offense in order to be guilty as an accomplice. However, it is necessary that he in some ways [sic] associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his actions to make it succeed.... "Aid and abet" means to help, assist, or facilitate the commission of a crime, promote the accomplishment thereof, help in advancing or bringing it about, or induce, counsel, or incite as to its commission. Under the laws of Alaska a person need not directly commit each act constituting the offense charged to be guilty thereof. A person who, with intent to promote or facilitate the commission of the offense, aids or abets another in planning or committing the offense is as guilty as the person or persons who commit the offense personally.... Furthermore, the parties' arguments at closing both expressed the correct legal standard regarding Bowell's culpability. The prosecutor stated: And then you have to consider, if you found these four things [establishing Thomas' guilt] beyond a reasonable doubt, whether you believe beyond a reasonable doubt that Mr. Bowell aided or abetted and that sexual penetration — in other words, did he know what was hap pening, was he in agreement with it, was it [sic] doing things to help it along, to make it possible for Mr. Thomas to do what he was doing, was he a part of it and was he a participant in the whole situation. Bowell's counsel argued to the jury without objection by the state: Now the law is going to be completely read to you. Under the law of the State of Alaska somebody can be guilty as a principal if he aids or abets, Okay? And if a person intends to promote or facilitate the commission of an offense, aids and abets — aids and abets, he is guilty as the person or persons who commit the offense.... In order to aid and abet another to commit a crime it is necessary that the defendant willfully associate himself in some way with the criminal avenger, that he willfully participated in something that he wishes to bring about, that he willfully seeks by some action to make it succeed.... You have to find that he intended to aid and abet Mr. Thomas. And a person acts intentionally with respect to a result when his conscious objective is to cause that result. We conclude therefore, that Bowell has failed to establish plain error. Bowell next argues that there was insufficient evidence to convict him of aiding and abetting first-degree sexual assault. Bowell stresses B.S.'s testimony that she would not have been able to escape Thomas' sexual assault even if Bowell had not been present. On review, we must view the evidence and the inferences that may be drawn therefrom in the light most favorable to the prosecution to determine whether there is substantial evidence to support the conviction against Bowell. Dorman v. State, 622 P.2d 448, 453 (Alaska 1981). Substantial evidence is defined as such relevant evidence as is adequate to support the conclusion by a reasonable mind that there is no reasonable doubt as to Bowell's guilt. Id. at 453 (citations omitted). Applying this standard, we are satisfied that there is sufficient evidence in the record to enable reasonable jurors to determine beyond a reasonable doubt that Bowell was guilty of aiding and abetting Thomas' sexual assault of B.S. B.S. testified that Thomas was speaking loudly enough for Bowell to hear when he said, "Little girls shouldn't be out hitchiking in the middle of the night [sic] unless they're asking for something." B.S. asked Bowell to stop and please let her out; Bowell did not stop. When Thomas asked Bowell for the gun, B.S. testified that Bowell retrieved the gun from the glove box, loaded it, and handed it to Thomas. According to B.S., Thomas told Bowell that when Thomas was finished with B.S., it was Bowell's turn. Bowell said, "Hurry up then." B.S. testified that Bowell assisted Thomas in the sexual assault by driving the car, without slowing the rate of speed, to prevent her escape. We recognize that B.S. testified to a multiplicity of sexual assaults during the approximately three hours that she was in the company of Thomas and Bowell. Given B.S.'s testimony about her actions, and those of Thomas and Bowell, we are satisfied that a reasonable jury could conclude beyond a reasonable doubt that Bowell, at some point, was aware that Thomas was engaging in sexual intercourse with B.S. without her consent, and knowing that, he aided and abetted Thomas. The trial court did not err in denying Bowell's motion for a directed verdict of acquittal. We will now briefly address Bowell's arguments regarding his sentence. A first offender convicted of first-degree sexual assault is subject to presumptive sentencing. AS 12.55.125(i). If the offense is a first felony conviction and the defendant possessed a fire arm, the presumptive term is ten years. Id. (i)(2). Judge Greene found that Bowell's passing a loaded fire arm to Thomas constituted "possession of a fire arm." Bowell argues that only Thomas possessed the fire arm in connection with the offense. See, e.g., Dailey v. State, 675 P.2d 657, 661 (Alaska App.1984). We disagree. Where an accomplice furnishes a fire arm to his principal in order to aid and abet a sexual assault, the trial court may properly find that the accomplice possessed a fire arm for purposes of the enhanced presumptive term. AS 12.55.125(i)(2). Judge Greene's conclusion was not clearly erroneous. McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974). The judgment of the superior court is AFFIRMED. The case is REMANDED for consideration of Bowell's motion for new trial. . The culpable mental state "intentionally" is defined as follows: AS 11.81.900. Definitions. (a) For purposes of this title, unless the context requires otherwise, (1) a person acts "intentionally" with respect to a result described by a provision of law defining an offense when the person's conscious objective is to cause that result; when intentionally causing a particular result is an element of an offense, that intent need not be the person's only objective.... . As indicated, the commentary to Model Penal Code § 2.06 discusses a problem which is also discussed in the commentary to Model Penal Code § 5.03, dealing with criminal conspiracy. There the commentators state: The conspiracy provision in the Code does not attempt to solve the problem [whether culpability with respect to circumstance elements is required] by explicit formulation, nor have the recent legislative revisions. Here, as in the section on complicity, it was believed that the matter is best left to judicial resolution as cases that present the question may arise and that the formulations proposed afford efficient flexibility for satisfactory decision. Under Subsection (1) of Section 5.03 it is enough that the object of the agreement is "conduct that constitutes the crime," which can be held to import no more than the mental state required for the substantive offense into the agreement to commit it. Although the agreement must be made "with the purpose of promoting or facilitating the commission of the crime," it is arguable, though by no means certain, that such a purpose may be proved although the actor did not know of the existence of a circumstance, which did exist in fact, when knowledge of the circumstance is not required for the substantive offense. Rather than press the matter further in this section, the Institute deliberately left the matter to interpretation in the context in which the issue is presented. Too many variations, many of which cannot be foreseen with any confidence, could otherwise be expected to arise and undermine any more rigid formula. A.L.I., Model Penal Code and Commentaries Part I § 5.03, at 413-19 (1985) (footnotes omitted). . At Bowell's request, the trial court instructed the jury that Bowell's culpability depended in part upon a finding that Thomas recklessly disregarded B.S.'s lack of consent. We express no opinion as to whether Bowell's culpability required a finding of this element. As we noted in Reynolds, a claim by one charged with sexual assault that he reasonably or unreasonably disregarded his victim's lack of consent is akin to a defense of mistake of fact. 664 P.2d at 624-25. Such a defense might be personal to the actor. Thus, a jury might find that A with the active assistance of B engaged in sexual intercourse with C and that C in fact did not consent. The jury might further find that B, the accomplice, was aware of and disregarded a substantial risk of C's lack of consent but that A, the principal, honestly but unreasonably believed that she consented. We express no opinion as to whether B could be properly convicted on such facts. Compare AS 11.16.110(3) [a person is legally accountable for the conduct of another constituting an offense if . acting with the culpable mental state that is sufficient for the commission of the offense, the person causes an inno cent person or a person who lacks criminal responsibility to engage in the proscribed conduct] with AS 11.16.120(a)(2)(C) [in a prosecution for an offense in which legal accountability is based on the conduct of another person, it is not a defense that the other person is not guilty of the offense]. . Bowell does not complain of element no. 5 of the instruction on appeal. [See n. 3, supra.] . Bowell raises other issues which we briefly address. First, he contends that the trial court erred in concluding that it had no jurisdiction to consider his motion for new trial based upon newly discovered evidence filed on the same day that he filed his notice of appeal. The parties are in agreement that Judge Greene could have considered the motion and denied it without a remand from this court, but would have needed to request a remand in order to grant the motion. See, e.g., State v. Salinas, 362 P.2d 298, 301 (Alaska 1961). It is unnecessary for us to pursue this issue, however, because our affirmance of Bowell's conviction will permit the trial court to address his motion for new trial on remand. Bowell also challenges Judge Greene's rejection of a mitigating factor that he committed the offense under some degree of duress, coercion, threat or compulsion, insufficient to constitute a complete defense but which significantly affected his conduct. AS 12.55.155(d)(3). Since Judge Greene's decision on this issue might be influenced by the so-called newly discovered evidence that Bowell seeks to present in support of his motion for a new trial, we will permit reconsideration of this issue on remand. See, e.g., Hart v. State, 702 P.2d 651 (Alaska App.1985). See also Bynum v. State, 708 P.2d 1293 (Alaska App.1985); Lee v. State, 673 P.2d 892, 896 (Alaska App.1983). Finally, Bowell appealed Judge Greene's imposition of consecutive sentences for kidnapping and first-degree assault. However, the lower court has since modified the sentence on appeal and Bowell has abandoned this issue.

10446310

STATE of Alaska, Petitioner, v. Samuel FEVOS, Respondent

State v. Fevos

1980-10-10

No. 4892

490

493

617 P.2d 490

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.

STATE of Alaska, Petitioner, v. Samuel FEVOS, Respondent.

STATE of Alaska, Petitioner, v. Samuel FEVOS, Respondent. No. 4892. Supreme Court of Alaska. Oct. 10, 1980. Randy M. Olsen, Asst. Dist. Atty., Harry L. Davis, Dist. Atty., Fairbanks, and Avrum M. Gross, Atty. Gen., Juneau, for petitioner. David C. Backstrom, Deputy Public Defender, Fairbanks, and Brian Shortell, Public Defender, Anchorage, for respondent. 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.

1677

9711

OPINION RABINOWITZ, Chief Justice. Samuel Fevos was arrested and indicted on assault charges. The superior court dis missed the charges pursuant to a motion under Alaska R.Crim.P. 45, because Fevos had not been brought to trial within 120 days. The state petitioned for review of this ruling, and we now reverse, having concluded that no violation of the 120-day rule occurred. Fevos was arrested on December 28,1978. Trial was eventually set for August 27, 1979, after a period of 242 days. The superior court determined that 111 days were excluded and that 131 days were chargeable against the state, and thus granted the motion to dismiss. A brief outline of the sequence of events is necessary. Following his arrest on December 28, Fevos was arraigned on December 29, and a public defender was appointed; preliminary hearing was set for January 4, 1979; and since it appeared to the superior court that Fevos might be suffering from a mental disease or defect, the court ordered a psychiatric examination. The psychiatric examination was completed and filed on January 8, 1979. On January 16, Fevos was indicted by the grand jury and arraigned on the indictment on January 18. At a subsequent conference held on January 26, trial was set for March 12, and an omnibus hearing was set for February 20, with motions to be filed by February 9. On February 8, a motion to suppress was filed. This motion was followed by a series of other motions that culminated in a motion for change of plea which was filed on March 2. A no contest plea was thereafter entered on March 8, with sentencing set for April 12. On April 12, the plea was vacated and a plea of not guilty again entered, and the superior court ordered that Fevos be sent to Alaska Psychiatric Institute (API) for thirty days observation. The superior court requested a report as to whether Fe-vos could understand the charges against him or assist in his defense and whether he had mental capacity sufficient to enter a plea. Through administrative oversight, Fevos was never sent to API. He appealed to this court on June 5, on a pro se motion for review of the superior court's April 12th order. On June 19, we ordered the superior court to review its April 12th order including implementation of the psychiatric examination. The next hearing was held on June 25. At this proceeding, Fevos moved to reinstate his no contest plea. The superi- or court again ordered a psychiatric examination. On June 26, Fevos was sent to API and a psychiatric report was filed on June 28.- He appeared before the superior court again on July 20, having been found competent by API, and again indicated a desire to reinstate his no contest plea. July 27 was the date set for the renewed change of plea. However, Fevos once again changed his mind and on August 2, a new trial date was set for August 27. On August 22, Fevos filed a Rule 45 motion to dismiss, which the superior court granted. Subsection (d)(1) of Rule 45 provides for certain periods to be excluded: The period of delay resulting from other proceedings concerning the defendant, including but not limited to motions to dismiss or suppress, examinations and hearings on competency, the period during which the defendant is incompetent to stand trial, interlocutory appeals, and trial of other charges. No pretrial motion shall be held under advisement for more than 30 days and any time longer than 30 days shall not be considered as an excluded period. The order for psychiatric examination was entered on the day after arrest, December 29. The period from December 29 to January 8, when the initial psychiatric report was filed, is excluded under subsection (d)(1) as being during the pendency of competency hearings. From January 8 to February 7 there is no basis for exclusion and all parties agree that this period of thirty-one days should be chargeable against the state. On February 8, Fevos filed the first of several defense motions, at least one of which was before the superior court throughout the period from February 8 until the motion to change plea was entered on March 8. Thus, the time from February 8 until March 8 is excludable under subsection (d)(1) of Rule 45. Since Fevos entered a plea of no contest on March 8, and sentencing was set for April 12, this time span is also excludable for good cause under Rule 45 because no trial was anticipated. On April 12, Fevos' plea was vacated and he was ordered to undergo thirty days of psychiatric observation at API. The superior court's order, as Fevos concedes, makes the next thirty days, through May 12, excludable. However, through an oversight in the entering of orders by the superior court, Fevos was not sent to API until June 26. Fevos contends that this delay due to administrative error should be charged against the state. The state asserts that none of this period should be counted toward the 120-day limit as Fevos was himself responsible for the failure to speak out concerning the fact that the API examination had not been conducted. We are of the view that the thirty-day period from April 12 to May 12 should be excluded and find it unnecessary to decide whether any delay in obtaining and completing a psychiatric examination beyond the thirty days is chargeable to the state. When Fevos was finally sent to API, it took only two days, until June. 28, for API to complete its examination; those two days must be counted against the state, as additional excess over the thirty days from April 12 to May 12. However, the hearing on Fevos' competence was not held until July 20. Since the superior court was considering Fevos' mental competency from June 28 until it reached its decision on the issue on July 20, this entire period is excluded under subsection (d)(1). On July 20 Fevos moved to reinstate his plea, but a week later, on July 27, at the time set for the change of plea, declined to do so. This period is thus excludable under (d)(1) as it encompasses the time Fevos' motion for change of plea was pending. From July 27 until the Rule 45 motion to dismiss was filed on August 22, there is no reason for exclusion and this period of twenty-six days is also chargeable against the state. Adding up these periods, we find that only 105 days had run at the time the Rule 45 motion was made. Thus, we conclude that the superior court erred in granting the motion to dismiss and that the indictment should be reinstated. . Alaska R.Crim.P. 45 provides, in part: (a) Priorities in Scheduling Criminal Cases. The court shall provide for placing criminal proceedings upon appropriate calendars. Preference shall be given to criminal proceedings and the trial of defendants in custody shall be given preference over other criminal cases. Trial dates in criminal cases in the superior court shall be set at the time of arraignment, and if a trial date is thereafter vacated, the trial shall be immediately set for a date certain. (b) Speedy Trial Time Limits. A defendant charged with either a felony or a misdemean- or shall be tried within 120 days from the time set forth in section (c). (c)When Time Commences to Run. The time for trial shall begin running, without demand by the defendant, as follows: (1) From the date the defendant is arrested, initially arraigned, or from the date the charge (complaint, indictment, or information) is served upon the defendant, whichever is first. . . . We have granted this petition for review because it discontinued the action, see Alaska R.App.P. 23(c)(2), and because of the continuing importance of clarifying the application of Alaska R.Crim.P. 45, see Alaska R.App.P. 24(a)(1). . We noted in Deacon v. State, 575 P.2d 1225, 1230 n.12 (Alaska 1978): Since Rule 45 does not provide for a specific method of calculation, we stated in Nickels that periods of delay are to be calculated according to Criminal Rule 40(a). Under Rule 40(a), the date of Deacon's arrest and the dates of events which re-start the running of the time period will not be counted, but the dates of tolling events will be. Thus, December 28, the date of arrest, starts the running of the time period but is not chargeable to the state. . An objective reading of Rule 45(d)(1) requires that the entire period between the motion for psychiatric examination and the filing of the psychiatric report be excluded. Deacon v. State, 575 P.2d 1225, 1229 (Alaska 1978) (footnote omitted). . Alaska R.Crim.P. 45(d)(7) requires that "[o]ther periods of delay for good cause" be excluded. . Actually, the April 12 order was followed by a written order issued on April 16. Fevos apparently concedes that the 30-day period should run from April 16 to May 16. As the difference does not affect the final result here, we use the earlier date as being more to Fevos' advantage. . The 30-day maximum for matters under advisement in subsection (d)(1) of Rule 45 is inapplicable to this period since the issue is not under advisement by the court until the examination has occurred and a report has been filed. . After the report was filed, the court had up to 30 days to consider the report, which was not exceeded in this case. . The time sequence, as we view it, is as follows:

11443708

Jeanette PITKA, Appellant, v. INTERIOR REGIONAL HOUSING AUTHORITY, Appellee

Pitka v. Interior Regional Housing Authority

2002-09-13

No. S-10152

785

790

54 P.3d 785

54

Pacific Reporter 3d

Alaska Supreme Court

Alaska

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

CAP

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

Jeanette PITKA, Appellant, v. INTERIOR REGIONAL HOUSING AUTHORITY, Appellee.

Jeanette PITKA, Appellant, v. INTERIOR REGIONAL HOUSING AUTHORITY, Appellee. No. S-10152. Supreme Court of Alaska. Sept. 13, 2002. James M. Hackett, Law Offices of James M. Hackett, Inc., Fairbanks, for Appellant. Tracey L. Knutson, Sisson & Knutson, Anchorage, for Appellee. Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.

2707

16698

OPINION FABE, Chief Justice. I. INTRODUCTION Jeanette Pitka was dissatisfied with her conditions of employment and the results of the grievance she filed with her employer, the Interior Regional Housing Authority. She left work and never returned. Pitka sued her employer, alleging breach of the implied covenant of good faith and fair dealing, breach of employment contract, and constructive termination. The superior court granted summary judgment in the employer's favor on all claims. We affirm. II. FACTS AND PROCEEDINGS The Interior Regional Housing Authority (IRHA) hired Jeanette Pitka as a temporary accounting assistant in January 1997. Pit-ka's position later became permanent and she was given the title of Projects Administrative Clerk. In February 1998 her supervisor, Rose Baumes, conducted an annual job performance review and concluded that Pit-ka's overall performance was "above satisfac tory." Pitka received a step increase to Grade 2 and a salary increase to $24,768 per year. In January 1999 Baumes conducted another annual review for Pitka, this time rating her job performance as "satisfactory." Pitka received another step increase to Grade 3 and a salary increase to $27,964 per year. In August 1999 Pitka filed a written grievance with IRHA's executive director, Joseph Wilson, and its personnel director, Gretchen Ray. Pitka claimed that another department was "spontaneously taking over [her] job duties," and that her supervisor, Baumes, was "jumping into her work and taking over her duties." Pitka argued that her job duties should "remain [her] responsibility until formal action is taken." Shortly thereafter, Pitka sent another memorandum to Wilson and Ray, informing them that she would "not return to work until issues can be resolved in a professional manner." She added that she "expect[ed] to be compensated financially for any time missed." The following day, Wilson informed Pitka that an employee is not permitted to "unilaterally remove oneself from work and continue to be compensated, even if a grievance has been lodged." He also apprised her of the grievance procedures and asked her to schedule a hearing with Ray. Despite this warning, Pitka failed to return to work. On August 19, 1999, Wilson issued a written decision on Pitka's grievance. He detailed the investigation of Pitka's various complaints and concluded that her job title would be changed to Administrative Clerk II, that she would split her time between two departments remaining under the same supervisor, that she would receive a written job description, and that her wage and step level would "remain the same." The decision also noted that Pitka had a "poor attitude," and that others found it difficult to work with her given her "tendency to complain" and her resistance to "performing tasks as directed." Finally, the decision provided that if Pitka was dissatisfied with Wilson's decision, she could submit a final written grievance to the IRHA Board of Commissioners. Pitka reviewed Wilson's decision, but refused to sign it. Pitka claimed that she had been demoted because a written job description contained in her file classified her position as a Grade 4. Wilson's grievance decision, however, reflected that Pitka would "remain the same" in a Grade 3 position. Pitka never signed the written decision, yet she did not file an appeal of her grievance to the IRHA Board of Commissioners. Pitka never returned to work at IRHA. On December 6, 1999, Pitka filed a complaint in the superior court for breach of the implied covenant of good faith and fair dealing, breach of employment contract, and constructive termination. In essence, she claimed that although she had prevailed in her grievance, IRHA had demoted her from a Grade 4 to a Grade 3 position, which constituted a violation of the employment contract. She also set forth a claim for wrongful discharge based on her allegation that her working conditions were so intolerable she felt compelled to resign. The parties filed cross-motions for summary judgment. On February 6, 2001, the trial court granted summary judgment to IRHA on all claims. III. STANDARD OF REVIEW We review a grant of summary judgment de novo and view the facts in the light most favorable to the non-moving party. When reviewing a grant of summary judgment, we determine whether any genuine issue of material fact exists and whether the moving party is entitled to judgment as a matter of law. Summary judgment may be affirmed on grounds other than those relied upon by the superior court. IV. DISCUSSION A. Claims Not Raised in the Trial Court Will Not Be Considered. In general, "parties cannot advance new theories or raise new issues in order to secure a reversal of the lower court's determination." However, we take a "liberal approach towards determining whether an issue or theory of a case was raised in a lower court proceeding." In order to determine whether the "new" arguments will be considered here, we ask whether they were raised expressly below and, if not, whether they are closely related to the trial court arguments and could have been gleaned from the pleadings. We will not consider a new argument if the issue is dependent on any new or controverted facts. IRHA contends that Pitka raises new issues on appeal that were not before the trial court and are therefore not properly before this court. It asserts that Pitka's claims below all flowed from her allegation that she "had prevailed in her grievance, yet when she returned to work, IRHA unilaterally altered the terms of her employment and demoted her." IRHA asserts that Pitka's claims focused entirely on the perceived demotion and constructive termination. In contrast, according to IRHA, Pitka now argues that she suffered numerous procedural violations of approximately thirteen different personnel policies. Thus, IRHA contends that most of Pitka's current claims are not properly before this court. We agree. It is clear that the arguments Pitka employed in the superior court are different than those set forth in this appeal. In her reply to IRHA's opposition to the motion for summary judgment, Pitka framed her claim this way: "The problem is that IRHA reneged on its commitment made in its grievance decision." Pitka focused her arguments exclusively on the claim that although she "'prevailed' in her grievance, IRHA's ultimate response was to demote her," and she repeatedly emphasized that "the actions of IRHA did not comply with the grievance decision." Pitka's allegations in the superior court relied on a single set of facts which she characterized as "unrefuted": e IRHA reorganized its offices and failed to advise Ms. Pitka as to the identity of her supervisor, job duties and job title; e Ms. Pitka's personnel file contained a job description, inserted into her personnel file without her knowledge, which set her wage at grade 4; e Ms. Pitka filed a grievance, learned of the job description in her file, and prevailed in the grievance. As part of the grievance decision, IRHA identified her supervisor and assured her that they would provide her with a job description, containing her job duties and maintain her wage grade and step level. @ Upon reporting to learn her new job description, Ms. Pitka was provided a job description with a wage grade of 3. She raised an objection to Ms. Ray about this, and was told to simply sign the grievance and that the matter was settled. Thus, Pitka's sole focus was the alleged "demotion," and all of her claims flowed from that demotion. She claimed that the demotion constituted constructive discharge, that failure to implement the grievance decision constituted a breach of the implied covenant of good faith and fair dealing, and that violation of the personnel rule relating to grievances constituted a breach of the employment contract. In contrast, Pitka now points to a broader range of personnel policies that she claims were not followed. In addition, she contends that all of the personnel policies, rather than just the grievance procedures, constitute an enforceable contract. Yet these claims were neither argued to nor briefed in the superior court, and we therefore decline to consider them here. Instead, our review is limited to the question actually presented to and considered by the trial court: whether Pitka was demoted despite prevailing in her grievance. B. IRHA Did Not Breach the Implied Covenant of Good Faith and Fair Dealing. At-will employees may be terminated for any reason that does not violate the implied covenant of good faith and fair dealing. "[EJvery contract is subject to an implied covenant of good faith and fair dealing." Breach of the implied covenant may be either subjective or objective. An employer may violate the implied covenant by acting with a subjectively improper motive, such as when it "discharges an employee for the purpose of depriving him or her of one of the benefits of the contract." The subjective element is not based on the employee's personal feelings, but rather on the employer's motives. Therefore, the employee must present proof that the employer's decision to terminate him or her "was actually made in bad faith." An objective breach of the implied covenant may occur where the employer does not "act in a manner which a reasonable person would regard as fair." Disparate employee treatment, terminations on unconstitutional grounds, and firings that violate public policy are examples of actions that may violate the objective aspect of the implied covenant. Although the trial court recognized that the question of whether an employer has breached the implied covenant of good faith and fair dealing is usually a question for the trier of fact, it concluded that Pitka had presented no evidence of IRHA's improper motives or of Pitka's demotion. Therefore, the superior court concluded as a matter of law that IRHA did not breach the implied covenant of good faith and fair dealing. It added that each of Pitka's concerns was addressed in the grievance decision, and that although she did lack a written job description as provided for in the personnel policy, "this did not place her employment in jeopardy [and] could not possibly be considered unfair." There is no evidence that IRHA violated the implied covenant of good faith and fair dealing. First, IRHA did not terminate Pitka,. She was dissatisfied with the grievance process and simply refused to return to work. This occurred after she had used all of her sick days and had been granted an additional ten days leave. When Pitka filed her formal grievance, IRHA followed the procedures outlined in the policy, provided her with a hearing, and concluded by outlining a new position to accommodate her departmental preferences. Her pay remained the same. And although Pitka contends that she was demoted, there is no evidence to support the claim. Pitka relies on a written job description that she discovered in her personnel file. It described a position titled "Projects Assistant" that was a Grade 4 position. However, Pitka was a "Projects Administrative Clerk," which is a Grade 3 and Pitka was never paid above Grade 8. Thus, when Pitka was given her new position as Administrative Clerk II at Grade 3, that action could not be considered a demotion. With regard to the objective component, it is difficult to see how a reasonable person could regard IRHA's actions as unfair. On the contrary, the record seems to indicate that IRHA went out of its way to accommodate Pitka, even though other employees apparently found it difficult to work with her. The only procedural failure that can be gleaned from the record is the lack of a written job description for Pitka's position, and we agree with the trial court that this one oversight could not be considered a breach of the implied covenant of good faith and fair dealing. C. IRHA Did Not Wrongfully Terminate Pitka. "Constructive discharge is not an independent cause of action, but merely satisfies the discharge element in a claim for wrongful discharge." Constructive discharge is defined as "where an employer makes working conditions so intolerable that the employee is forced into an involuntary resignation." In order to establish constructive discharge, "an employee has the burden of showing that a reasonable person in the employee's position would have felt compelled to resign." Pitka claims that she was constructively discharged because her work conditions were so intolerable she had to resign. She claims that she was "humiliated" by the executive director's criticism that she was a "complainer," that the grievance decision was "incomplete, nonresponsive, and critical," and that she "could no longer work under {[the executive director]." However, "criticism of job performance or other management decisions do not, standing alone, create intolerable workplace conditions" and the record does not indicate that IRHA "engage[d] in a sustained campaign" against Pitka. The trial court found that there was no evidence of a campaign against Pitka or evidence of any effort to force her to resign. It observed that IRHA had gone through "a disorganized period during which Ms. Pitka felt upset," and aptly summarized that "she seemed to feel an almost proprietary right to continue to perform tasks she had developed herself." The trial court found that Pitka's fear that she might lose her job and her belief that she had been demoted were products of her own assumptions but that her subjective beliefs were not relevant. With respect to her claim that she was humiliated by Wilson's remarks that she was a "complainer," even if she were profoundly affected by that isolated remark, criticism of job performance alone is not enough to create intolerable work conditions. And Pitka has not pointed to any other comments or remarks that might be viewed as evidence of a campaign against her. Finally, it is difficult to see how the grievance decision itself could contribute to intolerable working conditions. In sum, the facts of this case are legally insufficient to establish a claim for wrongful discharge. v. CONCLUSION For the foregoing reasons, we AFFIRM the superior court's decision granting summary judgment in favor of IRHA. .The discrepancy appears to be explained by the fact that the job description placed in Pitka's file was for her supervisor's position, and had served only as a model for composing a new job description for Pitka. Pitka was apparently never paid as a Grade 4 employee. . Holland v. Union Oil Co. of Cal., Inc., 993 P.2d 1026, 1029 (Alaska 1999). . Id. . Hernandez v. Lambert, 951 P.2d 436, 439 n. 5 (Alaska 1998). . O'Neill Investigations, Inc. v. Illinois Employers Ins., 636 P.2d 1170, 1175 n. 7 (Alaska 1981). . Zeman v. Lufthansa German Airlines, 699 P.2d 1274, 1280 (Alaska 1985). . Id.; City of Hydaburg v. Hydaburg Coop. Ass'n, 858 P.2d 1131, 1136 (Alaska 1993). . Crum v. Stalnaker, 936 P.2d 1254, 1257 n. 5 (Alaska 1997). . Pitka's claim of procedural error refers to thirteen specific personnel policies that Pitka claims were not followed. . Gates v. City of Tenakee Springs, 822 P.2d 455, 460-61 (Alaska 1991). . Luedtke v. Nabors Alaska Drilling, Inc. (Luedtke I), 768 P.2d 1123, 1131 (Alaska 1989); Era Aviation v. Seekins, 973 P.2d 1137, 1139 (Alaska 1999). . Era Aviation, 973 P.2d at 1139. . Id. . Id. . Ramsey v. City of Sand Point, 936 P.2d 126, 133 (Alaska 1997) (citing as example Mitford v. de Lasala, 666 P.2d 1000, 1007 (Alaska 1983), in which employer violated implied covenant for terminating employee in order to prevent him from receiving promised share of future profits). . Era Aviation, 973 P.2d at 1141. . Id. . Ramsey, 936 P.2d at 133. . Era Aviation, 973 P.2d at 1139-40. . The grievance decision required that Pitka be provided with a written job description. . After the grievance, Pitka's job title was changed to Administrative Clerk II and she remained at a Grade 3. . Because there is no evidence that Pitka was actually demoted, we need not consider Pitka's claim that the demotion violated IRHA's grievance procedure and therefore the employment contract. . City of Fairbanks v. Rice, 20 P.3d 1097, 1102 n. 7 (Alaska 2000). . Beard v. Baum, 796 P.2d 1344, 1350 (Alaska 1990). . Cameron v. Beard, 864 P.2d 538, 547 (Alaska 1993). . Id. . Id.

11443761

NEROX POWER SYSTEMS, INC.; Nerox Energy Corporation, a/k/a E*Two Media.Com; William D. Artus; Coal Factors, Inc.; The LKL Trust; John Wallace, Trustee for the Wallace M.D. Family Trust; Gretchen A. Ross, Trustee for the G.A.R. Trust; and Nicholas E. Ross, Appellants, v. M-B CONTRACTING COMPANY, INC,; Tope Equipment Company; Alaska Law Offices, Inc.; and Steven Jones, Appellees

Nerox Power Systems, Inc. v. M-B Contracting Co.

2002-09-13

No. S-9922

791

804

54 P.3d 791

54

Pacific Reporter 3d

Alaska Supreme Court

Alaska

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

CAP

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

NEROX POWER SYSTEMS, INC.; Nerox Energy Corporation, a/k/a E*Two Media.Com; William D. Artus; Coal Factors, Inc.; The LKL Trust; John Wallace, Trustee for the Wallace M.D. Family Trust; Gretchen A. Ross, Trustee for the G.A.R. Trust; and Nicholas E. Ross, Appellants, v. M-B CONTRACTING COMPANY, INC,; Tope Equipment Company; Alaska Law Offices, Inc.; and Steven Jones, Appellees.

NEROX POWER SYSTEMS, INC.; Nerox Energy Corporation, a/k/a E*Two Media.Com; William D. Artus; Coal Factors, Inc.; The LKL Trust; John Wallace, Trustee for the Wallace M.D. Family Trust; Gretchen A. Ross, Trustee for the G.A.R. Trust; and Nicholas E. Ross, Appellants, v. M-B CONTRACTING COMPANY, INC,; Tope Equipment Company; Alaska Law Offices, Inc.; and Steven Jones, Appellees. No. S-9922. Supreme Court of Alaska. Sept. 13, 2002. William L. Choquette, Choquette & Far-leigh, LLC, Anchorage, for Appellants. Robert J. Dickson, Atkinson, Conway & Gagnon, Anchorage, for Appellee M-B Contracting Company, Inc. Gary Spraker, Bundy & Christianson, Anchorage, for Appellee Tope Equipment Company. Don C. Bauermeister, Burke & Bauermeis-ter, PLLC, Anchorage, for Appellees Alaska Law Offices and Steven Jones. Before: FABE, Chief Justice, EASTAUGH, BRYNER, and CARPENETI, Justices.

8608

51922

OPINION FABE, Chief Justice. I. INTRODUCTION In April 1997 Nerox Power Systems, Inc. recorded two deeds of trust encumbering mining rights to the Jonesville coal mine in Sutton, for the purpose of securing repayment of debts to certain alleged creditors. At issue in this appeal is the superior court's decision to give other creditors lien priority over the deeds of trust under the doctrine of equitable subordination. A second issue concerning the legal relationship between Nerox Power, its parent company, and the major shareholder in the parent company is which of these should assume liability for the debts of Nerox Power. The superior court pierced the corporate veil of the parent company to make its major shareholder liable for the debts of Nerox Power. We affirm the decision of the superior court in all respects. II. FACTS AND PROCEEDINGS Gemini Capital Corporation was incorporated in Nevada in 1985, and its stock was publicly traded. The corporation held interests in various gas and oil wells and based its profits on royalties from its holdings. By April 1991 Gemini Capital Corporation had run into financial difficulties, and its stock was de-listed due to valuation uncertainties. The company remained dormant for the next several months and in 1992 changed its name to Gemini Energy Corporation. Gemini Operating Company, a subsidiary of Gemini Capital Corporation (later Gemini Energy Corporation), was incorporated in 1990. In November 1992 Nicholas E. Ross obtained a controlling interest in Gemini Energy Corporation; the corporation changed its name to Nerox Energy Corporation in 1994. Ross served as the president and chief executive officer of Nerox Energy from the time of purchase until November 1997. In 1994 Ross sought to acquire a five percent interest in a Cook Inlet oil field owned by Stewart Petroleum. In order to raise the necessary capital, Ross issued 108,894 shares of common stock in Nerox Energy. Because Nerox Energy was facing financial difficulties at the time, Ross attracted investors by promising that by 1996 Nerox Energy's stock would reach $35.71, for a total valuation of $3.87 million, and that any difference would be paid either in cash or additional stock if this goal was not reached. Stewart Petroleum went bankrupt in 1996, depriving Nerox Energy of its expected profit. In 1995 Ross decided to expand into coal mining through the subsidiary Gemini Operating Company, which he renamed Nerox Power Systems, Inc. Nerox Power acquired the Jonesville coal mine in Sutton, which was not operational at the time of acquisition. The mining rights were previously owned by Hobbs Industries, Inc. under a sublease with Placer Dome U.S., Inc. Hobbs assigned its rights to Nerox Power on August 10, 1995 in exchange for stock in Nerox Power and other consideration. In late October 1995 Nerox Power purchased the mining rights from Placer Dome for $1 million, $800,000 of which was paid in cash and the balance executed in a promissory note. Of the $800,000 paid in cash, $400,000 was contributed by the GAR Trust and the Ross Family Trust, while the other $400,000 was raised by the sale of preferred stock to a set of investors. The mining rights to the Jonesville mine were the only asset Nerox Power ever owned. The Jonesville mine was not successful, and Nerox Power never generated any revenue from the sale of coal. Ross himself personally loaned approximately $1.8 million to Nerox Power and Nerox Energy to cover operating and development costs for the mine. In September 1996 Nerox Power leased heavy equipment from both M-B Contracting, Inc. and Tope Equipment Company for use at the mine. Out of frustration over Nerox Power's financial difficulties, Ross fired its existing president in December 1996 and replaced him with William Artus, who had been serving as legal counsel for Nerox Energy. Shortly after being hired, Artus loaned $79,500 to Nerox Power to cover operating expenses and a portion of the remaining $200,000 it owed to Placer Dome. Artus was also owed a little over $68,000 for legal services he provided to Nerox Energy prior to becoming president of Nerox Power. Nerox Energy issued Artus 151,016 shares of stock in 1997 but did not specify for which - debt the stock was issued or how much of the debt was relieved by the issuance. Nerox Power recorded a deed of trust against the Jonesville mine on April 11, 1997 to secure a payment of $191,576 to Artus and Coal Factors, Inc., which had supplied plans, materials, and equipment for a coal washing plant. Ross purchased Nerox Power in 1998 for $10,000 and the assumption of all corporate debt. Ross also transferred control of Nerox Energy to outside investors as part of the same transaction. Nerox Energy was renamed E*two Media.com. M-B recorded a lien against Nerox Power and Nerox Energy on May 14, 1997 and a lien extension on October 27, 1998. Tope recorded a similar lien on May 22, 1997 and a lien extension on November 19, 1997. Nerox Energy stipulated to a judgment of $47,500 in outstanding legal expenses to Alaska Law Offices and Steven Jones on August 28, 1997 for services rendered with regard to continuing litigation between Nerox Power and Hobbs Industries. On April 10, 1998, M-B filed to foreclose on its mechanie's lien and hold Nerox Energy liable for Nerox Power's debt. Tope cross-claimed and counter-claimed to foreclose on its mechanic's lien, and Alaska Law Offices and Steven Jones later moved to foreclose on its judgment lien. As a sanction for failing to comply with a discovery order, the superi- or court held that Nerox Energy was the alter ego of Nerox Power. Following a May 2000 trial, Superior Court Judge Karen L. Hunt concluded, based on extensive factual findings: that M-B and Tope could foreclose on their mechanic's liens and that Alaska Law Offices and Steven Jones could foreclose on their judgment lien; that the two April 1997 deeds of trust were subordinated to the mechanic's and judgment liens; and that both Nerox Power and Nerox Energy were instrumentalities of Ross, thus "piercing" the corporate veil and making Ross liable for their debts. Ross, Artus, Nerox Power, Ner-ox Energy, and other investors in Nerox Energy appeal this decision. III. DISCUSSION There are two main issues in this case: (1) whether the two April 1997 deeds of trust can be equitably subordinated to the liens of M-B, Tope, and Alaska Law Offices; and (2) whether Ross is personally liable for the debts of Nerox Power and Nerox Energy. The primary factual question raised by both issues is whether Ross and Artus acted fraudulently in their handling of the financial affairs for Nerox Energy and Nerox Power. Judge Hunt found sufficient evidence to conclude that fraud existed. To this finding we apply the "clearly erroneous" standard of review. A finding of fact is clearly erroneous "if it leaves this court with a 'definite and firm conviction on the entire record that a mistake has been made. " This standard, therefore, requires us to give great deference to the findings of the superior court Judge Hunt further concluded that the deeds of trust should be subordinated to the liens and that Ross was personally liable for the debts of Nerox Power. These are questions of law to which we apply our independent judgment. A. The Superior Court Did Not Err by Subordinating the Two April 1997 Deeds of Trust to the Liens of M-B, Tope, and Alaska Law Offices. The Alaska Supreme Court has recognized that the doctrine of equitable sub ordination, whereby the court may "undo or offset any inequity in the claim position of a creditor that would produce injustice or unfairness to other creditors in terms of bank-ruptey results," can exist outside of the standard bankruptcy context. A need for equitable subordination arises in situations of "[fIraud, unfairness, or breach of the rules of 'fair play' " It is also the case, however, that "an insolvent debtor may convey property to one creditor, even if it means that the debtor's assets will thereby be depleted, and that the claims of other creditors will be defeated." In the absence of inequitable conduct on the part of a debtor, a court cannot alter the pre-existing priorities among creditors. It is also important to note that we have held both that directors of insolvent corporations have a fiduciary duty to preserve the assets of the corporation for its creditors and that attorneys who represent insolvent corporations and have control over their assets must also protect those assets for the creditors where they "know[] or should know that the director or officer intends to interfere with creditors' claims through an improper distribution of those assets." 1. The April 11, 1997 deed of trust a. The debt to William Artus On April 11, 1997, Nerox Power recorded a deed of trust against the Jonesville mine and listed as beneficiaries William Artus and Coal Factors, Inc. Artus himself signed the deed in his role as president of Nerox Power. Debt amounts to Artus and Coal Factors were not separately listed in the deed of trust itself. The 1997 10-K report that Ner-ox Energy was required to file with the Securities and Exchange Commission lists debts to Artus of: (1) $68,196 for legal services in 1996 and 1997 combined, and (2) $85,482 for a loan that Artus made to Nerox Energy in late 1996 or early 1997. However, Artus testified at trial that he was owed $79,500 for the loan. This amounts to a total debt to Artus of either $158,628 or $147,696. Nerox Energy issued 151,016 shares of stock to Artus "in conversion of debt" sometime in 1997. The 1997 10-K report does not explain to what extent the debts owed to Artus, both from his loan and for his legal services, were satisfied by the 151,016 shares issued to him. There is no monetary value attached to the shares, although one could reasonably infer that the entire debt was satisfied by the issuance of stock. The 1997 10-K report states that Nerox Energy converted $568,168 in debt to shares of common stock in 1997 at $1.00 per share. There is nothing definitive to say that the issuance of stock to Artus was included in this debt conversion, although converting debt at a dollar per share for the 151,016 shares issued to Artus would closely approximate the combined debt owed to Ar-tus for his loan and for legal services. Judge Hunt concluded that Artus's debt was satisfied by the issuing of the stock. She further found that the loan to Nerox Power by Artus was a capital contribution for which he received the shares of common stock in Nerox Energy. Judge Hunt found that fraud existed in these transactions: Mr. Artus breached his fiduciary duty to the creditors by attempting to place the interests of William D. Artus and Coal Factors, Inc., shareholders in the corporation, over the interests of third-party ered-itors. The execution of the deed of trust was done at a time when both corporations were grossly undercapitalized. Such conduct constituted a fraudulent conveyance, hindered creditors and was "inequitable conduct." Artus contends that because the amount of debt compensated by the 151,016 shares is unclear, the conveyance of the deed of trust cannot be fraudulent. However, we cannot say that the superior court was clearly erroneous in concluding that "Nerox Power satisfied any debts Nerox Power owed to Artus." Based on the 1997 10-K statement that certain unspecified debts were converted to common stock "at a price of $1.00 per share in 1997," Judge Hunt found that the stock issued in satisfaction of debt in 1997 was issued for a dollar a share. Because the 151,016 shares issued to Artus are roughly equal to the amount of money owed to Artus by Nerox Power ($158,628 based on the figures in the 1997 10-K), there is evidentiary support for the superior court's conclusion that all of Artus's debts had been satisfied, and we cannot say that this factual determination is clearly erroneous. Furthermore, Judge Hunt could have effected the subordination of Artus's interest in the deed of trust independently of whether or not she believed that his debt had been satisfied by the issuance of stock. Ap-pellees M-B, Tope, and Alaska Law Offices focus on Artus's position as an insider in Nerox Power and argue that this status supports a finding of a fraudulent conveyance to Artus's own benefit. Appellees argue that this is sufficient to support equitable subordination of the deed of trust. The law supports this conclusion. Federal courts have recognized three types of misconduct that constitute "inequitable conduct": (1) fraud, illegality, or breach of fiduciary duties; (2) undereapitalization; and (8) claimant's use of the debtor as a "mere instrumentality" or alter ego. Judge Hunt found the first two of these to exist, and her conclusions were not clearly erroneous. The prohibition against fraudulent conveyances has been codified in Alaska law. The intent to defraud through a conveyance "is a question of fact usually to be proved by cireumstantial evidence." Many cireum-stantial factors can indicate the existence of fraud. "Badges of fraud must be viewed within the context of each particular case." Judge Hunt found that Artus either knew or should have known that many creditors had not been paid at the time the deed of trust was recorded and that these creditors would likely claim a lien against the mining rights. In his role as a director of the company, and in his former role as a lawyer for Nerox Energy, Artus had an obligation to protect the rights and assets of the corporation for its creditors. Judge Hunt further found that by naming himself as a beneficiary of a deed of trust encumbering Nerox Power's only asset for the purpose of repaying a loan and reimbursing the costs of legal services he provided, Artus ignored his fiduciary duty and engaged in inequitable conduct. We have recognized inadequate consideration, the insolvency of the debtor/transferor, and a transfer of assets in anticipation of a pending suit to be among the badges of fraud. All of these existed in the present case. Judge Hunt found that Nerox Power was insolvent; that there was inadequate consideration for the deed of trust; and that Artus knew Nerox Power was likely to be burdened by mechanic's liens in light of its insolvency. These factual findings are not clearly erroneous and satisfy the fraud category of inequitable conduct. Judge Hunt also found that both Nerox Power and Nerox Energy were "grossly un-dercapitalized" and that this constituted inequitable conduct. The only asset of Nerox Power was the right to mine coal at the Jonesville mine, which never went into production. Judge Hunt found that Nerox Power had neither the expertise nor the equipment to run a coal mine, hence the need to hire M-B and Tope. All the funding for the expenses of Nerox Power came either directly from Ross or indirectly from Ross via Nerox Energy. Given these facts, it was not clearly erroneous to find that Nerox Power was undercapitalized and that the deed of trust for Artus could thus be equitably subordinated to the liens of M-B, Tope, and Alaska Law Offices. b. The debt to Coal Factors, Inc. Judge Hunt found that Coal Factors was a consultant to Nerox Power and had advanced them funds for use in developing the mine, making them either an investor or an unsecured creditor. Because Nerox Energy satisfied its debts to consultants by issuing stock, Judge Hunt found that the debts owed to Coal Factors had been satisfied. Coal Factors thus could not be preferred over bona fide creditors. Yet, the evidence Judge Hunt cites to show that Coal Factors was a consultant actually suggests that Coal Factors was a standard contractor rather than a consultant. Furthermore, the billing statements in the record demonstrate that a substantial amount of Coal Factors's billing was for material goods provided to Nerox Power for use in developing the mine. There is also very little testimony at trial to support the conclusion that Coal Factors served as a consultant. However, M-B argues an alternative ground on which to affirm the equitable subordination ordered by Judge Hunt. It is unclear exactly how much was owed to Coal Factors. There are no specific debt figures contained in the 1997 10-K report. Artus testified conflictingly that Coal Factors was owed $115,000 and that it was owed $130,000. Nerox Power and Coal Factors do not provide in their combined briefs any clarification of the amount owed other than to rely on Artus's testimony. Because the deed of trust was drafted for payment of $191,576, subtracting the $151,016 that Artus received leaves $40,560 for Coal Factors. However, the timing between the debts incurred, the payments made, and the April 11, 1997 recording of the deed confuses matters further. The largest expense incurred by Coal Factors-$80,000 for structural steel for a coal wash plant-was invoiced on September 8, 1997, several months after the deed of trust was recorded on April 11, 1997. It is conceivable that some or perhaps all of this expense was incurred prior to the recording of the deed of trust. Certain other expenses apparently were incurred prior to April 11, 1997, even though they were not invoiced until several months later. M-B alleges that Coal Factors was only owed $27,541.44 on April 11, 1997, when the deed of trust was recorded. Ultimately, it is impossible to get a clear accounting from the record of the expenses Coal Factors incurred before April 11, 1997. Based upon the evidence in the record, there is insufficient justification for the amount of the Coal Factors deed of trust. The record shows that prior to April 11, 1997, Coal Factors had incurred costs of $33,394.46 for work done and materials provided to Nerox Power and been paid $17,794.90 for these costs, leaving indebtedness of only $15,599.56. The deed of trust, as far as the record goes, provides collateral to Coal Factors for a debt of only $40,560. There is no indication in the deed of trust as to what the deed is securing and no indication of what consideration, if any, Coal Factors gave to Nerox Power to justify any amount in excess of its existing debt. This court cannot act as the accountant for Coal Factors, determining when its debts were incurred and which ones are valid for the purpose of the deed of trust. Were the deed of trust clearer or the record more complete, it is possible that Coal Factors could demonstrate that it was error for Judge Hunt to shift the priority of the liens of M-B, Tope, and Alaska Law Offices. As the record stands before this court, however, a sufficient implication of fraud exists with regard to the dealings between Coal Factors and Nerox Power to support Judge Hunt's conclusion that Coal Factors's interest in the deed of trust must be equitably subordinated to the claims of other creditors. 2. The April 21, 1997 deed of trust On April 21, 1997, Nerox Power, with Ar-tus as president, recorded a deed of trust encumbering the Jonesville mine and naming as beneficiaries ten entities or individuals: Duane Albert, Mr. and Mrs. LG. and C. Brotzman, George Peterson, The Larson Family Trust, The LKL Trust, Paul F. Schroff, Robert O. Jones, Sally L. Zutter, John Wallace for the Wallace Family Trust, and Gretchen A. Ross for the Ross Family Trust and the GAR Trust. The total debt owed to all of these beneficiaries was $1,040,000. Judge Hunt found that those named as beneficiaries had already had their debts satisfied by receiving preferred shares for their capital contributions. As such, Judge Hunt determined that the interests of these beneficiaries in the deed of trust should be equitably subordinated to the claims of other creditors. The primary dispute lies in who lent money to Nerox Energy to raise capital for the purchase of the Placer Dome lease. Ross stated in his deposition that $800,000 was raised for this purpose and that the investors received preferred shares in exchange. He listed as lenders: "Myself, or I should say my family trust, my wife's family trust, that was the GAR trust. Last names only, Brockman; Shiba .; Peterson; Larson; Albert . Schroff; . Zutter." The corresponding total amount for these names on the deed of trust is $695,000, although no amount can be found for the alleged investor "Shiba." Nerox Power admits in its brief that the GAR Trust received shares of preferred stock in exchange for its loan of $400,000. Nerox Power further admits that Peterson, Larson, Albert, Schroff, and Zutter also received preferred stock. Nerox Power in its brief only challenges the finding that Mr. and Mrs. LG. and C. Brotzman, the LKL Trust, Robert O. Jones, and the Wallace Family Trust received preferred stock. Ross's deposition confirms that those who supplied the money for the Placer Dome lease received preferred stock for their "loans": Q: Now the money that was paid to Placer Dome, you've already told us that came from these six or seven people you..... A: Correct. Q: Did you end up paying back those people the amounts that they had lent? A: They got preferred shares in Nerox Energy Corporation. Q: Were they ever paid back any money? A: No, they had preferred shares. Q: Are they still preferred shareholders of..... A: They're preferred shareholders, correct. As such, these people would be investors and not creditors, which would prevent them from having priority over the liens of M-B, Tope, and Alaska Law Offices because they were already compensated for the money they provided. Artus in his testimony provides further evidence that the investors who had "provided money to acquire the coal mine" were listed as beneficiaries in the April 21 deed of trust to compensate them with "collateral for their payment" used in the acquisition of the Jonesville lease: Q: . [WJho directed you to record either or both of these [deeds of trust]? A: Myself as a director and Mr. Ross as a director. Q: So other than yourself, Mr. Ross was the other one who directed you to do this? A: Yes. Q: From what Mr. Ross told youl[,] what was his reasoning for reporting these two deeds of trust? A: These people were owed money by Nerox Power Systems, Inc., and they provided money to acquire the coal mine, or for the development of the coal mine, and they were owed money and he wanted them to have some collateral for their payment. Q: And why was he or you taking this step in recording this deed of trust at this time? A: Because the board of directors determined it was an appropriate thing to do. Q: -And why? A: Because these people had loaned money for the acquisition of the coal lease and/or development of the coal mine and we thought it was appropriate that they have security for payment of the debts that were owed. By themselves, the statements of Ross and Artus are inconclusive. However, when Ar-tus's statement that those listed on the deed of trust were the people who had provided money to start the corporation is combined with Ross's statement that those who "loaned" the money received preferred shares in return, one could reasonably reach the conclusion that those listed in the deed of trust received preferred shares for their investments. Because the mine had never gone into operation, these investors had not received any return on the money they provided to Ross and thus still could have been viewed as creditors. There is therefore evidence to support Judge Hunt's conclusion that the parties listed in the deed of trust were investors who were compensated for their expenditures with preferred stock. Nerox Power argues that no evidence was ever provided showing that the beneficiaries "engaged in any inequitable conduct." This misses the point. The issue is not whether those listed as beneficiaries in the deed of trust acted inequitably but rather whether those who recorded the deed did. The evidence in the record supports the conclusion that those who provided money to Nerox Power for the coal mine simply made a bad investment. This finding is not clearly erroneous. It was not inappropriate to conclude that to compensate these investors over the rights of bona fide creditors would be inequitable. Consequently, the interests in the mining lease held by those named in the deed of trust could be equitably subordinated to the liens by M-B, Tope, and Alaska Law Offices. 3. The extent of the lien In her final judgment, Judge Hunt recognized M-B and Tope as having mechanic's lens on the entire Jonesville coal mine site. Nerox Power argues that mechanic's liens only attach to the specific location at which the hired machinery was used and that because M-B and Tope did not identify the specific locations where their machinery was used, their mechanic's liens cannot extend to the entire lease site. Nerox Power urges that this interpretation is required by the language in AS 34.35.055(a). However, the statute does not require so narrow an interpretation. Although the determination of who qualifies as a lienholder is strictly construed, the intent and purpose of lien laws are to be liberally construed. In the present situation, M-B and Tope supplied equipment for use on the mining site. Nerox Power admits that the equipment was used on the mining site. The granting of a lien contemplates not just the physical area in which a contractor worked but also the monetary costs the contractor incurred. M-B and Tope were contracted to provide equipment for the purpose of developing the entire mine site, not just a portion of it. As such, their Hens should extend to the entire mine site. The fact that construction was so incomplete as to make it difficult or perhaps impossible to determine the precise location or locations at which their equipment was used does not deprive M-B and Tope of recovery. B. Judge Hunt Did Not Err in Ruling that Nicholas Ross Was Personally Liable for the Debts of Nerox Power and Nerox Energy. Judge Hunt found that Nerox Energy was the "mere instrumentality" of Nicholas Ross. As part of a sanction for failure to comply with a discovery order, Judge Hunt held Nerox Energy to be liable for the debts of Nerox Power. At trial, Judge Hunt also found Nerox Power to be a "mere instrumentality" of Nicholas Ross. The finding that Nerox Power, both directly and via its identity with Nerox Energy, is a mere instrumentality of Ross allows M-B, Tope, and Alaska Law Offices to "pierce the corporate veil" and hold Ross personally liable for the debts of Nerox Power and Nerox Energy. Alaska law establishes six factors for determining if a corporation is a "mere instrumentality" of one of its shareholders: (1) whether the shareholder owns all or most of the stock; (2) whether the shareholder subscribed to all of the capital stock or caused the incorporation; (8) whether the corporation is "grossly" undercapitalized; (4) whether the shareholder uses the property of the corporation for his or her own benefit; (5) whether the directors of the corporation act independently of the shareholder; and (6) whether the "formal legal requirements of the corporation are observed." It is not necessary for all six factors to be satisfied before instrumentality can be found. However, at least some evidence of five of the six factors can be found in the present case. This evidence supports Judge Hunt's conclusion that both Nerox Energy and Nerox Power were "mere instrumentalities" for Nicholas Ross and that Ross was thus liable for their debts to M-B, Tope, and Alaska Law Offices. Judge Hunt's factual findings are not clearly erroneous; we therefore affirm those findings. 1. Ownership of stock Ross admitted that he owned a controlling interest in Nerox Energy. Through Ross Production Company, Inc., for which Ross was the sole shareholder, Ross never owned less than twenty percent of Nerox Energy. Nicholas Ross admitted that Ross Production Company had no business and was "just a shell corporation." Ross Production Company owned eighty-one percent of the shares of Nerox Power. As part of the conversion of Nerox Energy into a shell corporation for purchase by outside investors, Ross Production Company assumed all of the debts and liabilities of Nerox Power. This evidence supports the finding that Nicholas Ross "was the dominant and controlling shareholder of Nerox Energy Corporation from 1992 through the end of 1998" and "exercised exclusive control over Nerox Power Systems, Inc." This finding is not clearly erroneous. 2. Cause of incorporation Ross did not initially incorporate either of the companies that became Nerox Energy or Nerox Power. However, at the time Ross took control of the two companies under their former names of Gemini Energy Corporation and Gemini Operating Company, both were essentially dormant. Ross thus played a crucial role in reactivating the two companies. Judge Hunt concluded that this "activation" of Nerox Power was "substantively no different than originally incorporating the corporation." Judge Hunt reached a similar conclusion with regard to Nerox Energy, which "would have gone out of existence but for the 1992 infusion of capital by Mr. Ross." When a corporation was previously dormant and thus for practical purposes non-existent, the difference between "activation" of the corporation and its initial incorporation is, for the purposes of this factor, minimal. We therefore affirm the superior court's finding. 3. Undercapitalization The determination of whether the capitalization of a corporation is sufficient is based on whether the corporation has sufficient capital to satisfy its likely business obligations. This matter is assessed in relation to the corporation's operations. Judge Hunt found that the initial capitalization of Nerox Energy was "grossly inadequate" and that Nerox Power was "grossly undercapital-ized during all relevant times." Nerox Power's only asset was the rights to the Jones-ville mine, which never went into production. All of the funding for the expenses of Nerox Power came from Ross. The finances of Nerox Power were never entirely clear, even to those ostensibly in charge. The initial president of Nerox Power testified that he could not assess whether the company was undercapitalized because he never knew what funds were in its accounts. He further testified that it was his understanding that Nerox Power had none of its own funding, but depended entirely on money from Nerox Energy. Nerox Energy, which was dependent in large part on a bankrupt Stewart Petroleum for its source of income, did not fare much better. To what extent these circumstances were business transactions gone sour and to what extent they were initial undereapitalization is hard to determine definitively. However, there is enough evidence to conclude that Judge Hunt's finding of undereapitalization is not clearly erroneous. 4. Shareholder use of corporate assets Judge Hunt found that Nicholas Ross used the corporate assets of Nerox Power and Nerox Energy for his personal benefit by: naming his family trusts as beneficiaries in a deed of trust encumbering the Jonesville coal mine lease, which was Nerox Power's only asset; using Nerox Power's coal lease as collateral for a $300,000 loan (increasing to $500,000 when interest is included) that was used to pay the operating expenses of Nerox Energy; and improving his own financial situation as the principal shareholder in Ner-ox Energy, and by extension in Nerox Power, through converting the debt of those two companies into shares in what he knew to be an essentially insolvent corporation. These actions alone do not clearly indicate that Nerox Power was an instrumentality of Ross. Because not all factors in the Uchitel test need to be satisfied to institute equitable subordination, we decline to determine whether or not the actions of Ross constitute the use of corporate assets for one's own personal gain. 5. Independence of directors Judge Hunt found that the various directors of Nerox Power "took their directions" from Ross himself. This finding is supported by trial testimony. Ross personally loaned $1.8 million for continuing the operations of Nerox Power, giving him substantial control over the operations of the company. Ross himself admitted that Nerox Power could not make any investments without some sort of loan from him. This is confirmed by the testimony of the two directors of Nerox Power. The first director of Nerox Power testified that he had limited involvement in the financial dealings of Ner-ox Power and did not even have the authority to sign checks for the company. When asked who he considered himself an employee of- Nerox Power, Nerox Energy, or Nick Ross-the director answered "Nick Ross." Artus, the second director of Nerox Power, testified that as director he recorded the deeds of trust at Ross's direction. Artus further testified that it was Ross's responsibility to ensure that there was enough money to pay the bills for Nerox Power. Given the financial control that Ross exercised over Nerox Power, this finding is not clearly erroneous. 6. Corporate formalities Judge Hunt's conclusions about the inadequate financial records kept by Nerox Power and Nerox Energy are supported by the record, or lack thereof, There was no documentation of the loans to acquire the Jones-ville lease. There was incomplete documentation of loans from Nerox Energy to Nerox Power. The financial reports are exceedingly vague as to who received shares of stock and in compensation for what. Nerox Power points in its defense to the fact that its corporate meeting minutes were transcribed. While these minutes are helpful in building a chronology of events, they do little to clarify the sources of financing for Nerox Energy or Nerox Power. The lack of record keeping by Nerox Power calls into question its existence as an independent entity and justifies the finding by Judge Hunt that Nerox Power was an instrumentality of Nicholas Ross. IV. CONCLUSION Judge Hunt did not err in her factual findings that Nerox Power committed fraud in recording its deed of trust and that Nerox Power was a "mere instrumentality" of Ross. Nor did Judge Hunt err in applying the law to these findings. The decision of the superi- or court is therefore AFFIRMED in all respects. MATTHEWS, Justice, not participating. . An earlier financial statement also lists $3.87 million of expected stock value but claims that the promised value of each share was only one dollar, implying that 3.87 million shares were issued. The number of shares issued is less important than the amount of debt incurred by Nerox as a result. . The exact number of investors is disputed and will be addressed in the later discussion of the April 21, 1997 deed of trust. . References to "Alaska Law Offices" also implicate any debts owed to or arguments made by Sieven Jones, as Jones was an attorney for Alaska Law Offices and the services rendered appear to be the same. The two were treated as essentially the same entity by Judge Hunt. . Gillum v. L & J Enterprises, Inc., 29 P.3d 266, 268 (Alaska 2001). . City of Hydaburg v. Hydaburg Coop. Ass'n, 858 P.2d 1131, 1135 (Alaska 1993) (quoting Parker v. Northern Mixing Co., 756 P.2d 881, 891 n. 23 (Alaska 1988)). . Matanuska Elec. Ass'n, Inc. v. Rewire the Bd., 36 P.3d 685, 700-01 (Alaska 2001) (noting that the use of a clearly erroneous standard of review for factual findings in contempt proceedings "is consistent with the deferential review used by courts in other jurisdictions"); Berry v. Berry, 978 P.2d 93, 97 (Alaska 1999) (referring to the "clearly erroneous" standard of review as "deferential"); In re J.A., 962 P.2d 173, 175 (Alaska 1998) (also describing the "clearly erroneous" standard as deferential"). . Kinnard v. Kinnard, 43 P.3d 150, 153 (Alaska 2002) ("With respect to questions of law, we apply our independent judgment and adopt the rule that is most persuasive in light of precedent, reason, and policy."). . White v. State ex rel. Block, 597 P.2d 172, 176 n. 13 (Alaska 1979) (quoting 6 Harold Remington, A Treatise on the Bankruptcy Law or the United States § 2874 (5th ed.1952)); see also Great Western Sav. Bank v. George W. Easley Co., 778 P.2d 569, 581 (Alaska 1989). . White, 597 P.2d at 175-76. The United States Supreme Court held in Pepper v. Litton that bankruptcy courts are for many purposes "courts of equity" and thus can exercise their equitable powers to subordinate the debts of shareholders to those of outside creditors. 308 U.S. 295, 307-08, 60 S.Ct. 238, 84 L.Ed. 281 (1939). . White, 597 P.2d at 176. . Blumenstein v. Phillips Ins. Ctr., Inc., 490 P.2d 1213, 1221 (Alaska 1971). . White, 597 P.2d at 176. . Willner's Fuel Distributors, Inc. v. Noreen, 882 P.2d 399, 405 (Alaska 1994). . Id. at 406. . The same appellants' brief is shared by Artus, Coal Factors, Ross, Nerox Power, Nerox Energy, and various investors in Nerox Energy. . In re Mobile Steel Co., 563 F.2d 692, 702-06 (5th Cir.1977); rule summarized by In re Missionary Baptist Found. of America, Inc., 712 F.2d 206, 212 (5th Cir.1983); see also In re 604 Columbus Ave. Realty Trust, 968 F.2d 1332, 1353 (1st Cir.1992); In re Toy King Distrib., 256 B.R. 1, 198-99 (Bankr.M.D.Fla.2000). Once inequitable conduct is found, equitable subordination can be employed as long as there is either an injury to the creditor or an unfair advantage conferred to the claimant and as long as the remedy does not violate bankruptcy law. Mobile Steel, 563 F.2d at 700; Fabricators, 926 F.2d at 1464-65. . AS 34.40.010 states: Except as provided in AS 34.40.110, a conveyance or assignment, in writing or otherwise, of an estate or interest in land, or in goods, or things in action, or of rents or profits issuing from them or a charge upon land, goods, or things in action, or upon the rents or profits from them, made with the intent to hinder, delay, or defraud creditors or other persons of their lawful suits, damages, forfeitures, debts, or demands, or a bond or other evidence of debt given, action commenced, decree or judgment suffered, with the like intent, as against the persons so hindered, delayed, or defrauded is void. . First Nat'l Bank of Fairbanks v. Enzler, 537 P.2d 517, 521-22 (Alaska 1975). . Id. at 522. . Blumenstein v. Phillips Ins. Cir., Inc. 490 P.2d 1213, 1223 (Alaska 1971). . Willner's Fuel Distributors, Inc. v. Noreen, 882 P.2d 399, 405-06 (Alaska 1994). Artus also had a fiduciary duty in his role as an attorney for Nerox Energy. As we have stated, attorneys face a duty to protect the assets of a company for its creditors if they have control over those assets. Id. at 406. Creditors can bring suit against attorneys for breaching this fiduciary duty. Id. at 405. While there may be insufficient evidence provided to conclude that Artus had control over the assets of Nerox Power (or Nerox Energy) while he was providing only legal representation, he certainly had this control over assets, at least with regard to Nerox Power, while simultaneously serving as president of Nerox Power and continuing to offer legal representation for both Ner-ox Energy and Nerox Power. Artus represented Nerox Power and Nerox Energy at trial He thus had a fiduciary duty to the creditors of Nerox Power under both prongs of Willner's Fuel Distributors, Inc. v. Noreen. . Judge Hunt considered the loan to be a capital contribution that Artus made to Nerox Power. Placing a lien on Nerox Power's assets to protect that loan would therefore be inequitable conduct. See In re Fabricators, Inc., 926 F.2d 1458, 1467-68 (5th Cir.1991) (holding that obtaining a lien on corporate assets in order to secure capital contributions is inequitable conduct). Artus cannot place himself on the same level as other creditors. To allow someone who has just ascended to the head of a company to relieve personal debts-even debts validly incurred-mocks the equitable principle of protecting the assets of a corporation for its creditors by giving one creditor an unfair advantage in raiding those assets. Robson v. Smith does allow directors who become secured creditors. by making good faith loans to their own corporation to repay their secured debt ahead of unsecured creditors, but that is not the case here. 777 P.2d 659, 661-62 (Alaska 1989). The debts owed to M-B and Tope were secured by a mechanic's lien and the debts owed to Alaska Law Offices by a judgment lien. This situation was not contemplated in Robson. As Judge Hunt stated: "A debtor's conveyance to a bona fide creditor is not fraudulent merely because it prefers one creditor over another. But, a conveyance made with the actual intent to hinder, delay or defraud is not 'cured' by the mere fact that the transferee is a creditor." . Enzler, 537 P.2d at 522. . See In re Fabricators, Inc., 926 F.2d 1458, 1467 (5th Cir.1991); In re Mobile Steel Co., 563 F.2d 692, 702-04 (5th Cir.1977). . Alaska law requires that the preference to a creditor be a "bona fide preference." Blumen- stein v. Phillips Ins. Ctr., Inc., 490 P.2d 1213, 1222 (Alaska 1971). . Adding up the invoices found in the record, it appears that Nerox Power owed $116,848.79 to Coal Factors, although even this amount may have been reduced by payments of $17,794.90, leaving $99,053.89 in debt. . At oral argument before this court, the attorney for Coal Factors contended that the material for which the $80,000 was later billed was supplied before April 11, 1997. However, this statement is unsubstantiated by the record. . See Miscovich v. Tryck, 875 P.2d 1293, 1304 (Alaska 1994) ("It is well established that a party's failure to designate portions of the record that are necessary to allow the determination of a point on appeal will amount to a waiver or abandonment of that point."); see also City of Whittier v. Whittier Fuel & Marine Corp., 577 P.2d 216, 223 n. 26 (Alaska 1978) (maintaining that this court will not examine on appeal documents that are not part of the record on appeal). . Some of these expenses are for the full month of April and impossible to break down further. . This generously assumes that all costs stretching over the entire month of April were accrued before April 11. . Ketchikan Retail Liquor Dealers Ass'n v. State, Alcoholic Beverage Control Bd., 602 P.2d 434, 438-39 (Alaska 1979) (holding that the failure of appellee to designate in the record support for its factual claims justifies the court's adoption of the factual description asserted by appellant). . See Walden v. Dep't of Transp., 27 P.3d 297, 303 (Alaska 2001) ("It is well-settled that it is an appellant's responsibility to present this court with a record sufficient to allow meaningful review of his or her claims."). . Ross did not testify at trial; rather, his deposition was read into the record. Ross was not asked specifically about the financial relationship between Nerox Power and the LKL Trust, Robert O. Jones, and the Wallace Family Trust. . Nerox Power implicitly argues in its brief that a difference exists between "Brockman" and '"'Brotzman'" by listing "Brotzman" as among those listed in the deed of trust but not named by Ross. Because Ross did not seem entirely clear in his recollection, it was not unreasonable to assume that "Brockman" and "Brotzman" are the same entities. . In 1995 Nerox Energy issued 70,709 shares of preferred stock to raise $495,000; it is unclear if any of these shares were paid to investors in Nerox Power, although both sides seem to assume that this was the case. . Further circumstantial evidence supports Judge Hunt's conclusion. For one thing, Ross testified that the total amount paid to acquire the Jonesville coal mine lease was $1,020,000: the $800,000 payment to Placer Dome, the $200,000 promissory note to Placer Dome, and a $20,000 fee to the State. This amount roughly matches the $1,040,000 owed to those listed on the April 21, 1997 deed of trust. There is also the fact that the investors seemed to have their dealings primarily with Nerox Energy, not Nerox Power. Ross stated that the investors received their preferred stock in Nerox Energy. Indeed, it appears that the only parties who ever owned stock in Nerox Power were Nerox Energy and Hobbs Industries. Absent evidence that the beneficiaries made their loans directly to Nerox Power, it is just as likely that their debts are properly owed by Nerox Energy. . AS 34.35.055(a) provides: The land upon which a building or other improvement described in AS 34.35.050 is constructed, together with a convenient space about the building or other improvement or so much as is required for the convenient use and occupation of it (to be determined by the judgment of the court at the time of the foreclosure of the lien), and the mine on which the work is performed or for which the material is furnished is also subject to the lien created by AS 34.35.050-34.35.120 if, at the time the work is started or the materials for the building or other improvements are first furnished, the land belongs to the person who causes the building or other improvement to be constructed, altered, or repaired. . H.A.M.S. Co. v. Elec. Contractors of Alaska, Inc., 563 P.2d 258, 262-63 (Alaska 1977); see also AS 34.35.930 ("The intent of this chapter is remedial and its provisions shall be liberally construed."). . Cascaden v. Wimbish, 161 F. 241, 245 (9th Cir.1908) ("It is the purpose of the lien law to secure 'priority of payment of the price and value of work performed and materials furnished in erecting and repairing a building or other struc» ture.' ") (quoting Van Stone v. Stillwell & Bierce Mfg. Co., 142 U.S. 128, 136, 12 S.Ct. 181, 35 L.Ed. 961 (1891)). . See Dannemiller v. AMFAC Distrib. Corp., 566 P.2d 645, 651 (Alaska 1977) (''The purposes of extending a statutory lien to the land is because the value of the land is increased when a mater-ialperson provides labor or material for a structure which is attached to the land. The lien should extend to the land, which is benefited by the materialperson."); see also Mitford v. Prior, 353 F.2d 550, 552-53 (9th Cir.1965) (holding that an entire subdivision was subject to a lien by a civil engineer who worked on the water and sewer system because the entire subdivision ben-efitted from the engineer's efforts even though the actual labor site was located outside the subdivision). . Ross did not challenge this order either at trial or on appeal. Consequently, any objection to it is waived. B.B. v. D.D. 18 P.3d 1210, 1214 (Alaska 2001) ("Matters not made issues or tried before the lower court will not be considered on appeal."). . Uchitel Co. v. Telephone Co., 646 P.2d 229, 233-34 (Alaska 1982); Jackson v. General Elec. Co., 514 P.2d 1170, 1173 (Alaska 1973) (''The parent corporation may also be liable for the wrongful conduct of its subsidiary when the subsidiary is the mere instrumentality of the parent. Liability is imposed in such instances simply because the two corporations are so closely intertwined that they do not merit treatment as separate entities."); see also 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; that is, whether the corporate entity was used 'to defeat public convenience, justify wrong, commit fraud or defend crime.''") (citing and quoting Eagle Air, Inc. v. Corroon & Black/Dawson & Co., Inc., 648 P.2d 1000, 1004 (Alaska 1982)). . Uchitel, 646 P.2d at 235 (citing Jackson, 514 P.2d at 1173); see also McCormick v. City of Dillingham, 16 P.3d 735, 744 (Alaska 2001) (affirming the applicability of the six-factor Uchitel test for piercing the corporate veil and holding those individuals in control of the corporation personally liable for the misdeeds of the corporation). This test is an adaptation of the earlier eleven-part test in Jackson v. General Electric for determining if a subsidiary is a mere instrument of its parent company. See Jackson, 514 P.2d at 1173. Uchitel also establishes an alternate theory of personal liability whereby the corporate veil cannot be pierced simply if one person controls the activities of the corporation; rather the corporation must be used "to defeat public convenience, justify wrong, commit fraud, or defend crime." Uchitel, 646 P.2d at 234 (citing Jackson, 514 P.2d at 1172-73). . Uchitel states only that these six factors "should be considered" and does not even establish the exclusivity of the factors. 646 P.2d at 235. See also McCormick, 16 P.3d at 744 ("If other factors militate in favor of piercing the corporate veil, a court may impose personal liability on the control person even if he owns no stock."); Murat, 793 P.2d at 76-77 (considering the possibility that instrumeniality could be found on the basis of only two of the six Uchitel factors, but ultimately rejecting the finding on the grounds of an inadequate factual basis); cf. McKibben v. Mohawk Oil Co., Ltd., 667 P.2d 1223, 1230 (Alaska 1983) ("It is not necessary that all eleven of these factors [in the Jackson test] be found in order to pierce the corporate veil."). . Ross urges the application of Nevada law as opposed to Alaska law in this case. Ross did not make this argument below and in fact relied upon Alaska law both in his objections to the proposed facts and conclusions and at trial. Arguments not made at trial will not be considered on appeal. Sengupta v. University of Alaska, 21 P.3d 1240, 1255 n. 61 (Alaska 2001) ("This court will not consider arguments on appeal that were not raised below unless the new issues either establish plain error or do not depend on new or controverted facts, are closely related to the appellant's arguments at trial, and could have been gleaned from the pleadings."). Furthermore, while Nevada law does not lay out a six-factor test with quite the clarity contained in Alaska law, it does list as factors in determining whether a company is the "alter ego" of a person "co-mingling of funds, undercapitalization, unauthorized diversion of funds, treatment of corporate assets as the individual's own, and failure to observe corporate formalities." Lorenz v. Beltio, Ltd., 114 Nev. 795, 963 P.2d 488, 497 (1998); Polaris Indus. Corp. v. Kaplan, 103 Nev. 598, 747 P.2d 884, 887 (1987). These factors are substantially the same as those listed in Uchitel. Where there is no material difference between the competing laws of two states, the conflict of laws issue can be ignored. Williams v. Stone, 109 F.3d 890, 893 (3d Cir.1997); Angelini v. Delaney, 156 Or.App. 293, 966 P.2d 223, 227 (1998). . In June 1999 Ross Production Company sold its shares in Nerox Power to outside investors. . Fiumetto v. Garrett Enters. Inc., 321 Ill.App.3d 946, 255 Ill.Dec. 510, 749 N.E.2d 992, 1005 (2001). . Stirling Wanner v. Pocket Novels, Inc., 129 Or.App. 337, 879 P.2d 210, 213 (1994). . Ross was the director of Nerox Energy. . Indeed, Nerox Power frequently in its brief uses this confusion as a defense for being unable to attach loans and investments to compensation.

10411258

Harold P. BRAHAM, Appellant, v. Rothel FULLER, Dan Thompson, and Juan Anciburu, Appellees

Braham v. Fuller

1986-11-28

No. S-1305

641

645

728 P.2d 641

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.

Harold P. BRAHAM, Appellant, v. Rothel FULLER, Dan Thompson, and Juan Anciburu, Appellees.

Harold P. BRAHAM, Appellant, v. Rothel FULLER, Dan Thompson, and Juan Anciburu, Appellees. No. S-1305. Supreme Court of Alaska. Nov. 28, 1986. Rehearing Denied Dec. 24, 1986. Alan W. Schon, Law Offices of Arthur Lyle Robson, Fairbanks, for appellant. Scott L. Taylor, Hoppner & Paskvan, P.C., Fairbanks, for appellees. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

2051

12417

OPINION MATTHEWS, Justice. I. INTRODUCTION This case presents the question of what standard for liability applies where a landowner's activities on his land cause permafrost to melt and flood adjacent property. The trial court held that the "reasonable use" standard, previously applied by this court where damage to another's property is caused by interference with surface waters, also applies where the damage is caused by melting permafrost, and granted summary judgment in favor of the defendants. We agree that the reasonable use standard applies. We hold, however, that the grant of summary judgment was improper. We also find that there is no factual basis for concluding that plaintiff's action is barred by the statute of limitations. II. FACTS AND PROCEEDINGS Plaintiff Braham has owned a parcel of about one acre on Farmer's Loop Road near Fairbanks since 1966. Defendants Fuller and Thompson purchased adjoining land in 1974, some of which was uphill from Braham's. They cleared approximately five acres in 1977 and cleared more land during the winter of 1979-80. In the process of clearing, they created "windrows," which are berms of the material cleared from the land. The windrows pointed downhill. At some point after clearing the uphill land, water began to flow onto Braham's property, flooding his backyard and basement. It is not clear exactly when the flooding started: at one point in his deposition Braham states that it started "right after the clearing," while elsewhere he states that it started "just when I was in jail and ready to get out." (He was in jail from 1977 through 1980 or 1981.) It appears that he was notified of the problem at some point while he was in jail. Braham states that the water flooded his basement up to a depth of four feet and damaged his furnace. The flooding still occurs, starting during breakup and ending with the freeze. At the peak flow, Braham estimates that at least several hundred gallons a day flow into his basement. His garden has also been flooded and has sunk down. He claims that his property has sunk five feet in some places. Braham filed suit on April 30, 1984, claiming that defendants "negligently or intentionally designed" the clearing of their property, causing damage to his property in excess of $25,000. He claimed the windrows directed the water onto his land. Defendants moved for summary judgment, arguing that the reasonable use doctrine applied and that they were not liable because their use of their land was reasonable. They also argued that the statute of limitations had run. The superior court agreed with both arguments and granted summary judgment in favor of defendants. III.DISCUSSION A. The rule of reasonable use applies where a landowner causes permafrost to melt, flooding adjacent property. Alaska has adopt[ed] the rule of reasonable use with respect to one's right to drain his land of surface waters. That rule . provides "that each possessor is legally privileged to make a reasonable use of his land, even though the flow of surface waters is altered thereby and causes some harm to others, but incurs liability when his harmful interference with the flow of surface waters is unreasonable." Weinberg v. Northern Alaska Development Corp., 384 P.2d 450, 452 (Alaska 1963), quoting Armstrong v. Francis Corp., 20 N.J. 320, 120 A.2d 4, 8 (1956). The "reasonable use" label is to some extent a misnomer; in Weinberg this court looked first, at whether there was a reasonable necessity for defendant to alter the drainage in order to make use of its land, and second, at whether the alteration was done in a reasonable manner. 384 P.2d at 452. The rule was also applied in Ostrem v. Alyeska Pipeline Service Co., 648 P.2d 986, 990-91 (Alaska 1982) (per curiam). There we stated, "What is required is simply that the adjacent landowner act in a reasonable fashion with respect to the alteration of the surface drainage." Id. at 991. The question presented here is whether the rule of reasonable use, a relatively recent development in American drainage law, should be applied where the landowner's activities cause permafrost to melt, damaging adjacent property. Not surprisingly, since permafrost is not a common problem in the United States except in Alaska, the applicability of the rule of reasonable use to melting permafrost has not been the subject of debate among jurists or commentators. Permafrost, however, is a form of groundwater. The same doctrines that apply to drainage of unwanted surface water are applicable to drainage of groundwater. See Clark, supra n. 1 § 454.1; see also Powell, supra n. 2, at If 709[4][a] and [c] (discussing applicability of rule of reasonable use to all types of percolating underground water disputes). Thus, it makes sense to apply the rule of reasonable use to melting of permafrost. B. The rule of reasonable use was not properly applied by the trial court. In support of their motion for summary judgment, defendants incorporated the arguments made in their pretrial memorandum. There they argued: Defendants deny that they have altered the flow of surface waters across plaintiff's land, but even if this court finds that defendants have altered the flow of surface water across plaintiff's property, the decision in Ostrem is still controlling.... Here, defendants cleared their land and left "berm piles." Defendants did nothing else on their property and took no positive steps to alter the natural drainage of the land, as occurred in Weinberg. Defendants use of their land can be characterized as nothing but reasonable; therefore, they can incur no liability for the damage suffered by plaintiff. At the hearing on defendants' summary judgment motion, plaintiff Braham argued that the damage to his property was "totally foreseeable" given the method of clearing used — "clearing with windrows in the direction that they are and without putting any trench along the edge." Therefore, he claimed, the clearing was unreasonable under the reasonable use rule. The trial court found that clearing is a reasonable use and granted defendants' motion for summary judgment. The trial court erred in its application of the reasonable use rule. Its finding that clearing is a reasonable use of the property at most answers only the first part of the inquiry required by Weinberg, i.e., was there a reasonable necessity to alter the drainage. 384 P.2d at 452. The crux of the rule is a determination whether the alteration itself was done in a reasonable manner. Id.; Ostrem, 648 P.2d at 991. This was not considered. "Whether particular conduct is reasonable under the circumstances is generally considered a question of fact for the jury." Carlson v. State, 598 P.2d 969, 974 (Alaska 1979); Swenson Trucking & Excavating, Inc. v. Truckweld Equipment Corp., 604 P.2d 1113, 1118 (Alaska 1980), appeal after remand, 649 P.2d 234 (Alaska 1982). The reasonable use rule applied in this case is closely analogous to a rule of negligence liability, and [a]s a general rule, issues of negligence are generally not susceptible to summary determination, but should be resolved by trial in the ordinary manner. The reason for this rule is: [Bjecause of the elusive nature of the concept of negligence, the determination of the existence of which requires the forming of a judgment as to the reasonableness of the conduct of the parties in the light of all the circumstances of the case. If reasonable minds could draw different inferences and reach different conclusions from the facts the issue must be reserved for trial. Webb v. City and Borough of Sitka, 561 P.2d 731, 735 (Alaska 1977) (quoting Gross v. Southern Railway Co., 414 F.2d 292, 297 (5th Cir.1969) (citations omitted)). Although it may turn out that there were no precautions defendants reasonably could have taken to minimize the flooding of Braham's land, the reasonableness of their conduct is a question of fact. Bra-ham should be allowed to present evidence showing that the defendants did not "act in a reasonable fashion with respect to the alteration of the . drainage." Ostrem, 648 P.2d at 991. "[T]he failure to create . an alternative drainage might in some cases be unreasonable." Id. at 990; cf. Micucci v. White Mountain Trust Co., 114 N.H. 436, 321 A.2d 573, 575 (1974) (defendant's grading and paving of his land was unreasonable when it caused a concentration of water thereby harming plaintiff's land since "[t]his damage could have been avoided by designing the gradient to spread the flow of the diffused surface waters and prevent a concentrated discharge."). C. There is no factual basis for concluding that the statute of limitations had run. In their pretrial memorandum, defendants also argued that the six year statute of limitations for actions for trespass upon real property (AS 09.10.050(2)) applied. They argued further: Plaintiff filed his complaint on April 30, 1984, so i/the damages of which plaintiff complains first occurred prior to April 30, 1978, plaintiff's claims are barred by AS § 9.10.050(2). Defendants will introduce evidence at trial to establish that the flooding of which plaintiff now complains was occurring prior to April 30, 1978. The trial court found that the statute of limitations had expired. Since no affidavit or other evidence demonstrates that the cause of action accrued before April 30,1978, the grant of summary judgment in favor of defendants on the basis of expiration of the statute of limitations was improper. IV. CONCLUSION In summary, we hold that the rule of reasonable use applies here, but that the trial court erred in its application in grant ing summary judgment for defendants. We also hold that no factual basis for concluding that this case is barred by the statute of limitations was established. The case is REMANDED for further proceedings. . This inquiry has been set forth as two parts of the reasonable use test in a recent treatise on water law, which also offers a third: does "the utility of the actor's conduct reasonably outweigh the gravity of the harm to others?" This part is the traditional nuisance balancing approach, and is said to have the benefit of keeping the overall analysis up to date. 5 R. Clark, R. Beck, E. Clyde, Waters and Water Rights § 453.3 (1972 & 1978 Supp.) (hereafter "Clark"). . Earlier drainage doctrines were the "common enemy rale" and "the natural flow rale." Under the common enemy rale "[s]urface water is recognized as a common enemy, which each proprietor may fight off or control as he will or is able, either by retention, diversion, repulsion, or altered transmission; so that no cause of action arises for such interference, even if some injury occurs, causing damage." Clark, supra n. 1, § 450.6 (citation omitted). The natural flow rale "places a natural easement or servitude upon the lower land for the drainage of surface water in its natural course and the natural flow of the water cannot be obstructed by the ser-vient owner to the detriment of the dominant owner." Id. (citation omitted). At least eleven states have adopted the reasonable use standard with respect to drainage. Id. § 453.2. See also 5 R. Powell and P. Rohan, Powell on Real Property ¶ 709[3][d] (1985) (hereafter "Powell"). . Braham stated at his deposition: "[The problem] started just when I was in jail and ready to get out." (He was in jail from 1977 to 1980 or 1981.) He also stated that "after [the land] was cleared, I was told that it cleared [sic.] and that the water was coming into the back." There is no indication as to when he was notified. . We express no opinion whether Braham may file successive suits under theories of continuing or successive trespasses for damages resulting within the six-year period preceding the suit. See Bradley v. American Smelting & Refining Co., 104 Wash.2d 677, 709 P.2d 782, 791-92 (1985); W. Keeton, D. Dobbs, R. Keeton, and D. Owen, Prosser and Keeton on the Law of Torts § 13, at 83-84 (5th ed. 1984); Restatement (Second) of Torts § 158 comment m (1965).

10444881

Jay SHATTING, Appellant, v. DILLINGHAM CITY SCHOOL DISTRICT, Dillingham City School Board and the State of Alaska, Appellees

Shatting v. Dillingham City School District

1980-09-26

No. 4240

9

14

617 P.2d 9

617

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

Before CONNOR, BOOCHEVER, BURKE and MATTHEWS, JJ., and DIMOND, Senior Justice.

Jay SHATTING, Appellant, v. DILLINGHAM CITY SCHOOL DISTRICT, Dillingham City School Board and the State of Alaska, Appellees.

Jay SHATTING, Appellant, v. DILLINGHAM CITY SCHOOL DISTRICT, Dillingham City School Board and the State of Alaska, Appellees. No. 4240. Supreme Court of Alaska. Sept. 26, 1980. John R. Strachan, Anchorage, for appellant. William M. Bankston, Anchorage, for ap-pellees Dillingham City School District and Dillingham City School Board. Carolyn E. Jones, Asst. Atty. Gen., Anchorage, Avrum M. Gross, Atty. Gen., Juneau, for appellee State of Alaska. This case was submitted to the court for decision prior to Justice Boochever’s resignation.

2922

18001

OPINION Before CONNOR, BOOCHEVER, BURKE and MATTHEWS, JJ., and DIMOND, Senior Justice. BURKE, Justice. In this case, a non-tenured teacher challenges a school board's decision not to renew his contract. We conclude • that the school board acted properly. Jay Shatting, a non-tenured teacher, was employed to teach in the Dillingham City School District during the 1975-76 and 1976-77 school years. In May 1977, the Dillingham City School Board (Board) informed Shatting by letter that he would not be retained for the following year. When Shatting requested a statement of cause, pursuant to AS 14.20.175(a), the Board sent him a second letter setting forth the following reasons for its decision: 1. Your classes are not challenging enough to students with high ability. 2. Your use of abusive language when dealing with students. 3. Lack of interest in teaching. 4. Your changing moods in the classrooms. 5. Continually out of classroom. Shatting then requested a hearing, likewise pursuant to AS 14.20.175(a). The Board held a public hearing on June 14, at which sworn testimony was taken. Shat-ting was represented by counsel, who called witnesses and cross-examined opposing witnesses. Following the hearing, the Board voted not to retain Shatting, and on June 22, it sent him written notice of that decision. One month later, Shatting filed both a complaint and a notice of appeal in superior court, contending that the Board's decision not to retain him was illegal because it was arbitrary and capricious, and not based on properly established good cause. Shatting's suit named as defendants the Dillingham City School District (District), the Dillingham City School Board, and the State of Alaska. In August, in response to the State's motion for judgment on the pleadings under Civil Rule 12(c), the superior court dismissed Shatting's suit against the State because it was not a proper party defendant. The grounds for the decision were that (1) it had delegated control of educational functions to the City of Dillingham, (2) Shatting was not an employee of the State, and (3) the State had no authority to hire or fire Shatting. In response to a motion to dismiss, the court granted summary judgment in favor of the Board and the District, after concluding that the Board had complied with all statutory requirements and that none of Shatting's constitutional rights had been violated. This appeal followed. 1. Appeal of the District and the Board The motion to dismiss that was filed by the District and the Board did not specify under which rule the motion was being made. The superior court, however, treated the motion as if it were a motion for summary judgment. Accordingly, we shall review its ruling under the standards applicable to the granting of a motion for summary judgment. The issues to be determined are whether there were genuine issues of material fact and, if nof, whether the District and the Board were entitled to judgment as a matter of law. Rule 56, Alaska R.Civ.P.; Moore v. State, 553 P.2d 8,15 (Alaska 1976). In reaching our decision we must draw all reasonable inferences in favor of Shatting, the non-moving party. Clabaugh v. Bottcher, 545 P.2d 172, 175 n.5 (Alaska 1976). Although there is apparently disagreement over whether particular events occurred in Shatting's classroom and whether the District conducted a proper evaluation of Shatting as required by Department of Education regulations, these facts were not material to the superior court's determination of this case. It is only issues of material fact that preclude the granting of a motion for summary judgment. See Carlson v. State, 598 P.2d 969, 972 n.5 (Alaska 1979). The issues before the superior court were: (1) whether Shatting was entitled to judicial review of the Board's decision not to retain him and (2) whether the Board, on the basis of the information presented to it, acted properly in deciding not to retain Shatting. The material facts pertaining to these two issues were not in dispute. Thus, the only issue left for our determination is whether the Board and the District were entitled to judgment as a matter of law. 2. Right to Judicial Review The superior court concluded that Shatting had no right to judicial review of the Board's decision. In reaching this conclusion the court relied on AS 14.20.205, which provides: "If a school board reaches a decision unfavorable to a teacher, the teacher is entitled to a de novo trial in the superior court. However, a teacher who has not attained tenure rights is not entitled to judicial review according to this section." We believe the superior court erred in concluding that AS 14.20.205 totally precludes judicial review in cases such as this. While the statute does not extend the tenured teacher's right to a trial de novo to a non-tenured teacher such as Shatting, neither does it preclude a more limited form of judicial review of the school board decision. We therefore hold that Shatting had a right to judicial review, on the record, of the Board's decision. 3. Decision Not to Retain Shatting Although the superior court found that Shatting did not have a right to judicial review of the Board's decision, the court did, in fact, review the record of the proceedings leading to that decision and determined that the Board had acted properly. We affirm the decision of the superior court. AS 14.20.175(a) provides in part: "A teacher who has not acquired tenure rights is subject to nonretention . for any cause which the employer determines to be adequate." On its face this section grants to a school board virtually unlimited discretion in deciding whether to deny continued employment to non-tenured teachers. Despite the broad language of the statute, however, we think that the board's discretion is subject to certain limitations. It is clear, for example, that a school board may not deny continued employment to a teacher because of the teacher's exercise of first amendment rights. See, e. g., Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). Just as clearly, a school board may not deny continued employment to a teacher if to do so would deprive the teacher of other rights that are guaranteed by constitution or statute. See, e. g., Nichols v. Eckert, 504 P.2d 1359 (Alaska 1973); AS 18.80.220 (declaring certain employment practices to be unlawful). In addition to constitutional and statutory limitations, Shatting contends that a school board's discretion is subject to further limitation by the evaluation standards established by the Department of Education, and that a teacher may be "non-retained" only for failure to meet the evaluation standards. He relies on 4 AAC 19.010: "[FJormal evaluations shall serve as a method for gathering data relevant to subsequent employment status decisions pertaining to the person evaluated." We believe, however, that this regulation, promulgated by an administrative agency, cannot operate to limit the broad discretion that was intentionally given to local school boards by the legislature, and that a school board's decision not to renew the contract of a non-tenured teacher may be "for any cause which the employer determines to be adequate." AS 14.20.175(a). Shatting also contends that the Board's discretion is limited by the requirement that it not be arbitrary or capricious, apparently because the Board is required by AS 14.20.175(a) to give him a statement of cause and a hearing. Assuming, arguendo, that Shatting is correct, our review of the record fails to convince us that the Board's action in this case was arbitrary and capricious. The United States Supreme Court has held that a non-tenured teacher whose contract is not renewed has no constitutional right to a hearing or a statement of cause. Roth v. Board of Regents, 408 U.S. 564, 569, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548, 556 (1972). AS 14.20.175(a), therefore, in requiring a statement of cause and an opportunity to be heard, exceeds constitutional requirements. Since it is clear from the record that the Board fully complied with the statutory requirements, there was no violation of the Alaska Constitution or statutes. For these reasons, we conclude that the action of the Board was entirely proper. This holding, we believe, is consistent with our past decisions, where we have stated that "[t]he rights of a non-tenured teacher who is simply not retained at the end of his period of employment are relatively limited. He has no constitutionally protected interest in public employment." Van Gorder v. Matanuska-Susitna Borough School District, 513 P.2d 1094, 1095 (Alaska 1973). The judgment of the superior court is AFFIRMED. RABINOWITZ, C. J., not participating. . Alaska's statutory scheme recognizes a distinction between "nonretention" and "dismissal." AS 14.20.207 provides in pertinent part: In § 10-210 of this chapter (5) "nonretention" means the election by an employer not to re-employ a teacher for the school year or school term immediately following the expiration of the teacher's current contract; and (6) "dismissal" means termination by the employer of the contract services of the teacher during the time a teacher's contract is in force, and termination of the right to the balance of the compensation due the teacher under his contract. . AS 14.20.175(a) provides: Nonretention, (a) A teacher who has not acquired tenure rights is subject to nonretention for the school year following the expiration of his contract for any cause which the employer determines to be adequate. However, at his request, the teacher is entitled to a written statement of the cause for his non-retention. The boards of city and borough school districts and regional educational attendance areas shall provide by regulation or bylaw a procedure under which a nonre-tained teacher may, at his request, be heard informally by the board. .The grounds for dismissal alleged in the motion were (1) a non-tenured teacher has no right to judicial review of a school board's decision not to retain him, (2) Shatting did not allege any violation of his constitutional rights, (3) Shatting was not protected from "arbitrary and capricious" nonretention because he had no constitutionally protected interest in his job, and (4) the court lacked subject matter jurisdiction. . When matters outside the pleadings are presented to the court, Rules 12(b) and 12(c), Alaska R.Civ.P., authorize the court to treat motions to dismiss under Rules 12(b)(6) (failure to state a claim) and 12(c) (judgment on the pleadings) as motions for summary judgment under Civil Rule 56. The superior court in this case had before it, in addition to the pleadings, the entire administrative record, including a transcript of the hearing before the Board and copies of the affidavits submitted to the Board. See Stuyvesant Ins. Co. v. District Director, Immigration & Naturalization Serv., United States Dep't of Justice, 407 F.Supp. 1200, 1202 (N.D.Ill.1975) (filing administrative record converted motion to dismiss to motion for summary judgment; applying Fed.R.Civ.P. 12(b)). . Although a review on the record is all that is required, in its discretion the superior court may grant a trial de novo. See AS 22.10.020 ("hearings on appeal from a final order or judgment of a subordinate court or administrative agency shall be on the record unless the superi- or court, in its discretion, grants a trial de novo, in whole or in part"). AS 14.20.175(a) provides that school boards shall establish a procedure under which a non-retained teacher may "be heard informally by the board." We note that, although this hearing may be "informal," it must be conducted on the record; otherwise the teacher's right to a review on the record would be meaningless. . AS 14.20.175(a) is quoted in full in note 2 supra. . 4 AAC 19.020 provides: SCOPE OF EVALUATION. The evaluation should emphasize such factors as teaching or administrative skills, processes and techniques and interpersonal relationships with students, parents, peers and supervisors, as well as those additional factors which the school district considers relevant to the effective performance of its professional employees. The standards for performance must be measurable and relevant. . But see Roth v. Board of Regents, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). . AS 14.20.175(a) is quoted in note 2 supra. . Having reached this conclusion, we need not address the issue of whether the State may also be sued because of actions of the Board or the District. That issue is now moot.

6902921

RESURRECTION BAY AUTO PARTS, INC. and Dillip Mullings, Appellants, v. Dennis ALDER, Appellee

Resurrection Bay Auto Parts, Inc. v. Alder

2014-11-28

No. S-15139

305

312

338 P.3d 305

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.

RESURRECTION BAY AUTO PARTS, INC. and Dillip Mullings, Appellants, v. Dennis ALDER, Appellee.

RESURRECTION BAY AUTO PARTS, INC. and Dillip Mullings, Appellants, v. Dennis ALDER, Appellee. No. S-15139. Supreme Court of Alaska. Nov. 28, 2014. Joe P. Josephson, Josephson Law Offices, LLC, Anchorage, for Appellants. Dani Crosby and Eva R. Gardner, Ash-burn & Mason, P.C., Anchorage, for Appel-lee. Before: FABE, Chief Justice, WINFREE, STOWERS, MAASSEN, and BOLGER, Justices.

3698

22737

OPINION MAASSEN, Justice. I. INTRODUCTION This case arises from a dispute over whether the manager of an auto-parts store was owed overtime pay. The employer claims the manager was exempt from the overtime laws, but the superior court found _ he was not and awarded overtime pay and liquidated damages. The employer appeals. Because the employer failed to show that the manager satisfied all four requirements of the overtime laws' exemption for executive employees, we affirm the finding that the manager is owed overtime pay under Alaska and federal law. We also affirm the superior court's award of liquidated damages, because the employer failed to carry his burden of demonstrating by clear and convincing evidence that he acted in good faith. II. FACTS AND PROCEEDINGS Dillip Mullings owned a NAPA auto-parts store in Seward called Resurrection Bay Auto Parts, Inc. Mullings hired Dennis Alder to be the store manager, a position Alder held from 2006 to 2010, when he was terminated. Alder did not keep a time card, but it is undisputed that he typically worked from 6:30 a.m. to 6:80 p.m. Monday through Friday. The extent of Alder's overtime is not at issue on appeal; Mullings concedes that Alder worked over 40 hours a week. It is also undisputed that Alder was paid a salary and did not receive overtime pay. After Alder was terminated, he sought unemployment compensation from the State Department of Labor. The Department's Wage and Hour office determined that Alder was entitled to overtime pay and attempted, without success, to negotiate a settlement on his behalf with Resurrection Bay. Alder then filed suit, alleging that Mullings and Resurrection Bay (collectively "Mull ings") had violated state and federal overtime laws. Mullings responded that Alder was an executive employee and therefore exempt. Following a bench trial, the superior court decided that Alder did not fall within the executive exemption and that Mullings had failed to pay overtime compensation required by law. The court awarded $48,125 in overtime pay and imposed an equal amount of liquidated damages against Mullings for a total award to Alder of $96,250. Mullings appeals the superior court's decisions (1) that Alder was not exempt from the overtime laws, and (2) that liquidated damages were appropriate under the circumstances. III, STANDARDS OF REVIEW Whether an employee falls within an employee exemption from overtime pay is a mixed question of law and fact. We set aside a lower court's factual findings only when they are clearly erroneous," that is, "when, after a review of the record as a whole, we are left with a definite and firm conviction that a mistake has been made." We review de novo the superior court's application of the law to established facts, applying our independent judgment. In reviewing an award of liquidated damages, "[the question of whether an employer has shown good faith and reasonableness by clear and convincing evidence is a mixed question of law and fact." [Fjlactual findings will be overturned only if they are clearly erroneous, but an application of the law to established facts will be- reviewed de novo. Once it is established that the superior court did not err in finding clear and convincing evidence of good faith and reasonableness, the superi- or court's decision regarding whether or not to award any level of liquidated damages is reviewed for abuse of discretion. IV. DISCUSSION A. Mullings Did Not Satisfy His Burden Of Proving That Alder Was Exempt From The Alaska Wage and Hour Act's Overtime Pay Requirements. "The Alaska Wage and Hour Act (AWHA) governs the payment of overtime. " It provides that "[if an employer finds it necessary to employ an employee for hours in excess of the limits set in this subsection, overtime compensation for the overtime at the rate of one and one-half times the regular rate of pay shall be paid. } The limits defined by the subsection include work in "excess of eight hours a day" or "in excess of 40 hours a week. " A federal statute, the Fair Labor Standards Act (FLSA), applies concurrently and requires overtime pay under cireumstances identical to those identified in the AWHA. The terms used in the AWHA, if not defined in Alaska law, carry the definitions used in the FLSA. There is no dispute on appeal that both the AWHA and the FLSA apply to Mullings as an employer and that Alder worked a number of hours defined as overtime during the relevant period. Mullings, however, challenges the superior court's finding that Alder was not exempt from the overtime laws. The AWHA and the FLSA-including their overtime pay requirements do not apply to "bona fide executive, administrative, or professional" employees. Under both state and federal law, exemptions "are to be narrowly construed against the employer." Under both laws, the burden of proof is on the employer to prove that an exemption applies. Alaska's law specifically directs that for purposes of its exemptions, the term "bona fide executive" employee "has the meaning and shall be interpreted in accordance with 29 U.S.C. 201-219 [FLSA] as amended, or the regulations adopted under those see-tions. " Under the federal rule, an "employee employed in a bona fide executive capacity" includes any employee: (1) Compensated on a salary basis at a rate of not less than $455 per week ., exclusive of board, lodging or other facilities; (2) Whose primary duty is management of the enterprise in which the employee is employed or of a customarily recognized department or subdivision thereof; (3) Who customarily and regularly directs the work of two or more other employees; and (4) Who has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees are given particular weight."[ ] The superior court found that Mull-ings proved only the first of these requirements: it was undisputed that Alder's salary met the regulatory threshold of "not less than $455 per week." As for the other three requirements, the superior court found that Alder's primary duties were not managerial, that he did not customarily and regularly direct the work of two or more other employees, and that he did not have any significant influence on decisions about hiring and firing. Since all four requirements must be met before an exemption applies, the superior court concluded that Mullings had failed to prove that Alder was an exempt executive employee. The focus of Mullings's argument on appeal is that for purposes of the exemption's second requirement, Alder's "primary duty" was management. The evidence at trial was conflicting. However, as noted above, all four requirements of the exemption must be satisfied before the exemption applies. The third requirement-proof that the employee "customarily and regularly directs the work of two or more other employees"-is the most precisely defined of the four and the one Mullings clearly failed to meet. Under federal law-which the AWHA incorporates -"two or more other employees" means "two full-time employees or their equivalent," in total 80 hours of work per week. The phrase "customarily and regularly" means "a frequency that must be greater than occasional but which, of course, may be less than constant. There was evidence that Alder directed the work of other store employees when they were present. However, the evidence fell short of proving that Alder "customarily and regularly directed] the work of two other full-time employees." The court found at the conclusion of trial that "it was rare for two full time employees to be present" at the store, and Mullings's own evidence bore this out. > Trial Exhibit 3 was a schedule that Mull-ings testified he prepared at the request of the Alaska Department of Labor, representing employees' hours from May 2008 through September 2010, the period at issue. Mull-ings testified the exhibit was "accurate as far as required time," though he also testified it did not reflect whether an employee actually worked as scheduled-if, for example, an employee was out sick. According to Exhibit 3, there was just one other full-time employee scheduled to be present at the store throughout 2008 when Alder was working. In 2009, there was one other full-time and one part-time employee present at the store when Alder was working, for a total of at most 58 hours a week of other employees' time under Alder's supervision. The schedule for 2010 shows that there was just one other full-time employee in the store from January through May; from June through August there was one full-time employee and one close-to-full-time employee in the store on weekdays, totaling at most (in August) 68.5 hours of other employees' time under Alder's supervision. During none of these documented periods, thus, did Alder meet the regulatory minimum of supervising "two full-time employees or their equivalent" totaling 80 hours. And although he may have come close in the summer of 2010, a few months of supervising even 80 hours of other employees' time does not meet the requirement that the supervision be "customary and regular" in the context of the two years at issue. Mullings failed to prove this requirement; there is no evidence in the record from which the superior court could have reached a different conclusion. And because one of the four requirements for the exemption was plainly not met and all four are necessary for the exemption to apply, we need not discuss the others. B. The Superior Court Did Not Clearly Err By Finding That Mullings's Failure To Pay Alder Overtime Was Not In Good Faith, Justifying Liquidated Damages. The AWHA provides that a violating employer "is liable to an employee affected in the amount of unpaid minimum wages, or unpaid overtime compensation . and, except as provided in (d) of this section, in an additional equal amount as liquidated damages." After finding Mullings liable under both the AWHA and the FLSA, the superior court calculated unpaid overtime damages under each law and awarded the greater of the two (the AWHA award, $48,125.10), plus the same amount in liquidated damages, for a total of $96,250.20. The AWHA allows the court to decline to award liquidated damages, or to award an amount less than that set out in the statutory formula, "if the defendant shows by clear and convincing evidence that the act or omission giving rise to the action was made in good faith and that the employer had reasonable grounds for believing that the act or omission was not in violation of AS 23.10.060." "This provision contains both a subjective element-that the employer acted in good faith-and an objective element-that the employer reasonably believed it was not violating AWHA's overtime provision." The superior court found that Mullings failed to prove he was entitled to this good-faith defense by clear and convincing evidence. In Air Logistics of Alaska, Inc. v. Throop, we reviewed a number of cases that had considered the issue of good faith in the context of overtime claims under the FLSA. We identified "[clertain factors . that are repeatedly relied upon by the courts," among which was that "an employer who does not take affirmative steps to learn the law will not be able to show good faith and reasonableness. This factor is reflected in the AWHA: "Failure to inquire into Alaska law is not consistent with a claim of good faith under this subsection. " We further observed in Air Logistics that "courts often examine whether the employer went to counsel for advice, and some cases indicate that reliance on counsel alone can be sufficient to establish good faith and reasonableness." Reliance on advice from the Department of Labor may also indicate good faith. In Air Logistics, we affirmed a finding of good faith because the company's management showed that it had taken affirmative steps to learn the law before enacting new overtime rules: it had taken its proposed pay plan to the Department of Labor "to ensure compliance with applicable laws" and, following several meetings and phone calls, had received approval from an agency supervisor. The company had also shown its plan to its lawyer and "provided employees with detailed information about the plan." In this case, in contrast, the superior court found that Mullings made "no reasonable or active efforts . to educate himself" about the overtime laws. Mullings argues that the superior court clearly erred by not inferring good faith from (1) his attendance at NAPA franchisees' conferences where representatives from the Department of Labor discussed overtime requirements, (2) his compliance with the NAPA payroll guidelines for employee compensation and raises, and (3) Alder's failure to request overtime despite his greater experience in store management. But the evidence supports the superior court's conclusion that any affirmative efforts Mullings made, unlike those in Air Logistics, were not meaningful. Direct consultation with an attorney or the Department of Labor may well have flagged the issue of whether Alder was properly treated as an exempt employee. But Mullings's attendance at the NAPA conferences apparently failed to prompt any further inquiry, despite presentations by the Department of Labor. Mull-ings did not consult a lawyer about wage and hour issues. Nor is it apparent whether Mullings correctly implemented the NAPA guidelines or justifiably relied on them; the guidelines are not in the record. That Alder never requested overtime is of no significance, as the duty to inquire was Mullings's, not Alder's The absence of any evidence that Mullings inquired into whether Alder was properly exempt from the overtime laws supports the superior court's finding that Mullings failed to prove his good faith by clear and convincing evidence. We therefore need not reach the question whether Mull-ings had reasonable grounds for believing his omission did not violate the law. The superi- or court's award of liquidated damages was not an abuse of discretion. v. CONCLUSION The judgment of the superior court is AFFIRMED. . The superior court found that because Mullings controlled the business and acted as Alder's manager, he was Alder's "employer" for purposes of the Fair Labor Standards Act: definition. This finding is not challenged on appeal. . Fred Meyer of Alaska, Inc. v. Bailey, 100 P.3d 881, 883-85 (Alaska 2004). . Id. at 883-84 (quoting Benneit v. Bennett, 6 P.3d 724, 726 (Alaska 2000)) (internal quotation marks omitted). . Id. at 884 (citing Wyller v. Madsen, 69 P.3d 482, 485 (Alaska 2003)). . Air Logistics of Alaska, Inc. v. Throop, 181 P.3d 1084, 1097 (Alaska 2008). . Id. at 1097 (footnote omitted). . Hoendermis v. Advanced Physical Therapy, Inc., 251 P.3d 346, 351 (Alaska 2011) (citing AS 23.10.050-.150). . AS 23.10.060(b). . Id. . See 29 U.S.C. § 207(a)(1), 213(a)(1) (2012). We have held before that the AWHA is not preempted by the FLSA. Quinn v. Alaska State Emps. Ass'n/Am. Fed'n of State, Cnty. & Mun. Emps., Local 52, 944 P.2d 468, 471 (Alaska 1997) ("After comparing the history and purposes of the two Acts, we concluded that FLSA did not explicitly or implicitly preempt AWHA in its entirety. We also determined that AWHA's more generous minimum wage, overtime pay, and liquidated damages provisions did not actually conflict with similar provisions in FLSA." (citation omitted)) (citing Webster v. Bechtel, Inc., 621 P.2d 890, 900-905 (Alaska 1980).) . AS 23.10.145. . AS 23.10.055(b)-(c)(1); 29 U.S.C. § 213(a)(1). . Fred Meyer of Alaska, Inc. v. Bailey, 100 P.3d 881, 884 (Alaska 2004) (quoting Dayhoff v. Temsco Helicopters, Inc., 848 P.2d 1367, 1372 (Alaska 1993)) (internal quotation marks omitted); Solis v. Washington, 656 F.3d 1079, 1088 (9th Cir.2011). . Solis, 656 F.3d at 1088 (Under the FLSA, "the employer has the burden of showing that a particular exemption applies."); Fred Meyer, 100 P.3d at 884 (citing Dayhoff, 848 P.2d at 1371-72). The superior court held that Mullings "had the burden of proving the exemption by clear and convincing evidence," citing Desmond v. PNGI Charles Town Gaming, LLC, 564 F.3d 688, 691 (4th Cir.2009). We have held, however, that employers are required to prove AWHA exemptions "beyond a reasonable doubt." Fred Meyer, 100 P.3d at 884; Dayhoff, 848 P.2d at 1371-72. Although the burden-of-proof issue is not raised on appeal, we note that other than the Fourth, the circuits that have explicitly adopted a standard of proof for the applicability of FLSA ex-eraptions require proof by a preponderance of the evidence. See Meza v. Intelligent Mexican Mktg., Inc., 720 F.3d 577, 581 (5th Cir.2013); Foster v. Nationwide Mut. Ins. Co., 710 F.3d 640, 646 (6th Cir.2013); Lederman v. Frontier Fire Prot., Inc., 685 F.3d 1151, 1158 (10th Cir.2012); Yi v. Sterling Collision Ctrs., Inc., 480 F.3d 505, 507 (7th Cir.2007); Dybach v. State of Fla. Dep't of Corr., 942 F.2d 1562, 1566 n. 5 (lith Cir.1991); Dickenson v. United States, 353 F.2d 389, 392 (9th Cir.1965). . AS 23.10.055(c)(1). . 29 C.F.R. § 541.100(a)(1)-(4) (2014). . Dayhoff, 848 P.2d at 1372. . The superior court found that Mullings managed the business and Alder "was essentially reduced to a team leader of the customer service employees," with his duties "limited to ensuring that the store was closed and opened, that inventory was received by the store, that the store was staffed, and that employees complied with rules." While Alder clearly performed many duties that would be considered "management" under the federal definition, 29 C.F.R. § 541.102 (2014), the more difficult issue was whether they constituted his "primary duties" or were instead secondary to ministerial duties such as serving customers on the retail floor. See Fred Meyer, 100 P.3d at 884-85. . AS 23.10.145. . 29 C.F.R. § 541.104 (2014); see Sec'y of Labor v. Daylight Dairy Prods., Inc., 779 F.2d 784, 787 (1st Cir.1985) (citing Department of Labor handbook for rule that "the total number of hours supervised {must exceed] 80" and concluding 'that the 80-hour rule is reasonable: it is easy to apply and allows employers to be confident that they are complying with the statute"), disapproved of on other grounds, McLaughlin v. Richland Shoe Co., 486 U.S. 128, 108 S.Ct. 1677, 100 L.Ed.2d 115 (1988) Rubery v. Buth-Na-Bodhaige, Inc., 470 F.Supp.2d 273, 277 (W.D.N.Y.2007) ("[The Regulations and case law provide that plaintiff must direct at least 80 hours of subordinate work a week to be exempt."); Perez v. RadioShack Corp., 386 F.Supp.2d 979, 989 (N.D.Ill.2005) ([The court defers to the regulations and case law, all of which suggest that the FLSA imposes a bright-line 80 hours per week subordinate supervision requirement in order for the executive exemption to apply."). There are recognized exceptions to the 80-hour rule, not applicable here, "where the industry as a whole has a standard workweek of slightly less than 40 hours." Daylight Dairy, 779 F.2d at 787 n. 2. . 29 C.F.R. § 541.701 (2014). . Mullings contends that he was a full-time employee himself for purposes of the supervision requirement, not only while he was physically present in the store but also while he was away, as he considered himself constantly on call. But we reject the notion that an employer may also be an employee under another employee's super vision for purposes of satisfying this requirement of the exemption. See AS 23.30.395(19), (20) (defining "employee"" to mean "an employee employed by an employer" and defining "employer" to mean "a person employing one or more persons"). . Because it is unnecessary in this case, we'do not establish bright-line rules about the number of hours necessary to qualify other employees as "full time" for purposes of the supervision requirement or the amount of the plaintiff's own time that must involve supervision before it may be considered a "customary and regular" part of the plaintiff's duties. See, eg., Daylight Dairy, 779 F.2d at 788 ("[The district court determined that no manager in the category at issue met the 80-hour requirement more than 76 percent of the time. We agree with the district court's conclusion that this falls short of 'regular and customary' supervision of 80 hours of work."); but see Murray v. Stuckey's, Inc., 50 F.3d 564, 568 (8th Cir.1995) (disagreeing with Daylight Dairy that 76 percent falls short of "regular and customary" but finding that supervising "at least two or more employees who worked eighty hours per week 98.2% of the time . is 'customarily and regularly' by any definition"). The court in Murray also observed that under Department of Labor guidelines, a 40-hour week "is not a rigid standard" for defining full-time employment. Id. . In his reply brief, Mullings for the first time argues the applicability of the administrative employee exemption found in AS 23.10.055(a)(9)(A) and 29 U.S.C. § 213(a)(1) (2012). He did not raise the argument below or address it in his opening brief on appeal, and we therefore consider it waived. See Jones v. Bowie Indus., Inc., 282 P.3d 316, 337 (Alaska 2012) (citing Gunter v. Kathy-O-Estates, 87 P.3d 65, 69 n. 10 (Alaska 2004)). . AS 23.10.110(a). The FLSA provides for the same damages. 29 U.S.C. § 216(b) (2012); see Braswell v. City of El Dorado, Ark., 187 F.3d 954, 957 (8th Cir.1999) ("An award of liquidated damages under § 216(b) is mandatory unless the employer can show good faith and reasonable grounds for believing that it was not in violation of the FLSA." (citation omitted)). . AS 2110.1 10(d). The federal statute gives the court similar discretion to decline to award liqui dated damages in cases of good faith. 29 U.S.C. § 260 (2012). . Air Logistics of Alaska, Inc. v. Throop, 181 P.3d 1084, 1097 (Alaska 2008). . Id. at 1098. . Id. . AS 23.10.110(g). . Air Logistics, 181 P.3d at 1098 (footnote and citation omitted). . Id. at 1098-99 (citation omitted). . Id. at 1099. . Id. . According to Mullings, a Department of Labor representative informed him after the fact that to avoid liability would have been "as simple as coming to [the Department] and sitting down and writing . out an agreement between [Mull-ings] and [Alder], . stating what would be regular time, what would be overtime, encompassing what the salary would be for that."

10446441

Michael PYRDOL, Appellant, v. STATE of Alaska, Appellee

Pyrdol v. State

1980-10-03

No. 4712

513

516

617 P.2d 513

617

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

Michael PYRDOL, Appellant, v. STATE of Alaska, Appellee.

Michael PYRDOL, Appellant, v. STATE of Alaska, Appellee. No. 4712. Supreme Court of Alaska. Oct. 3, 1980. Robert S. Spitzfaden, Smith, Taylor & Gruening, Anchorage, for appellant. Thomas M. Warded, Dist. Atty., Kenai, and Avrum M. Gross, Atty. Gen., Juneau, for appellee. Before RABINOWITZ, C. J., CONNOR, BURKE and MATTHEWS, JJ., and DIMOND, Senior Justice.

1111

6867

OPINION PER CURIAM. In the early morning hours of August 29, 1978, an inebriated man was robbed of $4.00 in the basement of a vacant building in Seward. A group of four Army enlistees, also intoxicated, had been carousing in Seward and decided to "roll a drunk." It is unclear who had the idea and whether it was a spontaneous event or whether they lured the victim to the place of assault. The victim was hit on the head with a rock and his pockets picked by the group. Michael Pyrdol was the one who hit the victim with the rock. He was convicted of robbery on a plea of nolo contendere and sentenced to five years, with three suspended and parole eligibility denied for one year. He appeals the sentence as excessive. Pyrdol argues that his background and youth warrant relatively lenient treatment. He adds that the psychological pro file indicates a likelihood that his participation in the crime was a spur of the moment, impulsive action, which he engaged in because of the influence of his peers. Incarceration of this young and easily-led offender "will only worsen the defendant's problems," it is claimed. No time to serve should have been given, he argues. The record clearly reveals that the sentencing judge considered all of the relevant factors. There is nothing in the record to indicate that incarceration, coupled with appropriate psychiatric, vocational, or alcoholic treatment, will turn Pyrdol into a recidivist. In reviewing sentences we continue to presume that the Division of Corrections will take the full record into consideration in selecting a facility for Pyrdol, in classifying his status in that institution, and in providing appropriate rehabilitative programs. See Parks v. State, 571 P.2d 1003, 1005-6 (Alaska 1977). Pyrdol also challenges the manner of sentencing, claiming that the trial court improperly considered unverified information. Pyrdol was sentenced after being indicted for perjury. Pyrdol had testified at the trials of two of the other alleged robbers (one of whom was acquitted), and the perjury indictment was based upon discrepancies in his statements at those proceedings. While the sentencing judge expressly stated that he was not considering the perjury allegation, Pyrdol claims that he did: the difference between Pyrdol's and another defendant's sentences (the other defendant was given no time to serve) cannot otherwise be accounted for, he says. This claim is without merit. First of all, Pyrdol's conduct was mo.re reprehensible, because he was the person who struck the victim on his head with a rock. Secondly, a sentencing judge may take into account his belief that the defendant committed perjury at his trial. Fox v. State, 569 P.2d 1335, 1338 (Alaska 1977). But the judge may do so only to the extent that the alleged perjury is used by him as indicia to determine the defendant's potential for rehabilitation. It is improper to enhance the sentence as punishment for the alleged perjury. Strachan v. State, 615 P.2d 611, 613-614, (Alaska 1980). In this case the judge expressly disavowed any reliance on the apparent perjury as a sentencing factor, and thus such factor was not used for the purpose of increasing the sentence which might otherwise have been imposed. Because of this, it is unnecessary to remand the case for resentencing as we did in the Strachan case. None of Pyrdol's arguments are persuasive under the prior case law. Under the new criminal code, Pyrdol's presumptive sentence might have been six years. See AS 12.55.125(c)(1) (effective January 1, 1980). Under presumptive sentencing, the mitigating factors present in his case would at most allow reduction to three years, and he would not have been entitled to suspension of any portion of the three-year minimum presumptive sentence. See AS 12.55.-125(g). See AS 12.55.155(a)(2). Thus, the sentence imposed is less severe than he would be likely to get today for the same charge, absent an appeal to the three-judge sentencing panel under AS 12.55.175. We conclude that the sentence was not clearly mistaken. AFFIRMED. BOOCHEVER, J., not participating. . Pyrdol was convicted under prior AS 11.15.-240 (§ 65-4-24 ACLA 1949). The authorized sentence under the statute was from one to fifteen years. . Pyrdol, age eighteen at the time of the offense, is the son of an American military man and his Japanese wife. His parents were divorced when he was three and alternated custody of him until he was twelve, when he and his three brothers decided to stay with their mother. Despite the obvious difficulties caused by these erratic changes in custody and by the cultural and racial differences between his parents, Pyrdol appears to have been well liked and not troublesome at school or at home. After he finished ninth grade, Pyrdol left Okinawa to live with his father in New York. Two months after his seventeenth birthday, with his father's permission, he enlisted in the Army. In the service, Pyrdol has been a good soldier. Pyrdol shows indications of alcoholism. A psychological report to the court indicates that he is an incipient schizophrenic, who should receive psychotherapy and can be expected to respond well to it. He is unskilled for civilian employment and has no strong career interest. .Pyrdol also argues that his sentence is unjustifiably dissimilar to other sentences for like crimes to like offenders. However, the cases he compares his to do not support his contention. See Holloway v. State, 535 P.2d 467 (Alaska 1975); Bradley v. State, 535 P.2d 1031 (Alaska 1975). The fact that another defendant for the same crime received no time to serve presumably reflects the nonviolent character of the other's activity in addition to whatever personality differences were demonstrated. The issue before us is whether Pyrdol's sentence is excessive. Comparison with other cases does not indicate that the disparity in Pyrdol's sentence is so unjustifiable as to be irrational. See Burleson v. State, 543 P.2d 1195, 1202 (Alaska 1975). . To the extent that the Division of Corrections is unable, through lack of resources or otherwise, to fulfill its constitutional and statutory responsibilities, redress is available through the legislative process or through post-incarcera-tive civil litigation. . Pyrdol was subsequently convicted of perjury. . It appears that the man who was robbed suffered a head injury from being hit by Pyrdol. If this was a "serious physical injury" the six-year presumptive sentence would apply. AS 12.55.125(c)(1).

8362453

Micheal L. McLAUGHLIN, Petitioner, v. STATE of Alaska, Respondent

McLaughlin v. State

2007-12-28

No. A-9971

1014

1017

173 P.3d 1014

173

Pacific Reporter 3d

Alaska Court of Appeals

Alaska

2021-08-10T18:17:27.941175+00:00

CAP

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

Micheal L. McLAUGHLIN, Petitioner, v. STATE of Alaska, Respondent.

Micheal L. McLAUGHLIN, Petitioner, v. STATE of Alaska, Respondent. No. A-9971. Court of Appeals of Alaska. Dec. 28, 2007. Micheal L. MelLaughlin, pro se, Kenai, for the Petitioner. Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Col-berg, Attorney General, Juneau, for the Respondent. Joshua P. Fink, Public Advocate, Anchorage, for real party in interest. Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.

1638

9979

OPINION COATS, Chief Judge. This case raises the question of whether a defendant who is represented by counsel can file a pro se petition for review. We conclude that he cannot. We conclude that the decision whether to seek immediate appellate review of a trial court's non-appealable order is a tactical decision that is entrusted to the defendant's attorney under Alaska law. Factual and procedural background Micheal L. McLaughlin was convicted of felony driving under the influence, felony refusal to submit to a breath test, and driving while his license was suspended or revoked in a trial conducted by Superior Court Judge Pro Tem Margaret L. Murphy. Following these verdicts, but before sentencing, McLaughlin's attorney filed a motion for a new trial. Judge Murphy denied the motion. Apparently McLaughlin asked his court-appointed attorney (an attorney working under contract with the Office of Public Advocacy) to seek interlocutory appellate review of the superior court's denial of the new trial motion by filing a petition for review. When the attorney declined to do this, MeLaughlin, acting pro se, attempted to file a petition for review on this issue. McLaughlin argued that he had a constitutional right to represent himself on the petition. We ordered the State, the Office of Public Advocacy, and McLaughlin (personally) to brief the following issues: (a) In a criminal case, who has the final decision as to whether to seek interlocutory review of a trial court's non-final order-the defendant, or the defendant's attorney? (b) If the defense attorney has the final decision on this matter, and if the defense attorney decides not to file a petition for interlocutory review, does the defendant nevertheless have a right to proceed pro se in seeking interlocutory review? Now, having reviewed the briefs, we conclude that a defense attorney has the final decision whether to seek interlocutory review of a trial court's non-appealable order. We also conclude that, if the attorney decides not to file a petition for review, the defendant does not have a right to proceed pro se in seeking interlocutory review. Why we conclude that the defendant's attorney has the final decision on whether to seek interlocutory review of a trial court's non-appealable order Based on the United States Supreme Court's decision in Faretteo v. California, McLaughlin argues that he has a constitutional right to represent himself in a petition for interlocutory review. In Faoretta, the United States Supreme Court held that criminal defendants have the right to refuse counsel so that they can represent themselves at trial. But twenty-five years later, in Martinez v. Court of Appeal of California, Fourth Appellate District, the Supreme Court decided that the Farsetta right of self-representation does not apply to appeals. It therefore appears that the federal Constitution does not require this Court to allow McLaughlin to pursue a pro se petition for review. In 1993, the Alaska Supreme Court promulgated the Alaska Rules of Professional Conduct. Alaska Rule of Professional Conduct 1.2(a) provides that: In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial, whether the client will testify, and whether to take an appeal. This rule controls our decision in this case. In Simeon v. State, we concluded that Alaska Rule of Professional Conduct 1.2(a) left to the attorney all tactical decisions that are not set out in the rule: [Alaska Rule of Professional Conduct 1.2(2)] specifies clearly those decisions over which the client has the ultimate authority. Since the rule limits the client's authority to those decisions, it follows that the lawyer has the ultimate authority to make other decisions governing trial tacties. [ ] McLaughlin argues that the language in Alaska Rule of Professional Conduct 1.2(a) requiring the lawyer to abide by the client's, decision "whether to take an appeal" includes the decision to petition for interlocutory review of a non-appealable order. But we do not think this is a proper interpretation of the rule. The word "appeal" has a precise meaning under the Alaska Rules of Appellate Procedure. Under Appellate Rule 202, an appeal to the court of appeals is from a final judgment entered by the superior court or the district court. Appellate Rule 402 provides for review of non-appealable orders or decisions. The rule authorizes the court of appeals "to review any order or decision of the trial court, not appealable under Rule 202.'' We are certain that the Alaska Supreme Court was aware of the distinction between an appeal and a petition for review when it promulgated Alaska Rule of Professional Conduct 1.2(a). It therefore seems clear that, when the Alaska Supreme Court stated that the client had the ultimate authority "whether to take an appeal," the Alaska Supreme Court meant what it said. And since the Alaska Supreme Court did not include a petition for review as a decision over which the client has the ultimate authority, it follows that the attorney has the final authority to decide whether to petition an appellate court for interlocutory review of a non-appealable order. This conclusion seems consistent with other appellate decisions. In Jones v. Barnes, the United States Supreme Court held that the attorney has the final decision regarding what arguments to raise on appeal. The Court noted that experienced advocates emphasize "winnowing out weaker arguments on appeal.'' We adopted the reasoning of Jones in Tucker v. State and Coffman v. State. In Taylor v. Illinois, the United States Supreme Court stated that an attorney has the final decision at trial to decide whether to forego cross-examination of a witness or whether to call witnesses. In Martin v. State, we held that "[the trial court is not required to allow a defendant who is represented by counsel to file his own motions. This could cause considerable confusion. The trial court therefore has the authority to require a defendant who is represented by counsel to act through counsel." These decisions are consistent with the premise that, except for the decisions set out in Alaska Rule of Professional Conduct 1.2(a) (the plea to be entered, whether to waive jury trial, whether to testify, and whether to take an appeal), other strategic and tactical decisions are the ultimate responsibility of the attorney. Appellate Rule 402, which provides for review of non-appealable orders or decisions, points out that there are sound policy reasons that require appeals to be taken from final judgments. We are to grant a petition for review only when the petitioner establishes substantial reasons to depart from this policy. In general, onee a defendant's conviction is final, he can obtain review of any ruling made by the trial court. In the present case, McLaughlin has attempted to petition for review of Judge Murphy's denial of his motion for a new trial. It seems clear that, after his conviction is final, McLaughlin can raise this issue in an appeal. Of course, the decision whether to appeal is McLaughlin's, not the attorney's. But under Jones and Tucker, McLaughlin's attorney has the final decision about what issues to raise. It would be inconsistent to hold that McLaughlin has the right to file a pro se petition for review asking this court to review Judge Murphy's denial of McLaughlin's motion for a new trial when the attorney certainly has the authority to determine that, for tactical reasons, it is not in McLaughlin's interest to raise this issue on appeal. We therefore conclude that under Alaska Rule of Professional Conduct 1.2(a), a defendant's authority to decide whether to take an appeal is limited to an appeal from a final judgment as set out in Appellate Rule 202. The decision whether to petition an appellate court to review a decision that is not appealable under Appellate Rule 202 is the responsibility of the attorney, not the client. This distinction is based on sound policy. Whether to petition for review is generally a complicated strategic and tactical decision that is best left to the attorney. In general, if a client is convicted, the attorney can then challenge any ruling made by the trial court. Allowing a client to independently file a peti tion for review would raise the distinct possibility that such a procedure would cause the client to undermine his counsel's trial tactics and would cause an undue burden on his attorney, the courts, and the State. We accordingly conclude that McLaughlin has no right to file a pro se petition for review. McLaughlin's pro se petition for review is therefore rejected for filing. . 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). . Id. at 807, 821, 95 S.Ct. at 2527, 2534. . 528 U.S. 152, 120 S.Ct. 684, 145 L.Ed.2d 597 (2000). . - Id. at 154, 120 S.Ct. at 687. . Alaska Supreme Court Order No. 1123 (cff. July 15, 1993). . 90 P.3d 181 (Alaska App.2004). . Id. at 184. . Alaska R.App. P. 202(b). . Alaska R.App. P. 402(a)(1). . 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983). . Id. at 750, 103 S.Ct. at 3312. . Id. at 751, 103 S.Ct. at 3313. . 892 P.2d 832, 836 & n. 7 (Alaska App.1995). . Alaska App. Opinion No. 2122 at 3-4, 9-14 (Nov. 2, 2007), 2007 WL 3227568. . 484 U.S. 400, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988). . Id. at 418, 108 S.Ct. at 658. . 797 P.2d 1209 (Alaska App.1990). . Id. at 1217. . Alaska R.App. P. 402(b).

6983452

Richard Jude VILLARS, Appellant, v. Kathleen Estelle VILLARS, Appellee

Villars v. Villars

2012-06-01

No. S-14094

763

771

277 P.3d 763

277

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T18:17:18.594765+00:00

CAP

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

Richard Jude VILLARS, Appellant, v. Kathleen Estelle VILLARS, Appellee.

Richard Jude VILLARS, Appellant, v. Kathleen Estelle VILLARS, Appellee. No. S-14094. Supreme Court of Alaska. June 1, 2012. Andrew J. Fierro, Law Office of Andrew J. Fierro, Inc., Anchorage, for Appellant. Douglas C. Perkins, Hartig, Rhodes, Hoge & Lekisch, P.C., Anchorage, for Appellee. Before: CARPENETI, Chief Justice, FABE, WINFREE, and STOWERS, Justices.

4499

28222

OPINION STOWERS, Justice. I. INTRODUCTION Richard Villars and Kathleen Villars were married on August 31, 1984. They jointly filed a petition for dissolution of marriage on February 4, 2002. Richard served in the military for most of the marriage, first in the United States Air Force and later in the Alaska Air National Guard. Prior to filing their dissolution, the parties drafted a settlement agreement dividing their property such that each person was to receive half of the marital estate. The value of Richard's military retirement benefits was not known at the time of dissolution because he had not yet qualified for benefits. However, Richard and Kathleen agreed to split the marital portion of Richard's military retirement benefits 50/50 should Richard receive them. Richard began collecting his military retirement benefits in 2009 at the age of 48, twelve years earlier than he and Kathleen had expected at the time of dissolution. Kathleen asserted she was entitled to collect her marital portion of Richard's military retirement benefits when Richard began collecting them. Richard disagreed, arguing that the parties intended Kathleen to collect only when Richard turned 60 years old. The superior court determined that the settlement agreement was unambiguous and the parties intended to divide equally the marital portion of Richard's military retirement benefits when he began receiving them, not when he turned 60. The superior court ordered Richard to repay Kathleen 50% of the marital portion of the retirement benefits he had received to date. Richard appeals, arguing that the superior court's finding on the parties' intent was erroneous and that the retirement benefits are his separate property until he reaches the age of 60. Richard further argues that the superior court impermissibly modified the settlement agreement. Because the findings of the superior court were not clearly erroneous and the superior court did not make an impermissible modification to the settlement agreement, we affirm. II. FACTS & PROCEEDINGS Richard Villars and Kathleen Villars were married on August 81, 1984. One year prior, on June 1, 1983, Richard began active duty with the United States Air Force at the age of 22. Richard remained on active duty for eight years until July 1991. Richard joined the Alaska Air National Guard in May 1992. At the time of dissolution, Richard was employed by the Alaska Air National Guard and was also a pilot with United Airlines. Richard and Kathleen jointly filed a petition for dissolution of marriage in the superi- or court on February 4, 2002. They appended to the petition "Attachment A," a six-page spreadsheet showing how they agreed to divide their assets and debts. The first page of "Attachment A" showed the total value of their property, which they agreed to split 50/50. The composition of property adding up to fifty percent differed for each of them. Kathleen wanted to keep the entirety of her retirement accounts, which had greater value than Richard's accounts. Richard received cash and personal property to equalize the value of the parties' property division. To address the division of Richard's United Airlines and military pensions, the parties checked the box on the petition for dissolution stating: Our agreement about the distribution of retirement or military pension benefits is attached. If this agreement is not accepted by the retirement plan administrator as a qualified domestic relations order [QDRO], we agree that the court, upon motion by a party, may make any necessary corrections We agree any such court-ordered modifications will be effective retroactive to the date of the original dissolution decree. They handwrote underneath, "QDRO's [sic] will be presented at court." Richard's United Airlines and military pensions were included in the asset breakdown in "Attachment A," but their values were unknown because Richard had not yet retired at the time of dissolution. The line item in "Attachment A" pertaining to Richard's military retirement contained the description, "Alaska Air National Guard (monthly benefit at age 60)" and the formula, "1/2 x years of marriage during service/years of service." On March 13, 2002, Richard and Kathleen appeared in person and testified at a dissolution hearing before Standing Master Suzanne Cole. Master Cole reviewed "Attachment A" with Richard and Kathleen, including the division of the retirement benefits. THE COURT: And the way that I understand the division here is the plan is to equalize the retirement benefits 50/50 between the two of you. MR. VILLARS: Yes. The parties explained that the QDROs were not ready for presentation to the court, and Master Cole sought clarification on how the parties were dividing the pensions. THE COURT: Regarding retirement benefits then, based on your division of other property, there is no intent to claim an interest in the other one's retirement benefits? You're leaving them as they are? MS. VILLARS: Other than the pensions. We had two QDROs written up. They have not yet been mailed back to us. THE COURT: Okay. You still have lost me here. I'm not quite sure what you're doing with the pensions, because at least what's listed here, unless I'm missing something.... MR. VILLARS: The-the present value, we're cashing out 50-50 percent on the retirement. MR,. VILLARS: And the future value, we are agreeing to, according to the QDRO.... THE COURT: Okay. MR. VILLARS: . so it's a 50 percent share there. Master Cole, seeking to be clear regarding the parties' description of the pension division in "Attachment A" and their testimony, summarized it again in her own words. THE COURT: Regarding the retirement benefits earned by Mr. Villars during the marriage, and that is specifically the employment benefits, the plan is that Ms. Villars is to receive 50 percent of the retirement benefits through QDRO of the employment benefits earned by Mr. Vil-lars; is that right? MS. VILLARS: For the air national guard. THE COURT: It's 50 percent of the benefits earned . MS. VILLARS: Of today. THE COURT: . during the marriage. MS. VILLARS: Yes. MR. VILLARS: Yes. MS. VILLARS: Yes. THE COURT: Okay. And no other claim is being made on any benefits obtained by Mr. Villars. MS. VILLARS: Exactly. Because the QDROs were still being drafted by Colonel Edward Schilling, an attorney retained by Richard, the parties agreed to file the QDROs after the dissolution was finalized. Richard and Kathleen then acknowledged that the divisions in property discussed at the hearing were "final decisions" they would not be able "to modify . later on" absent a showing of fraud or duress. Master Cole found that the agreement between Richard and Kathleen was "fair and just" and recommended approval of the dissolution agreement. On March 22, 2002, the superior court accepted the master's recommendation, issued a dissolution decree, and the marriage was dissolved. Colonel Schilling prepared a QDRO for the military benefits soon after. The document, entitled "Order for the Division of the Marital Interest in Military Retired Pay" (hereinafter "2002 QDRO"), expressed Kathleen's fractional interest in Richard's military pension in terms of points rather than years because the Reserve National Guard Retirement System accounts for time spent in the military in terms of points. Section 5 of the 2002 QDRO described the formula to caleu-late Kathleen's share: 5. As her property interest in [Richard's] disposable retired pay,[ ]" Former Spouse is awarded a portion of said pay calculated as follows: 50% x (5026 points/points creditable for retirement upon retirement).[ ] Section 9 stated, "The appropriate pay center shall pay the sums called for above directly to Former Spouse to the extent permitted by the law at the same time the Member receives retired pay." (Emphasis added.) Section 11 read, "With the exception of the amounts specifically awarded to Former Spouse, the balance of Member's retired pay is awarded to Member as his sole and separate property." Richard and Kathleen signed and filed the 2002 QDRO and on June 19, 2002, the superior court accepted it. After the dissolution, Richard worked for six more years as a part-time National Guard member. A part-time guard member typically accumulates credit towards retirement under the reservist system in which a guard member must accrue a minimum of 50 points a year for twenty years to qualify for a pension at age 60. This means that even if the guard member acquires the twenty qualifying years before age 60, the member must wait until age 60 to start collecting the pension. In contrast, under the active retirement system, once a service member aceu-mulates 20 years of service, that service member can retire immediately regardless of whether that member has reached age 60. Onee a member in the reservist system accumulates 7,800 points, the member is transferred from the reservist retirement system to the active duty retirement system. Even though Richard was a part-time reservist, he acquired far more than 50 points a year; in fact he averaged over 300 points per year towards retirement during the sixteen years he was in the National Guard. These high point totals while in the National Guard combined with his eight years of active service from 1983-1991 allowed Richard to transfer from the reservist retirement system to the active duty retirement system. Richard retired from the military at age 48 in July 2009 with 7,919 points towards retirement and began immediately collecting his pension from the active duty retirement system. When Kathleen learned Richard had retired early, she submitted the 2002 QDRO to the Defense Finance and Accounting Service ("DFAS"), the agency in charge of disseminating military retirement benefits DFAS rejected the QDRO because it expressed Kathleen's interest in terms of reserve points, but the active duty retirement system had converted Richard's creditable military time from points to years. DFAS instructed Kathleen to obtain a clarifying court order containing a new formula expressed in years within 90 days to obtain benefits. Kathleen contacted Richard and requested that he direct Colonel Schilling to draft a clarifying order. Colonel Schilling drafted a stipulated clarifying order that converted the points formula in the 2002 QDRO to a formula using years, making no mention of limiting Kathleen's collection to begin when Richard became 60 years old. Richard received this document via e-mail on October 19, 2009, and signed it November 10, 2009. Richard claims he did not agree to modify the age 60 limitation because he believed payments received before age 60 were his separate property. Richard also asserts he was under significant stress due to work and family problems during this time and did not mean for his signature on the stipulated clarifying order to indicate his full approval of the form. Richard spoke to Kathleen on December 11, 2009, and expressed his desire to have the order include a provision limiting Kathleen's collection of benefits to begin when Richard turned 60 years old. Richard claims he and Kathleen agreed to continue to work with Colonel Schilling to compose the order. However, Kathleen filed a "Notice of Lodging Clarifying Order" with the superior court on December 17, 2009, along with a different clarifying order drafted by her own attorney. The superior court signed Kathleen's clarifying order on December 30, 2009, the last day of the 90-day window DFAS required. On January 11, 2010, Richard filed an opposition to the notice and requested an evi-dentiary hearing. Superior Court Judge Sen K. Tan vacated the clarifying order on January 19, 2010 and held two evidentiary hearings on June 24, 2010, and September 8, 2010. At the first hearing, the superior court was concerned with determining what the trigger was that allowed Richard to retire early. Richard provided testimony to explain his understanding of the two military retirement systems and the property division agreement he made with Kathleen. Richard also testified that had he known at the time of the dissolution that Kathleen would get one-half of his active duty retirement benefits before he turned 60 years old, he would have made property division decisions differently. The superior court indicated it thought the 2002 QDRO was "unambiguous in [Kathleen's] favor." At the end of the hearing, the superior court made several findings of fact. It found: What the record reflects in two places, and is very clear, is . on record before Judge Cole, the parties actually state it pretty clearly, they intended to divide up the marital portion of the retirement 50/50. That was the intent then. The other thing is, it is also reflected in the 2002 [QDRO] drafted by Colonel Schilling.... I'm going to find that the document reflects the intent of the parties. In reading that, this whole notion that regardless of whether Mr. Villars could retire early, and if he did Ms. Villars would not get a retirement until age 60 is after-the-fact thinking. Had nothing to do at the time the contract was formed. Not at all. It wasn't even on the horizon. The intent was to divide up 50/50. The superior court rejected the notion that there was a "specific understanding" between Richard and Kathleen that should Richard retire early, Kathleen would not collect her marital portion at that time and instead would wait until Richard reached age 60 before she would receive her payments. The superior court reinstituted the December 2009 clarifying order. On July 13, 2010, Richard filed a motion for reconsideration that the court granted for the purpose of hearing from experts on the two military retirement systems. On September 8, 2010, the superior court held a second evidentiary hearing. Richard's expert, David Carrad, testified that Kathleen should collect payments when Richard turns 60 years old, but conceded this assessment was based upon his understanding of the parties' intent. Kathleen's expert, Marshal Willick, criticized Richard's interpretation based on its impossibility of being enforceable: Well, in the . near 30 years I've been doing [QDROs], I have never seen a military retirement order which had the two parties begin to receive their benefits at different times.... Mr. Carrad said that it is very common to have one party start receiving benefits one time and another party at another [time]. But . [ylou can't do that in the military. No way, no how. It's impossible under the statute. You can only divide the payment stream. The experts agreed that the determination of the parties' intent was a matter for the court to decide. On October 11, 2010, the superior court issued an order finding "that it was the intent of the parties to divide equally the marital portion of the military retirement." The superior court ordered Richard to repay Kathleen 50% of the marital portion of the retirement benefits that he had received to date. Richard filed a second motion for reconsideration on October 25, 2010, which was denied. Richard appeals. III. DISCUSSION A. Standard Of Review Contract principles govern the interpretation of property settlement agreements incorporated in dissolution decrees. When interpreting any contract, the goal "is to give effect to the reasonable expectations of the parties." We review the interpretation of a contract de novo. "Where the superior court considers extrinsic evidence in interpreting contract terms, however, we will review the superior court's factual determinations for clear error and inferences drawn from that extrinsic evidence for 'support by substantial evidence. " B. The Superior Court Did Not Err In Finding The Settlement Agreement Unambiguous And The Intent Of The Parties Was To Divide The Marital Portion Of Richard's Retirement Benefits 50/50 Upon Richard's Retirement. Based on its review of the parties' settlement agreement and the testimony from the first evidentiary hearing, the superior court found that "it was the intent of the parties to divide up Mr. Villars military retirement 50%/50%." The superior court found "no intent that Ms. Villars would not receive the retirement benefits at the same time as Mr. Villars" or "that she would only receive the benefits when Mr. Villars turned sixty, even if he retired before age 60 and was drawing benefits." Following the second evidentiary hearing, the court confirmed that the parties' intent was to divide the marital portion of Richard's military retirement 50/50 upon Richard's retirement. 1. The property settlement agreement is unambiguous. We examine "both the language of the [agreement] and extrinsic evidence to determine if the wording of the [agreement] is ambiguous." "An ambiguity exists only where the disputed terms are reasonably subject to differing interpretation after viewing the contract as a whole and the extrinsic evidence surrounding the disputed terms." Judge Tan appeared to consider the agreement unambiguous at the first eviden-tiary hearing when he commented, "[FJrankly, I think [the agreement is] unambiguous in [Kathleen's] favor. The way I've read everything was they were going to split up the retirement when he retired." But the court then proceeded to analyze the intent of the parties and found the parties intended to divide Richard's military retirement 50/50 when Richard retired. We agree with the superior court that the property settlement agreement is not ambiguous, and that it clearly demonstrated the intent of the parties at the time of the dissolution. We also conclude the superior court did not clearly err in its findings regarding the parties' intent. Richard's argument that the agreement is not ambiguous is focused almost entirely on the line in "Attachment A" which contains the description, "Alaska Air National Guard (monthly benefit at age 60)" and the formula, "1/2 x years of marriage during service/years of service." Richard argues that the term "Alaska Air National Guard (monthly benefit at age 60)," along with evidence from the dissolution hearing leads to the conclusion that the parties understood Kathleen would collect benefits onee Richard reached the age of 60, We disagree. Rather, the property settlement agreement unambiguously shows that the parties intended Kathleen to receive her marital portion of the retirement benefits upon Richard's retirement regardless of age. The settlement agreement consists of the dissolution petition, "Attachment A," and the 2002 QDRO accepted by the superior court. Language from the 2002 QDRO, which both parties signed, clearly demonstrates that the parties intended to divide the marital portion of the military benefits 50/50 beginning when Richard began receiving retirement pay. Section 9 of the 2002 QDRO states, "The appropriate pay center shall pay the sums called for above directly to Former Spouse to the extent permitted by law at the same time the Member receives retired pay." (Emphasis added.) This language directly contravenes Richard's theory of what the parties agreed to in 2002. Further, as the superior court correctly pointed out at the evidentiary hearing, there is no mention of an age 60 restriction on Kathleen's right to receive payments anywhere in the 2002 QDRO. The parties further explained their intentions regarding the retirement benefits at the dissolution hearing. When Master Cole inquired about "Attachment A," Richard agreed without qualification that the parties' plan was to divide the marital portion of the retirement benefits 50/50. THE COURT: And the way that I understand the division here is the plan is to equalize the retirement benefits 50/50 between the two of you. MR. VILLARS: Yes. The master then sought to clarify the parties' intent: THE COURT: Regarding retirement benefits then, based on your division of other property, there is no intent to claim an interest in the other one's retirement benefits? You're leaving them as they are? MS. VILLARS: Other than the pensions. We have two QDROs written up. They have not yet been mailed back to us. THE COURT: Okay. You still have lost me here. I'm not quite sure what you're doing with the pensions, because at least what's listed here, unless I'm missing something.... MR. VILLARS: The-the present value, we're cashing out 50-50 percent on the retirement. MR. VILLARS: And the future value, we are agreeing to, according to the . THE COURT: Okay. MR. VILLARS: . so it's a 50 percent share there. Richard testified at the evidentiary hearing before the superior court that he would have negotiated for a share of Kathleen's retirement accounts had he known in 2002 that he would get an active duty retirement benefit, arguing that he intended only to share a National Guard retirement benefit with her. However, "[dlifferences of opinion among the parties as to their subjective intent, expressed during the litigation, do not establish an issue of fact regarding the parties' reasonable expectations at the time they entered into the contract, since such self-serving statements are not considered to be probative." The superior court considered the parties' testimony before Master Cole in finding that the intent of the parties was to divide the marital portion of the military retirement benefits 50/50. The dissolution hearing testimony, given contemporaneously with the property settlement agreement, is construed to be extrinsic evidence separate from the written documents. So construed, we review the superior court's inferences drawn from extrinsic evidence for "support by substantial evidence." Richard's testimony amply supports the superior court's conclusion that Richard's arguament-seeking to limit Kathleen's ability to collect retirement benefits until Richard's age 60-is "after-the-fact thinking" which "[hlad nothing to do" with the contract when it was formed and "wasn't even on the horizon [then] The intent was to divide up 50/50." We agree with the superior court that the language of the property settlement agreement and the parties' testimony shows that the agreement is not ambiguous and that the parties intended that Kathleen would be entitled to be paid one-half of the marital portion of Richard's military retirement benefits at the time that he began receiving his retirement payments. 2. The benefits received between July 2009 and Richard's 60th birthday are not solely Richard's separate property. Richard also argues that the benefits accrued from his retirement in July 2009 to his 60th birthday are his separate property. Richard's argument is similar to the arguments advanced by the appellants in Hartley v. Hartley and Tillmon v. Tillmon. In Hartley, the former husband argued that the former wife's share of his retirement benefits should be calculated based on the average of his highest three salary years during marriage rather than at the time of retirement when his average salary was higher. We disagreed, concluding that "'a post-divorce merit increase is based upon the employee's entire history of service to the employer. In other words, the post[-]divorce increases are built upon a foundation of prior marital efforts' and therefore the increases are not separate property. In Tillmon, a former husband and wife agreed on a 50/50 split of the marital portion of the former husband's military retirement, but disagreed on how to compute this share. The former wife proposed a QDRO that would split the marital portion of the retirement benefits upon the former husband's future retirement. The former hus band argued that the former wife's share should be limited to his pay grade at the time of divorce so that she would not benefit from his future pay raises. The superior court agreed with the former wife's calculation and we affirmed. Here, because Kathleen was married to Richard during seven of his eight years of active service in the military and during his first ten years with the National Guard, Kathleen helped lay the foundation for Richard's future advancement. Richard collected a significant amount of credit towards active duty retirement while married to Kathleen (5,026 points of 7,800 points required). Richard's argument that the military retirement benefits from his July 2009 retirement to his 6Oth birthday are his separate property is precluded by Hartley and Tillmon. IV. CONCLUSION We AFFIRM the superior court's October 11, 2010 order in its entirety. CHRISTEN, Justice, not participating. . A military retirement order, though similar in function, is not technically a qualified domestic relations order, but we refer to it as the "2002 QDRO" in keeping with how the parties and the trial court referred to it. See 2 Bretr R. Turner EoutrasLe Distrisurion or Property § 6:2, at 8 (3d ed. 2005) ("[Mlany attorneys and courts use the term QDRO to refer to any qualified order. This usage is a mistake, for other types of qualified orders are needed to obtain disbursement from other types of plans. In particular, a QDRO is not sufficient to authorize payment of military retirement benefits . [which] requires its own unique type of qualified order."). . "Disposable retired pay" is defined in 10 U.S.C. § 1408(a)(4) (2009) as: the total monthly retired pay to which a member is entitled less amounts which . (D) are deducted because of an election under chapter 73 of this title to provide an annuity to a spouse or former spouse to whom payment of a portion of such member's retired pay is being made pursuant to a court order under this section. . Richard had acquired 5,026 points towards retirement while married to Kathleen. . A point is approximately equal to one day of service. . 7,300 points / 365 days = 20 years, or the equivalent of 20 years of active service. . Zito v. Zito, 969 P.2d 1144,1147 n. 4 (Alaska 1998) (citing Keffer v. Keffer, 852 P.2d 394, 397 (Alaska 1993)). . Knutson v. Knutson, 973 P.2d 596, 600 (Alaska 1999) (citing Keffer, 852 P.2d at 397). . Burns v. Burns, 157 P.3d 1037, 1039 (Alaska 2007). . Cook v. Cook, 249 P.3d 1070, 1077-78 (Alaska 2011) (quoting Burns, 157 P.3d at 1039). . N. Pac. Processors, Inc. v. City & Borough of Yakutat, Alaska, 113 P.3d 575, 579 (Alaska 2005) (quoting Wessells v. State Dep't of Highways, 562 P.2d 1042, 1046 (Alaska 1977)). . Id. (quoting Wessells, 562 P.2d at 1046). . Peterson v. Wirum, 625 P.2d 866, 870 (Alaska 1981). . See N. Pac. Processors, 113 P.3d at 584. . Cook, 249 P.3d at 1077-78 (quoting Burns, 157 P.3d at 1039). . Even if the statement in "Attachment A""(monthly benefit at age 60)"-rendered the settlement agreement ambiguous, the superior court's findings based on the evidence as a whole-that the parties intended that Kathleen would begin receiving her share of Richard's retirement benefits at the same time he began receiving them-properly resolved the ambiguity. Richard also argues that the superior court's ruling is not an interpretation of the contract based on the parties' intent but rather an improper modification of the settlement agreement. Because we hold that the superior court did not err in finding that the intent of the parties was to split the marital portion of the retirement benefits 50/50 upon Richard's retirement, it follows that the superior court did not impermissibly modify the parties' settlement agreement. . 205 P.3d 342, 347 (Alaska 2009). . 189 P.3d 1022, 1031 (Alaska 2008). . Hartley, 205 P.3d at 349-50 (quoting 2 Brett R. Turner, Eourrases Disreisurion or Property § 6:26, at 171 (3d ed. 2005)). . 189 P.3d at 1031. . Id. at 1024. . Id. . Id. at 1032. . We note, as we did in Tillmon, that while Kathleen is entitled to half of the marital portion. of Richard's retirement benefits starting in July 2009, this share is calculated over Richard's entire career with the military, 22.833 years. This equals 30.57%. See id. at 1032 n. 35.

6983471

Michael S. BERRY, Appellant, v. April L. BERRY, Appellee

Berry v. Berry

2012-06-01

No. S-14008

771

780

277 P.3d 771

277

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T18:17:18.594765+00:00

CAP

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

Michael S. BERRY, Appellant, v. April L. BERRY, Appellee.

Michael S. BERRY, Appellant, v. April L. BERRY, Appellee. No. S-14008. Supreme Court of Alaska. June 1, 2012. Michael S. Berry, pro se, North Pole, Appellant. April L. Berry, pro se, Fairbanks, Appel-lee. Before: CARPENETI, Chief Justice, FABE, WINFREE, and STOWERS, Justices.

5100

31344

OPINION CARPENETI, Chief Justice. I. INTRODUCTION A father appeals various procedural actions taken by the superior court in his divorce and custody proceeding. Appearing pro se, the father alleges that the court's expedited procedures violated his due process rights and reflected judicial bias. The father also argues that the court abused its discretion in its award of attorney's fees. Because the court's procedures did not violate the father's due process rights and the father has not shown that the court was biased against him, we affirm the procedural decisions of the superior court. But because the superior court did not follow the established process for the award of attorney's fees, we reverse the superior court's attorney's fees order and remand for further proceedings. II. FACTS AND PROCEEDINGS Michael and April Berry were married on November 20, 2004. They have two children, born in 2006 and 2008. The couple separated in June 2009. On June 16, 2009, April filed a complaint for divorcee. The first hearing took place on August 28, 2009. At that hearing, the superior court set September 25 as the date for a "scheduling conference and appearance with counsel." Throughout the proceedings before the superior court, April was represented by an attorney, while Michael represented himself. In the four weeks between the first hearing, on August 28, and the next one, on September 25, the parties filed numerous motions. At the September hearing, the court reviewed the status of the parties' motions and noted that because another case had settled, the court would be able to hold a hearing to resolve all outstanding motions on the following Tuesday, September 29. The court made a number of factual findings and rulings at that hearing. The trial itself began on June 28, 2010. It was originally intended to last two days, but extended over five. Michael, pro se, appeals the court's procedural decisions on various grounds, as well as the court's award of attorney's fees. III. STANDARD OF REVIEW Michael's "constitutional arguments present questions of law, which we review de novo; we will adopt the rule of law that is most persuasive in light of precedent, reason, and policy." the superior court for abuse of discretion. Under this standard, "[wle will reverse a ruling for 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." "We review procedural decisions of » 2 "The award of attorney's fees in a divorce action . rests within the broad discretion of the trial court and will not be disturbed on appeal unless it is 'arbitrary, capricious, or manifestly unreasonable." " IV. DISCUSSION Michael raises ten issues on appeal. Several of Michael's claims allege violations of due process. His brief invokes due process under the Fourteenth Amendment of the U.S. Constitution and under article I, section 7 of the Alaska Constitution. We have stated in general that "[t]he crux of due process is opportunity to be heard and the right to adequately represent one's interests." "Due process is satisfied if the statutory procedures provide an opportunity to be heard in court at a meaningful time and in a meaningful manner." Several of Michael's claims also allege judicial bias. "In order to prove a claim of judicial bias," a party must show that the judge "formed an opinion of him from extrajudicial sources." Because Michael has provided no evidence that the superior court relied on extrajudicial sources in forming any of its opinions, and because nothing in the record suggests that the superior court did so, we conclude that all of Michael's allegations of judicial bias are without merit. Michael argues that the only way to remedy the violation of his due process rights and the superior court's judicial bias "is for the Supreme Court to reverse all findings, vacate all orders issued by the Superior Court and remand the case for reassignment and retrial." In the sections that follow, we review each of Michael's arguments. For the reasons stated in each section, we instead affirm the superior court in all respects except its attorney's fees award. A. Michael Did Not Preserve The "Accelerated Motion Practice" Issue. Michael argues that the superior court violated Rule 77 of the Alaska Rules of Civil Procedure by ordering an accelerated briefing schedule at a hearing on September 25, 2009, and in doing so violated his due process rights. The September 25 hearing was scheduled on August 28 as a "scheduling conference and appearance with counsel," in order to "pick a time to resolve the differences if they're not resolved." In the period between August 28 and September 25, both parties filed numerous motions and supporting documents. At the September 25 hearing, the superior court reviewed the state of the parties' brief ing and asked whether any of the motions were not ready for decision because oppositions or replies had not yet been filed. After April's attorney noted a few oppositions and replies that she still intended to file, the superior court stated that "a case has folded," so that the court would be able to hold a hearing to address all the motions early the next week. The court proposed holding a hearing on Tuesday morning at which "we'll close out all the motions. Anybody [who] has any pleadings to file in that regard, they should file them and serve them on the other party with a chambers copy by the end of the business day on Monday." Shortly thereafter, April's attorney stated: "The idea is just make them all ripe on Monday afternoon." The court replied: Yeah, well, ripe or not they're going. I think . everybody's opposing positions are clear, so we don't have to exhaust the civil procedural rules. Everybody is pretty well doing a good job of making it clear what their position is on the different subjects, and so I'll take what everybody has up to the time of the hearing, and then you can supplement whatever you have at the hearing and we'll do the best we can Tuesday morning at 10 o'clock. Okay? Anything else Mr. Berry until then? In the audio recording of the September 25 hearing Michael's reply is not clearly audible, but it appears from the superior court's response that he raised no objection. Nor does Michael's brief identify any subsequent objection by him to the superior court's accelerated briefing schedule. Michael argues on appeal that the court's accelerated briefing schedule "grossly deviated" from Alaska Civil Rule 77 and in doing so violated his due process rights. Michael argues that the motion schedule announced by the superior court on September 25 was a violation of Civil Rule 77(d), which states that "[rleply and supplemental materials and memoranda, if any, may be served and filed by the moving party within five days of the date of the service of the opposition to the motion." We interpret Michael's argument to be that the superior court abused its discretion and violated his due process rights by not allowing him a full five days to reply to two of April's oppositions which were filed on September 28, giving Michael less than five days to file a reply prior to the September 29 hearing. We decline to rule on the merits of this claim because Michael failed to preserve it for appeal. Michael was given an opportunity to object to the superior court's proposed briefing schedule when the court asked him: "Anything else Mr. Berry until then?" Michael made no objection. We have held in other contexts that "failure to make the appropriate objection during the hearing waives the right to appeal procedural errors." Michael's failure to object waives this issue on appeal. B. The Superior Court Cured Any Eir-ror That Resulted From Signing Temporary Orders Before Considering Michael's Arguments. Michael next argues that the superior court violated Alaska Civil Rule 77 by signing temporary orders and a child support order drafted by April's attorney without first considering Michael's timely filed response, and in doing so violated Michael's due process rights. At the conclusion of the September 29 hearing, the court made various factual findings and rulings. After discussing what evidence was available concerning the parties' incomes, the superior court stated: "I'll instruct that within days [April] submit a child support calculation and proposed order. Mr. Berry, you have ten days to object to the calculation and the proposed order." The court later invited April's attorney to "prepare the temporary orders as just described by the court." On October 1, April's attorney filed proposed orders based on the court's oral orders at the September 29 hearing. On October 13, Michael filed a brief two-page opposition to the proposed orders. Also on October 18, the superior court signed the proposed orders. At a later hearing, the court conceded that it had not considered Michael's opposition before signing the orders. If we assume out of deference to Michael's pro se status that the court's orally announced ten-day deadline applied to Michael's responses to April's draft temporary orders, and not only to her child support calculations and draft interim child support order, Michael's responses to the proposed orders would by default have been due on October 12. But April's attorney served Michael the proposed orders by mail. Under Alaska Civil Rule 6(c), "[wlhenever a party has the right or is required to act within a prescribed period after the service or distribution of a document, . and the document is served or distributed by mail, three calendar days shall be added to the prescribed period." Thus, Michael would have had until October 14 to respond to April's proposed orders. But even if we assume the applicable deadline to be October 14, the superior court cured any error by subsequently reconsidering its October 18 orders in light of Michael's arguments. Our cases have established that when a court overlooks a party's timely filings and issues a premature order, the resulting prejudice may generally be cured by the court subsequently reconsidering its decision in light of the party's arguments. The superior court did this in the present case. After the superior court conceded at the November 18, 2009 hearing that it had signed April's proposed orders without first considering the opposition Michael had filed on October 13, Michael filed a motion to vacate the orders. In a handwritten note on the February 5, 2010 order denying Michael's motion to vacate, the court expressly noted that it had considered Michael's supplemental child support and income-related information yet still reaffirmed its prior child support order. Though the superior court does not expressly state that it considered Michael's one-paragraph argument against the proposed temporary orders as well, such an express statement is not necessary for us to infer that the superior court read and considered Michael's two-page opposition in full. Thus, Michael received an adequate opportunity to be heard and to represent his interests regarding the orders signed on October 13. His right to due process was not violated. C. The Superior Court Did Not Violate Michael's Due Process Rights In Orally Issuing Temporary Child Custody Orders During A Scheduling Conference. Michael argues that the superior court violated his due process rights by orally issuing temporary child custody orders at the August 28 scheduling conference. At the outset, we note that the oral delivery of orders is wholly ordinary and proper. The superior court stated at the conclusion of the August 28 hearing that Michael would have visitation with the children over weekends, as well as on Wednesday evenings, and could visit the children at daycare. This order largely continued the status quo. In addition, the order remained in effect only from August 28 to September 29, when the court orally delivered more comprehensive rulings regarding custody and other matters. Michael accurately notes that he did not receive notice that the court might issue a temporary child custody order at the August 28 hearing. But Michael fails to identify any legal support for the claim that a superior court may not issue oral orders governing temporary custody at a pre-trial hearing in an action concerning divorce and child eusto-dy. Nor does he identify any evidence that April's temporary custody over the children gave her an advantage in arguing for permanent custody. In fact, April did not even receive the custody ordered by the court, because Michael violated the order. Alaska Statute 25.24.150(a) states: "In an action for divorce ., the court may, . during the pendency of the action, . make, modify, or vacate an order for the custody of or visitation with the minor child that may seem necessary or proper...." The statute includes no hearing requirement. We have held in the past that due process requires an evidentiary hearing before custody modification, even though Alaska statutes do not. But procedural due process analysis involves a balancing in which the importance of a party's interest plays a significant role. Because our precedents do not imply that a one-month temporary custody order largely extending the status quo requires notice and a hearing under principles of due process, we hold that the order did not violate Michael's right to due process. D. Michael's Arguments Concerning The Domestic Violence Finding, Reliance On The Custody Investigator's Testimony, And The Failure To Make Additional Findings Are All Without Merit. 1. The domestic violence finding Michael argues that the superior court erred in finding, during the September 29, 2009 pre-trial hearing, that Michael committed domestic violence against April and in issuing a domestic violence protective order against him. Michael misunderstands the order issued by the superior court. It was not a domestic violence protective order issued under AS 18.66.100; it was a protective order issued under AS 25.24.140(b)(1) and (4). Those statutory sections provide that the court may, during the pendency of a divorce, issue orders "providing for the freedom of each spouse from the control of the other spouse" and "restraining a spouse from communicating directly or indirectly with the other spouse." The order issued by the superior court was limited to these areas. And, while AS 25.24.140(b)(1) and (4) do not require a hearing before an order is issued, Michael was afforded notice of April's reasons for seeking the protective order and a full opportunity to question April about the basis for the sought-after order 2. Reliance on the custody investigator's testimony Michael attacks the superior court's award of sole legal and primary physical custody to April on various grounds, including the due process and judicial bias claims that have already been discussed above. But Michael dedicates the majority of his argument to the claim that the superior court relied improperly on the testimony of the custody investigator in this case. As part of its written findings of fact at the conclusion of the case, the superior court found that "the custody investigator's testimony with regard to the father and the effect the father's conduct is having on the children to be credible and reliable." The court also noted that it "shares the custody investigator's concerns that the children's environment is not stable or satisfactory." Finally, the court disagreed with the custody investigator's recommendation that Michael's visitations should be supervised, while at the same time recognizing that the investigator "is right to express concerns in this regard" and was justified in making the recommendation. Trial courts may choose to rely on the testimony of court-appointed custody investigators in making custody determinations. Michael's brief on appeal simply reiterates the unsuccessful efforts he made to impeach the credibility of the custody investigator before the superior court. But this is not enough, for "[wle give 'particular deference' to the trial court's factual findings when they are based primarily on oral testimony, because the trial court, not this court, performs the function of judging the credibility of witnesses and weighing conflicting evidence." We find no error in the superior court's reliance on the custody investigator's testimony and recommendation. 3. Failure to make additional factual findings Michael argues that the superior court erred when it "failed to make any findings of fact beyond those that specifically supported [its] custody and property decisions." For example, Michael criticizes the superior court for not making findings regarding his allegation that "this case was a pre-meditated act on the part of Mrs. Berry and that she acted in contempt of [court] and committed perjury . throughout the entire proceedings." These arguments are meritless. A trial court is under no obligation to make findings on every factual assertion raised by the parties, provided that the court has "resolved each critical factual dispute." Here, the court's findings are sufficient for our review under Alaska Civil Rule 52. E. It Was Error To Award Attorney's Fees. Michael argues that the superior court should not have awarded attorney's fees to either party. In its findings of fact and conclusions of law, the superior court noted that the parties' estate has a value of approximately-$54,012. The parties have made things worse by conducting their affair such that $32,747 in attorney's fees has been added to their financial problems. Although the husband was recalcitrant throughout the divorcee, the wife behaved irresponsibly by taking on $32,747 in attorney{'ls fees.... The court ordered Michael to bear 71.5% of the marital debt and to pay April $6,000 in attorney's fees: With this payment the parties will bear the current negative value of the estate plus attorney's fees in approximate proportion to their income and the husband will bear all post separation debt payments. This award is made in consideration of the husband's recalcitrant behavior and the wife's financial irresponsibility in taking on such large attorney's fees debt. We have held that "[the award of attorney's fees in a divorce action . rests within the broad discretion of the trial court and will not be disturbed on appeal unless it is 'arbitrary, capricious, or manifestly unreasonable.'" We recently summarized the law governing attorney's fees in divorcee cases as follows: A prevailing party in a civil case is normally entitled to an award of attorney's fees, per Rule 82. Divorce cases are usually excepted from this general rule; fees awards in divorcee cases are typically based on the parties' relative economic situations and earning powers, rather than prevailing party status. This "divoree exception" to Rule 82 is based on a broad reading of AS 25,24.140(a)(1), and on the reality that there is usually no prevailing party in a divoree case.[ ] We have also noted that "[tlhe purpose of awarding attorney's fees in divoree proceedings is to level the playing field, which means taking into account not only earning capacities and separate resources, but also the distribution of marital assets itself." "[When the parties' economic status is generally equal, it is ordinarily error to make any award of costs or fees." As we explained in Edelman v. Edelman: The trial court may also increase an award of attorney's fees where a party has acted in bad faith or vexatiously. The court must follow a two-step process to make an award of enhanced fees: It must determine the appropriate fee award under the general rule and then it may increase that award to account for a party's misconduct. "Failure to follow this two-step process is an abuse of discretion." Additionally, the court "must make explicit findings of bad faith or vexatious conduct and clearly explain its reasons for deviating from the general rule." "When the court finds that one spouse's misconduct has unnecessarily increased the other spouse's costs, the court must identify the nature and amount of these increased costs." [ ] In this case only April hired an attorney; by the end of the proceedings she had incurred $32,747 in legal fees. The superior court ordered Michael to pay $6,000 to April for her attorney's fees "in consideration of" both parties' misconduct. In making this decision, the superior court did not follow the two-step procedure we have established. First, it should have determined how much of April's $32,747 in attorney's fees would have been allocated to each party under "the general rule," without considering misconduct-that is, how much of the fees each party would have had to bear in order "to level the playing field. Next, it should have made explicit findings of bad faith or vexatious conduct by either party. We held in Kowalski that failure to follow the two-step process of reasoning is an abuse of discretion. We thus reverse and remand the superior court's attorney's fees award. Ordinarily, an error by the trial court in the award of attorney's fees would not require reexamination of the property division. But because the superior court's division of the marital assets and debts in this case was based in part upon its attorney's fees award, we remand the division of marital property as well in order to allow the superi- or court to adjust the property division if necessary following its decision on attorney's fees. v. CONCLUSION We AFFIRM the superior court in all respects but one. We REVERSE the superior court's attorney's fees order and REMAND for further proceedings consistent with this opinion. CHRISTEN, Justice, not participating. . VinZant v. Elam, 977 P.2d 84, 86 (Alaska 1999) (citing Keane v. Local Boundary Comm'n, 893 P.2d 1239, 1241 (Alaska 1995)). . Prentzel v. State, Dep't of Pub. Safety, 169 P.3d 573, 592 (Alaska 2007) (citing Balough v. Fairbanks N. Star Borough, 995 P.2d 245, 254 (Alaska 2000)). . Id. (quoting Ruckle v. Anchorage Sch. Dist., 85 P.3d 1030, 1034 (Alaska 2004)) (internal quotation marks omitted). . Ferguson v. Ferguson, 195 P.3d 127, 130 (Alaska 2008) (quoting Hopper v. Hopper, 171 P.3d 124, 129 (Alaska 2007)). . Matanuska Maid, Inc. v. State, 620 P.2d 182, 192-93 (Alaska 1980) (citing Hansberry v. Lee, 311 U.S. 32, 42, 61 S.Ct 115, 85 L.Ed. 22 (1940). . Keyes v. Humana Hosp. Alaska, Inc., 750 P.2d 343, 353 (Alaska 1988) (citing Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976)). . Peterson v. Ek, 93 P.3d 458, 467 (Alaska 2004) (citing United States v. Grinnell Corp., 384 U.S. 563, 583, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966) (''The alleged bias and prejudice to be disqualifying must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case.")). . On September 28, April filed her Opposition to Motion To Establish Bank Account To Protect Minor Children's Permanent Fund Dividend, and her Opposition to Motion for Plaintiff To Only Have Supervised Visitation. Michael also suggests in his reply brief that he did not receive April's reply to his opposition to her motion for a restraining order until September 29, the day of the hearing, which "limited [his] ability to adequately prepare to address this motion." But April's reply was filed on September 25. Michael's reply brief identifies no requirement in the Civil Rules that replies must be filed more than four days before a hearing at which they will be considered. . Michael actually succeeded in filing replies to these two oppositions on September 28, but we do not accord great weight to this fact. A litigant who filed an ill-considered reply under an improper deadline could be prejudiced no less than a litigant who filed no reply at all. . Williams v. Abood, 53 P.3d 134, 148 & n. 66 (Alaska 2002) (citing among others Far N. Sanitation, Inc. v. Alaska Pub. Utils. Comm'n, 825 P.2d 867, 873 n. 8 (Alaska 1992) (concluding that 'Far North's failure to object or raise the point before the Alaska Public Utilities Commission constitutes waiver, because any other result would inevitably create an incentive for dilatory failure to assert error")). . Although we uphold the superior court's action in accelerating the briefing schedule, we note that it would have been preferable for the court to explain in greater detail to this pro se litigant the consequences of accelerating the schedule. . Otherwise, the deadline for Michael's response to the draft temporary orders would have been governed by Alaska Civil Rule 78(b), which states that a party may file objections to another party's proposed orders within five days after service of the proposed orders. . Alaska Civil Rule 6(a) states: In computing any period of time prescribed or allowed by . order of court, . the day of the act . from which the designated period of time begins to run is not to be included. The last day of the period is to be included, unless it is a Saturday, a Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, Sunday, or legal holiday. Day ten for Michael's objections would thus have arrived on Sunday, October 11. October 12, 2009, was Columbus Day, but this is not a legal holiday in Alaska. See AS 44.12.010 (legal holidays). (It is true that AS 44.12.010(a)(13) states that "every day designated by public proclamation by the President of the United States . as a legal holiday" constitutes a legal holiday in Alaska, and that President Obama designated October 12, 2009, by public proclamation as Columbus Day. Proclamation No. 8437, 74 Fed.Reg. 53,147 (Oct. 9, 2009). But the President's proclamation did not define Columbus Day as a "legal holiday," or indeed a holiday of any kind. Id. Thus, October 12, 2009, was not a legal holiday under AS 44.12.010(a)(13).) . See Mullins v. Local Boundary Comm'n, 226 P.3d 1012, 1016 (Alaska 2010) (citing Johnson v. Johnson, 544 P.2d 65, 71 (Alaska 1975) (holding that no due process violation occurs where party who was denied opportunity to be heard on issue is later afforded opportunity to brief and argue merits through motion for reconsideration}; Gallant v. Gallant, 945 P.2d 795, 799-800 (Alaska 1997) ("[Wihile the superior court erred by ruling on [one party's] motion prematurely, that error was harmless," because the party's subsequent "motion for reconsideration apprised the court of the additional information and arguments he would have presented in his reply."). . In addition, at the July 23, 2010 hearing, the court explained to Michael at length that it did not reject or fail to consider his opposition to April's proposed child support calculations, even though the original calculations were signed before the court received Michael's response. . For the same reasons, we reject Michael's argument that the superior court violated his due process rights by not granting his motion to vacate the orders signed October 13. We are also not persuaded by Michael's suggestion that there is evidence that the superior court did not, in fact, consider the opposition he filed on October 13. Nor is Michael correct in his argument that the superior court erred under Alaska Civil Rule 77(d) in inviting April to file a late reply to Michael's October 13 opposition. Rule 77(d) does not prohibit a judge from allowing additional filing time. . See, e.g., First Nat'l Bank of Anchorage v. State, Office of Pub. Advocacy, 902 P.2d 330, 335 (Alaska 1995) (rejecting claim that "superior court erred in denying . Rule 60(b) motion because the court failed to provide any written statement explaining its decision"). . We have reiterated this conclusion in numerous cases. See, e.g., Lashbrook v. Lashbrook, 957 P.2d 326, 328 (Alaska 1998). It can ultimately be traced back to the due process analysis in Cushing v. Painter, 666 P.2d 1044, 1046 (Alaska 1983). . See Smith v. Groleske, 196 P.3d 1102, 1106 (Alaska 2008) (quoting Alyssa B. v. State, Dep't of Health & Soc. Servs., 123 P.3d 646, 649 (Alaska 2005)) (setting out three-part balancing test between private interest, government interest, and value of additional process in reducing error). . See, e.g., Cusack v. Cusack, 202 P.3d 1156, 1160 (Alaska 2009) (affirming trial court's heavy reliance on findings of custody investigator). . Ebertz v. Ebertz, 113 P.3d 643, 646 (Alaska 2005) (quoting In re Adoption of A.F.M., 15 P.3d 258, 262 (Alaska 2001)). . See Urban Dev. Co. v. Dekreon, 526 P.2d 325, 328 (Alaska 1974) (holding that rule does not require findings to be made on all questions so long as trial court "resolved each critical factual dispute"). . Rule 52(a) provides, in relevant part: "In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon...." . Ferguson v. Ferguson, 195 P.3d 127, 130 (Alaska 2008) (quoting Hopper v. Hopper, 171 P.3d 124, 129 (Alaska 2007)). . Johnson v. Johnson, 239 P.3d 393, 399 (Alaska 2010) (footnotes omitted). . Dragseth v. Dragseth, 210 P.3d 1206, 1212 (Alaska 2009) (citing Tybus v. Holland, 989 P.2d 1281, 1289 (Alaska 1999); Money v. Money, 852 P.2d 1158, 1165 (Alaska 1993); Siggelkow v. Siggelkow, 643 P.2d 985, 989 (Alaska 1982)). . Edelman v. Edelman, 61 P.3d 1, 5 (Alaska 2002) (quoting L.L.M. v. P.M., 754 P.2d 262, 264 (Alaska 1988)). . Id. at 5-6 (footnotes omitted). . Id. at 6. . Dragseth, 210 P.3d at 1212. . See Kowalski v. Kowalski, 806 P.2d 1368, 1373 (Alaska 1991). Indeed, as to the court's suggestion that Michael should have to bear some of April's fees due to his recalcitrance, we stated in Kowalski that "mere . contentiousness over difficult issues" does not, in itself, "constitute bad faith or vexatious conduct." Id. at 1373. Nor should April's decision to hire legal counsel be held against her or factored into the award of fees. . Id. . In response to Michael's concern that the superior court treated April's attorney's fees as part of "the marital debt," we also take this opportunity to clarify that attorney's fees incurred in a divorce proceeding do not constitute part of the marital estate in Alaska. AS 25.24.160(a)(4), which governs the division of marital property, limits the division to property "acquired only during marriage" unless "the balancing of the equities" requires invasion of separate property. See McDougall v. Lumpkin, 11 P.3d 990, 993 (Alaska 2000); see also Sampson v. Sampson, 14 P.3d 272, 276 (Alaska 2000). In general, we have stated that "the date for segregating marital from post-marital property is ordinarily the date of the functional termination of the marriage." Hanlon v. Hanlon, 871 P.2d 229, 231 (Alaska 1994) (citing Schanck v. Schanck, 717 P.2d 1, 3 & n. 7 (Alaska 1986). Thus attorney's fees such as April's, which were incurred after the couple's effective separation, do not form part of the marital estate.

10419122

James A. RIDGELY, Jr., Appellant, v. STATE of Alaska, Appellee; William G. PLUMLEY, Appellant, v. STATE of Alaska, Appellee; Shelley Ann BOSCH, Appellant, v. STATE of Alaska, Appellee

Ridgely v. State

1985-09-06

Nos. A-30, A-43 and A-56

924

936

705 P.2d 924

705

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T18:03:25.532191+00:00

CAP

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

James A. RIDGELY, Jr., Appellant, v. STATE of Alaska, Appellee. William G. PLUMLEY, Appellant, v. STATE of Alaska, Appellee. Shelley Ann BOSCH, Appellant, v. STATE of Alaska, Appellee.

James A. RIDGELY, Jr., Appellant, v. STATE of Alaska, Appellee. William G. PLUMLEY, Appellant, v. STATE of Alaska, Appellee. Shelley Ann BOSCH, Appellant, v. STATE of Alaska, Appellee. Nos. A-30, A-43 and A-56. Court of Appeals of Alaska. Sept. 6, 1985. A. Harry Branson, Anchorage, for appellant Ridgely. William J. Pauzauskie, Anchorage, for appellant Plumley. William Grant Callow, II, Asst. Public Defender, and Dana Fabe, Public Defender, Anchorage, for appellant Bosch. William H. Hawley, Asst. Atty. Gen., Anchorage, and Norman C. Gorsuch, Juneau, for appellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

6764

41539

OPINION PER CURIAM. James A. Ridgely, Jr., William G. Plum-ley, and Shelley Ann Bosch were convicted of the murder of Mildred Landesman following separate jury trials. Ridgely and Plumley were convicted of murder in the first degree, AS 11.41.100(a)(1); Bosch was convicted of murder in the second degree, AS 11.41.110. Superior Court Judge Ralph E. Moody sentenced Ridgely to ninety-nine years for first-degree murder, ten years for first-degree burglary, and five years for second-degree theft. AS 11.41.100(a)(1); AS 11.46.300(a)(1); AS 11.46.100(1); AS 11.-46.130(a)(1). These sentences were all to run consecutively. Plumley was sentenced to ninety-nine years for murder in the first degree and ten years, consecutive, for burglary in the first degree. AS 11.41.-100(a)(1); AS 11.46.300(a)(1). Judge Moody sentenced Bosch to ninety-nine years for murder in the second degree and five years for theft in the second degree. AS 11.46.-410(1); AS 11.46.100(1); AS 11.46.130(a)(1). These sentences were also to be served consecutively. Ridgely, Plumley and Bosch appeal their convictions and sentences. In this per curiam opinion, the court sets out the facts and unanimously disposes of a number of issues raised in these consolidated appeals. In the opinion following, Chief Judge Bryner writes for the majority on the dispositive issue of Ridgely's confessions. Judge Coats dissents from the court's disposition of this issue. I. FACTS In mid-August of 1982, Ridgely, Plumley and Bosch hitchhiked out of Anchorage toward Fairbanks. They reached a point near Cantwell (approximately Mile 177 of the Parks Highway) where they planned to stay at a trailer they believed to be owned by a friend's family. They located the trailer, broke the lock and settled in. The three were aware of the presence of Mildred Landesman, whose Winnebago motor home was located nearby. Mrs. Landesman was initially contacted by Ridgely in order to borrow cigarettes. The three appellants conceived a plan to steal Mrs. Landesman's Buick LaSabre which she parked next to her motor home. Apparently, a decision was made to invite Mrs. Landesman to lunch at the trailer and distract her attention while Ridgely clubbed her over the head with a pickax handle. They would then dispose of her body. The three would consequently be free to take her car and whatever else she may have had of value in the motor home. The plan was carried out on August 21, 1982, when Ridgely escorted Mrs. Landes-man to the trailer. After Mrs. Landesman entered the trailer she sat down, was distracted as planned by Plumley and Bosch, and was killed by Ridgely, who clubbed her from behind. After disposing of the body, the three changed, gathered their personal items and left the trailer. Ridgely flung the weapon into the woods. The appellants proceeded to the Landesman motor home where they searched for and obtained food and money. Plumley drove the Buick and Ridgely drove the motor home to Mile 170.5 on the Parks Highway, where the motor home was abandoned. Ridgely then rode in the Buick with the others into Anchorage. A. THE ARRESTS At approximately 5:30 a.m. on August 22, 1982, Officer Taylor of the Anchorage Police Department observed a 1973 Buick LaSabre being driven in an erratic manner with its high-beam headlights on. The driver, Plumley, was arrested by Taylor for driving in a reckless manner. Bosch and Ridgely, passengers in the vehicle, were arrested for joyriding. All three were subsequently charged, inter alia, with first degree murder. At the scene of the stop, Taylor asked Plumley to get out of the car. After observing a machete between the driver's door and seat, Taylor asked the other occupants to exit the car. He then frisked Plumley and asked him for identification. He asked Plumley whose car he was driving. Plumley responded that the car was not his and that he had found it near Tal-keetna. Taylor then arrested Plumley for reckless driving, handcuffed him and placed him in a patrol car. Plumley was not advised of his Miranda rights at this time. Four backup officers arrived within minutes of the stop. One of these officers, Officer Feichtinger, assisted Taylor in questioning Ridgely and Bosch. Both Ridgely and Bosch were juveniles. Both were questioned about the ownership of the car and both told the officers the car had been found near Talkeetna. At this point, neither juvenile had been given Miranda warnings, nor had they been placed under arrest. Ridgely's parents were not successfully contacted. Bosch's parents were contacted and asked the police to take Bosch to McLaughlin Youth Center (MYC). At some point during the questioning of Bosch, she indicated to Taylor that the three had taken LSD prior to the stop. Feichtinger was aware of that information prior to questioning Ridgely. Taylor testified Bosch was nervous and had dilated pupils. Feichtinger described Ridgely as "unconcerned" and noted he was shivering. At the scene, Taylor ran a check on the registration of the vehicle and learned it was registered to a Mildred Landesman. There had been no report of theft by Mrs. Landesman. Ridgely and Bosch were then arrested for joyriding. After Ridgely was arrested, Feichtinger testified he advised Ridgely of his rights and questioned Ridgely once again. Subsequently, Ridgely and Bosch were transported to MYC where they were detained at approximately 7:00 a.m. The transporting officer indicated to the MYC staff that both may have consumed LSD. B. THE POST-ARREST INTERROGATIONS Following their incarceration, after Miranda warnings were given and waived, Ridgely, Plumley and Bosch were each interrogated as follows: (1) Ridgely was interviewed August 22, 1982, from approximately 3:00 p.m. to 8:06 p.m. by Taylor, Feichtinger and Alaska State Trooper Port. Ridgely's father attended the questioning. (2) Bosch was interviewed August 22, 1982, for approximately two hours by Port. Her parents were present. Bosch was confronted with Ridgely's statements and eventually told the story related earlier in this opinion, indicating it was Ridgely who had clubbed Mrs. Landesman to death. (3) Plumley was interviewed August 23, 1982, for approximately two hours by Port. When confronted with both Ridgely's and Bosch's statements, Plumley corroborated Bosch's account of the killing. (4) Bosch was interviewed August 23, 1982, for twenty minutes by Port. She admitted the planning stages of the murder. Her father was present. (5) Ridgely was interviewed on August 23, 1982, for approximately one hour by Port. His father was again present. When confronted with statements from Plumley and Bosch, Ridgely fully confessed. Following this confession, Ridgely asked to see an attorney. Apparently Port immediately ceased the questioning, but did not provide Ridgely with an attorney. (6) Plumley was interviewed August 26, 1982, by Port. The above stories were again confirmed. C. PRE-TRIAL SUPPRESSION MOTIONS Prior to trial, the three appellants moved to suppress their statements. They argued that the statements made at the stop/arrest scene and those made while incarcerated were in violation of their fourth and fifth amendment rights. In a memorandum decision entered March 11, 1983, Judge Victor D. Carlson denied all but one of the suppression motions, ruling only that Plumley was entitled to have been advised of his rights when Taylor decided to arrest him. Accordingly, Plumley's statements made at the stop scene were suppressed. II. THE STATEMENTS AT THE SCENE OP THE STOP The appellants argue on appeal that the trial court erred in not suppressing various statements which they made after they were stopped by the police. Ridgely argues that he, Bosch and Plum-ley were in custody at the scene of the initial stop and that therefore all three were entitled to Miranda warnings. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). He argues that the trial court's determination that he and Bosch were not in custody at that time was clearly erroneous under Hunter v. State, 590 P.2d 888 (Alaska 1979). He argues that if the original statements which the police took from himself and Bosch were illegal, then any further evidence which the police obtained was tainted fruit of those statements. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). He also argues that his statements were derived from Plum-ley's first statement, which was suppressed by Judge Carlson. Bosch does not raise the argument that her statement at the stop scene was obtained by the police while she was in custody and without giving her Miranda warnings. Plumley also argues that Ridgely's and Bosch's rights were violated because the police took statements from them without giving them Miranda warnings while they were in custody. He asserts that he was standing to raise the issue of whether Ridgely's and Bosch's rights were violated. Plumley also argues that his later statements were a product of his first statement at the stop scene which Judge Carlson suppressed. The Alaska Supreme Court has adopted an objective, reasonable person test as the standard for determining custody. In Hunter, the supreme court said the inquiry is whether: In the absence of actual arrest something . [is] said or done by the au thorities, either in their manner of approach or in the tone or extent of their questioning, which indicates [to the defendant] that they would not have heeded a request to depart or to allow the suspect to do so. This requires some actual indication of custody, such that a reasonable person would feel he was not free to leave and break off police questioning. [Emphasis added.] 590 P.2d at 895, citing United States v. Hall, 421 F.2d 540, 545 (2d Cir.1969). The court went on to outline the minimum criteria which would be relevant in determining whether a reasonable person would feel free to leave and break off police questioning: At least three groups of facts would be relevant to this determination. The first are those facts intrinsic to the interrogation: when and where it occurred, how long it lasted, how many police were present, what the officers and the defendants said and did, the presence of actual physical restraint on the defendant or things equivalent to actual restraint . and whether the defendant was being questioned as a suspect or as a witness. Facts pertaining to events before the interrogation are also relevant. . Finally, what happened after the interrogation — whether the defendant left freely, was detained or arrested — may assist the court in determining whether the defendant, as a reasonable person, would have felt free to break off the questioning. Hunter, 590 P.2d at 895 (Footnotes omitted). The following facts are thus relevant to this court's review of the trial court's finding that neither Ridgely nor Bosch was in custody at the stop scene prior to a determination to arrest them. Bosch was asked to stand approximately twenty feet west of the car while Plumley was handcuffed and placed in a patrol car shortly after the stop. There were five police officers on the scene. Bosch was questioned intermittently for short periods of time and left unac-eompanied when not being questioned by Taylor. Apparently there was a subjective intent on the part of Taylor at the scene to hold Bosch until her parents came to pick her up, but this was not communicated to her. Bosch was asked questions which concerned the ownership of the car. Ridgely, who apparently was standing closer to the car than Bosch, was initially questioned by Feichtinger for two or three minutes. Feichtinger asked Ridgely a series of questions, concerning ownership of the car. Feichtinger observed that Ridgely was shivering and asked him to sit in the patrol car after the initial questioning. Apparently it was cool out and Feichtinger had asked Ridgely if he wanted to get his coat. In Hintz v. State, 627 P.2d 207 (Alaska 1981), the Alaska Supreme Court applied the Hunter factors to a similar set of facts. Hintz had committed rape. The rape was reported by the victim and a call had been put out requesting the Fairbanks police to stop Hintz in the victim's ear. The trooper who located the car and stopped Hintz was unaware of the reason for the stop. After the stop, the trooper asked for identification and asked Hintz to sit in his patrol car. Hintz was not given Miranda warnings. City Police Officer Kendrick, who also was unaware of the rape information, subsequently arrived and asked Hintz who he was, where he got the car and where the owner was. Hintz gave a false story which was used to impeach him at trial. Shortly thereafter, the officers were informed of the report of rape, and Hintz was then placed under arrest and given his Miranda rights. In Hintz, the supreme court determined that Hintz was not in custody until the actual arrest was made and that the false story which he gave in response to police questioning was admissible. The supreme court applied the Hunter standards to find: nothing in the circumstances of the interrogation itself . leads us [to] believe that appellant was "in custody." Until Officer Kendrick received word that a rape had been reported, he was unaware that any crime had been committed. His investigation of Hintz was directed solely toward gaining information about suspicious circumstances involving the car Hintz was driving. Such an "investigative detention" is a legitimate police procedure. 627 P.2d at 209. We conclude that Hintz governs the instant case and that Judge Carlson did not err in concluding that Ridgely and Bosch were not in custody at the time they gave their initial statements at the scene of the stop. Judge Carlson could properly conclude that the police investigation of Ridgely and Bosch "was directed solely toward gaining information about suspicious circumstances involving the car [they were riding in]." Id. We also conclude, based on Hintz, that Judge Carlson did not err in finding that the stop, detention, and questioning of the appellants was reasonable. III. LATER CONFESSIONS Plumley argues that his later confession to the murder was the product of his first statement to the police that he found the car and did not know whose car it was. Judge Carlson suppressed the original statement, but held that Plumley's later confession to murder was not a product of his earlier statement. Plumley argues that Judge Carlson erred in reaching this conclusion. In United States v. Bayer, 331 U.S. 532, 541, 67 S.Ct. 1394, 1398, 91 L.Ed. 1654, 1660 (1947), the Supreme Court said: Of course, after an accused has once let the cat out of the bag by confessing, no matter what the inducement, he is never thereafter free of psychological and practical advantages of having confessed. He can never get the cat back in the bag. The secret is out for good. In such a sense, a later confession always may be looked upon as the fruit of the first. But this court has never gone so far as to hold that making a confession under circumstances which preclude its use, perpetually disables the confessor from making a usable one after those conditions have been removed. [Emphasis added.] See also Hampton v. State, 569 P.2d 138, 145 n. 14 (Alaska 1977), cert. denied, 434 U.S. 1056, 98 S.Ct. 1225, 55 L.Ed.2d 757 (1978); Soolook v. State, 447 P.2d 55 (Alaska 1968), cert. denied, 396 U.S. 850, 90 S.Ct. 107, 24 L.Ed.2d 99 (1969). It appears to us that Judge Carlson could properly conclude that Plumley's confession to murder was not a product of his first statement. Plumley had been warned of his rights before his subsequent confession and over twenty-four hours had elapsed from his first statement. Plum-ley's statement that he found the car was very different from his statement in which he implicated himself in the murder of Mrs. Landesman. It seems clear that the police would have checked the car registration, found that the car was registered to Mrs. Landesman and would have attempted to contact her regarding the stolen car regardless of Plumley's original statement. It also does not appear that Plumley's statement about finding the car influenced the later murder confessions of Ridgely and Bosch. Rather, Plumley's confession given after receipt of his Miranda warnings seems to have been influenced not by his initial confession, but by the confessions of Ridgely and Bosch. We conclude that Judge Carlson's findings that Plum-ley's confession was not a product of his statement that he had found the car was not clearly erroneous. IY. VOLUNTARINESS OF CONFESSIONS The scope of appellate review as to the voluntariness of a confession is twofold. The trial court's findings of fact will be reversed only where clearly erroneous. And, as to the trial court's determination of voluntariness, we must make an independent determination based on the entire record. Van Cleve v. State, 649 P.2d 972, 975-76 (Alaska App.1982). "A confession is not admissible into evidence unless it is voluntary. In determining whether a confession is the product of a free will or was the product of a mind overborne by coercion the totality of circumstances surrounding the confession must be considered." Ladd v. State, 568 P.2d 960, 967 (Alaska 1977) (citations omitted)_ Among the circumstances which should be considered on the issue of voluntariness of a confession are: The age, mentality and prior criminal experience of the accused; the length, intensity and frequency of interrogation; the existence of physical deprivation or mistreatment; and the existence of threat or inducement. Sovalik v. State, 612 P.2d 1003, 1006 (Alaska 1980), quoting Sprague v. State, 590 P.2d 410, 414 (Alaska 1979), quoting Brown v. United States, 356 F.2d 230, 232 (10th Cir.1966). Judge Carlson's findings as to the appellants' voluntariness can be paraphrased as follows: (1) Officer Taylor found Bosch and Plumley to be responsive and oriented at the scene of the stop. (2) The three were not under the influence of drugs or lack of sleep to the extent they were impaired in understanding what occurred or in asserting their rights on August 22, 1982. There was no suggestion any of the three were under the influence of alcohol. (3) Ridgely's father was present at all "critical stages" on August 22 and 23. (4) The police assiduously respected Ridgely's rights. (5) Ridgely's father was not enlisted by, nor was he an agent of, the police, and did not pressure his son into confessing to murder. (6) Ridgely has a greater capacity to understand and cope with the world than the evidence portrayed. (7) Bosch had (both or one) parent(s) present at both interviews and waived her rights. A. PLUMLEY'S CONFESSIONS Plumley argues that Judge Carlson erred in determining that his confessions were voluntary. Plumley points out that he was only eighteen; had only a sixth grade education; that there was evidence that he was under the influence of LSD, alcohol and marijuana when he was arrested; and that he was confused about his right to the assistance of counsel. However, the record reflects that Plumley had obtained his G.E.D. He had a prior juvenile record which would indicate some experience with police and police procedures. His actual confessions were well over twenty-four hours after his arrest and there was substantial evidence in the record that his responses were not influenced by drugs or alcohol. It also appears that Plumley was aware of his right to an attorney, however, he was willing to talk with the police without an attorney and only indicated he wanted an attorney in court. We conclude that Plumley's confessions were voluntary. B. BOSCH'S CONFESSIONS Bosch argues that her confessions were taken as a result of a waiver of her rights which was not knowingly, intelligently and voluntarily made. She says neither she nor her parents realized on August 22, 1982, that she was being investigated for complicity to murder nor that she could be adjudicated as an adult. Judge Carlson found that Bosch had voluntarily waived her rights. He found that she was not under the influence of drugs or suffering from a lack of sleep so that it would impair her ability to understand or assert her rights. He noted that Officer Taylor had found Bosch to be responsive and alert at the stop scene and that there was other testimony which indicated Bosch was not acting as though she was impaired on August 22, the day of her first interview. Judge Carlson also noted that she had both of her parents present during the interview which took place on August 22, 1982, and that her father was present during the August 23 interview. All these findings are supported by the record. Although Bosch did not confer with her parents before making her statements, she had a full opportunity to do so. There is language in Quick v. State, 599 P.2d 712, 718-20 (Alaska 1979), which indicates that the better practice is to have the juvenile actually consult with an adult, such as a parent, before questioning; however, that case also indicates that actual consultation is not required. Bosch and her parents were made aware that Bosch was not being questioned just on the charge of joyriding, but on a more serious matter. It does not appear that there was any intentional attempt to mislead Bosch as to her situation. Based on an independent, review of the record, we conclude Judge Carlson did not err in finding Bosch's statements were voluntary. BRYNER, C.J., for a majority of the court. COATS, J., dissents. BRYNER, Chief Judge. Ridgely argues that he lacked sufficient knowledge and maturity to make a voluntary waiver of his Miranda rights. After an independent review of the entire record we are convinced that the state has failed to meet its heavy burden of establishing that Ridgely waived his Miranda rights and responded to interrogation knowingly, intelligently and voluntarily. On the day of his arrest, Ridgely was sixteen years of age. He had completed school only through the ninth grade, performing poorly. Ridgely's full scale I.Q. score is 78, placing him in the borderline mentally deficient range of overall function, a result that clearly suggests poor comprehension skills. Police arrested Ridgely at approximately 6 a.m.; he had apparently been awake all night. At the time of the arrest there was reason .to believe Ridgely and his companions were under the influence of LSD or other controlled substances. Later that day, at approximately 3 p.m., the police recontacted Ridgely and subjected him to interrogation. There is nothing in the record to suggest that Ridgely had been permitted to sleep prior to the interrogation, and police made no inquiry in this regard. At the McLaughlin Youth Center (MYC), when the police first contacted Ridgely, after his incarceration, he began crying uncontrollably. He appeared to be under the influence of drugs and told the police that he was "coming down from" a dose of LSD. After regaining his composure, however, Ridgely was able to respond rationally to questions during the balance of the interrogation. The police questioned Ridgely for a total of five hours. Three hours elapsed before Ridgely initially confessed, implicating himself and his companions in Mrs. Landesman's murder. During the interrogation, the police made little effort to ascertain Ridgely's physical or mental condition. No attempt was made to record the three-hour portion of the interrogation which occurred prior to Ridgely's initial confession. Ridgely's father was brought into the interrogation soon after it began and participated actively at times in the questioning of his son. The lack of a recording makes it difficult to gauge the precise extent of his participation. The trial court nevertheless determined that Ridgely's father did not act as an agent of the interrogating officers. While this finding is not clearly erroneous and must therefore be accepted, the trial'court's finding further makes it clear that Ridgely's father displayed little genuine concern for his son or for the protection of his son's rights. Twice during the initial three-hour period of interrogation, the police read Ridgely his Miranda rights. Twice Ridgely responded by asking about the advisability or feasibility of obtaining an attorney. The police made a brief attempt in each instance to clarify Ridgely's inquiries, and in each instance Ridgely quickly responded by indicating that he preferred to proceed without counsel. The police accepted Ridgely's statements without further inquiry and proceeded with the interrogation. It is unclear whether Ridgely's father was ever asked whether he understood his son's Miranda rights or whether he had a preference with respect to his son's assertion of those rights. Nor does it appear Ridgely's father was asked whether he thought his son was capable of understanding and voluntarily waiving his Miranda rights. After three hours of questioning by his father and two officers, Ridgely finally incriminated himself and his companions in the homicide. It was only at this point that a tape recording of Ridgely's interrogation was begun. The historical facts surrounding Ridgely's interrogation were, for the most part, not disputed. Rather, the determinative factor in the trial court's decision of the voluntariness issue seems to have been Judge Carlson's interpretation of the historical facts — the judge's conclusions about the manner in which the circumstances surrounding the interrogation affected Ridgely's state of mind, his ability to understand his situation and his capacity to make voluntary and informed decisions. Judge Carlson elected to emphasize the significance of Ridgely's apparently rational responses to the police interrogation, concluding that his waiver of the Miranda rights was knowing and that his confession was voluntary. It is precisely in this area — the matter of drawing inferences from the historical facts concerning the accused's state of mind — that an appellate court ceases to be bound by the clearly erroneous standard of review and must instead exercise its independent judgment on the issue of vol-untariness. See Giacomazzi v. State, 633 P.2d at 222; Johnson v. State, 631 P.2d at 512. Having accepted, with full deference to the trial court's factfinding role, those findings of fact most compatible with the position advocated by the state, we nevertheless find ourselves unable to agree, after an independent review of the record, with the conclusions drawn by the trial court from those facts. The picture of Ridgely that emerges from the record is that of a young offender who — although obviously dangerous and profoundly antisocial — is immature, unsophisticated and severely limited in his intellectual ability. The myriad factors casting doubt on the voluntariness of Ridgely's Miranda waiver and confession include Ridgely's youth, his poor levels of educational and intellectual performance, his apparent lack of sleep and consumption of drugs, his extremely agitated emotional state at the beginning of the interrogation, his repeated but abortive inquiries regarding counsel, the prolonged period of his detention incommunicado prior to interrogation, the lack of any demonstrated genuine concern for Ridgely's welfare by his father, the presence of two police officers during the untaped interrogation, and the lengthy period of interrogation prior to the initial confession. We believe these factors significantly preponderate over the factors which indicate voluntariness. On balance, we are unconvinced that Ridgely's Miranda waiver was knowing and intelligent or that his confession was voluntary. Although Ridgely had been involved with the juvenile justice system on several occasions and was represented by counsel at least once, the extent to which these experiences affected Ridgely's ability to understand his legal options is questionable, since the record does not indicate whether Ridgely was previously subjected to custodial interrogation. There is, similarly, little to shed light on the extent to which Ridgely was capable of understanding, in any meaningful sense, the juvenile proceedings in which he had previously been involved or the legal counsel he' had previously received. Since the state bears the burden of proof on these matters, we must conclude that Ridgely's confession should not have been used in evidence against him. We take this occasion to explain the effect on our conclusion of the state's failure to record Ridgely's full interrogation. In Harris v. State, 678 P.2d 397 (Alaska App.1984), rev'd (Alaska Supreme Court Order, February 1, 1985) (opinion to follow), we held that the police are under a constitutional duty to record the entirety of custodial interrogations, beginning with the Miranda warnings. While we indicated that suppression was not ordinarily an appropriate sanction for violation of the state's duty to record, we emphasized that failure to record was a factor that could appropriately be considered in deciding the issue of voluntariness in individual cases. Harris, 678 P.2d at 404-05. Here, if a recording of the full interrogation had been made and preserved, it would have borne directly on Ridgely's mental state, demonstrating the extent of his awareness, his ability to understand, and his willingness to cooperate. A recording might also have resolved the significant conflict in evidence concerning the role Ridgely's father played in his son's interrogation. There was no apparent impediment to recording the full interrogation in this case. This evidence was thus readily available to the state; the state had a duty to preserve it but it failed to do so. Since the burden of establishing voluntariness falls squarely on the state's shoulders, any doubt in the appellate record as to the appropriate resolution of the voluntariness issue must be resolved against the state. We must accordingly REVERSE Ridgely's conviction and REMAND his case for a new trial. The question of whether the confessions of Plumley and Bosch should have been suppressed as products of Ridgely's confession is more problematical. See Waring v. State, 670 P.2d 357, 359-63 and n. 4 (Alaska 1983); see also Wong Sun v. United States, 371 U.S. 471, 485, 83 S.Ct. 407, 416, 9 L.Ed.2d 441, 453-54 (1963). This issue, however, is one that would ultimately require resolution of factual questions not yet considered or addressed by the trial court. We therefore REMAND the cases of Plumley and Bosch for further proceedings to determine their standing to challenge the admissibility of evidence possibly deriving from Ridgely's confession. . Plumley was transported from the scene to a bail hearing and then to jail. Taylor first advised Plumley of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), while en route to jail, following the bail hearing. . Taylor testified that Plumley was wearing wet pants at the arrest. He also testified Plumley did not appear to be intoxicated. The medical technician at the jail, however, believed Plumley was under the influence of drugs based upon his observations. . In light of our holding that Judge Carlson's finding that Ridgely and Bosch were not in custody at the stop scene was not clearly erroneous, we also reject Ridgely's contention that he and Bosch were unreasonably seized at the stop scene. Waring v. State, 670 P.2d 357 (Alaska 1983). . In her reply brief, Bosch argues that before she made a statement she should have been advised that she could be tried as an adult. See, e.g., Harling v. United States, 295 F.2d 161 (D.C. Cir.1961); State v. Maloney, 102 Ariz. 495, 433 P.2d 625 (1967); and State v. Councilman, 105 Ariz. 145, 460 P.2d 640 (1969). This issue is not properly before this court because Bosch did not raise it until her reply brief. Alaska R.App.P. 212(c)(3); Nell v. State, 642 P.2d 1361, 1370 (Alaska App.1982). This does not appear to be the kind of issue where we should relax the appellate rules. See Moreau v. State, 588 P.2d 275, 280 (Alaska 1978). We therefore decline to decide this issue. . Bosch also moved for a pretrial protective order to prohibit the admission into evidence of color photographs taken of Mrs. Landesman's body at the scene of the homicide and during the autopsy. The motion was denied on the ground that the photographs were relevant to show there was an intent to kill the victim. She contends the denial of her motion was erroneous and the trial court abused its discretion by admitting the evidence because the photographs were prejudicial. We reject Bosch's claim and conclude the photographs were necessary to demonstrate the pathologist's testimony. We have reviewed the photographs and the testimony and conclude the trial court did not err. See A.R.E. 403; Sheakley v. State, 644 P.2d 864, 870 (Alaska App.1982). . The contours of the legal terrain in this area are familiar: the state bears the heavy burden of establishing a knowing and intelligent Miranda waiver and a voluntary confession. S.B. v. State, 614 P.2d 786, 789 (Alaska 1980); Troyer v. State, 614 P.2d 313, 317 (Alaska 1980). Vol-untariness of both the waiver and the confession must be established by a preponderance of the evidence, Giacomazzi v. State, 633 P.2d 218, 222 n. 4 (Alaska 1981); McMahan v. State, 617 P.2d 494, 498 (Alaska 1980), cert. denied, 454 U.S. 839, 102 S.Ct. 146, 70 L.Ed.2d 121 (1981); and in cases involving juveniles, the burden is a particularly heavy one. S.B. v. State, 614 P.2d at 789 n. 5; Quick v. State, 599 P.2d 712, 720 (Alaska 1979). In deciding questions of volun-tariness, the trial court must consider the totality or the circumstances in each case. Fare v. Michael C., 442 U.S. 707, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979); Quick v. State, 599 P.2d at 720. On appeal of a trial court's ruling on the admissibility of a confession, we apply a twofold standard: as to purely factual matters we accept the trial court's findings unless they are clearly erroneous; as to matters involving the accused's state of mind and the ultimate issue of voluntariness, we have a duty to examine the entire record and make an independent determination. Giacomazzi v. State, 633 P.2d at 222; Troyer v. State, 614 P.2d at 318; Johnson v. State, 631 P.2d 508, 512 (Alaska App.1981) This bifurcated standard applies equally in cases involving the voluntariness of Miranda waivers and the voluntariness of confessions. See Gia-comazzi, 633 P.2d at 222. . We are not suggesting that Ridgely's lack of sophistication or his educational and intellectual shortcomings would excuse his conduct or mitigate his responsibility for the offense. In determining the voluntariness of Ridgely's confession, however, it is vital not to confuse his antisocial conduct and insensitivity to the rights of other with intellectual maturity or a capacity for meaningful understanding of legal rights and options. . Factors indicating voluntariness include the presence of Ridgely's father and his acquiescence in the interrogation, the apparent rationality of Ridgely's responses to questioning, Ridgely's prior experience in the juvenile system, the thorough manner in which Ridgely was apprised of his Miranda rights, his express statements that he did not wish to wait to consult with an attorney, and the lack of overt threats, promises or coercion during the interrogation. . Our decision in Harris has recently been reversed by an order of the supreme court, which will be followed in due course by a full opinion. The supreme court's order is without prece-dential effect, and in the absence of an opinion by the court, it is impossible to predict the extent to which the supreme court's decision in Harris will affect this case. Since the application of this court's Harris decision in this case benefits Ridgely, a result consistent with the supreme court's recent order in Harris, we do not believe it inappropriate to rely on our Harris ruling in this case. . The three defendants additionally appeal their sentences as excessive. Our disposition of these cases precludes us from deciding their sentence appeals at this time. Nor do we reach the issue of whether the court erred in failing to give a manslaughter instruction at the close of Ridgely's trial.

11699679

Benjamin Joseph HILDERBRAND, Appellant, v. Deborah Lyn HILDERBRAND, Appellee

Hilderbrand v. Hilderbrand

1998-08-14

No. S-7937

887

891

962 P.2d 887

962

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:02:39.131372+00:00

CAP

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

Benjamin Joseph HILDERBRAND, Appellant, v. Deborah Lyn HILDERBRAND, Appellee.

Benjamin Joseph HILDERBRAND, Appellant, v. Deborah Lyn HILDERBRAND, Appellee. No. S-7937. Supreme Court of Alaska. Aug. 14, 1998. Kenneth Kirk, Anchorage, for Appellant. Allison E. Mendel, Mendel & Associates, Anchorage, for Appellee. Before MATTHEWS, C.J., and COMPTON, EASTAUGH, FABE and BRYNER, JJ.

2355

14271

OPINION EASTAUGH, Justice. I. INTRODUCTION Benjamin Joseph Hilderbrand (Joe) appeals from the superior court's property division and child support order. He argues that the superior court erred in three ways in computing his and Deborah Lyn Hilderb-rand's respective incomes for child support purposes: (1) by imputing as income to Joe the value of rent for the apartment that he owned and lived in; (2) by disallowing Joe's proposed depreciation deduction for the apartment that he owns; and (3) by failing to include in Deborah's income the interest that Joe will pay her on the money that he owes her. We reverse the child support order and remand for a recalculation of Joe's income available for child support without imputing to him as income the rental value of the apartment. We affirm with respect to the depreciation and interest issues. II. FACTS AND PROCEEDINGS Joe and Deborah married in 1981. Their two daughters were born in 1982 and 1983. The family resided in one apartment in a triplex that Joe and Deborah owned in Barrow. In October 1992 Joe and Deborah filed a petition for dissolution of their marriage. The dissolution agreement awarded Joe two of the units in the triplex, and awarded Deborah the third. They planned to live in separate units in the triplex after the dissolution. The parties agreed to share custody of the children. The parties requested a waiver of child support, which the court granted based on its written findings that the parents would live in the same building (albeit in separate units) and would share the children's expenses. The court entered a dissolution decree in March 1993. In March 1994 Joe moved to modify the dissolution decree. He asked for sole legal and physical custody of the children, for Debra to pay child support, and for revision of the property division. In May 1995 the superior court vacated the original dissolution decree under Alaska Civil Rule 60(b). The superior court ordered the value of the triplex to be split between the parties, awarded title to the triplex to Joe, and ordered Joe to pay Deborah for her interest in the triplex. In 1996 the superior court entered a child support order and final judgment for past-due child support. The court awarded shared custody, and required Joe to pay child support under Alaska Civil Rule 90.3(b). Joe appeals. III. DISCUSSION A. Standard of Review "A court's modification of a child support award 'will not be overturned absent a finding of a clear abuse of discretion.' " Nass v. Seaton, 904 P.2d 412, 414 (Alaska 1995) (quoting Eagley v. Eagley, 849 P.2d 777, 778 n. 1 (Alaska 1993)). "We will disturb an award only if our review of the entire record leaves us with a 'definite and firm conviction that a mistake has been made.'" Id. (quoting Eagley, 849 P.2d at 778 n. 1). B. Imputing Income for the Rental Value of the Apartment In order to calculate child support, the superior court established the rental-income stream from the triplex, less reasonable and necessary expenses incurred for the rental units. Joe argues that the superior court erred by imputing as income to him the rental value of the unit in which he resides. We agree. Ogard v. Ogard, 808 P.2d 815 (Alaska 1991), controls. We there held that the rental value of an owner-occupied apartment should not be imputed as income to the owner, absent good cause under Civil Rule 90.3(c). See id. at 818-19. The child support obligor in Ogard occupied one apartment of a multiplex apartment building that he owned. See id. The superior court imputed the value of the apartment occupied by the obligor as part of his income for purposes of calculating child support. See id. We reversed, stating that, As owner of the property [Ogard] should not be required, in effect, to pay to live there. Imputing rental income raises difficult valuation problems. It is not called for in Rule 90.3 nor is it suggested by the committee commentary to the rule. In unusual cases special circumstances may justify imputing rental income under the good cause exception set out in subpara-graph (c) of the rule. Id. (citing Daniel Q. Posin, Federal Income Taxation of Individuals 16 n. 17 (1983)). "Good cause" under Rule 90.3(c) requires proof by clear and convincing evidence that manifest injustice would result if the award were not varied. See Aaska R. Civ. P. 90.3(c)(1). The property division in this case presented significant conceptual difficulties, and we appreciate the superior court's thoughtful ef forts to resolve these difficulties within the terms of the good-cause exception noted in Ogard. The superior court concluded that the "unusual situation" posed by the division of the triplex constituted good cause to depart from Rule 90.3 under Ogard and to impute as income the rental value of Joe's apartment. We conclude, however, that this case is not distinguishable from Ogard and that the division of the triplex did not constitute good cause under Rule 90.3(c). We provided in Ogard one example of a situation that might constitute good cause to impute rental income, stating that "[o]ne such ease would be where an obligor parent has reduced his or her income by liquidating income-producing assets and applying the proceeds to the mortgage on his or her dwelling." Ogard, 808 P.2d at 819 n. 6. This example directs courts to scrutinize the obli-gor's actions when looking for good cause and suggests that the rental value may be imputed if an obligor acts, perhaps in bad faith, to shield his or her income. Here, however, the superior court made no findings that Joe was acting in bad faith by living in the triplex or was living there solely to reduce his income available for child support. Deborah asks us to limit the application of Ogard and hold that a trial court has discretion to impute as income the rental value of a rental apartment occupied by the owner. She argues that setting the rental value of an owner-occupied rental apartment in a multiplex does not raise the valuation problems that are raised by imputing as taxable income to homeowners the value of living in their own home. Cf. Posin, Federal Income Taxation of Individuals 16 n. 17 (considering the difficulty of setting the rental value of owner-occupied housing for purposes of imputing as taxable income the value of living in the home). We are unpersuaded. The policy reasons supporting Ogard are valid and well illustrated here, given the complexity of the transaction and the difficulty of accounting for all potentially offsetting credits. We therefore decline to limit or overrule Ogard, and conclude that, because there was no good cause under Rule 90.3 to depart from Ogard, the rental income may not be included in Joe's income. Accordingly, we reverse and remand for recalculation of Joe's child support obligation. C. Joe's Proposed Depreciation Deduction Joe next argues that the superior court failed to give him credit for depreciation on the triplex. Depreciation is used to account for the "decline in value of property caused by wear or obsolescence and is usually measured by a set formula which reflects these elements over a given period of useful life of property." Black's Law Dictionary 441 (6th ed.1990). As we noted in Eagley: "The concept of depreciation, as an expense, is a recognition of the fact that certain fixed assets, which are used in a business, wear out gradually and will eventually need to be replaced." . The annual depreciation "expense" is most simply calculated by dividing the difference between the original cost of the asset and its scrap value by the estimated useful life of the asset. This calculation yields the "straight line depreeiation."[ ] We have held that courts should allow a deduction for the straightline depreciation of an obligor's business real estate in the con text of a Civil Rule 90.3 adjusted-income determination. Joe asked that depreciation on the triplex be deducted from his adjusted income. The superior court denied Joe's proposed deduction, reasoning that "the appraiser had used a stream of income methodology in valuing the triplex and the building would not be replaced at some time in the future." We affirm. An obligor's ability to deduct depreciation for child support purposes is typically linked to his or her ability to deduct depreciation for tax purposes. Although Joe seeks to deduct nearly $7,000 from his income available for child support each year, he has not shown that he could deduct this amount from his income for tax purposes. Joe concedes that he could not apply his proposed method to depreciate the value of the triplex under the federal income tax law. In addition, Joe provides no authority to support his proposed method of depreciation. Although Nass, Eagley, and Ogard endorse deductions from an obligor's income based on straightline depreciation of business property or equipment, these cases do not support Joe's theory that an obligor's property basis for purposes of calculating income for child support can differ from the basis used for tax purposes. See Nass, 904 P.2d at 416-17; Eagley, 849 P.2d at 780-82; Ogard, 808 P.2d at 819. In setting the support obligation, courts are to consider the amount of income available for support, and the amount of money necessary to support the child. See Alaska R. Civ. P. 90.3(a). Joe should pay child support out of his available income; his argument ignores this fundamental proposition. The problem with permitting a deduction in this case arises in part from the method by which the value of the triplex was calculated. The superior court adopted the appraiser's $80,500 valuation of the triplex. The Hil-derbrands did not own the land on which the triplex sits. The land is leased from a third party, and the lease will expire in 2003. The appraiser's valuation represented the present value of the expected rental-income stream over the remainder of the lease, plus the building's salvage value. The court then treated the triplex as if it were owned by Joe from the date of dissolution, and determined that Joe was entitled to a credit for the rental value of the apartment in which Deborah lived following the dissolution decree. Given the facts of this case, we conclude that the superior court correctly disallowed the depreciation deductions. See In re Marriage of Gaer, 476 N.W.2d 324, 326 (Iowa 1991) (adopting the view that the decision to include or exclude depreciation expenses in calculating child support should depend on the circumstances of each case rather than a categorical rule of inclusion as income or deduction as expense). Accordingly, we affirm on this issue. D. Interest Income Joe also argues that the superior court failed to calculate interest income on Deborah's receipts from the buy-out. Joe claims that the superior court underestimated Deborah's income by failing to include the interest that she will receive in the future when he finally pays her the money he owes her. We decline to consider this argument because Joe did not raise it in the superior court. See, e.g., Doyle v. Doyle, 815 P.2d 366, 372 (Alaska 1991) (stating that issues raised for the first time on appeal will not be considered by this court). Joe's argument is also problematic on the merits. Joe's approach would convert a cash-basis calculation to an accrual-basis calculation. Moreover, when Deborah receives the interest, it may then be included in her income for purposes of calculating child support under Rule 90.3. IV. CONCLUSION For the foregoing reasons, we REVERSE the child support order and REMAND for a recalculation of Joe's income available for child support without imputing the rental value of the apartment. We AFFIRM on the issues of the depreciation deduction and the exclusion of interest income from Deborah's income. . The superior court stated that, Joe's income calculation must include imputed rent for the value of the apartment occupied by Joe. Since the triplex was valued based on the stream of income from all units in the building, this case represents the unusual situation in which a parent owning a building must include imputed rent as part of his income. See Ogard, 808 P.2d at 819 (such rental value may be imputed to owner of apartment upon showing of special circumstances pursuant to Civil Rule 90.3(c)(1)(A)). The free apartment is a benefit tó Joe provided by his business interest in renting out the triplex. This imputed rent is to be included with the cash rents received. (Emphasis added.) . Eagley v. Eagley, 849 P.2d 777, 780 n. 3 (Alaska 1993) (quoting Turner v. Turner, 586 A.2d 1182, 1187 (Del.1991)). See also Ogard v. Ogard, 808 P.2d 815, 819 (Alaska 1991) ("Depreciation is a means of reflecting on an annual basis the costs of capital equipment."). . See Nass v. Seaton, 904 P.2d 412, 416-17 (Alaska 1995) (holding that the superior court erred, in determining obligor's adjusted income, by disallowing straightline depreciation for that portion of the residence that obligor used in his machinery business); Eagley, 849 P.2d at 781 (allowing a deduction for straightline depreciation of the parent's business real estate as an ordinary and necessary business expense; rejecting argument that Civil Rule 90.3 cmt. III.B categorically disallowed all depreciation of real estate); see also Ogard, 808 P.2dat819 (allowing a deduction for straightline depreciation of business equipment). . See, e.g., Lawrence v. Tise, 107 N.C.App. 140, 419 S.E.2d 176, 181 (1992) (holding that the trial court had discretion to deduct from a parent's monthly gross income the amount of straightline depreciation allowed by the Internal Revenue Code, 26 U.S.C. § 167, 168 (1990), fora reasonable allowance for the exhaustion and wear and tear of certain property over its useful life). See generally Frank J. Wozniak, Annotation, Treatment of Depreciation Expenses Claimed for Tax or Accounting Purposes in Determining Ability to Pay Child or Spousal Support, 28 A.L.R. 5th 46 (1995).

11699800

STATE of Alaska, Appellant, v. DISTRICT COURT, Appellee

State v. District Court

1998-07-17

No. A-6915

895

897

962 P.2d 895

962

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T18:02:39.131372+00:00

CAP

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

STATE of Alaska, Appellant, v. DISTRICT COURT, Appellee.

STATE of Alaska, Appellant, v. DISTRICT COURT, Appellee. No. A-6915. Court of Appeals of Alaska. July 17, 1998. Eric A. Johnson, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellant. Joseph W. Evans, Birch, Horton, Bittner & Cherot, for Appellee. Before COATS, C.J., and MANNHEIMER and STEWART, JJ.

1015

6417

OPINION STEWART, Judge. As defined in AS 11.41.330(a), the offense of custodial interference is committed when any relative of a child "takes, entices, or keeps that child . from a lawful custodian," if the relative knows that they have no legal right to do this and if the relative's intent is to hold the child for a protracted period. Under AS 11.41.320(a), the offense becomes custodial interference in the first degree — a class C felony — if a person "violates AS 11.41.330 and causes the victim to be removed from the state." This appeal presents the following question: To prove the offense of first-degree custodial interference, must the government prove that the removal of the child from Alaska occurred after the defendant committed the act of custodial interference? Or does a person commit the offense of first-degree custodial interference if they remove the child from Alaska (or otherwise cause the child to be removed from Alaska) and then violate AS 11.41.330 by unlawfully taking, enticing, or keeping the child from a lawful custodian? For the reasons explained here, we hold that a person commits first-degree custodial interference regardless of whether the child's removal from Alaska occurs before or after the person takes unlawful control of the child. This case arose when the Fairbanks District Attorney's office attempted to file a charge of first-degree custodial interference against Roberta K. Renshaw. Ms. Renshaw, a California resident, was formerly married to Alan Renshaw, who now lives in Healy. At the time of their divorce, Alan was awarded custody of the couple's son, B.R., and Roberta was given visitation rights. In July 1997, B.R. traveled to California for scheduled visitation with his mother. The visitation was to end on August 8th. However, Roberta Renshaw did not return B.R. to Alaska at the end of the visitation. Instead, she quit her job, abandoned her residence, and fled with B.R. to an unknown destination. Her whereabouts — and the whereabouts of her son B.R. — are currently unknown. In February 1998, based on these facts, the state tried to file a felony complaint against Renshaw, charging her with first-degree custodial interference. However, Magistrate William R. Smith refused to accept the complaint. Because B.R. had gone to California in connection with Renshaw's scheduled period of visitation, and because Renshaw's alleged act of custodial interference occurred after B.R. arrived in California, the magistrate ruled that the state had failed to prove first-degree custodial interference. He therefore refused to accept the felony complaint for filing, and he refused to issue a warrant for Renshaw's arrest. As noted above, AS 11.41.320(a) declares that the offense of first-degree custodial interference is committed when a person "violates AS 11.41.330 and causes the victim to be removed from the state." Magistrate Smith interpreted this statute to mean that the offense is committed only when a person violates AS 11.41.330 and thereafter causes the victim to be illegally removed from Alaska. Nothing in the language of the statute supports this interpretation. The statute does not specify that the elements of the offense must be committed in a particular temporal sequence, nor does the statute specify that the removal of the victim from Alaska must occur illegally. In Strother v. State, we noted that one of the chief purposes of Alaska's civil and crimi nal statutes governing child custody is to deter abductions and other unilateral removals of children by relatives seeking to obtain custody or to circumvent custody decrees. We also agreed with the Oregon Court of Appeals that "[t]he emotional and financial costs suffered by [a parent] in trying to locate [an abducted child] are among the primary evils that the [custodial interference] statute was intended to deter." These legislative concerns are heightened whenever the abducting parent conceals (or even openly keeps) a child in another state. The fact that the child is in another jurisdiction increases the difficulty and expense of locating the child, and it also increases the legal difficulty of returning the child to his or her proper custodian. From the perspective of the parent or guardian who is unlawfully deprived of custody, and given the legislative goals underlying the custodial interference statutes, it does not matter whether the offending person failed to return the child at the end of visitation and then removed the child from Alaska, or whether the offending relative exercised visitation in another state and then absconded with the child or otherwise refused to return the child. In either situation, the result is the same: the innocent custodian is deprived of the child, and the efforts of the state and the custodian to regain custody of the child are hampered by the fact that the child is in another jurisdiction. We therefore conclude that the two elements of first-degree custodial interference need not be committed in any particular temporal sequence. The offense is proved if the state establishes that the offending relative (1) committed custodial interference as defined in AS 11.41.330(a), and (2) caused the child to be removed from Alaska. Although the state must prove that both of these elements existed at the time of the offense, it is irrelevant whether the defendant committed custodial interference and then caused the child to be removed from Alaska, or vice-versa. We REVERSE the magistrate's decision not to accept the criminal complaint charging Renshaw with first-degree custodial interference. The district court is directed to accept the complaint for filing and to issue process upon that complaint. . The magistrate indicated that he was willing to allow the state to file an amended complaint charging second-degree custodial interference, a misdemeanor. . 891 P.2d 214, 219 (Alaska App. 1995). . State v. West, 70 Or.App. 167, 688 P.2d 406, 408 (1984) (footnote omitted), quoted in Strother, 891 P.2d at 221-22.

10425241

Michael POOLEY, Appellant, v. STATE of Alaska, Appellee

Pooley v. State

1985-09-06

No. A-310

1293

1311

705 P.2d 1293

705

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T18:03:25.532191+00:00

CAP

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

Michael POOLEY, Appellant, v. STATE of Alaska, Appellee.

Michael POOLEY, Appellant, v. STATE of Alaska, Appellee. No. A-310. Court of Appeals of Alaska. Sept. 6, 1985. Jeffrey M. Feldman, Gilmore & Feldman, Anchorage, for appellant. Robert D. Bacon, Asst. Atty. Gen., Anchorage, and Norman C. Gorsuch, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

10942

65895

OPINION BRYNER, Chief Judge. Michael Pooley pled nolo contendere to misconduct involving a controlled substance in the fourth degree, AS 11.71.- 040(a)(3)(F), after state troopers found approximately thirty-three pounds of marijuana in suitcases brought by Pooley from California. The suitcases were seized at Anchorage International Airport shortly after Pooley's arrival, and opened pursuant to a warrant obtained shortly thereafter. Prior to entering his plea, Pooley moved to suppress the marijuana and other evidence seized at the same time on a variety of grounds. Superior Court Judge Victor D. Carlson denied the motion; in entering the plea, Pooley preserved his right to appeal Judge Carlson's decision on the motion to suppress pursuant to Cooksey v. State, 524 P.2d 1251 (Alaska 1974). While this appeal presents some difficult issues, we have concluded that the court did not err in refusing to suppress. I. FACTS At 1:14 p.m., on June 27, 1983, a dark green BMW pulled up to the curb in front of the Western Airlines counter at the San Francisco International Airport. The BMW was new and had no license plate, but the license plate frame indicated that it had been purchased from a dealer in Marin County, California. In the car were three men and a woman. One man, later identified as Michael Pooley, got out of the front passenger door, then took out three new Skyway suitcases and a briefcase. Pooley made his way to the Western ticket counter and the BMW drove off. He was casually dressed, and he was wearing sunglasses, which he continued to wear in the terminal. All of this was observed by Special Agent Thomas Smith of the California Department of Justice, Bureau of Narcotic Enforcement. Smith was standing inside the terminal near the windows about twenty feet from where the BMW pulled up. When Pooley got in line at the counter, Smith got in line behind him in order to observe. Smith later testified that Pooley appeared somewhat nervous and that he swallowed two or three times during the five or ten minutes they were in line together. When Pooley reached the agent, he produced a roll of currency from his pants pocket and purchased a one-way ticket to Anchorage for $377, paying with two fifty-dollar bills and a number of twenty-dollar bills. Smith observed that Pooley checked the three suitcases and filled out the identification tags with an address in Portland, Oregon. After Pooley left the counter, Smith went up and identified himself to the ticket agent. He learned from her that the ticket had been issued to M. May and that the reservation had been made about three hours earlier. The agent also gave Smith the local telephone number that had been given by the person who made the reservation. Smith had been earlier authorized to enter the baggage area of the airport. After leaving the counter, Smith proceeded to the baggage area and enlisted the aid of another agent. The other agent was using a dog to check luggage for narcotics as it passed by on a conveyor belt in the cargo area. Smith located Pooley's bags and placed them on the ground next to the conveyor belt. The bags carried identification tags with the name M. May and an address on "Genva" Street in Portland. The bags were quite light, Smith later testified. Smith placed each bag flat on the floor and attempted to feel the contents by compressing the bags with his hands. In the center of each bag, approximately twelve inches in diameter, was a bulge which would compress no farther. Smith then had the other agent and the drug-detection dog, Tug, go over the exterior of all three bags. Tug scratched and chewed at the edge of one bag, which his trainer indicated was a "weak alert" for narcotics. Smith then returned the bags to where he had found them, and left the baggage area. The entire process of locating and examining the bags took about five minutes. After making sure that Pooley and his bags all made it on the plane, Smith called authorities in Oregon to have them check on the Portland address. They reported that there was no Geneva Street in Portland. Smith also learned that the telephone number given by the person who made the reservation was not assigned; when Smith called the number, he got a recording saying that it had been disconnected. Smith also telephoned airport police in Seattle and asked them to observe the passenger listed as M. May during the one-hour layover there. Authorities in Seattle could only report that M. May remained aboard the plane during the stop. Agent Smith then telephoned the office of the Alaska State Troopers at the Anchorage International Airport and reported everything that he had learned to Trooper Alan Storey. After the flight arrived in Anchorage, Trooper Storey and other troopers watched as Pooley walked from the plane through the terminal and out into the parking lot. They apparently stopped him as he was about to get into a car there. The troopers requested identification, and Pooley produced an Alaska license in the name of Michael L. Klein. The troopers asked to see Pooley's ticket and his baggage tags; Pooley indicated he could not find them. Pooley also claimed that he had checked no baggage. The troopers then asked Pooley to come with them back into the terminal, and he did. They took him to a first aid room inside the terminal. As Pooley sat down in a chair, he appeared to be attempting to hide something. One of the troopers asked Pooley to stand up again, and apparently found the three baggage claim stubs where Pooley had been sitting. Pooley was then given his Miranda rights, and asked if he would consent to a search of his baggage. Pooley declined. Nevertheless, the troopers retrieved Pooley's bags from the Western carousel and used a local drug-detection dog to examine them. The dog "alerted" to all three bags. Pooley was stopped in the parking lot at approximately 6:20 p.m. He was given his Miranda rights at about 6:30. The drug-detection dog "alerted" to the bags at about 6:50. At 9:10 p.m., the troopers made an oral application for a search warrant before Magistrate Paul Crowe. The magistrate issued a search warrant for Pooley's bags. Trooper Storey executed the warrant and found in the center of each suitcase a plastic bag containing approximately eleven pounds of marijuana. Poo-ley consented to the search of his attache case; inside troopers found various papers in the names of Michael L. Klein and Michael L. Pooley. II. DISCUSSION On appeal, Pooley argues that "all evidence seized in reliance on the warrant should have been suppressed by the trial court." His argument is two-fold. First, Pooley contends that the warrant was based upon illegally obtained evidence. Second, he argues that the evidence presented to the magistrate was legally insufficient to establish probable cause for issuance of the warrant. Both of Pooley's claims must be evaluated in light of the evidence presented to the magistrate. Alaska State Trooper Thomas Bowman testified in detail ^about his training and experience in an undercover capacity and his use of Meik, "scent detection canine." Bowman described the training that Meik had received and Meik's excellent record in detecting cannabis, cocaine and heroin. Bowman explained that Trooper Storey had contacted him earlier that day and asked him to check the three Skyway bags. According to Bowman, Meik "alerted" to all three bags. Trooper Storey testified in detail about the substance of two telephone conversations with Agent Smith in San Francisco and the events occurring after Pooley arrived in Anchorage. Storey was specifically asked by the magistrate what had initially aroused Agent Smith's suspicions, and Storey explained the significance of each fact or observation related to him by Agent Smith as best he could. For instance, Trooper Storey told the magistrate about the dense, compressed area in the center of each of Pooley's bags. Significantly, however, Trooper Storey did not tell the magistrate that Smith had exposed the bags to a dog sniff in- San Francisco; nor did he explain that the San Francisco dog had alerted to only one of the bags. Magistrate Crowe issued the warrant based on the reaction of the Anchorage dog to the luggage and the dog's record of accuracy. To the extent that Pooley challenges the sufficiency of the evidence to support the issuance of the search warrant, we reject this challenge. The evidence presented to the magistrate was more than sufficient to establish probable cause for issuance of a warrant to search Pooley's bags. Pooley's other argument is more complex. He appears to challenge the police conduct at every stage of the investigation. Yet the court would only have been justified in suppressing the evidence if it was the product of, or "tainted" by, some earlier illegality. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Use of unlawfully obtained evidence to secure a search warrant will not invalidate the warrant if it could have been issued on the basis of untainted evidence before the magistrate. Schmid v. State, 615 P.2d 565, 575 (Alaska 1980). Thus, if we find that some of the evidence presented to the magistrate in this case was the product of illegality, we must determine whether the remaining evidence would have been sufficient to support issuance of the warrant if the illegal evidence had not been presented. Some of the conduct complained of by Pooley (e.g., the use of the drug detection dog in San Francisco) did not yield evidence presented directly to the Anchorage magistrate. With regard to this conduct, it must be established not only that the conduct itself was improper, but also that, under the Wong Sun doctrine, this impropriety significantly tainted some evidence that was presented to the magistrate, and finally that the warrant could not have been properly issued without this evidence. With these considerations in mind, we evaluate the conduct complained of by Poo-ley. A. Use of the Drug-Detection Dog in San Francisco Pooley first argues that the warrant was tainted by Agent Smith's use of a drug-detection dog at the San Francisco airport. Professor LaFave introduces the topic of dog sniffs in the following way: In recent years police have made extensive use of specially trained dogs to detect the presence of explosives or, more commonly, narcotics. These dogs are utilized in checking persons and effects crossing the border into the United States, luggage accompanying persons traveling by airline or bus, freight shipped by airline, and the contents of vehicles and storage facilities. In light of the careful training which these dogs receive, it is clear that an "alert" by a dog will constitute probable cause for an arrest or search if a sufficient showing is made as to the reliability of the particular dog used in detecting the presence of a particular type of contraband. The more difficult question, which is of primary concern here, is whether such use of "canine cannabis connoisseurs" or similarly trained dogs itself constitutes a search so as to be subject to the limitations of the fourth amendment. 1 W. LaFave, Search & Seizure: A Treatise on the Fourth Amendment § 2.2(f), at 280-82 (1978) (footnotes omitted). Courts have taken a variety of approaches to the question posed by LaFave. The United States Supreme Court has eliminated some of the confusion with its recent decision in United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983). Place was flying from Miami International Airport to New York's LaGuardia Airport. Something in his behavior as he waited in the ticket line aroused the suspicions of Florida law enforcement officers, and they approached him as he was walking toward the gate for his flight. The agents asked for his airline ticket and some identification; Place complied with this request and consented to a search of the two suitcases that he had checked. The agents decided not to search the luggage, however, because Place's flight was about to depart. As Place walked away, he apparently stated that he had recognized that the agents were in fact police. Id. at 698-99, 103 S.Ct. at 2639-40, 77 L.Ed.2d at 115. Because their suspicions were still aroused, the Florida police inspected the address tags on the checked luggage and noted discrepancies in the street addresses. Further investigation revealed that neither address existed and that the telephone number that Place had given the airline belonged to a third address on the same street. The agents then called Drug Enforcement Administration (DEA) authorities in New York and relayed the information they had about Place. Place behaved even more suspiciously upon arriving in New York and being approached by the DEA agents. Place told the agents that he had spotted them as "cops" as soon as he got off the airplane. He also told them that the police at the Miami airport had already searched his baggage. When Place refused to consent to a search of his luggage in New York, one of the agents told him they were going to take the luggage and try to obtain a search warrant for it. The agent told Place he was free to accompany them, but Place declined and apparently left the airport. The agents took the bags to Kennedy Airport and subjected them to a "sniff test" by a trained dog. The dog's reaction was positive as to the smaller bag and "ambiguous" as to the larger bag. Because it was late on a Friday afternoon, the agents kept the luggage until Monday morning before securing a warrant and opening the bag, which turned out to contain a large quantity of cocaine. Id. The question presented by the case, as the Court saw it, was how to evaluate "warrantless seizures of personal luggage from the custody of the owner on the basis of less than probable cause, for the purpose of pursuing a limited course of investigation, short of opening the luggage, that would quickly confirm or dispel the authorities' suspicion." 462 U.S. at 702, 103 S.Ct. at 2641-42, 77 L.Ed.2d at 117. The Court agreed with the parties and the court below that the police conduct in stopping Place should be analyzed under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The Court went on to state: The exception to the probable cause requirement for limited seizures of the person recognized in Terry and its progeny rests on a balancing of the competing interests to determine the reasonableness of the type of seizure involved within the meaning of "the Fourth Amendment's general proscription against unreasonable searches and seizures." We must balance the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion. When the nature and extent of the detention are minimally intrusive of the individual's Fourth Amendment interests, the opposing law enforcement interests can support a seizure based on less than probable cause. Place, 462 U.S. at 703, 103 S.Ct. at 2642, 77 L.Ed.2d at 118. (citation, omitted). The Court cited United States v. Mendenhall, 446 U.S. 544, 561, 100 S.Ct. 1870, 1880, 64 L.Ed.2d 497 (1980) (Powell, J., concurring), for the proposition that " '[t]he public has a compelling interest in detecting those who would traffic in deadly drugs for personal profit,' " and concluded that "when an officer's observations lead him reasonably to believe that a traveler is carrying luggage that contains narcotics, the principles of Terry and its progeny would permit the officer to detain the luggage briefly to investigate the circumstances that aroused his suspicion, provided that the investigative detention is properly limited in scope." 462 U.S. at 703, 706, 103 S.Ct. at 2642, 2644, 77 L.Ed.2d at 118, 120. The Court recognized that the investigative procedure might itself be a search requiring probable cause, but concluded that a canine sniff of personal luggage is not a search but a limited, minimally intrusive investigative technique that should be regarded as sui generis. The Court went on to conclude, however, that the police conduct in detaining the luggage for ninety minutes exceeded the permissible limits of a Terry-type investigative stop. Id. at 710, 103 S.Ct. at 2646, 77 L.Ed.2d at 123. The precise scope of the Court's holding in Place was not immediately clear. Professor LaFave points out that Place "does not validate the use of drug detection dogs in all circumstances." 1 LaFave, supra, § 2.2(f), at 119 (1985 Supp.). See also United States v. Beale, 731 F.2d 590, 593-95 (9th Cir.1983), rehearing en banc ordered and opinion withdrawn, 728 F.2d 411 (9th Cir.1984) (even after Place, police should have founded or articulable reason to believe that luggage may contain contraband before dog sniff); United States v. Williams, 726 F.2d 661, 663 (10th Cir.), cert. denied, — U.S. -, 104 S.Ct. 3523, 82 L.Ed.2d 830 (1984) (Place court did not reach issue of whether reasonable suspicion is required). Most commentators have concluded, however, that Place means the fourth amendment simply is not implicated when checked baggage is detained for a very short period and exposed to canine sniffing. 1 LaFave, supra, at 116-120 (1985 Supp.). The Eleventh Circuit Court of Appeals has recently discussed Place in the .following way: Luggage, unlike a person, has no fourth amendment rights. The fourth amendment, accordingly, is implicated only when a police seizure of an item impairs a person's possessory interest, or a search impairs a person's reasonable privacy interest in the item.... [Bjecause the fourth amendment protects people, not things, courts should concern themselves with seizures of luggage only when those seizures impair the right of the possessor to freedom of movement with his luggage. In airport luggage cases, the traveler's possessory interest would be impaired if the seizure of his luggage were tantamount to a seizure of his person, whether actually, because he could not leave without his luggage, or constructively ., where travel plans required him to proceed without his luggage. Place teaches that a seizure of luggage qua seizure, with no deleterious effects on the air traveler, is simply not a fourth amendment issue. This is in accord with a prior holding of this circuit, United States v. Goldstein, 635 F.2d 356 (5th Cir.), cert. denied, 452 U.S. 962, 101 S.Ct. 3111, 69 L.Ed.2d 972 (1981). In that case we held that the removal of a suspect's luggage from a baggage cart for an immediate on-the-spot sniff by a detector dog did not implicate the fourth amendment. Neither the removal of the luggage from the cart nor the sniff by the dog impaired in any way the owner's possessory or privacy interests. Privacy interests were not affected because the sniff was not a search.... The owner's possessory interests were not impaired because he had surrendered control of the luggage to the airline for some four and one-half hours, and the removal and inspection took about four minutes. The removal and inspection would not in any way have caused Goldstein or his luggage to miss or be late for the flight; in fact, had the dog not alerted, Goldstein would have been totally oblivious to the entire occurrence. United States v. Puglisi, 723 F.2d 779, 785-88 (11th Cir.1984) (citations and footnotes omitted). The Puglisi court's understanding of what constitutes a search was seemingly confirmed by the United States Supreme Court in the more recent case of United States v. Jacobsen, 466 U.S. 109, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984). In Jacobsen, employees of a private freight carrier opened a package damaged by a forklift in order to examine the contents. Within several layers they found plastic bags containing a white powder. They notified DEA officials, then replaced the bags inside the layers of the package. DEA agents arrived and partially reopened the package to get at the four plastic bags. One agent opened each bag, took a trace of the powder, and field-tested it to determine if it was cocaine. It was. A warrant was eventually obtained, resulting in a search of the addressee's residence, which resulted in his arrest. The Supreme Court concluded that the reopening of the unsealed package and visual inspection of the plastic bags enabled the agents to learn nothing that had not been learned during the private search, so that no legitimate privacy expectation had been infringed. Id. at-, 104 S.Ct. at 1659-60, 80 L.Ed.2d at 98-99. Moreover, the Court held that "since it was apparent that the . plastic bags contained "contraband and little else," the warrantless seizure that resulted from the officers' exercise of dominion and control over the package was not unreasonable. Id. at-, 104 S.Ct. at 1661, 80 L.Ed.2d at 99. Finally, as to the field test of the powder, the Court concluded that it was no search because it "could disclose only one fact previously unknown to the agent — whether or not a suspicious white powder was cocaine." Id. at-, 104 S.Ct. at 1661, 80 L.Ed.2d at 100. This conclusion, according to the Court, was dictated by Place. And, because only a trace amount was taken, its seizure could have only a de minimus im pact on any protected property interest, and was thus reasonable. Id. at-, 104 S.Ct. at 1663, 80 L.Ed.2d at 102. The conclusion in Puglisi that possessory interests were not impaired by temporary detention of the bag is also in accord with other Supreme Court authority. United States v. Van Leeuwen, 397 U.S. 249, 253, 90 S.Ct. 1029, 1032, 25 L.Ed.2d 282 (1970) (one-day segregation and delay of a mailed package). See also Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 1546, 75 L.Ed.2d 502 (1983) (Stevens, J., concurring) (emphasizing distinction between "the interest in retaining possession of property and the interest in maintaining personal privacy"). In the case at hand, Pooley's bags were separated from the other baggage on that flight for only a few minutes, and Pooley himself was oblivious to the dog sniff in San Francisco. Under the analysis put forward in Jacobsen, Van Leeuwen, and Pu-glisi, Pooley's fourth amendment rights were clearly .not violated by Smith's conduct in segregating Pooley's bags and exposing them to the drug detection dog. Pooley, however, takes the position that the majority's decision in Place is inconsistent with Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). He argues that dog sniffs like the ones in this case are searches and that this court should so hold on the basis of the more extensive right of privacy guaranteed Alaskan citizens by Article 1, § 14 & 22 of our state cdristitution. See Reeves v. State, 599 P.2d 727, 734 (Alaska 1979). In Burnett v. Anchorage, 678 P.2d 1364 (Alaska App.), cert. denied, — U.S. -, 105 S.Ct. 190, 83 L.Ed.2d 123 (1984), we considered the issue of whether a breathalyzer is a search. We noted that in Katz the United States Supreme Court had abandoned the "physical trespass" approach to this question, and that the Alaska Supreme Court has adopted and frequently applied the two-prong test from Justice Harlan's concurrence in Katz to identify those cases where an invasion of privacy constitutes a search (first, that a person have exhibited an actual, subjective expectation of privacy and, second, that the expectation be one that society is prepared to recognize as "reasonable"). We discussed various decisions establishing that, in reviewing requests for non-testimonial evidence, the court will look to the practical effect of the intrusion, i.e., pain or embarrassment caused to the subject. We then stated: The ultimate question is one of value. Should a free society tolerate a subjection of citizens to breathalyzer examinations free of constitutional constraints? In a different context, LaFave suggests some good reasons for characterizing intrusions similar in nature to breathalyzer examinations as searches, for example, canine sniffs, magnetometers and x-rays.... On the other hand, in United States v. Place, the court held that subjecting luggage to sniffing by trained dogs did not constitute a search. The court felt that a canine sniff was sui generis regarding the manner of obtaining information and the limited content of the information obtained. This rationale might also apply to breathalyzer examinations since they are limited both in terms of the nature of the intrusion and the nature of the information it produced. 678 P.2d at 1368 n. 1 (citations omitted). The gist of Pooley's argument is that Alaska courts have always adhered more closely to the tenets of Katz, and that Place is simply inconsistent with Katz in concluding that a sniff is not a search. Certainly, Pooley is not alone in arguing that the Court's recent fourth amendment decisions have moved significantly away from Katz in determining what constitutes a search. See, e.g., Jacobsen, — U.S. at -, 104 S.Ct. at 1667-72, 80 L.Ed.2d at 109-113 (Brennan, J., dissenting). Fortunately, we need not determine the precise scope of the Alaska Constitution's protection in this area in order to decide the issue presented by Agent Smith's use of the drug detection dog. Smith was an agent of the state of California, where this conduct occurred. The record contains no evidence that Smith's actions were part of any ongoing or concerted effort by Alaska and California to identify and arrest persons bringing drugs to Alaska. We have determined that Smith's conduct comported not only with the law of the United States {Place) but also the law of California. See People v. Mayberry, 31 Cal.3d 335, 182 Cal.Rptr. 617, 644 P.2d 810 (1982) (no reasonable expectation of privacy in air molecules leaking from luggage, whether or not trained dogs are used to "analyze" the molecules; dog sniff therefore does not constitute a search). Pooley is thus asking for extraterritorial application of the Alaska Constitution: Pooley's claim is that even though their actions occurred entirely in California and complied with the requirements of the California and federal constitutions, California law enforcement officers were somehow obligated to recognize and honor Poo-ley's personal rights under the Alaska Constitution. In the analogous situation of searches conducted by foreign officials, Professor LaPave has concluded that "use of the exclusionary rule with respect to foreign searches is justifiable only when American authorities may fairly be held accountable for not preventing the particular conduct complained of." 1 LaFave, supra, § 1.6(g), at 144 (1978). California courts have accepted this analogy and taken a "choice of law" approach to applying the exclusionary rule to conduct occurring outside the state. In People v. Blair, 25 Cal.3d 640, 159 Cal. Rptr. 818, 602 P.2d 738, 747-48 (1979), the California Supreme Court upheld admission of the fruits of a Pennsylvania seizure which was valid under federal and Pennsylvania law, even though it would have been invalid if it had occurred in California. Accord. People v. Orlosky, 40 Cal.App.3d 935, 115 Cal.Rptr. 598 (1974). The court reasoned that the exclusionary rule has a twofold purpose: to deter illegal police conduct and to relieve the courts from being compelled to participate in illegal conduct. Neither goal would be served by exclusion of the evidence in that case, according to the court, since Pennsylvania authorities would not (and indeed, should not) be deterred from engaging in conduct which is legal in their state, and admission of the evidence in a California court would not mean placing the judicial imprimatur on lawlessness. See also Tullís and Ludlow, Admissibility of Evidence Seized in Another Jurisdiction: Choice of Law and the Exclusionary Rule, 10 U.S.F.L.Rev. 67, 91 (1975) ("unless the forum regards judicial integrity as a separate basis for application of the exclusionary rule, the evidence should be admitted since the search activity that occurred outside the jurisdiction of the forum was not illegal"). We have found no Alaska cases addressing this point. In the absence of contrary authority, we adopt the reasoning of the California Supreme Court in Blair and hold that the Alaska Constitution was not implicated here, even assuming that Agent Smith's conduct would have violated the Alaska Constitution if it had occurred in Alaska or had been engaged in by an Alaskan officer. B. Manipulation of Pooley's Luggage Pooley also argues that when Agent Smith placed each of his suitcases on the floor and pressed them in order to feel their contents, he conducted a search of each bag within the meaning of the fourth amendment. It is undisputed that the fourth amendment protects an individual's reasonable expectation of privacy in the contents of personal luggage. United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 2644, 77 L.Ed.2d 110 (1983); Arkansas v. Sanders, 442 U.S. 753, 762, 99 S.Ct. 2586, 2592, 61 L.Ed.2d 235 (1979); United States v. Chadwick, 433 U.S. 1, 11, 97 S.Ct. 2476, 2484, 53 L.Ed.2d 538 (1977). In this case it is apparent that Smith's conduct went beyond what was necessary to conduct a dog sniff, contrary to the state's assertion. Pooley cites a number of lower court cases in an effort to establish that physical manipulation will be deemed a search. Recent United States Supreme Court decisions strongly suggest, however, that the crucial area of inquiry in determining whether a search has occurred will be in the reasonableness of the privacy expectation the owner has in the information disclosed by the search. See United States v. Knotts, 460 U.S. 276, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983) (use of a "beeper" to track the movements of a car through a public place disclosed nothing otherwise unobservable, and was not a search). Thus, in certain instances it may be possible for police conduct to constitute a common-law trespass to property and nevertheless not constitute a "search" under the fourth amendment. United States v. Jacobsen, 466 U.S. 109, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984); Illinois v. Andreas, 463 U.S. 765, 103 S.Ct. 3319, 77 L.Ed.2d 1003 (1983). See also Dye v. State, 650 P.2d 418, 421-22 (Alaska App.1982). Under this analysis, it is apparent that the reasonable expectation of privacy in luggage that is in a person's actual possession or control will be different from the expectation of privacy in luggage that is checked to a commercial airline. In this case the privacy interest under consideration is not, as Pooley suggests, in the contents of the luggage (as would be implicated by opening), but rather, in the fact that there was a "bulge" or "dense, compressed area" in each piece of luggage. It may have been unreasonable to expect that this fact would remain unknown to those handling the soft-sided Skyway bags. Pooley focuses on the distinction between the privacy invasion that occurs when civilian baggage handlers load baggage onto an airplane and the invasion that occurs when agents of the state engage in essentially the same conduct for law enforcement purposes. This focus seems misplaced: the handling that airline employees would em gage in is relevant in determining the reasonableness of Pooley's expectation of privacy in the existence of the "bulge" or "dense, compressed area." However, we consider the question a very close one, and we are not prepared to hold, based on the record before us, that no fourth amendment violation occurred. But, even assuming that Smith's conduct in pressing the bags violated the fourth amendment, it does not necessarily follow that the warrant was tainted. The information gained was presented to the magistrate through the testimony of Trooper Storey. Given the strength of the other evidence presented to the magistrate, though, we are confident that the warrant would have been properly issued even if no mention had been made of the "dense, compressed area[s]." Schmid v. State, 615 P.2d 565, 575 (Alaska 1980). Nor can we say that the warrant was tainted indirectly, in the sense that the Alaska State Troopers would have acted differently if they had not known about the "bulges" or "compressed area[s]." Trooper Storey testified that his suspicions were alerted by the totality of the information relayed by Agent Smith; it seems to us highly unlikely that the information about the compressed areas could have been so crucial to Trooper Storey that he would have allowed Pooley to leave without questioning him about the luggage had he not known this fact. C. Police Conduct at Anchorage Airport 1. The Stop of Pooley Alaska State Troopers observed Pooley as he left the airplane, walked through the airport and into the parking lot at the Anchorage International Airport, where they stopped him. Pooley later based his motion to suppress in part on the ground that the detention was illegal. Judge Carlson concluded that "some of the factors known to the officers in Anchorage certainly are sufficient for them to effect a Terry -type stop of the defendant." In Howard v. State, 664 P.2d 603, 608 (Alaska App.1983), this court stated: There are essentially three types of contact between the police and private citizens which have received attention in the reported cases: (1) A generalized request for information, for example, questions put to bystanders during an on-the-scene investigation of a crime. (2) An investigatory stop, supported by articula-ble suspicion that a person has committed or is about to commit a crime. (3) Finally, an arrest, based upon facts and circumstances which would lead a prudent person to believe that a crime had been committed and that the person arrested had committed it.... An inquiry of someone at the scene is not necessarily a fourth amendment seizure. An investigatory stop and an arrest are fourth amendment seizures. [Citations omitted.] In Florida v. Royer, 460 U.S. 491, 497-98, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229, 238 (1983), the Supreme Court stated: [L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting some questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions. Nor would the fact that the officer identifies himself as a police officer, without more, convert the encounter into a seizure requiring some level of objective justification. The person approached, however, need not answer any question put to him; indeed, he may decline to listen to the questions at all and may go on his way. He may not be detained even momentarily without objective, reasonable grounds for doing so; and his refusal to listen or answer does not, without more, furnish those grounds. If there is no detention — no seizure within the meaning of the Fourth Amendment— then no constitutional rights have been infringed. [Citations omitted.] Accord Brown v. State, 684 P.2d 874, 877 (Alaska App.1984), petition for hearing granted (Alaska, October 4, 1984); Howard v. State, 664 P.2d at 608. A person is seized when a reasonable person in his position would not feel free to leave. Florida v. Royer, 460 U.S. at 502, 103 S.Ct. at 1326, 75 L.Ed.2d at 239; Waring v. State, 670 P.2d 357, 364 (Alaska 1983); Brown v. State, 684 P.2d at 877. Normally, the question of when a seizure occurs is factual, and the trial court's finding of fact should be overturned only if clearly erroneous. Waring v. State, 670 P.2d at 364 n. 15; Brown v. State, 684 P.2d at 877. Here, Judge Carlson made no finding as to precisely when Pooley was seized for fourth amendment purposes. At the suppression hearing, the following exchange occurred between defense counsel and Trooper Storey: Q And how long did the confrontation in the parking lot last? A A minute, maybe two minutes. Q You don't recall that there was a much longer discussion between the officers and Mr. Pooley about what their interest was and why they were stopping him and what the problem was and that sort of thing? A As I recall, the two officers approached him and identified themselves and asked if he had any identification, which he produced. And they asked him if he'd be willing to go back inside the terminal building so they could talk to him briefly, and it's more convenient to do it inside the terminal building so we don't cause the individual any embarrassment by doing it in the parking lot. And he said he was willing to do that, however he'd like to know why. And we explained that to him a couple of times. And we explained to him about the false name and the — the false name and address and phone number, and at that time he picked up his attache case and accompanied us back into the terminal. Q You recall the contact with him only lasting a minute or two in the parking lot? A It was — it was brief, it wasn't very long. My impression of it was a minute or two. Q Could it have been as long as 10 or 15 minutes? A Absolutely not. Q And was Mr. Pooley free to leave from the parking area? A In my opinion, if he'd've said no, I don't want to go back with you to the terminal, I would've let him go, yes. The question, of course, is not whether the troopers would have let Pooley go, but whether a reasonable person would have felt free to go. Certainly, the evidence supports the conclusion that the initial stop was consensual. While the troopers explained that they suspected Pooley of transporting drugs and told him the basis of their suspicion, it does not appear that their behavior was conduct which " 'a reasonable person would view as threatening or offensive even if coming from another private citizen.' " Waring v. State, 670 P.2d at 364, quoting 3 W. LaFave, Search & Seizure § 9.2, at 53-54 (1978). The mere request for identification does not automatically render the stop a seizure, where it does not appear that the identification was retained for an unnecessarily long time. See Brown v. State, 684 P.2d at 877. An officer who approaches someone and asks questions may continue to ask questions if his suspicions are not allayed by the answers he receives. See Royer, 460 U.S. at 497, 103 S.Ct. at 1324, 75 L.Ed.2d at 238, and G. R. v. State, 638 P.2d 191, 195 (Alaska App.1981), rev'd on other grounds sub nom Waring v. State, 670 P.2d 357 (Alaska 1983). See also United States v. Jodoin, 672 F.2d 232, 235 (1st Cir.1982) (when answers to initial questions produce additional suspicion, they justify further questioning). We hold that no fourth amendment seizure occurred at least until the officers asked Pooley to return with them to the terminal. It is clear that at this point there were more than enough facts to support a reasonable suspicion that Pooley was carrying contraband. When the troopers stopped him, they knew everything that Agent Smith had told Trooper Storey in two telephone conversations, which included, along with whatever conclusions Smith was able to reach based upon his experience and his observation of Pooley, the following facts: the drug detection dog had exhibited a "weak positive alert" to one of Pooley's pieces of luggage, indicating the presence of marijuana, hashish, cocaine or heroin; the address listed on Pooley's luggage did not exist; the telephone number given to the airline had been disconnected; and Pooley remained on board during the one-hour layover in Seattle, even though the temperature inside the aircraft made it uncomfortable and most other passengers apparently deplaned during the layover. Immediately before being stopped, Pooley was about to enter a car in the parking lot, even though he had checked .three bags. Nothing in Pooley's behavior after he was stopped could have allayed the suspicions of the officers that Pooley was carrying narcotics in his luggage and, perhaps, his briefcase. When asked for identification, he produced an Alaska driver's license in a name different from that listed on his ticket and luggage. He denied having checked any luggage, and stated that he could not find his ticket. It was at this point that the troopers asked Pooley to accompany them back inside the terminal. In Alaska, investigatory stops are limited to situations where officers have a reasonable suspicion that imminent public danger exists or that serious harm to persons or property has recently occurred. Coleman v. State, 553 P.2d 40 (Alaska 1976). Pooley argues that bringing marijuana into Alaska would not constitute "imminent public danger" within the meaning of Coleman. Judge Carlson concluded that it did. As the state points out, the facts known to Trooper Storey would amply support a suspicion that Pooley had transported substantial quantities of illegal drugs a long distance for commercial purposes, not just that he possessed small quantities of illegal drugs for personal use. The illegal trafficking of controlled substances is a major problem in Alaska. The lucrative profits to be made from illegal drug sales have attracted an increasingly high level of criminal activity, and widespread distribution of illegal drugs poses a serious danger to the health and safety of many potential users, especially among school-age children. Most controlled substances sold illegally in Alaska are imported from outside the state, often by persons acting as drug couriers. We believe the public, as well as the police, have a vital interest in assuring that illegal drug traffic is detected and curtailed before illicit drugs are actually placed into distribution in Alaska. Compare Hubert v. State, 638 P.2d 677, 685-86 (Alaska App. 1981) (even though crime actually being investigated was relatively minor felony of receiving and concealing stolen property, connection of the stolen property with recent burglary, coupled with high police interest in recovering proceeds of a theft before they are placed in the chain of illegal distribution and dispersed, justifies conclusion that Coleman standard was met). In our view it would be utterly unrealistic to conclude that Pooley was reasonably suspected of being a drug courier, but that the police had no basis for suspecting that he might constitute an imminent danger to public safety. Accordingly, we hold that Judge Carlson did not err in concluding that the stop was justified under Coleman. 2. Scope of the Detention We have concluded that the detention of Pooley was justified. The question next arises whether the detention exceeded the permissible scope of a Terry-type stop. The predicate permitting seizures on suspicion short of probable cause is that law enforcement interests warrant a limited intrusion on the personal security of the suspect. The scope of the intrusion permitted will vary to some extent with the particular facts and circumstances of each case. This much, however, is clear: an investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop. Similarly, the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer's suspicion in a short period of time. Florida v. Royer, 460 U.S. at 500, 103 S.Ct. at 1325, 75 L.Ed.2d at 238. In Royer, five justices agreed that the nature of the detention of the suspect was such that it had matured into a full-blown arrest, for all practical purposes, by the time the suspect consented to a search of his baggage: By the time Royer was informed that the officers wished to examine his luggage, he had identified himself when approached by the officers and had attempted to explain the discrepancy between the name shown on his identification and the name under which he had purchased his ticket and identified his luggage. The officers were not satisfied, for they informed him they were narcotics agents and had reason to believe that he was carrying illegal drugs. They requested him to accompany them to the police room. Royer went with them. He found himself in a small room — a large closet — equipped with a desk and two chairs. He was alone with two police officers who again told him that they thought he was carrying narcotics. He also found that the officers, without his consent, had retrieved his checked luggage from the airlines. What had begun as a consensual inquiry in a public place had escalated into an investigatory procedure in a police interrogation room, where the police, unsatisfied with previous explanations, sought to confirm their suspicions. The officers had Royer's ticket, they had his identification, and they had seized his luggage. Royer was never informed that he was free to board his plane if he so chose, and he reasonably believed that he was being detained. At least as of that moment, any consensual aspects of the encounter had evaporated, and we cannot fault the Florida District Court of Appeal for concluding that Terry v. Ohio and the cases following it did not justify the restraint to which Royer was then subjected. Id. at 502-503, 103 S.Ct. at 1327-28, 75 L.Ed.2d at 239-40. The plurality distinguished the Court's decision in United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980), on the grounds that in Mendenhall "no luggage was involved, the ticket and identification were immediately returned, and the officers were careful to advise that the suspect could decline to be searched." Royer, 460 U.S. at 503 n. 9, 103 S.Ct. at 1327 n. 9, 75 L.Ed.2d at 240 n. 9. The court also pointed out that the officers' conduct in dealing with Royer was more intrusive than necessary, because they could have returned his ticket and identification and told him he was free to go, there were no facts establishing "that the legitimate law enforcement purposes which justified the detention in the first instance were furthered by removing Royer [from the concourse] to the police room prior to the officer's attempt to gain his consent to a search of his luggage," and it may well have been feasible to investigate the contents of Royer's bags in a more expeditious way — by means of a dog sniff. Id. at-, 103 S.Ct. at 1328, 75 L.Ed.2d at 241-42. If a dog sniff had been conducted, according to the plurality, Royer and his luggage could have been momentarily detained while this investigative procedure was carried out. Indeed, it may be that no detention at all would have been necessary. A negative result would have freed Royer in short order; a positive result would have resulted in his justifiable arrest on probable cause. Id. at 506, 103 S.Ct. at 1329, 75 L.Ed.2d at 242. In Howard v. State, we noted that the line between an investigatory stop and a full arrest is less clear than the line between consensual contact and an investigatory stop. We quoted the following language from Royer: We do not suggest that there is a litmus paper test for distinguishing a consensual encounter from a seizure or for determining when a seizure exceeds the bounds of an investigative stop. Even in the discrete category of airport encounters, there will be endless variations in the facts and circumstances, so much variation that it is unlikely that the courts can reduce to a sentence or a paragraph a rule that will provide unarguable answer to the question whether there has been an unreasonable search and seizure in violation of the Fourth Amendment. 664 P.2d at 608, quoting Florida v. Royer, 460 U.S. 506, 103 S.Ct. at 1329, 75 L.Ed.2d at 242. We went on to state: Recognizing the uncertainties that still exist in the law regarding distinguishing between lawful stops and custodial arrest, we believe the following factors serve to distinguish them. First, the court must consider the purpose for the stop and, specifically, the kind of criminal activity being investigated.... Second, the stop must be for a limited and specific inquiry, i.e., the police must be diligently pursuing a means of investigation which is soon likely to resolve the matter one way or the other. Once the inquiry is completed the person detained must be freed or arrested.... Third, the stop must be of brief duration; the exact length will depend in part upon what is learned by the police relating to their initial suspicions. As one court pointed out: The results of the initial stop may arouse further suspicion or may dispel the questions in the officer's mind. If the latter is the case, the stop may go no further and the detained individual must be free to go. If, on the contrary, the officer's suspicions are confirmed or are further aroused, the stop may be prolonged and the scope enlarged as required by the circumstances. State v. Watson, 165 Conn. 577, 345 A.2d 532, 537 (1973). Fourth, the stop must not require the person stopped to travel an appreciable distance. Fifth, the force used in effectuating the stop must be proportional to the risk reasonably foreseen by the officer at the time he makes the stop. 664 P.2d at 609-10 (citations omitted). Applying these standards to the facts at hand, it appears the troopers took a course of action that was reasonable under all the circumstances. Although it does not appear the troopers explicitly told Pooley he was free to go when they asked Pooley to accompany them, they did not retain his identification, and he had not yet given them his ticket. The significance of Royer's ticket, in any event, was that Roy-er needed it to get on his flight, whereas Pooley had arrived at his destination. While the "concourse" at LaGuardia Airport may have been adequate for the detention of Royer in the plurality's view, we doubt that the parking lot at Anchorage International would be deemed appropriate for further questioning of Pooley, especially since the officers had the means to obtain Pooley's luggage and subject it to a dog sniff immediately, as they did. Inside the first-aid room in the terminal, Pooley added to the suspicions of the officers by attempting to hide his luggage claim checks in a chair. It was at this point that he was given his Miranda rights and asked to consent to a search of his luggage. Poo-ley refused to allow the search, but within twenty minutes the bags were retrieved and exposed to the narcotic detection dog, who alerted to all three bags. Cf. United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983) (bags transported to another airport and kept for ninety minutes); United States v. Puglisi, 723 F.2d 779, 783 (11th Cir.1984) (bag kept for 140 minutes while narcotics detection dog was brought in and suspect apparently left on his flight as scheduled); United States v. West, 731 F.2d 90 (1st Cir.) cert. denied, — U.S. -, 105 S.Ct. 956, 85 L.Ed.2d 963 (1984) (police were diligently pursuing their investigation even though they failed to summon a dog immediately upon defendant's arrival at airport and dog arrived twenty to thirty-five minutes after being summoned). Pooley argues, however, that he was under de facto arrest immediately after being given his Miranda rights. Trooper Storey was asked what would have happened had Pooley walked away from the police in the parking lot, retrieved his bags, and attempted to leave. He answered that "if we have reason to believe there may be a controlled substance in the luggage, we normally advise them that they're free to go, and we'll be holding onto their luggage pending a canine search." The following exchange also occurred: Q And I assume that once Mr. Pooley was Mirandized he was not free to leave at that point in time? Is that correct? A We had some mixed feelings about that within our office so we contacted the District Attorney's office and asked for an opinion on it. Q Well, the net result was that Mr. Pooley was not free to leave, though, correct? A That's correct, yes. Q And he certainly wasn't free to take the bags with him? A That's correct. We are uncertain whether the detention of Pooley ripened into a full-blown arrest at the time he was given his Miranda warnings. If Pooley was under arrest, police needed probable cause for arrest. Even if Pooley is correct that he was under arrest at this point and that troopers did not have probable cause, however, it does not follow that the court erred in refusing to suppress the results of the warrant. No new information was gained from Pooley after he was given his Miranda warnings. Even if Pooley had been told he was free to leave, and had in fact departed at that point, continued detention of his suitcases for a brief period by the troopers, so that a dog sniff could be performed, would have been justified. See United States v. Place, 462 U.S. at 706, 103 S.Ct. at 2644, 77 L.Ed.2d at 120, where the Court stated: In sum, we conclude that when an officer's observations lead him reasonably to believe that a traveler is carrying luggage that contains narcotics, the principles of Terry and its progeny would permit the officer to detain the luggage briefly to investigate the circumstances that aroused his suspicion, provided that the investigative detention is properly limited in scope. Even if Pooley was illegally arrested, the warrant was not tainted by the illegal arrest. 3. Dog Sniff in Anchorage We have concluded that the troopers had a reasonable suspicion that Pooley was carrying contraband. We hold also that this suspicion justified the limited seizure of Pooley's suitcases for the purpose of exposing them to the drug detection dog. Pooley argues that his privacy rights were separately violated by the use of the dog. As indicated earlier, the Alaska Constitution may afford more protection in this area than the United States Constitution, as interpreted in Place and Jacobsen. Even assuming that more protection is afforded in Alaska, however, this does not compel the conclusion that a sniff of luggage is a "search" in the traditional sense. As Justice Blackmun wrote in Place, "a dog sniff may be a search, but a minimally intrusive one that could be justified in this situation under Terry upon mere reasonable suspicion." 462 U.S. at 723, 103 S.Ct. at 2653, 77 L.Ed.2d at 132 (Blackmun, J., concurring). This is the approach taken by the Ninth Circuit Court of Appeals before Place. United States v. Beale, 674 F.2d 1327 (9th Cir.1982) (remanded for further consideration in light of Place, 463 U.S. 1202, 103 S.Ct. 3529, 77 L.Ed.2d 1382 (1983)). As Professor LaFave has noted, "[sjeveral other cases, although appearing to uphold the practice upon some broader basis, are consistent upon their facts, for they indicate that the approved surveillance was actually undertaken upon a reasonable suspicion." 1 LaFave, supra § 2.2, at 288 (1978). See United States v. McCranie, 70S F.2d 1213, 1218 (10th Cir.), cert. denied, — U.S. -, 104 S.Ct. 484, 78 L.Ed.2d 680 (1983); United States v. Waltzer, 682 F.2d 370, 372-73 (2d Cir.1982), cert. denied, 463 U.S. 1210, 103 S.Ct. 3543, 77 L.Ed.2d 1392 (1983). See also State v. Snitkin, 681 P.2d 980, 983 (Hawaii 1984), where the court held that a sniff was not a search, but stated: Nevertheless, we do not consider the fourth amendment and article 1, § 7 [of the Hawaii Constitution] to be irrelevant to the police actions reviewed here.... We now hold that the reasonableness of the dog's use in the particular circumstances should be determined by balancing the state's interest in using the dog against the individual's interest in freedom from unreasonable government intrusions. The only other logical approach would be to hold that a sniff is a search requiring a full showing of probable cause; this approach has been rejected by every court that has considered the question. We hold that exposure of luggage to a drug detection dog is a search under the Alaska Constitution, but that is a minimally intrusive type of search, akin to an investigative stop and frisk under Terry, which may be used when police have a reasonable suspicion that drugs may be present in the container and that the drugs are being illegally imported to the state or are being illegally possessed for distribution. It follows that Pooley's rights under the Alaska Constitution were not violated when the luggage was exposed to the dog at the Anchorage airport. We hold that the warrant was not tainted either directly or indirectly by any illegality. There was no error in refusing to suppress the evidence seized pursuant to the warrant. AFFIRMED. . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). . Storey testified that Smith called him at 1:40 p.m. and gave him most of the information related above, including a complete description of Pooley and his luggage. Smith also called Storey at 4:09 p.m. to inform him that passenger M. May had not deplaned in Seattle during the one-hour layover. . The Court stated: We have affirmed that a person possesses a privacy interest in the contents of personal luggage that is protected by the Fourth Amendment. A "canine sniff" by a well-trained narcotics detection dog, however, does not require opening the luggage. It does not expose noncontraband items that otherwise would remain hidden from public view, as does, for example, an officer's rummaging through the contents of the luggage. Thus, the manner in which information is obtained through this investigative technique is much less intrusive than a typical search. Moreover, the sniff discloses only the presence or absence of narcotics, a contraband item. Thus, despite the fact that the sniff tells the authorities something about the contents of the luggage, the information obtained is limited. This limited disclosure also ensures that the owner of the property is not subjected to the embarrassment and inconvenience entailed in less discriminate and more-intrusive investigative methods. In these respects, the canine sniff is sui generis. We are aware of no other investigative procedure that is so limited both in the manner in which the information is obtained and in the content of the information revealed by the procedure. Therefore, we conclude that the particular course of investigation that the agents intended to pursue here — exposure of respondent's luggage, which was located in a public place, to a trained canine — did not constitute a "search" within the meaning of the Fourth Amendment. United States v. Place, 462 U.S. at 707, 103 S.Ct. at 2644-45, 77 L.Ed.2d at 120-21 (citation omitted). . Justices Brennan, Blackmun and Marshall concurred in the result, but criticized the majority for reaching issues it need not have addressed, including the reasonableness of the exposure of the luggage to a narcotics detection dog. According to Justice Brennan, the Court should not countenance seizure of personal property on less than probable cause, and the question of what standards should govern dog sniffs of luggage should have been left for another day. 462 U.S. at 718-20, 103 S.Ct. at 2649-51, 77 L.Ed.2d at 128-29 (Brennan, J., concurring). Justice Blackmun was more explicit about the dog sniff question. He wrote (id. at 723, 103 S.Ct. at 2653, 77 L.Ed.2d at 132): While the Court has adopted one plausible analysis of the issue, there are others. For example, a dog sniff may be a search, but a minimally intrusive one that could be justified in this situation under Terry upon mere reasonable suspicion. Neither party has had an opportunity to brief the issue, and the Court grasps for the appropriate analysis of the problem. . LaFave's main point is that dog sniffs of people present a different question. The propriety of such sniffs has been repeatedly questioned. See Horton v. Goose Creek Ind. School District, 690 F.2d 470 (5th Cir. 1982), cert. denied, 463 U.S. 1207, 103 S.Ct. 3536, 77 L.Ed.2d 1387 (1983); Jones v. Latexo Ind. School District, 499 F.Supp. 223, 236 (E.D.Tex.1980); Gardner, Sniffing for Drugs in the Classroom — Perspectives on Fourth Amendment Scope, 74 Nw.U.L.Rev. 803 (1980); Comment, Search and Seizure in Public Schools: Are Our Children's Rights Going to the Dogs? 24 St. Louis U.L.J. 119, 131-33 (1979); see also Doe v. Renfrow, 451 U.S. 1022, 101 S.Ct. 3015, 69 L.Ed.2d 395 (1981) (Brennan, J" dissenting from denial of certiorari); Doe v. Renfrow, 631 F.2d 91, 93 (7th Cir. 1980) (Swygert, J., dissenting from denial of rehearing). . The precise extent of the relationship between judicial integrity and the exclusionary rule remains unsettled. See United States v. Janis, 428 U.S. 433, 458 n. 35, 96 S.Ct. 3021, 3034 n. 35, 49 L.Ed.2d 1046, 1063 n. 35 (1976) ("Judicial integrity clearly does not mean that the courts must never admit evidence obtained in violation of the Fourth Amendment"); Stone v. Powell, 428 U.S. 465, 485, 96 S.Ct. 3037, 3048, 49 L.Ed.2d 1067 (1976) ("While courts, of course, must ever be concerned with preserving the integrity of the judicial process, this concern has limited force as a justification for the exclusion of highly probative evidence). The Supreme Court has recently stated that "the question whether the use of illegally obtained evidence in judicial proceedings represents judicial participation in a Fourth Amendment violation and offends the integrity of the courts 'is essentially the same as the inquiry into whether exclusion would serve a deterrent purpose.' " United States v. Leon, 468 U.S. -, - n. 22, 104 S.Ct. 3405, 3421 n. 22, 82 L.Ed.2d 677, 697 n. 22 (1984), quoting United States v. Janis. . In United States v. Viera, 644 F.2d 509, 510-11, (5th Cir.) cert. denied, 454 U.S. 867, 102 S.Ct. 332, 70 L.Ed.2d 169 (1981), the officers squeezed the luggage for the purpose of forcing out air so that the drug detection dog would get a stronger scent. The court concluded that this "prepping" was not a search. In the pre-Terry case of Hernandez v. United States, 353 F.2d 624 (9th Cir. 1965), cert. denied, 384 U.S. 1008, 86 S.Ct. 1972, 16 L.Ed.2d 1021 (1966), the court held that forcing out air for the officers themselves to smell was a search, but that there was probable cause. We do not see these cases as controlling. . In denying Pooley's motion to suppress, the superior court was not expressly asked to rule whether the investigative efforts made by Agent Smith after he manipulated the luggage to feel its contents (such as conducting a dog sniff) were the direct result of the information disclosed by the manipulation. Accordingly, there was no specific finding by the superior court on this issue. In our view, however, the record would not support a finding that Smith's decision to subject the luggage to a dog sniff would not have been made but for the information he gained in manipulating the luggage. We note that Smith had already arranged for the dog and its handler to come to the area in which Pooley's luggage was located. . In Mattern v. State, 500 P.2d 228 (Alaska 1972), the supreme court echoed the concern expressed in some quarters that Terry not become the vehicle for "serious and unintended erosion of the protection of the Fourth Amendment." Id. at 233 n. 15, quoting Adams v. Williams, 407 U.S. 143, 153, 92 S.Ct. 1921, 1927, 32 L.Ed.2d 612, 621 (1972) (Brennan, J., dissenting). In Coleman, the supreme court again recognized the validity of this concern. Coleman v. State, 553 P.2d 40, 45 n. 17 (Alaska 1976). The line drawn by the Coleman court between, on the one hand, offenses involving serious danger or recent serious harm, and, on the other, less serious offenses, speaks directly to this concern. The Coleman line can be discerned in other areas. A situation in which police have a reasonable suspicion that a person is transporting illegal drugs for eventual distribution in the state is clearly distinguishable from a situation in which police suspect that an individual is in possession of a small quantity of an illegal drug or have no reason to believe that distribution is contemplated. The latter situation raises the spectre of routine stop-and-frisk procedures. See Adams v. Williams, 407 U.S. 143, 151-52, 92 S.Ct. 1921, 1926, 32 L.Ed.2d 612, 620 (1972) (Douglas, J., dissenting, and Brennan, J., dissenting) (agreeing with lower court dissent by Judge Friendly, because if Terry is extended to crimes such as possession of narcotics, "There is too much danger that, instead of the stop being the object and the protective frisk an incident thereto, the reverse will be true"). . Justice Brennan took issue with the plurality's focus on alternative courses of conduct, noting in particular that use of a trained narcotics dog might not be less intrusive than questioning Royer and asking for his consent. 460 U.S. at 511, 103 S.Ct. at 1330, 75 L.Ed.2d at 245 (Brennan, J., concurring). . Significantly, Pooley had been on the verge of leaving the airport without his luggage when initially stopped. He subsequently denied having luggage and attempted to hide his baggage claim tags. Under the circumstances the record simply does not justify a finding that the troopers' access to Pooley's luggage and their ability to subject it to a dog sniff was in any way enhanced by Pooley's continued detention. . The Ninth Circuit Court of Appeals ultimately affirmed Beale's conviction, after rehearing ert banc. United States v. Beale, 736 F.2d 1289 (9th Cir.), cert. denied, - U.S. - 105 S.Ct. 565, 83 L.Ed.2d 506 (1984). . We therefore do not reach the state's arguments that the seizure and ultimate search of Pooley's bags should be upheld under the doctrines of abandonment or "inevitable discovery," or the so-called "good faith" exception to the warrant requirement announced in United States v. Leon, 468 U.S. -, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984).

10412767

CITY OF FAIRBANKS MUNICIPAL UTILITIES SYSTEM, Appellant/Cross-Appellee, v. James LEES, Appellee/Cross-Appellant

City of Fairbanks Municipal Utilities System v. Lees

1985-08-30

Nos. S-560/S-597

457

463

705 P.2d 457

705

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:03:25.532191+00:00

CAP

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

CITY OF FAIRBANKS MUNICIPAL UTILITIES SYSTEM, Appellant/Cross-Appellee, v. James LEES, Appellee/Cross-Appellant.

CITY OF FAIRBANKS MUNICIPAL UTILITIES SYSTEM, Appellant/Cross-Appellee, v. James LEES, Appellee/Cross-Appellant. Nos. S-560/S-597. Supreme Court of Alaska. Aug. 30, 1985. Rehearing Denied Sept. 16, 1985. James M. Mullen, Asst. City Atty., Herbert P. Kuss, City Atty., Fairbanks, for appellant/cross-appellee. Jack Chisolm, Branson, Bazeley & Chi-solm, Anchorage, for appellee/cross-appel-lant. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.,

2856

18249

OPINION MOORE, Justice. This case concerns the proper scope of judicial review of an arbitration award. After holding a trial de novo, the superior court determined that the arbitrator's exclusion of evidence during James Lees' arbitration was gross error and deprived Lees of his right to due process. We find that the court erred in the scope of its review of the arbitration award. Furthermore, we hold that Lees was afforded his right to a fair hearing during arbitration. Therefore, we reverse the superior court's decision. I. FACTS AND PROCEEDINGS The City of Fairbanks Municipal Utilities System (hereafter city) fired James Lees, claiming that he failed to clean up the coal basement in its coal-handling facility and failed to check the machinery before leaving his shift on February 9, 1979. Based on his "gross negligence," the city held Lees responsible for a coal overrun that destroyed a conveyor belt which normally carried coal from the coal-handling facility across the Chena River to the city's power plant. Loss of the conveyor belt endangered the plant's continuous operation on February 10, an extremely cold winter day. Lees filed a grievance and his union demanded arbitration of his termination in accordance with the collective bargaining agreement. The union district representative and the city manager chose Julius Kornfeind as the neutral arbitrator. A1 Lindemann, the union field representative, was assigned to represent Lees. The arbitration hearing took place on two days. The arbitrator sought to strictly limit testimony and evidence to the events directly related to the coal overrun to determine whether Lees was discharged for cause. For example, Lindemann's theory of the coal overrun included a possible conspiracy to sabotage the coal crusher in order to establish an excuse to fire Lees. To prove his theory, Lindemann sought to elicit testimony from Lees regarding a series of events leading up to his discharge. The arbitrator interjected that he did not see how a series of events could fill up a coal hopper. Similarly, the arbitrator excluded a copy of a prior arbitration award to Lees and a witness, Ted Baxter, who would have testified about a pattern of discrimination and persecution directed at Lees. In a post-arbitration meeting, the parties agreed to submit the entire arbitration record to a neutral expert to determine the amount of coal in the coal-handling facility's basement. Based on the expert's report and the parties' final briefs, the arbitrator concluded that Lees did not clean up as he had claimed. Therefore, he decided that Lees' termination was justified and made an award in the city's favor. Lees appealed. After a trial de novo, the superior court partially vacated the arbitration award. The court found that the arbitrator had improperly excluded Lees' witnesses, the prior arbitration award and evidence relating to the credibility of Lees' co-workers. As a result, the court concluded that the arbitrator committed gross error and deprived Lees of his due process rights. The city appealed and Lees cross-appealed. II. STANDARD AND SCOPE OF REVIEW Arbitration has been regarded as a "substitute for proceedings in court." McRae v. Superior Court, 221 Cal. App.2d 166, 34 Cal.Rptr. 346, 349 (1963). Parties resort to arbitration to resolve disputes in a quicker and less costly way than litigation. Arbitration should be a final and binding means of dispute resolution, not a mere prelude to litigation. As a result, we have followed a policy of minimal court interference with arbitration. Nizinski v. Golden Valley Electric Association, 509 P.2d 280, 283 (Alaska 1973). If the parties submit the dispute to binding arbitration, the merits of the controversy are not subject to judicial review. However, a court may intervene in cases of an arbitrator's gross negligence, fraud, corruption, gross error or misbehavior. Id. In City of Fairbanks v. Rice, 628 P.2d 565, 567 (Alaska 1981), we explained that Nizinski 's non-statutory review standard justifies court intervention only when the arbitrator's mistakes are both obvious and significant. In Anchorage Medical & Surgical Clinic v. James, 555 P.2d 1320, 1324 (Alaska 1976), we stated that "error which calls for modification or correction of an arbitration award must be manifestly clear." (Footnote omitted). Furthermore, we have held that the strict evidentiary rules governing admissibility of hearsay do not apply in arbitration proceedings. Racine v. State, Department of Transportation & Public Facilities, 663 P.2d 555, 557 (Alaska 1983). However, we noted that due process places some limits on the arbitration process, requiring that a party have a right to a fair hearing and an opportunity to cross-examine witnesses. Id. In State v. Lundgren Pacific Construction Co., 603 P.2d 889 (Alaska 1979), we established guidelines to determine when a superior court should hold a trial de novo in an appeal from an administrative agency. We held that if the procedures of the administrative hearing did not afford the contractor due process, the remedy would be a trial de novo on appeal. Id. at 896. In his concurring opinion, Justice Matthews emphasized that normally a court will review an agency action on the record. When a decision maker is biased or important evidence has been improperly excluded, however, the court may expand its review. At the extreme is a complete trial de novo where the court substitutes its judgment for that of the agency on matters of fact, law and policy.... A more conservative form of expanded review is review on the record of the evidence developed before the agency where the court makes an independent determination of the facts_ Another intermediate position is to allow augmentation of the record by the presentation of additional evidence before the court. The record as augmented is then reviewed. Id. at 899 (Matthews, J., concurring). When circumstances justify expanded judicial review, the court should deviate from the norm of review on the record only to the extent necessary to afford a fair hearing. Id. Similarly, a trial court should ordinarily review an arbitration award on the record if a record is available. In order to preserve the finality of arbitration awards, the superior court's function in confirming or vacating an arbitration award must necessarily be limited. A hearing on the ap- plication of an award should be held in the manner provided for the hearing of motions. Cf. AS 09.43.150; Alaska R.Civ.P. 77. At the hearing, the party challenging the award bears the burden of proof. The arbitration award is presumptively valid. University of Alaska v. Modern Construction, Inc., 522 P.2d 1132, 1139 (Alaska 1974). The court should choose an expanded form of judicial review only when necessary to afford the parties a fair hearing. In this case, the superior court held a trial de novo to assess the validity of the arbitrator's award. During the trial, Lees was permitted to examine three co-workers as witnesses who did not testify during the arbitration proceedings. These witnesses stated on cross-examination that they were available during the arbitration hearing, but Lees had never asked them to testify. The arbitrator, the union representative and the city's attorney also testified at length during the trial. The arbitrator was questioned extensively about his reasoning and conclusion in the arbitration proceeding. The superior court erred in the scope of its review. The court properly allowed the parties to augment the record by an offer of proof of the excluded evidence. However, the arbitrator's testimony should have been limited to the issue of exclusion of evidence. The court hearing should not be a forum to question the arbitrator's reasoning processes. Furthermore, the court should not reweigh the evidence presented to the arbitrator or subject the merits of the controversy to judicial review. Nizinski, 509 P.2d at 283; cf. Evans Electrical Construction Co. v. University of Kansas Medical Center, 230 Kan. 298, 634 P.2d 1079, 1086-87 (1981) (when party attacks an arbitration award made pursuant to statute, it is not the court's function to hear the case de novo and to consider the evidence presented to the arbitrators). III. EXCLUSION OF EVIDENCE BY THE ARBITRATOR In Racine v. State, Department of Transportation & Public Facilities, 663 P.2d 555, we confronted the issue of due process in the arbitration setting. At Racine's arbitration hearing, hearsay evidence was presented in the form of investigating officers' reports and copies of governmental business records. Racine claimed that the arbitrator's acceptance of hearsay evidence was gross error and a denial of due process. We recognized that use of hearsay evidence could deprive a party of the "right to a fair hearing" in arbitration because it could limit a party's right and opportunity to conduct cross-examination. In Racine, however, the reports were substantiated by oral testimony. Racine had the opportunity to cross-examine the investigating officers, to subpoena his own witnesses and to rebut the hearsay by his own testimony. After finding that his right to submit evidence to the arbitrator was not curtailed, we concluded that Racine was afforded a fair and impartial hearing with an adequate opportunity to exercise his due process rights. Id. at 558. In this ease, we deal with an issue of exclusion of evidence. Unlike the employee in Racine, Lees claims that his right to submit evidence to the arbitrator was curtailed. Therefore, we must determine whether the arbitrator's exclusion of evidence deprived Lees of his right to a fair hearing. In general, courts vacate arbitration awards when the arbitrator's exclusion of evidence has led to the complete omission of critical evidence. See e.g., Smaligo v. Fireman's Fund Insurance Co., 432 Pa. 133, 247 A.2d 577, 580 (1968); Gervant v. New England Fire Ins. Co., 118 N.Y. 393, 118 N.E.2d 574, 577 (1954). However, "[o]n questions of the admissibility of evidence, the arbitrator has great flexibility." Racine, 663 P.2d at 558. An arbitrator can exclude cumulative evidence. Atlas Floor Covering v. Crescent House & Garden, Inc., 166 Cal.App.2d 211, 333 P.2d 194 (1958). A court should not overturn an arbitration award if the arbitrator heard the excluded evidence in another form. See Allstate Insurance Co. v. Fioravanti, 451 Pa. 108, 299 A.2d 585 (1973) (arbitrator's refusal to allow insurance company to submit a memorandum on controlling legal issue did not deny company a fair hearing because it had an adequate opportunity to address the issue during the arbitration proceeding); L.R. Foy Construction Co. v. Spearfish School District, 341 N.W.2d 383 (S.D.1983) (arbitrator's exclusion of company's project manager as a witness did not deny company a fair hearing because arbitrator heard the project manager's proposed testimony from the company's president). In this case, the superior court found that the arbitrator excluded witnesses who could have addressed the critical issues of responsibility for the coal overrun and credibility of witnesses. Additionally, the court found that the arbitrator erred by excluding a prior arbitration award to Lees. In particular, the court stated that the pri- or award might have given Lees' co-workers a motive to lie because of their resentment of the award. Finally, the court concluded that exclusion of evidence involving a green car was error because the evidence tended to impeach the credibility of witnesses against Lees. Based on these findings, the court held that the arbitrator's failure to consider or receive evidence about the credibility of witnesses constituted gross error and denied Lees his right to due process. The superior court exceeded its proper scope of review when it delved into the arbitrator's resolution of the issue of witness credibility. At trial, the arbitrator testified that he found Lindemann's attempts to discredit Cray and Henderson unpersuasive. Since the credibility of witnesses should be determined by the arbitrator, the trial court erred when it substituted its judgment for the arbitrator's decision on this matter. See Pacific Vegetable Oil Corp. v. C.S.T., Ltd., 29 Cal.2d 228, 174 P.2d 441, 448 (1946) (in the absence of corruption, fraud, or undue means in obtaining an arbitration award, the credibility and good faith of the parties are not matters for judicial review). The superior court also found that the arbitrator excluded Lees' witnesses who could have testified about responsibility for the coal overrun. At trial, A1 Lindemann, the union representative for Lees, testified that he would have presented Rodney Vogt as a witness and that he would have recalled Charles Henderson and Lamont Cray for further cross-examination. However, Lindemann claimed that the arbitrator excluded these witnesses. Additionally, the arbitrator excluded Ted Baxter, who would have addressed conditions at the coal-handling facility before the coal overrun. The court's finding on the exclusion of witnesses is clearly erroneous. Alaska R.Civ.P. 52(a). Lindemann conducted an extensive cross-examination of Henderson and Cray and reserved the right to recall them if the need arose. It appears that Lindemann never attempted to recall the two men for further cross-examination. At trial, Vogt testified on cross-examination that he was never asked to testify during the arbitration proceeding. Finally, the arbitrator heard Baxter's proposed testimony about conditions at the city's facility from Lees. The city did not contest Lees' testimony about these conditions. Under these circumstances, we find that the arbitrator's decision was not gross error. The testimony at issue was clearly cumulative and the arbitrator could exclude it at his discretion. Atlas Floor Covering, 333 P.2d at 198-99. Since the arbitrator's exclusion of evidence did not lead to the complete omission of critical evidence, Lees was afforded his right to a fair hearing with an adequate opportunity to exercise his due process rights. See Allstate Insurance Co. v. Fioravanti, 299 A.2d at 588 ("At most, one form of argument was closed off by the arbitrators, the argument itself was not"). IV. LEES' CROSS-APPEAL In his cross-appeal, Lees claimed that he was deprived of his right to a three-member board under the union contract. We find that Lees waived any objection by participating in the arbitration. Alaska State Housing Authority v. Riley Pleas, Inc., 586 P.2d 1244, 1248 (Alaska 1978). Lees also claims that the arbitrator deprived him of a fair hearing by not disclosing that he had recently entered an arbitration award for the city. We urge arbitrators to avoid the appearance of impropriety by following the American Arbitration Association guidelines, which call for disclosure of any contacts or associations with either party. In this case, however, we find the arbitrator's lack of disclosure to be harmless error. The arbitrator had no ongoing relationship with the city and no form of potential bias or pecuniary interest in the case. Finally, Lees contends that the arbitrator unlawfully delegated his authority by giving the entire arbitration file to an engineering firm to determine the level of coal in the basement. Both parties agreed to have an independent expert estimate the volume of coal. The arbitrator rendered his final decision after receipt of the expert's report and final briefs from each party. Lees' contention about excess delegation is meritless. Puget Sound Bridge & Dredging Co. v. Lake Washington Shipyards, 1 Wash.2d 401, 96 P.2d 257, 261 (1939). The decision of the superior court is REVERSED and this case is REMANDED with directions to the superior court to affirm the arbitrator's decision, . Although Alaska has adopted the Uniform Arbitration Act, AS 09.43.010 — .180, the statute does not apply in Lees' arbitration because AS 09.43.010 exempts labor-management contracts. The statute did not apply in either Nizinski or Rice. . Neither our statutes nor the rules of the American Arbitration Association require arbitration proceedings to be conducted on the record. Alaska State Housing Authority v. Riley Pleas, Inc., 586 P.2d 1244, 1248 (Alaska 1978). . For example, AS 09.43.120 and AS 09.43.130 strictly limit judicial review of arbitration for all cases under Alaska's Uniform Arbitration Act. See also United Steelworkers v. Enterprise Wheel Car Corp., 363 U.S. 593, 596, 80 S.Ct. 1358, 1360, 4 L.Ed.2d 1424, 1427 (1960) (federal policy of settling labor disputes by arbitration would be undermined if courts reviewed the merits of arbitration awards). Cf. Amicizia Societa Navegazione v. Chilean Nitrate & Iodine Sales Corp., 274 F.2d 805 (2d Cir.1960) (federal court's function in confirming or vacating an arbitration award is severely limited by 9 U.S.C. § 10, 11), cert. denied, 363 U.S. 843, 80 S.Ct. 1612, 4 L.Ed.2d 1727 (1960); Marion Mfg. Co. v. Long, 588 F.2d 538 (6th Cir.1978) (federal courts do not sit to review an arbitrator's award de novo). . During the arbitration proceeding, the union representative, Lindemann, attempted to show an inconsistency in the testimony of Cray, a co-worker of Lees, regarding how Cray and Henderson arrived to work on February 10. Lindemann explained at trial that if he could show that Cray or Henderson lied about this fact, it might impeach their credibility as witnesses. However, the arbitrator limited Linde-mann's cross-examination about the green car because he thought it was irrelevant. . See also American Arbitration Ass'n Voluntary Labor Arbitration Rules, quoted in N. Levin, Arbitrating Labor Cases at 281 (1974) (arbitrator shall be the judge of the relevancy and materiality of the evidence offered).

10412423

DILLINGHAM COMMERCIAL COMPANY, INC., Appellant and Cross-Appellee, v. CITY OF DILLINGHAM, Appellee and Cross-Appellant

Dillingham Commercial Co. v. City of Dillingham

1985-08-16

Nos. S-317, S-348

410

417

705 P.2d 410

705

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:03:25.532191+00:00

CAP

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

DILLINGHAM COMMERCIAL COMPANY, INC., Appellant and Cross-Appellee, v. CITY OF DILLINGHAM, Appellee and Cross-Appellant.

DILLINGHAM COMMERCIAL COMPANY, INC., Appellant and Cross-Appellee, v. CITY OF DILLINGHAM, Appellee and Cross-Appellant. Nos. S-317, S-348. Supreme Court of Alaska. Aug. 16, 1985. Barry Donnellan, Fairbanks, for appellant and cross-appellee. Kenneth P. Jacobus, Hughes, Thorsness, Gantz, Powell & Brundin, Anchorage, for appellee and cross-appellant. Before RABINOWITZ, C.J., and BURKE, MATTHEWS and COMPTON, JJ.

3522

20263

OPINION MATTHEWS, Justice. This is an appeal from an order of the superior court for the Third Judicial District establishing, in fee simple, two rights of way in favor of the City of Dillingham (the City) on property owned by Dillingham Commercial Company, Inc. (D.C. Co.). I. The property (hereinafter Survey 2541) is located in downtown Dillingham. Dilling-ham Commercial Company, Inc. has operated a general store on Survey 2541 since the late 1920's. The City makes two claims to Survey 2541: the first is that there is a right of way that cuts across the northeast corner of Survey 2541 (road dispute), and the second is that the public alleys already existing on the north and east boundaries of the parcel should be widened to include portions of Survey 2541 (alley dispute). Dillingham is located on the estuary of the Nushagak River. Survey 2541 is located on the estuary, in what now is the center of town. In the late 1920's, John W. Felder and his partners built a general store and other buildings on Survey 2541. It was not until 1940, however, that Felder made a valid entry onto Survey 2541 under the homestead laws. In 1941, Survey 2541 was survéyed by the federal government, and in 1953, a patent over Survey 2541 was issued to John Felder. Sometime in the early to mid-1930's, Felder constructed a dock of sorts on the tideland immediately south of Survey 2541. Much of the freight arriving in town was unloaded at this dock and transported to the town, first north over a public alley immediately bordering Survey 2541 on the east, and then northeast across a "road" running over the northeast corner of Survey 2541. In 1972, the City built a large public dock on the waterfront immediately east of Survey 2541. Most of the freight shipped to Dillingham arrives at this dock. It is transported into town by the same alleyway and road over Survey 2541. On May 30, 1979, the City of Dillingham brought an action against D.C. Co. seeking title to the roadway. On July 19, 1979, the City brought a second action, seeking easements over strips of land on the north and east borders of Survey 2541, which were claimed to have been added to already existing alleys. The two actions were consolidated. Judge Ripley entered partial summary judgment in favor of the City in the road dispute, holding that a public road of undetermined width existed on Survey 2541 on two alternative theories: (1) adverse possession, and (2) pursuant to 43 U.S.C. § 932. The determination of the width of the road was left for trial. Judge Moore entered a second summary judgment in favor of the City in the alley dispute on August 7, 1981. He determined that strips of land on Survey 2541 bordering the platted alleys were established in favor of the City on the same two theories. The determination of the width of the strips was also left for trial. A trial was held before Judge Moore on the issue of the width of the road and the alley strips. Judge Moore determined that the road across Survey 2541 was sixteen feet wide, occupying approximately 2,592 square feet, and that the strips on the northeast corner of Survey 2541 occupied some 578 square feet of the property, coming within three feet of the building located on that corner. These findings have not been appealed. In his judgment dated September 19, 1983, Judge Moore specified that the City's interest in the road across Survey 2541 was an estate in fee simple. The alley interest was not expressly characterized. Judge Moore further awarded the City $8,000 in attorney's fees. D.C. Co. appeals, contending that the summary judgments that established the City's interest to the road and alleys on Survey 2541 were erroneously granted. The City cross-appeals, contending that the award of attorney's fees was so low as to constitute an abuse of discretion. II. 43 U.S.C. § 932 The superior court held that a public right of way over D.C. Co.'s property was established by 43 U.S.C. § 932. This provision, enacted in 1866, reads: "The right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted." It is applicable to Alaska lands. Hamerly v. Denton, 359 P.2d 121, 123 (Alaska 1961). Although § 932 was repealed in 1976 by Pub.L. No. 94-579, Title VII, § 706(a), 90 Stat. 2793, Oct. 21, 1976, it nevertheless governs here since the right of way claimed in this case would have existed at the date of repeal. Pub.L. No. 94-579, Title VII, 90 Stat. 2786, § 701(a). The operation of § 932 is not obvious from its terms. Case law has made it clear that § 932 is one-half of a grant — an offer to dedicate. In order to complete the grant "there must be either some positive act on the part of the appropriate public authorities of the state, clearly manifesting an intention to accept a grant, or there must be public user for such a period of time and under such conditions as to prove that the grant has been accepted." Ham-erly, 359 P.2d at 123. A preliminary argument by D.C. Co. is that Survey 2541 was not "public land" open to grant under § 932 because John Felder entered the land prior to use of Survey 2541 as a public way. It is clear that the public may not, pursuant to § 932, acquire a right of way over lands that have been validly entered: When a citizen has made a valid entry under the homestead laws, the portion covered by the entry is then segregated from the public domain. It has been appropriated to the use of the entryman, and until such time as the entry may be cancelled by the government or relin-quishéd, the land is not included in grants made by Congress under 43 TJ.S. C.A. § 932. Consequently, a highway cannot be established under the statute during the time that the land is subject of a valid and existing homestead claim. Hamerly, 359 P.2d at 123 (footnotes omitted). The question thus is whether Felder made a "valid entry under the homestead laws" before portions of Survey 2541 were used as a public highway. Felder's first valid entry under the homestead law was made in 1940. D.C. Co. admits that until then Felder was only a squatter, but claims that the land was nevertheless withdrawn from the public domain. We disagree with D.C. Co.'s conclusion. The Hamerly court explicitly required official action in order to withdraw lands from the public domain. In the paragraph quoted above, the court referred to entry "under the homestead laws." Accord City of Miami v. Sirocco Co., 137 Fla. 434, 188 So. 344, 345-46 (1939). Therefore, Survey 2541 was public land (within the meaning of § 932) until 1940, and the § 932 grant could have been accepted by the public until that time. A. The Road Dispute Having concluded that Survey 2541 was public land until 1940, the next question is whether the public's use of the road across the northeast corner prior to 1940 was "for such a period of time and under such conditions as to prove that the [§ 932] grant has been accepted." Hamerly, 359 P.2d at 123. One old timer who testified, Milo Adkinson, first came to Dillingham in 1925. He spoke of a trail to the beach that cut across Survey 2541, and testified that "it's right in the — roughly in the — same spot" now as it was in 1926. His testimony establishes that the road across Survey 2541 was used first for access to and from the beach, then later (in the late 30's) for hauling freight into town. Another long-time Dillingham resident, David Carlson, testified that ever since he arrived in Dillingham in 1936, the road was used by the public to haul freight to and from the beach. D.C. Co. did not produce any contrary evidence. The superior court did not err by finding that no genuine issue of material fact existed as to the public's acceptance of the § 932 grant over the road prior to 1940. Summary judgment on this issue was properly granted. D.C. Co. contends, however, that the route of the road across Survey 2541 was not definite enough to satisfy § 932. D.C. Co. asserts first that "a right of way created by public user pursuant to 43 U.S.C. § 932 connotes definite termini." We agree, but this does not change our conclusion. The road ran from Main Street on the north to the estuary on the south. This is not the sort of "dead end road or trail, running into wild, unenclosed and uncultivated country" that we held insufficient for the purposes of § 932 in Hamerly. 359 P.2d at 125. Rather, the road connects two essential transportation arteries. D.C. Co. next contends that there was no evidence showing the specific location of the road across Survey 2541. This contention is incorrect — Milo Adkinson testified that its location both now and in the 1920's has essentially remained unchanged. D.C. Co. further argues that even if a road has always been located on the northeast corner of Survey 2541, it is improper now to use that road for access to the City dock. We disagree. If there is a public road on Survey 2541, it may be used for any purpose consistent with public travel. E.G., Albee v. Town of Yarro Point, 74 Wash.2d 453, 445 P.2d 340, 344 (1968). D.C. Co.'s final contention is that the superior court erred by awarding the road to the City in fee' simple. Section 932 by its terms grants only a "right of way." The general rule is that the term "right of way" is synonymous with "easement." Thus, a right of way creates only a right of use. See Wessells v. State Dept. of Highways, 562 P.2d 1042, 1046 n. 5 (Alaska 1977). Cf. Brice v. State, Div. of Forest, Land & Water Management, 669 P.2d 1311, 1315 (Alaska 1983) (rights of way created by § 932 referred to as "easements"). If this was not the case, and the City did receive fee simple title to the road, then the City could use the land for any purpose, such as a park. We think that this result would be contrary to the intent and scope of § 932, which contemplates rights of ways "for the construction of highways over public lands." Thus, the superior court erred by granting to the City a fee simple interest in the road over Survey 2541. B. Alley Dispute In order to prevail on this issue, the City needed to show that the public used the alleys before 1940 in such a way as to encroach on the north and east boundaries of Survey 2541. The testimony relied on by the City for this point is inapposite because it refers to the 1940's, rather than pre-1940. Likewise, pictures submitted by the City clearly show worn paths very close to the house on the northeast comer of Survey 2541, but these pictures were taken in the mid or late 1950's. There simply was no evidence that would have allowed the superior court to conclude that before 1940 the public used the alleys in such a manner as to accept the § 932 grant. As such, the superior court's award of summary judgment in the alley dispute on the basis of § 932 was error. III. ADVERSE POSSESSION/ALLEY DISPUTE At the outset, we note that the superior court made an error in nomenclature when it based its decision on the theory of adverse possession. The theory of adverse possession allows an individual to acquire title to property if he possesses the land adversely for the statutory period, which in Alaska is ten years. AS 09.10.-030. The theory of adverse possession is not applicable to the present case. Rather than seeking to possess the property, the City is seeking a right to use the road and alleys on Survey 2541. Since at most the public only used the property as a roadway, the City cannot establish the first element of an adverse possession claim: continuous and uninterrupted possession. Bentley Family Trust v. Lynx Enterprises, Inc., 658 P.2d 761, 765 (Alaska 1983). This does not end the inquiry, however, because there are alternate theories, similar to adverse possession, which may be used to uphold the superior court's award of the alleyways to the City. It is clear that the right of the public to use land as a public highway may be acquired through public use. II American Law of Property, § 9.50, at 483 (J. Casner ed.1952). Two theories are most commonly used to establish such a right: prescription and implied dedication. Comment, The Acquisition of Easements by the Public Through Use, 16 S.D.L.Rev. 150, 150 (1971). In order to establish a public road by implied dedication, two basic elements must be shown. First, there must be an intent to dedicate the road to the public, and second, there must be an acceptance of this offer. 6A R. Powell, The Law of Real Property ¶ 926 (1984). One seeking to establish a road on the theory of implied dedication must meet a high threshold of proof. In Hamerly, we stated: There is dedication when the owner of an interest in land transfers to the public a privilege of use of such interest for a public purpose. It is a question of fact whether there has been a dedication. This fact will not be presumed against the owner of the land; the burden rests on the party relying on a dedication to establish it by proof that is clear and unequivocal. Dedication is not an act or omission to assert a right; mere absence of objection is not sufficient. Passive permission by the landowner is not in itself evidence of an intent to dedicate. Intention must be clearly and unequivocally manifested by acts that are decisive in character. 359 P.2d at 125 (footnotes omitted) (emphasis added). Thus, evidence of public use without more is insufficient to prove dedication. In the present case, the City did not come forward with any evidence indicating that D.C. Co. or its predecessors in interest intended to dedicate parts of Survey 2541 for a public road or alley. As such, the City could not prevail on this theory. This leaves the doctrine of prescription. There is a split of authority as to whether a public highway may be created by prescription. A number of older cases hold that the public cannot acquire a road by prescription because the doctrine of prescription is based on the theory of a lost grant, and such a grant cannot be made to a large and indefinite body such as the public. See II American Law of Property § 9.50 (J. Casner ed.1952). The lost grant theory, however, has been discarded. W. Burby, Real Property § 31, at 77 (1965). In its place, courts have resorted to the justifications that underlie statutes of limitations: "[The] functional utility in helping to cause prompt termination of controversies before the possible loss of evidence and in stabilizing long continued property uses." 3 R. Powell, supra note 5, ¶ 413, at 34-103-04; W. Burby, supra, § 31, at 77; Restatement of Property ch. 38, Introductory Note, at 2923 (1944). These reasons apply equally to the acquisition of prescriptive easements by public use. The majority view now is that a public easement may be acquired by prescription. 2 J. Grimes, Thompson on Real Property § 342, at 209 (1980). We impliedly joined this majority in Hamerly and do so explicitly now. The requirements for establishing a public easement by prescription are nearly identical to the requirements of adverse possession, and the string of adjectives used to describe prescription have a familiar ring: the use must be open, notorious, adverse, hostile, and continuous. See W. Burby, supra, § 31, at 76-77. These general requirements have been reduced to a simple statement by this court in the adverse possession context: "(1) the possession must have been continuous and uninterrupted; (2) the possessor must have acted as if he were the owner and not merely one acting with the permission of the own er; and (3) the possession must have been reasonably visible to the record owner." Alaska National Bank v. Linck, 559 P.2d 1049, 1052 (Alaska 1977). See also Restatement of Property § 457 (1944). In order to prove that use was adverse, the party seeking an easement by prescription must overcome the presumption that the use was permissive. In Ham-erly, this court stated: Use alone for the statutory period — even with the knowledge of the owner — would not establish an easement. When one enters into possession or use of another's property, there is a presumption that he does so with the owner's permission and in subordination to his title. This presumption is overcome only by showing that such use of another's land was not only continuous and uninterrupted, but was openly adverse to the owner's interest, i.e., by proof of a distinct and positive assertion of a, right hostile to the owner of the property. 359 P.2d at 126 (footnotes omitted) (emphasis added). We find that a triable issue of fact exists on the question of whether the public use of the portions of the alleyways abutting Survey 2541 was permissive or adverse. Since its occupation in the 1920's, Survey 2541 has always contained public businesses. A reasonable inference is that the public used the alleys on the north and east borders of Survey 2541 in conjunction with conducting business at either the general store or (later) at the Sea Inn Bar, or both. Indeed, a review of the aerial photographs taken of Dillingham in the mid to late 1950's shows that there was a circular driveway around the house on the northeast corner of Survey 2541, and that the entrance to the general store faced this driveway. If the public did use these alleys in conjunction with business at the store, then use of the portions of Survey 2541 adjoining the public alleys would have been with permission. This theory, together with the presumption of permissiveness, leads us to conclude that the issue of whether a prescriptive easement was created by public use should have been submitted to a factfinder. As such, summary judgment was inappropriate. IV. CROSS-APPEAL/ATTORNEY'S FEES The City appealed the superior court's award of $8,000 in attorney's fees, contending that this was too low in light of the fact that it actually expended $28,483. When reviewing an award of attorney's fees made pursuant to Rule 82(a)(1), our inquiry is whether the superior court's award was manifestly unreasonable. Haskins v. Shelden, 558 P.2d 487, 495 (Alaska 1976). Although we believe that the award was not unreasonable, the judgment for attorney's fees must be vacated, as part of the judgment on which it is based has been reversed. As to the road dispute, the judgment shall be modified to reflect that the road is an easement. As modified the judgment is AFFIRMED. As to the alley dispute, the judgment is REVERSED and the case is REMANDED for further proceedings. The award of attorney's fees is VACATED. MOORE, J., not participating. . For support, D.C. Co. cites an early Alaska decision which held that a squatter has a paramount right to possession against all but the U.S. Government. Bradford v. Danielsen, 11 Alaska 406, 412-13 (1947). . Because of our decision on the road dispute under § 932, any error committed by the superi- or court on the adverse possession or prescription theories was harmless. . The existence of the alleys along the north and east borders of Survey 2541 is not in dispute. Rather, the city is claiming that strips of Survey 2541 were added to the existing alleyways by virtue of 42 U.S.C. § 932. .The period is seven years when the claimant possesses the land under color of title. AS 09.-25.050; Bentley Family Trust v. Lynx Enterprises, Inc., 658 P.2d 761, 764 (Alaska 1983). . This fiction is a conceptual basis for prescription. After adverse use for the statutory period, the law will presume that the use of the land was made pursuant to a grant which has since been lost. 3 R. Powell, The Law of Real Property ¶ 413, at 34-103 n. 3. . On remand, the superior court should note that if a public highway was established by prescription, the appropriate interest created would be an easement, and not fee simple absolute. . Civil Rule 82(a)(1) provides in relevant part: Should no recovery be had, attorney's fees for the prevailing party may be fixed by the court in its discretion in a reasonable amount.

10380587

Frederick E. LEPLEY, Appellant, v. STATE of Alaska, Appellee

Lepley v. State

1991-03-15

No. A-3436

1095

1101

807 P.2d 1095

807

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T18:06:07.613925+00:00

CAP

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

Frederick E. LEPLEY, Appellant, v. STATE of Alaska, Appellee.

Frederick E. LEPLEY, Appellant, v. STATE of Alaska, Appellee. No. A-3436. Court of Appeals of Alaska. March 15, 1991. R. Scott Taylor, Asst. Public Defender, and John B. Salemi, Public Defender, Anchorage, for appellant. Virginia Bonnie Lembo, Asst. Dist. Atty., Mary Anne Henry, Acting Dist. Atty., Anchorage, and Douglas B. Baily, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and MANNHEIMER, JJ.

3681

23461

MANNHEIMER, Judge. Frederick E. Lepley was indicted for both first- and second-degree sexual abuse of his stepdaughter, J.Y. Lepley pleaded no contest to first-degree sexual abuse of a minor, and the second-degree sexual abuse charge was dismissed. As a first felony offender, Lepley faced an 8-year presumptive term of imprisonment. AS 12.55.-125(i)(l). Lepley proposed the mitigating factor that his conduct was "among the least serious . included in the definition of the offense", AS 12.55.155(d)(9). Superior Court Judge Peter A. Michalski found that Lepley had failed to prove this mitigating factor. Lepley also asked that his case be referred to the three-judge sentencing panel; he asserted that he had extraordinarily good potential for rehabilitation, AS 12.55.-165; Smith v. State, 711 P.2d 561 (Alaska App.1985). Judge Michalski found that Lepley had failed to prove this non-statutory mitigator. Accordingly, Judge Michalski imposed the 8-year presumptive term. On appeal, Lepley challenges the superi- or court's rejection of his proposed miti-gator, "least serious conduct". Lepley also argues that he successfully demonstrated an extraordinary potential for rehabilitation and that therefore Judge Michalski should have referred his case to the three-judge sentencing panel. We affirm Lep-ley's sentence. Lepley engaged in escalating sexual misconduct with his nine-year-old stepdaughter between January and June, 1987. Lepley was forty years old at the time. On a number of occasions, Lepley would enter the bathroom while his stepdaughter was showering and watch her. He spoke at length to his stepdaughter about his sexual life with the girl's mother. Lepley took to entering J.Y.'s bedroom either naked or wearing only a bathrobe, which he would discard after he entered the room. He would lie down on the girl's bed, put a condom on his penis, and tell her how much women liked it when he put his penis inside of them. On several occasions, Lepley had his stepdaughter manually masturbate him until he ejaculated. And one time Lepley forced J.Y. to perform fellatio on him, overcoming her reluctance by hitting her in the head until she complied with his request. In June, 1987, Lepley moved to Virginia to take a new job. Three months later, his wife and children joined him. Lepley never recommenced his sexual abuse of J.Y. However, Lepley's relationship with his wife and children deteriorated. In October, 1987, Lepley and his wife sought professional counseling because of problems they were having with their twelve-year-old son. It quickly became evident that the root of these problems was the Lepleys' poor marital relationship, so they entered family counseling. At some point during the summer of 1988, Lepley admitted to the coun-sellor, Sarah Thilbault, that he had sexually abused J.Y. However, Lepley told Thil- bault that his stepdaughter was partially to blame: Lepley asserted that J.Y. had been watching X-rated movies and therefore the girl had not resisted him as she should have. Later, Lepley terminated his counseling sessions with Thilbault. The family situation did not improve. In late 1988, Katherine Lepley found her daughter J.Y. with a razor; J.Y. told her mother she "[couldn't] live like this any more". Mrs. Lepley took the children and returned to Alaska. When she applied for welfare benefits, she was asked to fill out a questionnaire. One of the questions asked whether there had been any sexual abuse in the family unit. Katherine Lepley's response to this question led to the investigation and prosecution of the charges against Lepley. A. The Mitigating Factor of "Least Serious Conduct" Contending that the conduct underlying his crime was among the least serious conduct encompassed by first-degree sexual abuse of a minor, Lepley argues that fellatio does not involve penetration of either the genitals or the anus, and thus it is not a true physical penetration like the other types of "penetration" defined in AS 11.81.900(b)(53). Rather, Lepley argues, fellatio is only a "de jure" penetration. As a court of law, we must apply the statutory law as it has been given us by the legislature. For purposes of applying the first-degree sexual abuse of a minor statute, there is no type of penetration other than "de jure" penetration. The statute defining "sexual penetration", AS 11.-81.900(b)(53), declares that fellatio is one form of sexual penetration; that ends the debate. In Murray v. State, 770 P.2d 1131,1138-39 (Alaska App.1989), we held that fellatio and eunnilingus are validly classed as "sexual penetration" under AS 11.81.900(b)(53) even though these acts do not require physical penetration of the mouth or genitals. Compare State v. Erickson, 574 P.2d 1, 16 (Alaska 1978), holding that cocaine was a "narcotic" drug for purposes of classification and punishment under former provisions of Title 17 (Alaska's food and drug code), even though cocaine is concededly not a "narcotic" for pharmacological purposes. If Lepley is asserting that fellatio is, by its nature, a less serious form of sexual misconduct than the other types of sexual penetration listed in AS 11.81.900(b)(53), we have rejected similar arguments several times. In Adams v. State, 718 P.2d 164, 166-67 (Alaska App.1986), and Walsh v. State, 677 P.2d 912, 916-17 (Alaska App. 1984), we held that when the legislature has defined several methods of committing the same crime, each method is deemed of equal seriousness with the others. In Ben-boe v. State, 698 P.2d 1230, 1232, n. 4 (Alaska App.1985), we specifically held that all forms of sexual penetration defined in AS 11.81.900(b)(53) are presumed equally culpable. Thus, in Benboe we rejected the argument that digital penetration is per se a "least serious" type of sexual penetration. To the extent Lepley is expressing his view that the Alaska Legislature made an unwise choice when they decided to punish fellatio as severely as the other types of sexual abuse listed in AS 11.81.900(b)(53), his arguments are addressed to the wrong forum. Lepley also argues that his conduct, and fellatio in general, is a "least serious" form of sexual penetration because, unlike either penile or digital penetration of the genitals or anus, there is practically no risk of physical injury to the victim. In making this argument, Lepley relies upon a passage from Benboe. In Benboe, among a list of mitigating factors, we included the fact that "only relatively slight physical injury was caused by [the defendant's] conduct". 698 P.2d at 1232. But Lepley has taken this passage from Benboe out of context. The defendant in Benboe had pleaded no contest to a charge of second-degree sexual assault (sexual contact with a minor — what would now be second-degree sexual abuse of a minor). However, the facts of the offense showed that he had actually digital ly penetrated the victim. The sentencing judge properly viewed Benboe's offense as among the "most serious" within the definition of second-degree sexual abuse because the defendant's conduct in fact constituted first-degree sexual abuse. Ben-boe, 698 P.2d at 1231. However, the judge then imposed a sentence of 7 years to serve — one short of the presumptive 8-year term for first-degree sexual abuse. On appeal, we agreed with the state that, because Benboe's offense was aggravated, the superior court had been authorized to impose a sentence exceeding the 4-year presumptive term for a second felony offender convicted of a class B felony. Benboe, 698 P.2d at 1231-32. See Austin v. State, 627 P.2d 657 (Alaska App.1981). However, we also agreed with Benboe that there was inadequate justification for a 7-year term of imprisonment — a prison sentence that exceeded even the 6-year presumptive term for a third felony offender convicted of a class B felony. We pointed out that, if Benboe's offense were evaluated as first-degree sexual abuse of a minor (i.e., as sexual penetration), it appeared to be of less-than-average seriousness: The assault was unplanned and was of extremely brief duration. At most, the assault involved only slight digital penetration. Benboe never threatened R.E.W., and he voluntarily terminated the assault as soon as R.E.W. protested. Only relatively slight physical injury was caused by Benboe's conduct, and evidently R.E.W. suffered no lasting emotional harm. Given these mitigating aspects, we believe Benboe's offense, if viewed as a first-degree sexual assault, would be among the least serious in its class. Benboe, 698 P.2d at 1232 (footnote omitted). As can be seen, our discussion of these "mitigating aspects" occurred in the context of deciding how much weight the superior court could legitimately give to the aggravating factor of "most serious conduct" — how much a first offender's term of imprisonment could legitimately exceed the presumptive term for a second offender. This language from Benboe does not mean that a defendant convicted of first-degree sexual assault or first-degree sexual abuse of a minor can claim his offense is "among the least serious" because he inflicted little or no physical injury upon his victim. Such an interpretation of Benboe would place it at odds with the supreme court's decision in Woods v. State, 667 P.2d 184, 187-88 (Alaska 1983), where the supreme court held that the infliction of any physical injury is an aggravating factor in sexual assault cases. Moreover, Lepley's argument concentrates on one phrase, "relatively slight physical injury", lifted from the whole passage quoted above. When Lepley's offense is evaluated against all the criteria cited by this court in Benboe, it is apparent that his offense is not an uncommonly mitigated one. Lepley's assault was planned; it was the culmination of a 6-month series of escalating acts of abuse which included many instances in which Lepley forced his stepdaughter to manually masturbate him to climax. While the act of fellatio itself may have been of "brief duration", it must be viewed in the context of this continuing course of abuse. Additionally, Lepley's assault — his forcing his stepdaughter to perform fellatio — is conduct that has potentially far greater emotional consequences to the victim than an act of manual sexual exploration or groping, which, primarily "sexual contact", becomes a first-degree offense because of a slight penetration of the labia. In further contrast to the defendant in Benboe, Lepley used force against his stepdaughter to coerce her to perform the fellatio. Not only did Lepley hit his daughter until she acquiesced in this sexual act, but Lepley's role as parent carried with it the implicit threat of additional retaliation if J.Y. did not submit. The pre-sentence report contains ample description of Lepley's rigid and excessive physical discipline of his children, discipline which included frequent beatings with a wooden board that left the children bruised on their buttocks and upper thighs. Finally, while the victim in Benboe may have suffered "no lasting emotional harm", the situation is different in Lepley's case. J.Y.'s letter to the sentencing court is full of unconcealed hatred toward Lepley, as well as bitterness over the effects that the sexual abuse has had on her life. Aware that her mother had written a letter recommending leniency, J.Y. urged the superior court to disregard her mother's views and sentence Lepley to a lengthy term of imprisonment. For all these reasons, Judge Michalski was justified in concluding that Lepley had failed to prove the mitigating factor of "least serious conduct". B. The Non-Statutory Mitigating Factor of Extraordinary Potential for Rehabilitation Lepley contends that he has extraordinarily good potential for rehabilitation, that it would be manifestly unfair to fail to modify the presumptive term to take account of this potential for rehabilitation, and that therefore the superior court should have referred his ease to the three-judge panel. See AS 12.55.165, as interpreted in Smith v. State, 711 P.2d 561 (Alaska App.1985). To establish this non-statutory mitigator of uncommonly good potential for rehabilitation, Lepley points to his lack of prior criminal convictions during the preceding forty-one years of his life. He also asserts that he has an "exceptional" work record, that his offense "was limited in duration", and that it was caused by "situational stress". Finally, Lepley argues that he has "acknowledged his crime, expressed remorse, and sought counseling . for J.Y. and his whole family." It was Lepley's burden in the superior court to establish the non-statutory mitigating factor of extraordinary potential for rehabilitation by clear and convincing evidence. AS 12.55.165; Kirby v. State, 748 P.2d 757, 763-64 (Alaska App.1987). Judge Michalski ruled that Lepley had failed to meet this burden of proof. We are to affirm the trial court's ruling unless we are convinced it is clearly erroneous. Degler v. State, 741 P.2d 659 (Alaska App.1987). Lepley's lack of prior convictions is undisputed. However, the record does not clearly support Lepley's assertion of an "excellent" work history. Between 1976 and June, 1987, when Lepley and his family left Alaska to move to Virginia, Lepley held a total of six jobs. He refused to disclose his reasons for leaving these various jobs. Lepley's assertion of an excellent work history is apparently based on his last employment; he worked as an architect for the Department of the Navy in Virginia from June, 1987, to February, 1989, when he was arrested for the sexual abuse of his stepdaughter. His supervisor at this job told the pre-sentence investigator that Lepley had performed "highly satisfactorily" and would be considered, for rehire if a future vacancy existed. Judge Michalski did not comment on Lep-ley's employment history when he sentenced Lepley. However, Judge Michalski acknowledged that Lepley was an intelligent man who had admitted his offense and had already made genuine efforts to improve things for his family and for himself. Judge Michalski also found that Lep-ley had shown remorse, albeit mixed with self-pity. But even though a defendant may show genuine remorse and a willingness to undergo treatment, and even though the defendant has better-than-average prospects of rehabilitation, this does not estab lish the non-statutory mitigating factor defined in Smith v. State. See Bartholomew v. State, 720 P.2d 54 (Alaska App.1986). The superior court is justified in concluding that a defendant has unusually good potential for rehabilitation only when the court is satisfied, after reviewing the totality of the circumstances, that [the defendant] can adequately be treated in the community and need not be incarcerated for the full presumptive term in order to prevent future criminal activity. Kirby, 748 P.2d at 766. Such a prediction of successful treatment and non-recidivism should only be made when the sentencing court is reasonably satisfied both that it knows why a particular crime was committed and that the conditions leading to the criminal act will not recur — either because the factors that led the defendant to commit the crime are readily correctable or because the defendant's criminal conduct resulted from unusual environmental stresses unlikely ever to recur. Kirby, 748 P.2d at 766. Judge Michalski concluded that Lep-ley's sexual abuse of his daughter, while perhaps triggered by the stress of family and financial difficulties, arose from much more deep-seated problems: Lepley's methods of relating to his family and to other people in general. The sentencing record supports Judge Michalski's conclusion. The criminal act that brought Lepley to court was an instance in which he coerced his stepdaughter to perform fellatio on him. This act was the culmination of a series of sexual intrusions and abuses that lasted six months, from January through June, 1987. Lepley attributes his abuse of his stepdaughter to the "stress" occurring in his family and professional life. However, it appears that Lepley himself was a major cause of the stress in his family life. Lepley told the pre-sentence investigator that his children refused to accept his authority. However, both Lepley's wife and J.Y. told the investigator that Lepley would inflict ekcessive and harsh discipline on all his children for minor infractions. It would appear that Lepley exercised his authority peremptorily and that he inflicted severe, inappropriate punishment for any brooking of that authority. Lepley's wife Katherine stated that Lep-ley is extremely authoritarian, someone who becomes angry when he is questioned. He was abusive toward both her and the children. Once he became so incensed with his wife that he threw a knife at her. Katherine Lepley's letter to the court is revealing. While the general tone of the letter is supportive of her estranged husband, it is clear that her uppermost concern is the fact that Lepley would be unable to provide financial support to the family (in the form of child support and alimony payments) if he were incarcerated for a long period of time. Twice in her letter, Katherine makes statements which point to the existence of severe problems within the family unit other than the sexual abuse of J.Y. Katherine states that she left Lepley "for the children's sake, [but ] not because I was afraid that anything like that [i.e., the sexual abuse] would happen again". (Emphasis added) Later in the letter, Katherine makes the comment, "Rick and I are in the process of filing for a dissolution of marriage. After a while, my family will feel safe and secure." Lepley's peculiarly rigid attitude toward people and emotions is also evidenced by his interaction with the family counsellor in Virginia, Sarah Thilbault. Lepley told the pre-sentence investigator that he had great difficulty relating to Thilbault because of their "differing philosophies". Thilbault, on the other hand, said that her sessions with Lepley were unproductive because Lepley often became angry when they were discussing sensitive topics. Thilbault perceived Lepley as someone who was potentially dangerous because he lacks control over his own impulses. Finally, while Lepley is concededly intelligent, he shows a marked lack of insight into emotions or interpersonal relations. He told Thilbault that his stepdaughter should have resisted him more strenuously when he forced her to perform fellatio on him. He did not attribute her acquiescence to the fact that he beat her on the head until she "consented". Rather, he asserted that she had been watehing X-rated movies, which Lepley claimed had made her willing to be abused. The pre-sentence investigator noted that Lepley had a history of growing angry or becoming silent when asked to discuss sensitive issues; Lepley was guarded in the amount of information he was willing to share with his family counsellor in Virginia or with the pre-sentence investigator herself. This behavior indicates that the process leading to Lepley's self-perception and rehabilitation may be a lengthy, arduous one. From this record, Judge Michalski was justified in concluding that Lepley's sexual abuse of his stepdaughter could not be satisfactorily explained as a momentary lapse of self-control brought on by situational stresses that were unlikely to recur. The record supports Judge Michalski's view that Lepley's problems were more deep-seated than Lepley suggested or wished to admit, and that they might prove intractable. Lepley tries to analogize his case to Kirby, 748 P.2d 757. Lepley notes that he, like Kirby, readily admitted his guilt, took steps to correct his behavior, and voluntarily desisted from the abuse before it was reported to the authorities. This much is true. But Kirby presented psychological evidence showing that his criminal activities arose from adolescent emotional problems, problems that led to his social isolation and consequent failure to develop appropriate interpersonal skills, especially with regard to members of the opposite sex. Kirby's psychologist testified that, by the time of sentencing, Kirby had already made great advances in coping with these emotional problems and social deficiencies, and that the prognosis for Kirby's full rehabilitation was excellent. Kirby, 748 P.2d at 760-61, 766-67. Lepley initially stated that he would offer psychological evidence on the issues of the causes of his behavior and his amenability to treatment. But, faced with a requirement that he be evaluated by an independent psychologist, Lepley ultimately decided to forego any reliance on psychological evaluations. Judge Michalski assured Lepley that he would draw no adverse conclusion from Lepley's decision nor would he speculate concerning what the psychological evaluations might have revealed. But the judge correctly noted that it was Lep-ley's burden to prove the mitigating factor of uncommonly good potential for rehabilitation by clear and convincing evidence. As noted above, a defendant proves "uncommonly good potential for rehabilitation" when he provides a firm explanation of why his crime was committed and he demonstrates that the conditions leading to the criminal act will not recur. Given Judge Michalski's conclusion that Lepley's offense stemmed from deep-seated problems rather than temporary situational stress, and given the lack of any psychological evidence concerning the etiology of Lepley's problems or the chances for their successful treatment, Judge Michalski was justified in concluding that Lepley had failed to produce clear and convincing evidence of an uncommonly good potential for rehabilitation. Conclusion Judge Michalski was justified in concluding that Lepley had failed to prove that his offense was among the least serious included in the definition of first-degree sexual abuse of a minor. Judge Michalski was further justified in concluding that Lepley had failed to prove that he had uncommonly good potential for rehabilitation. Thus, Judge Michalski acted properly when he declined to refer Lepley's case to the three-judge sentencing panel and instead imposed the 8-year presumptive term. The sentence of the superior court is AFFIRMED. . Compare Kirby, supra, where the issue was not the existence of the mitigating factor, but rather whether the defendant's concededly extraordinary potential for rehabilitation merited some adjustment of the presumptive term. When reviewing the trial judge's decision not to refer Kirby's case to the three-judge sentencing panel, we employed the "clearly mistaken" standard of review used in sentence appeals. Kirby, 748 P.2d at 765. In short, when the issue is a factual one — the existence or non-existence of an aggravating or mitigating factor — we will employ the "clearly erroneous" standard of review; when the issue is one of sentencing discretion — whether and how much a defendant's sentence should be adjusted on account of an aggravating or mitigating factor — we will employ the "clearly mistaken" standard of review.

10380528

Donald C. RENKEL, Appellant, v. STATE of Alaska, Appellee

Renkel v. State

1991-03-15

No. A-2518

1087

1094

807 P.2d 1087

807

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T18:06:07.613925+00:00

CAP

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

Donald C. RENKEL, Appellant, v. STATE of Alaska, Appellee.

Donald C. RENKEL, Appellant, v. STATE of Alaska, Appellee. No. A-2518. Court of Appeals of Alaska. March 15, 1991. Susan Orlansky, Asst. Public Defender, and John B. Salemi, Public Defender, Anchorage, for appellant. Tonja Woelber, David Mannheimer, Asst. Attys. Gen., Office of Special Prosecutions and Appeals, Anchorage, and Douglas B. Baily, Atty. Gen., Juneau, for appellee. Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution.

4986

30449

OPINION Before BRYNER, C.J., COATS, J., and ANDREWS, District Court Judge. ANDREWS, Judge. Donald Renkel was tried by jury and found guilty of six counts of sexual abuse of a minor in the first degree, AS 11.41.- 434(a)(2)(B), one count of sexual assault in the first degree, AS 11.41.410(3)(B), and three counts of sexual abuse of a minor in the second degree, AS 11.41.436(a)(3)(B). Renkel appeals from these convictions on a number of grounds. We conclude that Renkel was denied his right to a public trial and reverse his conviction. Renkel was charged with sexually abusing his three children between 1983 and 1986. The three children testified against Renkel at trial. At the time of trial, the children were eleven, twelve, and thirteen years old. Before the trial began, the prosecutor requested that the courtroom be closed to the public while the children gave testimony. The prosecutor, in making the request, relied on AS 12.45.048, a previously enacted but apparently unutilized statute mandating courtroom closure. The statute provided: Exclusion of public from trial during testimony by young victim of sexual offense. (a) After notice to the defendant, the state may apply to the court for an order excluding the public from the courtroom during the testimony of a child who is the alleged victim of a violation of AS 11.41.410 — 11.41.455. The order shall be granted if the court finds that the child is 16 years of age or younger at the time of the trial. (b) If the public is excluded from the trial under (a) of this section, the testimony given during the time the public is excluded shall be available to the public upon request within a reasonable time sufficient to allow preparation of a tape recording or transcript of the testimony. (c) In this section "public" means all persons except (1) the judge presiding over the trial; (2) the members of the jury; (3) the defendant and the attorney and an investigator for the defendant; (4) the prosecuting attorney and an investigating officer for the state; (5) the parents or legal guardians of the child; (6) a guardian ad litem or attorney for the child; (7) in the discretion of the court, an adult for whom the child has developed a significant emotional attachment who can provide emotional support for the child while the child testifies; (8) court personnel, including those essential for taking the testimony. The trial judge flatly denied the request, responding that, "We won't close the courtroom." Later in the proceedings, and out of the presence of the jury the judge, sua sponte, addressed the issue. He indicated that he had reread the statute cited by the prosecutor providing for courtroom closure. The relevant section stated that: After notice to the defendant, the state may apply to the court for an order excluding the public from the courtroom during the testimony of a child who is the alleged victim of a violation of AS 11.41.410 — 11.41.455. The order shall be granted if the court finds that the child is 16 years of age or younger at the time of the trial. The judge stated that the statute required him to close the courtroom because both conditions of the statute had been satisfied: (1) the district attorney had requested closure, and (2) the child witnesses were all under age sixteen. He noted that the word "shall" appeared in the wording of the statute, leaving him no alternative but to exclude the public. Defense counsel made a timely objection citing the defendant's constitutional right to a public trial. In response, the prosecutor urged that the courtroom be closed during the children's testimony because they were under tremendous stress in anticipation of the trial and would give more accurate testimony if shielded from the public eye. The judge did not hold a hearing on the issue of the particular need for closure in this case, the emotional or psychological condition of the children, or their ability to testify accurately in a public setting. Consequently, the trial judge made no findings for the record concerning any of these questions. Furthermore, the trial judge did not consider alternatives to clo sure which might have protected the welfare of the children while still allowing public access. The record is not clear as to whether the courtroom was closed for the entire trial or just during the testimony of the children. Renkel claims error whether the closure is deemed a complete or partial closure. Renkel contends that he was improperly denied his right to a public trial as provided by the sixth amendment of the United States Constitution and article I, section 11 of the Alaska Constitution when the courtroom was closed. He argues that the judge committed error because the sole basis for closing the courtroom was a mandatory statute, unconstitutional on its face. This court decides the nature of the defendant's right to a public trial under the United States and Alaska Constitutions. We begin our analysis with the basic rule that a criminal trial is a presumptively public proceeding. Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 514 n. 1, 104 S.Ct. 819, 826 n. 1, 78 L.Ed.2d 629 (1984). The fundamental nature of this conclusion is well-grounded in history and legal precedent. The United States Supreme Court has repeatedly drawn on this unbroken chain of authority in deciding several landmark cases in the last decade. Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980); Gannett Co., Inc. v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979). Although these cases arise from public access claims grounded on first amendment principles, we can derive much from their teachings on the deeply rooted nature of the public trial right in Anglo-American jurisprudence and the critical function that a public trial serves in the administration of justice today. From the historical perspective, there is little written about the public aspect of criminal trials. Historians conclude that this is so because the public nature of trials was so commonly known and accepted that its existence was not historically noteworthy. "[Ejarly Anglo-Saxon laws 'deal rather with the novel and uncertain, than with the normal and undoubted rules of laws.... Why trouble to record that which every village elder knows?' " Richmond Newspapers, 448 U.S. at 565 n. 5, 100 S.Ct. at 2821 n. 5. Documents dating from the sixteenth century describe the public aspect of trial, necessitated by the fact that jurors were drawn from those who assembled. According to these early writings, the trial was held "[i]n the towne house, or in some open or common place." Press-Enterprise Co., 464 U.S. at 506, 104 S.Ct. at 822, (citing T. Smith, De República Anglorum 96 (Alston ed. 1906)). Except for a written indictment, the remainder of the trial was historically held in public, as explained by T. Smith: 'All the rest is doone openlie in the presence of the Judges, the Justices, the en-quest, the prisoner, and so manie as will or can come so neare as to heare it, and all depositions and witnesses given aloude, that all men may heare from the mouth of the depositors and witnesses what is saide.' Id. The function that a public trial serves has been eloquently detailed in the watershed case of Richmond Newspapers, Inc. where the Court determined that '[Ojne of the most conspicuous features of English justice, that all judicial trials are held in open court, to which the public have free access, . appears to have been the rule in England from time immemorial.' Richmond Newspapers, 448 U.S. at 566-67, 100 S.Ct. at 2821-22, (citing E. Jenks, The Book of English Law 73-74 (6th ed. 1967)). The Court then concluded: We have found nothing to suggest that the presumptive openness of the trial, which English courts were later to call "one of the essential qualities of a court of justice," Daubney v. Cooper, 10 B. & C. 237, 240, 109 Eng.Rep. 438, 440 (K.B. 1829), was not also an attribute of the judicial systems of colonial America. Id. at 567, 100 S.Ct. at 2822. In summing up the historical evidence, Chief Justice Burger found "conclusively that at the time when our organic laws were adopted, criminal trials both here and in England had long been presumptively open. This is no quirk of history; rather it has long been recognized as an indispensable attribute of an Anglo-American trial." Id. at 569, 100 S.Ct. at 2823. The Richmond court in tracing the historical antecedents of the public trial in Anglo jurisprudence stated The early history of open trials in part reflects the widespread acknowledgement, long before there were behavioral scientists, that public trials had significant community therapeutic value. Even without such experts to frame the concept in words, people sensed from experience and observation that, especially in the administration of criminal justice, the means used to achieve justice must have the support derived from public acceptance of both the process and its results. When a shocking crime occurs, a community reaction of outrage and public protest often follows. Thereafter the open processes of justice serve an important prophylactic purpose, providing an outlet for community concern, hostility, and emotion. Without an awareness that society's responses to criminal conduct are underway, natural human reactions of outrage and protest are frustrated and may manifest themselves in some form of vengeful "self-help," as indeed they did regularly in the activities of vigilante "committees" on our frontiers. "The accusation and conviction or acquittal, as much perhaps as the execution of punishment, operat[e] to restore the imbalance which was created by the offense or public charge, to reaffirm the temporarily lost feeling of security and, perhaps, to satisfy that latent 'urge to punish.' " Civilized societies withdraw both from the victim and the vigilante the enforcement of criminal laws, but they cannot erase from people's consciousness the fundamental, natural yearning to see justice done — or even the urge for retribution. The crucial prophylactic aspects of the administration of justice cannot function in the dark; no community catharsis can occur if justice is "done in a corner [or] in any covert manner." It is not enough to say that results alone will satiate the natural community desire for "satisfaction." A result considered untoward may undermine public confidence, and where the trial has been concealed from public view an unexpected outcome can cause a reaction that the system at best has failed and at worst has been corrupted. To work effectively, it is important that society's criminal process "satisfy the appearance of justice" and the appearance of justice can best be provided by allowing people to observe it. 448 U.S. at 570-72, 100 S.Ct. at 2823-25 (citations omitted). In addition to a prophylactic or therapeutic effect, the public trial holds strong educational value. "The educative effect of public attendance is a material advantage. Not only is respect for the law increased and intelligent acquaintance acquired with the methods of government, but a strong confidence in judicial remedies is secured which could never be inspired by a system of secrecy. 6 Wigmore, supra, at 438. (citation omitted.)" Id. at 572, 100 S.Ct. at 2825. Finally and importantly, openness fosters acceptance not just of the decision rendered, but of the institution itself. People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing. When a criminal trial is conducted in the open, there is at least an opportunity both for understanding the system in general and its workings in a particular case[.] Id. Despite the fundamental nature of the right to public trial and the vital function it still serves, it is well accepted that the right is not absolute. Globe Newspaper Co., 457 U.S. at 606, 102 S.Ct. at 2619. It may be limited by some other overriding interest. Richmond Newspapers, 448 U.S. at 581 n. 18, 100 S.Ct. at 2830 n. 18. The federal courts have approved limited or partial closures of a criminal proceeding under a variety of circumstances. See Nieto v. Sullivan, 879 F.2d 743, 753 (10th Cir.1989) (exclusion of the defendant's relatives only during the victim's testimony was justified in order to protect the victim who was afraid of testifying); United States v. Sherlock, 865 F.2d 1069,1077 (9th Cir.1989) (exclusion was justified when the alleged rape victim was frightened of the defendant's family members and was apprehensive about testifying in front of them and where judge excluded the family members from the courtroom during her testimony); Douglas v. Wainwright, 714 F.2d 1532 (11th Cir.1983), vacated, 468 U.S. 1212, 104 S.Ct. 3580, 82 L.Ed.2d 879 (1984), reaffirmed in Douglas v. Wainwright, 739 F.2d 531 (11th Cir.1984) (closure was justified where the public was excluded during the embarrassing testimony of the alleged victim of sexual assault, who was also the only eyewitness to an alleged murder, but where the press and the defendant's family were allowed to remain); United States v. Hernandez, 608 F.2d 741, 748 (9th Cir. 1979) (exclusion of all spectators during the testimony of a key witness was justified when evidence was presented that the life of the witness and his family had been threatened); United States ex rel. Lati-more v. Sielaff 561 F.2d 691, 694 (7th Cir.1977) (exclusion of all disinterested spectators from the courtroom during the testimony of a rape victim did not violate the defendant's public trial right where the judge allowed the press to remain); United States v. Akers, 542 F.2d 770, 772 (9th Cir.1976) (spectators were excluded to maintain order in the courtroom during the return of the verdicts); United States ex rel. Lloyd v. Vincent, 520 F.2d 1272 (2nd Cir.1975) (limited exclusion was justified protection of the identity of an undercover agent who was called to testify); Stamicarbon, N.V. v. American Cyanamid, 506 F.2d 532 (2nd Cir.1974) (spectator could be excluded to protect trade secrets); United States ex rel. Bruno v. Herold, 408 F.2d 125, 128 (2nd Cir. 1969) (defendant was not denied his public trial right when all spectators were excluded from the first day of a two-day trial, since the judge determined that these spectators were likely to undermine the orderly trial and deter truthful testimony and the prosecution's sole identification witness was terrified of the spectators); United States ex rel. Morgan v. Lane, 705 F.Supp. 410 (N.D.Ill.1989) (partial closure upheld where disinterested spectators were excluded but the defendant's family and media members were allowed to remain). The ambiguous language of the cases reviewing the decision of the trial judge to close the courtroom doors complicates the task of categorizing these cases or deriving bright-line rules from their holdings. The courts variously use the term partial or limited closure to refer to an order that might exclude a portion of the public from an entire criminal proceeding or exclude all of the public from a select part of the criminal proceeding. It is unnecessary to lead the reader through this maze in order to reach the general rule that can be distilled from this exercise. The general rule, as we view it, is that the broader the closure order becomes, the more compelling the interest sought to be protected must be. Concomitantly, each closure, whether limited or complete, whether based on substantial justification or overriding compelling interest, must be made sparingly on a case-by-case basis in which the judge carefully balances the right of public trial against the interests to be protected by the closure. 3 W. LaFave, Criminal Procedure § 23.1, at 2-5 (1984). The more recent United States Supreme Court cases of Globe Newspaper Co., Press-Enterprise Co., and Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984) set forth the specific requirements for total and partial closures alike: 1) that findings be made so that the record supports the legitimate reason for closure; 2) that alternatives must be considered pri- or to closure; and 3) that the judge fashion the closure order to be no broader than necessary to suit the purpose. See Waller, 467 U.S. at 47, 104 S.Ct. at 2215; Press-Enterprise, 464 U.S. at 510, 104 S.Ct. at 824. With these guiding principles in mind, we turn to the particular facts of Renkel's case. At the outset, we note that the state concedes the unconstitutionality of AS 12.-45.048. The statute is indistinguishable from the Massachusetts mandatory closure statute which the United States Supreme Court found unconstitutional. See Globe Newspaper Co., 457 U.S. at 607-11, 102 S.Ct. at 2620-23. The state admits the mandatory Alaska statute shares the same constitutional infirmities of the Massachusetts statute. Our acceptance of the state's confession of unconstitutionality does not end the analysis. We consider whether the closure can be justified without relying on the unconstitutional statute. Unfortunately, the factual record on the timing of the closure is unclear. The request for closure during the testimony of the children was made prior to opening statements. Between the testimony of the first two adult witnesses, the judge announced that after rereading the statute, he determined that he was compelled to close the courtroom in conformity with the demands of the statute. It is clear, at the very least, that the general public, including the press, was excluded during the testimony of all three minor children. The first question is whether the exclusion during the testimony of the three children qualifies as a total or partial closure. The key question is whether the "public nature" of the trial was preserved in Renk-el's case or whether it was the type of "secret trial" which the public trial right was intended to prevent. Douglas, 714 F.2d at 1538. In Renkel's trial, the judge followed the mandates of AS 12.45.048 which permitted the admission of the defendant, the judge, the jury, the witness, and the parents or legal guardians of the children. The press, disinterested spectators, and any friends or relatives of Mr. Renkel were excluded pursuant to AS 12.45.048. The children's foster father was present during the testimony of at least two of the three minor children. Apparently no other spectators were given access. Except that a transcript could be made public upon request, it appears that none of the safeguards of an open trial were maintained. The closure in Renkel's case was, therefore, "total" in the sense that it was closed to all spectators, and could be upheld only with the advancement of a compelling interest supported by findings in the record. Even if the closing was partial rather than total, the order had to be based on particularized findings. Globe Newspaper Co., 457 U.S. at 607-08, 102 S.Ct. at 2620-21. The state admitted that the court made no findings and that the order was entered pursuant to a mandatory closure statute which was constitutionally flawed. The state argues that this fatal infirmity can be cured by a remand to the trial judge to allow him to make the necessary findings to conform to the dictates of Globe Newspaper Co.. We disagree. This court has combed the record to determine if there is a sufficient factual record, taken in the light most favorable to the state, to justify a remand, assuming for the sake of argument, that remand under these facts is legally permissible. We find the record wholly inadequate to support a remand. The record discloses only two factual items. First, a letter from the youngest child's therapist was offered. The therapist predicted significant emotional damage would occur if the child was required to testify at all. The doctor suggested videotaped testimony in lieu of a court appearance. Further, the guardian ad litem for the children, in an offer of proof, told the court that all the minor witnesses were under: [A] great deal of emotional stress at this time, that the purpose of their testimony is to . determine the truth in this matter and by not having the public present, I think that there's a greater likelihood that the children will be able to give the accurate rendition of the facts. To place upon them additional emotional stress will in all likelihood be of such a degree that it will make it extremely difficult for them to testify. This court is not unmindful of the tremendous emotional burden that children face while testifying in these particularly difficult cases. Nonetheless, the clear holdings of Craig v. Maryland, — U.S. -, 110 S.Ct. 3157, 3167, 111 L.Ed.2d 666 (1990), Coy v. Iowa, 487 U.S. 1012, 1021, 108 S.Ct. 2798, 2803, 101 L.Ed.2d 857 (1988) and Globe Newspaper Co., 457 U.S. at 608-609, 102 S.Ct. at 2620-21, require case specific evidence to provide the special protection sought by the state. Generalized subjective impressions cannot substitute. Blume v. State, 797 P.2d 664, 674 (Alaska App.1990). The therapist's letter and the guardian ad litem's statement, even with the addition of the trial court's cognizance of the hesitant testimony of the youngest victim, could not provide facts sufficient to meet the requirements of Globe Newspaper Co.. [T]he measure of the State's interest lies not in the extent to which minor victims are injured by testifying, but rather in the incremental injury suffered by testifying in the presence of the press and the general public. 457 U.S. at 607 n. 19, 102 S.Ct. at 2620 n. 19. In this case there is not a contemporaneous factual record sufficient to clarify the rulings on remand. Burks v. State, 748 P.2d 1178, 1181 (Alaska App.1988). The state has cited no post-Globe authority to support its contention that remand is a viable remedy. The only remedy available to this court is reversal. This is so even in the absence of a specific claim of prejudice flowing from the closure. The Alaska Supreme Court determined in a case involving a closed juvenile criminal trial that "[wjhere the right [to public trial] has been denied, no prejudice need be shown, since such a showing would be almost impossible to make." R.L.R. v. State, 487 P.2d 27, 36-37 (Alaska 1971) (citing United States v. Kobli, 172 F.2d 919 (3rd Cir.1949) and Tanksley v. United States, 145 F.2d 58 (9th Cir. 1944)). The United States Supreme Court in Waller noted: The parties do not question the consistent view of the lower federal courts that the defendant should not be required to prove specific prejudice in order to obtain relief for a violation of the public-trial guarantee. We agree with that view. 467 U.S. at 49, 104 S.Ct. at 2217 (footnote omitted). Prejudice need not be proved because there is "no way to gauge the great, though intangible, societal loss that flows from the frustration of" the goal of the public confidence which occurs when the courthouse doors are closed. People v. Jones, 47 N.Y.2d 409, 418 N.Y.S.2d 359, 364, 391 N.E.2d 1335, 1340 (N.Y.1979). Having determined the fundamental nature of the right to an open courtroom and its clear violation in this case, this court must REVERSE the conviction. The case is REMANDED for a new trial. . As noted by the court in Press-Enterprise Co., 464 U.S. at 505, 104 S.Ct. at 821 (footnotes omitted): The roots of open trials reach back to the days before the Norman Conquest when cases in England were brought before "moots," a town meeting kind of body such as the local court of the hundred or county court. Attend-anee was virtually compulsory on the part of the freemen of the community, who represented the "patria," or the "country," in rendering judgment. The public aspect thus was "almost a necessary incident of jury trials, since the presence of a jury . already insured the presence of a large part of the public." . The territorial courts of Alaska applied limited closure orders in several criminal cases in which the defendant was charged with rape involving juvenile victims. Those closures were upheld by the Ninth Circuit. Geise v. United States, 262 F.2d 151, 157 (9th Cir.1958); Callahan v. United States, 240 F. 683 (9th Cir.1917); Reagan v. United States, 202 F. 488 (9th Cir. 1913). . A number of courts have suggested that the best procedure in the trial court would be to hold a hearing for fact gathering on the issues. Hernandez, 608 F.2d at 748; Sielaff, 561 F.2d at 696; Vincent, 520 F.2d at 1276. . The Massachusetts law was faulty for a number of reasons. It did not require a determination that closure was necessary based on relevant factors: the age of the child witness, psychological maturity, nature of the crime, the interests of parents and relatives, the wishes of the victim, and the victim's ability and willingness to testify. The statute did not require the court to weigh the need of the child based on these factors, against the constitutional right of the defendant to have a public criminal trial. Id. at 609. The closure order could not, therefore, be viewed as a measure which is narrowly tailored to serve a legitimate state interest in protecting the welfare of a child witness of sex crimes. Id. . The historical antecedents of AS 12.45.048 are especially noteworthy in light of the action this court is compelled to take today. The senate bill that preceded AS 12.45.048, designated SB 547, was approved by the senate on February 2, 1982. The corresponding house bill, HB 576, was approved by the house on May 6, 1982. Alaska Statute 12.45.048 was signed into law by the governor on May 28, 1982, to go into effect on August 26, 1982. On March 29, 1982, however, the Supreme Court of the United States heard arguments in the case of Globe Newspaper Co. concerning the constitutionality of the Massachusetts mandatory closure statute which was nearly identical to that in the proposed Alaska bills. On June 23, 1982, the Court published its decision in the case, holding that the mandatory closure statute infringed on the constitutional right to a public trial, and thus violated the first amendment. Upon examination of the materials available to the judicial committees of both legislative houses, it is clear that the members of those committees were well aware that Globe Newspaper Co. was pending and that the constitutionality of mandatory closure was in question. For example, in a senate judicial committee meeting on January 29, 1982, Victor Krumm, a state prosecutor, was present and suggested that the bill be changed to provide for discretionary rather than mandatory closure. Alaska Legislature Committee Files Micro Fiche numbers 1699-1700, 1981-82. The Alaska Network on Domestic Violence and Sexual Assault also mentioned to the committee the possibility of constitutional attack in a position paper on Senate Bills 547 and 487. According to handwritten notes taken at the senate meeting, the pending Globe decision was mentioned and discussed by the committee. Furthermore, supplemental materials were made available to the members of the committees relevant to the issue of constitutionality of mandatory closure statutes. Members were provided copies of an article from the National Law Journal discussing the Globe case. The article stated that the central issue before the Supreme Court was the constitutionality of a mandatory closure Massachusetts law. Finally, the committee members looked at the Massachusetts law in question, as well as similar mandatory closure laws from Florida and New. Mexico. Nonetheless, AS 12.45.048 became effective law approximately sixty days after virtually identical legislation had been declared unconstitutional by the United States Supreme Court. This court is unaware of any criminal case in which this statute, constitutionally infirm since its enactment in 1982, was applied. To complete the historical circle we note that the Alaska legislature, during its 1988 session, apparently recognizing the problems with AS 12.45.048, replaced it with AS 12.45.046, a court closure statute that requires the type of detailed findings mandated by the Supreme Court in Globe Newspaper Co.. . Renkel argues that Waller, 467 U.S. at 48 n. 8, 104 S.Ct. at 2216 n. 8 and United States v. Brooklier, 685 F.2d 1162, 1169 (9th Cir.1982), suggest that rationalizations by the trial court after the fact are legally insufficient under Globe Newspaper Co.. We decline to address the question in light of our findings on the insufficiency of the record. . In addition to his public trial claim, Renkel asserted a denial of his right to confrontation and error on evidentiary and sentencing matters. Renkel claims that due to a specially modified arrangement of table and chairs for the juvenile witnesses, he could only view the profile or back of two of the three children. Renk-el contends that the lack of full frontal face-to-face view of the witnesses denied him his constitutional right to confrontation. We decline to decide this issue for several reasons. First, there is an inadequate factual record on the exact nature of the physical arrangements. The parties have submitted irreconcilable diagrams and conceded at oral argument that the record is factually inadequate. Second, our resolution of this issue is unnecessary due to our conclusion that the deprivation of Renkel's right to public trial mandates reversal. Finally, since the trial of this case, the United States Supreme Court has spoken on the subject in Coy, 487 U.S. 1012, 108 S.Ct. 2798, and we have addressed confrontational concerns in Blume, 797 P.2d 664. We believe that these cases provide sufficient guidance to the trial court should the issue arise. Additionally, we decline to decide the eviden-tiary and sentencing related claims of error because resolution of those claims is unnecessary given our decision to reverse.

10576450

James Henry GREEN, Daniel Garfield Ivy, Jerry Strong, and Solomon Aaron Pope, Petitioners, v. STATE of Alaska, Respondent

Green v. State

1969-12-22

No. 1177

994

1002

462 P.2d 994

462

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:08:18.387910+00:00

CAP

Before DIMOND, RABINOWITZ, BONEY and CONNOR, JJ.

James Henry GREEN, Daniel Garfield Ivy, Jerry Strong, and Solomon Aaron Pope, Petitioners, v. STATE of Alaska, Respondent.

James Henry GREEN, Daniel Garfield Ivy, Jerry Strong, and Solomon Aaron Pope, Petitioners, v. STATE of Alaska, Respondent. No. 1177. Supreme Court of Alaska. Dec. 22, 1969. M. Ashley Dickerson, Anchorage, for petitioners. G. Kent Edwards, Atty. Gen., Juneau, Keith E. Brown and Benjamin O. Walters, Jr., Asst. Dist. Attys., Anchorage, for respondent. Before DIMOND, RABINOWITZ, BONEY and CONNOR, JJ.

4678

27703

OPINION DIMOND, Justice. The Alaska constitution guarantees to an accused in a criminal prosecution the right to a speedy and public trial "by an impartial jury of twelve." The responsibility of selecting persons to serve on juries is vested by law in the presiding superior court judge of each of Alaska's four judicial districts. The selection is made from a list of the names of residents of the district who are qualified by law for jury service. Prior to 1969 this list was made up only of such residents "who voted in the preceding general election." Effective August 3, 1969 the method of selection was changed so as to include, not only those persons who voted in the preceding general election, but also "all persons who purchased a resident hunting or fishing license", and "all residents who filed a state income tax return for the preceding year." Lists of purchasers of resident hunting and fishing licenses and of persons who filed state income tax returns are to be prepared, respectively, by the state Department of Fish and Game and Department of Revenue. Petitioners were indicted for the crime of kidnapping. They claimed that they were entitled to be tried by a jury selected, not only from a voting list, but also from a list of purchasers of resident hunting and fishing licenses and those who had filed state income tax returns, in accordance with the 1969 amendment to AS 09.20.050. When petitioners were informed by the superior court that the jury would be selected only from a voting list and not in accordance with the amended statute, they sought and obtained from a justice of this court a stay of proceedings in the superior court until the question as to the proper method of selection of a jury could be reviewed by this court. That question is of sufficient, general importance to merit review under our discretionary authority to pass upon interlocutory matters, because it touches upon a large area of criminal and civil litigation throughout the state where jury trials are involved. Petitioners contend that to require them to go to trial without compliance with the 1969 law on jury selection would be to deprive them of equal protection of the laws. The guarantee of- equal treatment under the law contained in the federal and state constitutions is the embodiment of the fundamental principle that all men are equal before the law. It is a prohibition against laws which, in their application, make unjust distinctions between persons. There is no showing of a denial of equal protection in this case. Petitioners were not singled out for special treatment. There was no distinction made between the basis for jury selection in petitioners' case and that in all other cases Nor does it appear that utilization of the jury selection method under the old law will have the effect of a systematic exclusion from petitioners' jury of a class of persons of which petitioners are a member. The constitutionally guaranteed right to equal treatment under the law has not been invaded or encroached upon. Petitioners also contend that the constitutional requirement relating to due process is involved in this case. Their position is that if they are convicted of the offenses for which they are indicted by a jury not selected in accordance with the 1969 amendment, they will have been deprived of their liberty without due process of law in violation of the federal and state constitutions. The term "due process of law" is not susceptible of precise definition or reduction to a mathematical formula. But in the course of judicial decisions it has come to express a basic concept of justice under law, such as "our traditional conception of fair play and substantial jus tice", the "protection of the individual from arbitrary action", "fundamental principles of liberty and justice", whether there has been a "[denial of] fundamental fairness, shocking to the universal sense of justice", "that whole community sense of 'decency and fairness' that has been woven by common experience into the fabric of acceptable conduct", and a "respect for those personal immunities which are 'so rooted in the traditions and conscience of our people as to be ranked as fundamental', or are 'implicit in the concept of ordered liberty.' " In applying those principles here, we cannot see a deprivation of petitioners' liberty without due process of law. As a protection or barrier against the exercise of arbitrary power, the people of this state, in adopting our constitution, guaranteed to petitioners the right to be tried by "an impartial jury of twelve." This is a fundamental right, recognized as such throughout our nation by the constitutions of all our states and our federal government. Not only is such a right recognized, but it has been protected against nullification by the improper constitution of juries. A jury under our constitution must be an "impartial" one. This is an expression of the notion of what a proper jury is — a body truly representative of the community. Such a notion is in keeping with our basic, traditional concept of a democratic society and representative government. It would not be in keeping with that concept if a jury were an "organ of any special group or class" — if prospective jurors were selected under a system where there was a systematic and intentional exclusion of particular economic, social, religious, racial, political or geographical groups in the community. If it appeared that the jury selected for petitioners' trial would not be "impartial" in the constitutional sense because not truly representative of the community where petitioners are to be tried, then petitioners could make a valid argument that they were not accorded due process of law. To require petitioners to be tried by such a jury would not be in accord with our traditional conception of substantial fairness and justice. The constitutional standard in jury selection will be met if prospective jurors are drawn from a fair cross section of the community. The failure of the superior court to select jurors in accordance with the 1969 amendment to the jury selection statute means that petitioners' jury would be selected at random from a list of residents of the judicial district who voted in the preceding general election. It has not been shown, nor does it appear to us, that under this method of jury selection, jurors would not be drawn from a fair cross section of the community. There is nothing to indicate, for example, that the use of voter lists is in reality a subterfuge to exclude from juries systematically and intentionally some cognizable group or class of citizens in the community. On the contrary, this method of jury selection would appear to be a means of having a fair cross section of the community participate in this civic function. In 1968 Congress enacted the Jury Selection and Service Act, which was designed to provide impartial jurors in federal courts to be selected at random from a fair cross section of the community where the court convenes. It is significant to note that in this act Congress approved use of voter registration lists or lists of actual voters as one of the main sources of names of prospective jurors. It is true, of course, that voter lists do not include the names of all residents of the community eligible for jury service. In the Greater Anchorage Area Borough in the Third Judicial District, where the jury for this case will be formed, the official election returns show that approximately 31,000 persons voted in the 1968 general election. A special census of the Greater Anchorage Area Borough taken in 1968 shows the total population of that area as approximately 62,000 persons of 19 years of age or over. Presumably, the great majority of those persons were eligible to vote in the 1968 election. This means that there are a large number of persons in the Anchorage area who do not appear on voting lists and thus are not selected for jury service. But this does not mean that the voting list method of selecting jurors does not meet constitutional standards. There has been no showing that those who do not vote represent a cognizable group of persons constituting a particular economic, social, religious, racial, geographical or political group in the community, and that the effect of using voting lists amounts to a systematic and intentional exclusion of any such group from jury service. As was stated in Gorin v. United States, which dealt with the use of voter registration lists: For a variety of reasons we reject the argument that eligible persons who do not register to vote constitute a "political" group in the community. In the first place the group does not include only the politically inert. It includes also the politically alert who may perhaps have lived for a year or more in the district but not long enough in their ward to be eligible to register to vote. In the second place, the group has no distinct or definable outlines, for in addition to persons who have just moved into a ward, it includes not only the completely apathetic but also those who might register to vote only when interested in a particular election. It includes persons of varying shades of political interest. It might be argued that the 1969 amendment to AS 09.20.050 defined what the legislature thought was necessary for a representative jury and that this amendment expanded what is required for due process in jury selection in this state. But there are no facts offering support for such an argument. It is probable that there are an unknown number of persons in the community, not appearing on voting lists, who purchase resident hunting and fishing licenses and file state income tax returns and are qualified by law for jury service. To this extent the 1969 law provides a broader base for the selection of jurors— a wider cross section of the community is represented. This may have been the legislative purpose — to make a jury more representative of the community than where the selection of jurors was limited to voting lists. Or it may have been the intent of the legislature to distribute the civic duty and burden of jury service among a larger number of persons. Whatever the legislative purpose, there is nothing to indicate that under the voting list method of selection, a fair cross section of the community is not represented, and that there is a systematic and intentional exclusion of a particular, cognizable group of persons. No facts have been presented, and there is nothing in the legislative history of the 1969 enactment showing that a jury so selected would not meet the constitutional standard of an impartial jury. We find no case of a violation of the requirements of due process of law. Our holding as to the equal protection and due process claim does not mean that a litigant entitled to a trial by jury would not have the right to demand that a jury be selected in accordance with the 1969 law. A determination of the method for selecting juries is a matter within the leg islative preogative, and the 1969 amendment to AS 09.20.0S0 was a lawful exercise of legislative authority. Out of a proper regard and respect for the employment of governmental power by a co-ordinate branch of our government, we would be obliged to rule, in a case where the exercise of judicial power is properly invoked, that a jury not selected in accordance with the 1969 law would be an improperly constituted jury, and that a litigant would have the right to demand that a jury be selected in accordance with the new law. This is not the case for vindicating that right. Prior to the 1969 amendment, AS 09.20.050 required that a list of those persons qualified by law for jury service be prepared not less often than once every two years. The same requirement, in identical language, was carried over into the 1969 amendment. It is a general rule in the interpretation of statutes that provisions of an original act which are repeated in an amendment are considered as a continuation of the original act. Such provisions are construed not as imposing a new requirement, but merely as continuing the original one, unless a contrary legislative intent is indicated. This means here that the requirement for preparing lists of prospective jurors at least once every two years does not necessitate the preparation of such a list on August 3, 1969, the effective date of the amendment, but only within two years after the last list was prepared under the original act. In the Third Judicial District, where this case is to be tried, a list of prospective jurors was last prepared on April 30, 1969. It is not required that another list, prepared in accordance with the 1969 law, be made up until April 30, 1971. If the legislature had intended that a new list be prepared under the 1969 amendment on or immediately after the effective date of that amendment, it could easily have indicated its intent in this regard. But it did not. Petitioners do not have the right to a jury selected under the arrangement before August 30, 1971. There is a serious question as to whether the presiding judges of the superior court will be able to select jurors under the new law when they will be required to do so. On June 3, 1969, the presiding superi- or court judge of the Third Judicial District wrote to the Administrative Director of Courts, pointing out problems involved in following the new legislative requirement as to selection of jurors, and requesting the Administrative Director's study and direction as to implementation. The Administrative Director promptly commenced correspondence with the Director of the Division of Data Processing, Department of Administration, and the Commissioners of the Departments of Revenue and of Fish and Game, requesting assistance in meeting the requirements of the law. He pointed out to the commissioners, and correctly so, that under the law it was the function of the Department of Fish and Game to prepare a list of persons who purchased a resident hunting or fishing license, and of the Department of Revenue, to prepare a list of persons who filed a resident state income tax return for the preceding year. The Commissioner of Fish and Game responded, stating that the information required could not be furnished until early in 1970 because'of inadequate personnel staffing. The Commissioner of Revenue informed the Administrative Director that there was no manual method that his department could use to produce the list because the volume of data was too large, and that an automated production of the listing through a computer system would take until July 1971 at the earliest. Finally, in August 1969, the Executive Director of the Legislative Affairs Agency stated that this matter had been discussed at some length at a meeting of the Legislative Council. The Executive Director's letter to the Administrative Director of Courts stated: I am writing to you at this time to inform you that on Saturday, August 16th, the difficulties you are faced with in obtaining the names required for jury lists under Chap. 67 SLA 1969 from the Departments of Revenue and Fish and Game were brought to the attention of the Council per your request and discussed at some length. The Council reviewed the information you had received from the Departments involved and as a result are cognizant of the problems which have arisen in regard to the implementation of the new requirements of the jury list law. After discussing this matter, however, the Council finally could conceive of no remedy which would alleviate the situation prior to the convening of the next legislative session at which time this law could be amended. One point that was specifically mentioned by the Council for consideration was the fact that even if the court system had ample funds in its budget to pay its own personnel to compile these [lists], existing law would not permit the court system access to at least the Department of Revenue files. All members were in agreement that this law will be re-considered immediately upon the convening of the 1970 session. In the Third Judicial District selection of juries under the 1969 law will not have to be made before April 30,1971. But in the First Judicial District, where the last list of jurors was prepared under the original act in January 1969, the new law will have to be followed by January 1971. We refer to this matter of implementing the 1969 law in order to advise the executive and legislative branches of our government that if the necessary lists cannot be obtained prior to January 1971 at the latest, properly constituted juries cannot be selected, with resulting judicial chaos and a severe impairment of the administration of justice. Petitioners also ask us to review the superior court's order denying petitioners' motions to dismiss the indictment against them. The four petitioners and Stanley Andrews were indicted for kidnapping "with intent to commit rape". In addition, in a separate count of the indictment Andrews alone was charged with rape. The court dismissed the kidnapping charge against Andrews on the theory that kidnapping was merely incidental to the more serious crime of rape, and since the crime of rape had been charged, a separate count charging kidnapping was unnecessary for the accomplishment of justice. The court refused to dismiss the kidnapping charge against petitioners. The superior court entered an order allowing the petitioners "to inspect the Grand Jury Minutes." These minutes, which are of record in the superior court, consist of handwritten notes as follows. 5/20/69 Kidnap & Rape (2 counts) James Henry Green, Daniel Garfield Ivy, Stanley Andrews, Jerry Strong, Solomon Aaron Pope Witnesses— 1. Alice Beverly Boston 2. Paul Barnhardt — APD Vote — 17 yes (2 counts) Petitioners point to the discrepancy between the minutes and the actual indictment. In the latter document petitioners are indicted for kidnapping alone. The minutes show that the grand jury voted to indict them on two charges — kidnapping and rape. It is difficult to make out the substance of petitioners' argument. They seem to be contending that the indictment should have conformed to the minutes of the grand jury and charged them with both kidnapping and rape, rather than kidnapping alone, and since it did not, the indictment should be dismissed. It is the general policy to permit appeals only from decisions and judgments which are final. Review of an interlocutory, non-final order, such as the order denying petitioners' motion to dismiss the indictment, is not a matter of right but one of sound judicial discretion. We shall not exercise our discretion and review an interlocutory order unless a litigant establishes, under Supreme Court Rules 23 and 24, that the sound policy behind the rule of finality is outweighed by the need for an early consideration of a nonappealable order. This petitioners have failed to do. We decline to review the order denying petitioners' motions to dismiss the indictment. The question as to the proper method of selecting a jury was raised by petitioners in the document entitled "Challenge to Array of Jurors." In an order entered August 9, 1969, the superior court overruled such challenge, and at the same time denied petitioners' motion to dismiss the indictment. To the extent that such order overruled petitioners' challenge to the array of jurors, the petition for review is granted and the order is affirmed. To the extent that such order denied petitioners' motion to dismiss the indictment, the petition for review is denied. NESBETT, C. J., not participating. . Alaska Const, art. I, § 11. . AS 09.20.050, prior to the 1969 amendment, provided in part: At such times as the presiding judge of the superior court in each judicial district may designate, hut not less than once every two years, the clerk of the superior court in each judicial district shall prepare a list of the names of residents of the district who are qualified by law for jury service and who voted in the preceding general election. . AS 09.20.050, as amended by SLA 1969, ch. 67, § 1, now provides in part: At such times as the presiding judge of the superior court in each judicial district may' designate, but not less than once every two years, the clerk of the superior court in each judicial district shall prepare a list of the names of residents of the district who are qualified by law for jury service. The list shall contain the names of all persons who purchased a resident hunting or fishing license, all residents who filed a state income tax return for the preceding year, as well as those persons who voted in the preceding general election. . Id. . Supremo Ct.R. 23-24. Crawford v. State, 408 P.2d 1002, 1003-1004 (Alaska 1965). . U.S.Const. amend. XIV provides: nor shall any state ⅜ deny to any person within its jurisdiction the equal protection of the laws. Alaska Const, art. I, § 1 provides: This constitution is dedicated to the principle that all persons are equal and entitled to equal rights, opportunities, and protection under the law . . Leege v. Martin, 379 P.2d 447, 451-452 (Alaska 1963). . See Crawford v. State, 408 P.2d 1002, 1007 (Alaska 1965). . U.S.Const. amend. XIV provides: * ⅜ * nor shall any State deprive any person of life, liberty, or property, without due process of law * ⅜ *. Alaska Const, art. I, § 7 provides: No person shall be deprived of life, liberty, or property, without due process of law. . Territory of Alaska v. Craig Enterprises, Inc., 355 P.2d 397, 401, 84 A.L.R. 2d 1082 (Alaska 1980). . Gibbs v. Burke, 337 U.S. 773, 781, 69 S.Ct. 1247, 93 L.Ed. 1686, 1691 (1949). . Northern Supply, Inc. v. Curtiss-Wright Corp., 397 P.2d 1013, 1017 (Alaska 1965). See also Galvan v. Press, 347 U.S. 522, 530, 74 S.Ct. 737, 98 L.Ed. 911, 921 (1954). . Slochower v. Board of Higher Educ. of New York City, 350 U.S. 551, 559, 76 S.Ct. 637, 641, 100 L.Ed. 692, 701 (1956). .In re Groban, 352 U.S. 330, 334, 77 S.Ct. 510, 514, 1 L.Ed.2d 376, 381-382 (1957). .Kinsella v. United States, 361 U.S. 234, 246, 80 S.Ct. 297, 304, 4 L.Ed.2d 268, 276 (1960). . Breithaupt v. Abram, 352 U.S. 432, 436, 77 S.Ct. 408, 410, 1 L.Ed.2d 448, 451 (1957). . Rochin v. California, 342 U.S. 165, 169, 72 S.Ct. 205, 96 L.Ed. 183, 188 (1952). . Alaska Const, art. I, § 11. . Glasser v. United States, 315 U.S. 60, 84-85, 62 S.Ct. 457, 86 L.Ed. 680, 707 (1942). . Id. Smith v. Texas, 311 U.S. 128, 130, 61 S.Ct. 164, 85 L.Ed. 84, 86 (1940). . Glasser v. United States, 315 U.S. 60, 86, 62 S.Ct. 457, 472, 86 L.Ed. 680, 707 (1941). . Thiel v. Southern P. Co., 328 U.S. 217, 220, 66 S.Ct. 984, 90 L.Ed. 1181, 1185 (1946); Ballard v. United States, 329 U.S. 187, 192-193, 67 S.Ct. 261, 91 L.Ed. 181, 185 (1946). . Simmons v. United States, 406 F.2d 456, 462 (5th Cir. 1969). . AS 09.20.050 (prior to the amendment contained in SLA 1969, ch. 67, § 1). The names of those eligible for jury service, as taken from voter lists, or numbers corresponding to such names, are placed in a box, and a public drawing of jurors then takes place. AS 09.20.060-.070. See Crawford v. State, 408 P.2d 1002, 1004 (Alaska 1965). . See Chance v. United States, 322 F.2d 201, 203 (5th Cir. 1963). . 28 U.S.C.A. § 1861 et seq. . 28 U.S.C.A. § 1861, 1862 provides: § 1861. Declaration of policy It is the policy of the United States that all litigants in Federal courts entitled to trial by jury shall have the right to grand and petit juries selected at random from a fair cross section of the community in the district or division wherein the court convenes. § 1862. Discrimination prohibited No citizen shall be excluded from service as a grand or petit juror in the district courts of the United States on account of race, color, religion, sex, national origin, or economic status. . 28 U.S.C.A. § 1863 provides in part: (a) Each United States district court shall devise and place into operation a written plan for random selection of grand and petit jurors . (b) Among other things, such plan shall— (2) specify whether the names of prospective jurors shall be selected from the voter registration lists or the lists of actual voters of the political subdivisions within the district or division. See Simmons v. United States, 406 F.2d 456, 462 (5th Cir. 1969). . General Election Returns, November 5, 1968, at 3 (published by the Secretary of State, Juneau, Alaska). . Special Census of Greater Anchorage Area Borough, Alaska, October 11, 1968 (U. S. Dept. of Commerce, Bureau of the Census, Series P-28, No. 1482, March 31, 1969). . Under the Alaska constitution (art. V, § 1) and a statute (AS 15.05.010) a person may vote in a state election if he is a citizen of the United States, has passed his 19th birthday, has been a resident of the state for at least one year just before the election and a resident of the election district where he seeks to vote for at last 30 days just before the election, and can speak or read the English language, unless prevented by physical disability. In addition, the constitution provides in article V, section 2 that— No person may vote who has been convicted of a felony involving pioral turpi tude unless his civil rights have been restored. No person may vote who has been judicially determined to be of unsound mind unless the disability has been removed. Beginning with the primary election in 1970, registration of a voter will be a prerequisite for being eligible to vote. AS 15.07.010-.200. The 1968 Special Census of the Greater Anchorage Area Borough included members of the Armed Forces living and stationed in the area. We do not know what percentage of the total population in the Borough consists of members of the Armed Forces, or to what extent the members of the Armed Forces are eligible to vote. . 313 F.2d 641 (1st Cir. 1963). . Id. at 644. . AS 09.20.050, both prior to and after the 1969 amendment, provided as follows: At such times as the presiding judge of the superior court in each judicial district may designate, but not less than once every two years, the clerk of the superior court in each judicial district shall prepare a list of the names of residents of the district who are qualified by law for jury service . . Kirchner v. Kansas Turnpike Authority, 336 F.2d 222, 230 (10th Cir. 1964); Tyson v. United States, 285 F.2d 19, 22 (10th Cir. 1960); 1 Sutherland, Statutory Construction § 1933 (3d ed. 1943). .AS 09.20.050, as amended SLA 1969, ch. 67, § 1, provides in part: The list shall be based on the list of persons, prepared by the Department of Revenue or the Department of Fish and Game, who purchased a resident hunting or fishing license, who filed a resident state income tax return for the preceding year . . In the Second and Fourth Judicial Districts the last lists under the old law were prepared in May 1969. . Supreme Ct.R. 6 provides: An appeal may be taken to this court from a final judgment entered by the superior court or a judge thereof in any action or proceeding, civil or criminal, except that the state shall have a right to appeal in criminal cases only to test the sufficiency of the indictment or information. . City of Fairbanks v. Schaible, 352 P.2d 129, 131 (Alaska 1960).

10473902

Wilfred POULIN, Appellant, v. Dr. Harvey ZARTMAN, Appellee; Dr. Harvey ZARTMAN, Cross-Appellant, v. Wilfred POULIN, Cross-Appellee

Poulin v. Zartman

1976-04-19

Nos. 2120, 2127

1299

1301

548 P.2d 1299

548

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:08:46.626956+00:00

CAP

Before: RABINOWITZ, C. J., CON-NOR, J., and STEWART, Superior Court Judge.

Wilfred POULIN, Appellant, v. Dr. Harvey ZARTMAN, Appellee. Dr. Harvey ZARTMAN, Cross-Appellant, v. Wilfred POULIN, Cross-Appellee.

Wilfred POULIN, Appellant, v. Dr. Harvey ZARTMAN, Appellee. Dr. Harvey ZARTMAN, Cross-Appellant, v. Wilfred POULIN, Cross-Appellee. Nos. 2120, 2127. Supreme Court of Alaska. April 19, 1976. Theodore R. Dunn and Warren W. Matthews, Jr., of Matthews, Dunn & Baily, Anchorage, and James Parrish of Parrish & Parrish, Fairbanks, for appellant cross-appellee. James J. Delaney and Robert L. Eas-taugh of Delaney, Wiles, Moore, Hayes & Reitman, Anchorage, for appellee cross-appellant.

815

5041

OPINION ON REHEARING Before: RABINOWITZ, C. J., CON-NOR, J., and STEWART, Superior Court Judge. CONNOR, Justice. Both parties have filed petitions for rehearing. We must deny Dr. Zart-man's petition. It is asserted therein that we misconceived or overlooked material facts concerning the supervision question. The facts alluded to in the petition for rehearing were considered by us in rendering our initial opinion on appeal. Arguments as to whether his supervision was sufficient and proper should be reserved for presentation to the jury upon retrial. Similarly, we were aware that Poulin's Proposed Instruction No. 8 could not have been delivered in the form offered; but Dr. Zartman's argument that, therefore, the contents of the instruction should not have been considered by the trial court were fully briefed and considered on appeal. No new argument, not already considered, is presented in this respect. Poulin's petition urges several grounds for rehearing. We believe Dr. Zartman's "test down" method is sufficiently clear that no further explanation is required to enable plaintiffs to conduct their case upon retrial. We deny rehearing as to this issue. We grant rehearing as to whether evidence of Dr. Zartman's insurance should have been presented to the jury, since we find that this issue was raised at trial. The traditional practice in Alaska is not to admit such evidence. See Bertram v. Harris, 423 P.2d 909, 918 (Alaska 1967); Mallonee v. Finch, 413 P.2d 159, 163-64 (Alaska 1966). In our view the evidence is irrelevant to establishing either negligence or damages. Moreover, the admission of such evidence would pose a danger of its misuse by the jury, which far outweighs the value of such evidence. 2 J. Wigmore, Evidence § 282a, at 133-134 (3d ed. 1940); C. McCormick, Evidence § 201, at 479 (2d ed. 1972); Allison v. Acton-Elheridge Coal Co., 289 Ala. 443, 268 So.2d 725 (1972). The ability to respond in damages should have no bearing on the fault-finding process. Since a defendant's insurance coverage is irrelevant to the issue of fault, the jury should not consider it at all, and the introduction of any evidence on the point by either party should not be permitted unless in some extraordinary case its relevance should outweigh its prejudicial nature. In the case at bar, this evidence was properly excluded. We find we must also grant rehearing on the issue of prenatal care. We have already held that prenatal care is irrelevant to the jury verdict, and hence was erroneously admitted at trial. Poulin v. Zartman, 542 P.2d 251, 260 (Alaska, 1975). We discover, however, that in discussing the testimony of Dr. Renn, defense counsel did draw the attention of the jury to lack of prenatal care. We do not believe that this reference to the matter was such as to make the error, in admitting evidence about prenatal care, reversible. We still deem the error harmless under the standards of Love v. State, 457 P.2d 622, 630 (Alaska 1969). Our previous decision remains unmodified. BOOCHEVER, ERWIN and BURKE, JJ., not participating. . Aydlett v. Haynes, 511 P.2d 1311, 1315 n. 8 (Alaska 1973), contains a dictum indicating that evidence of insurance might be admissible should there be a conflict of interest between a party and his insurance carrier. Here, however, there is no conflict between Dr. Zartman and his insurance company, so that the policies behind the real party in interest rule are inapplicable. As we said in Aydlett, where there is no conflict of interest "there is little to be gained by introducing insurance into the proceedings." Id. . Counsel stated at final argument: "Dr. Claire Renn . . . described the prenatal care that is normally given when a patient came in, and she indicated a decrease in the prematurity if there is prenatal care by approximately two-fifths. If a mother has assistance for premature birth, including pelvic discomfort or severe back pain, well, then the mother is brought in — the expected mother is brought in. She's given bed rest, she's given sedation. And her testimony was they feel they have a fair chance of success of stopping premature labor, if the mother is in — even in contraction . Dr. Renn testified that she had first seen Mrs. Poulin approximately a half hour before she gave birth. This transcript was never certified as part of the record on appeal. It appears that it was prepared after the original record was certified. On our own motion we have ordered this transcript certified and transmitted as a supjilemental record under Alaska App.R. 9(h).

10426721

AIR VAN ONES, INC., Appellant, v. Jack BUSTER, and Bill Lawrence, individually and d/b/a Keystone Complex, Appellees

Air Van Ones, Inc. v. Buster

1983-12-09

No. 6563

774

781

673 P.2d 774

673

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:09:56.146075+00:00

CAP

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

AIR VAN ONES, INC., Appellant, v. Jack BUSTER, and Bill Lawrence, individually and d/b/a Keystone Complex, Appellees.

AIR VAN ONES, INC., Appellant, v. Jack BUSTER, and Bill Lawrence, individually and d/b/a Keystone Complex, Appellees. No. 6563. Supreme Court of Alaska. Dec. 9, 1983. W.D. Bennett and Richard J. Todd, Perkins, Coie, Stone, Olsen & Williams, Anchorage, for appellant. David E. Grashin, Law Offices of Stephen F. Frost, Anchorage, for appellees. Before BURKE, C.J., RABINOWITZ, MATTHEWS and COMPTON, JJ., and SINGLETON, Judge. Singleton, Court of Appeals Judge, sitting by assignment made pursuant to Article IV, Section 16 of the Constitution of Alaska.

3312

20119

OPINION SINGLETON, Judge. FACTS Air Van Lines, Inc. [AVL] sued Keystone Complex [Keystone], a partnership, for a balance allegedly due on a contract whereby AVL agreed to perform services and Keystone agreed to pay for the services. Keystone answered raising "accord and satisfaction" as a defense, and moved for summary judgment. The trial court granted Keystone's motion and dismissed the case. AVL appeals. We affirm. AVL, an Anchorage firm, performed a moving job in Valdez under an agreement with Keystone, a partnership of Jack Buster and Bill Lawrence. Under the original agreement between Keystone and AVL, Keystone was to supply local laborers and a single AVL employee was to supervise the loading. Bill Reed, AVL's employee, arrived in Valdez Monday night, October 13, 1980. Reed considered the three local laborers provided by Keystone inexperienced. One of them quit after a day and a half. Reed called Bill Lawrence in Anchorage who authorized him to bring two AVL employees from Anchorage to finish the job. Lawrence told Reed to finish the job as soon as possible. The move was completed on Sunday, October 19. AVL sent Keystone a bill for $11,317.98, itemized as follows: Van & labor, reg. rate 4,946.80 Van & labor, overtime 2,278.19 Packing materials 3,084.19 Per diem & travel 1,008.80 Buster sent AVL a letter in February. Buster objected to the billing on the ground that he had not authorized AVL to use its own employees, nor had he authorized overtime. According to Buster, the total amount due on the basis of the original agreement was $4,355.56 for the van and labor, plus packing materials. AVL contacted Bill Lawrence, who stated that Keystone would not pay the per diem and travel expenses of the two extra AVL employees, nor would it pay the overtime charges. AVL offered to reduce its bill by $1,000, the approximate amount of the travel and per diem costs of the two extra men. Lawrence sent AVL a letter stating that Keystone still objected to paying overtime, and it wanted a further reduction of $2,278.19. The letter enclosed a check in the amount of $8,039.79, "as full and complete payment for all services, equipment and materials provided by your company." The check bore the notation "Endorsement of this check constitutes a complete settlement of your claim." AVL endorsed the check without any reservation of rights, see AS 45.01.207. However, AVL later sent Keystone a letter stating that the payment had been applied to the debt, and that AVL reserved its right to seek further sums. ACCORD AND SATISFACTION An accord is a contract between a creditor and debtor for a settlement of the creditor's claim by some performance other than that which is due. Stephenson v. Ket-chikan Spruce Mills, Inc., 412 P.2d 496, 498 (Alaska 1966). Satisfaction is the performance of such a contract. See Restatement of Contracts § 417 comment a, at 785-86 (1932). Like any contract, an accord requires an offer, an acceptance, and consideration to be enforceable. AVL seems to concede that the restrictive endorsement constituted an offer to compromise which it accepted by negotiating the check. But AVL contends that because Keystone paid only that portion of the debt that was undisputed, there was no consideration to support a contract of accord. AVL also contends that there was no consideration because Keystone acted in bad faith in disputing the overtime because Keystone knew that it had implicitly authorized overtime. Restatement (Second) of Contracts § 74, at 281 (1981). Therefore, AVL claims, no accord and satisfaction occurred. Keystone argues that there was consideration because the total debt was unliquidat-ed. Keystone also contends that there is no evidence from which a jury could find that it asserted the accord in bad faith. In our view the requirement of adequate consideration is satisfied if Keystone disputed AVL's claim for overtime in good faith. There is no evidence that Keystone expressly authorized overtime payments, acknowledged the validity of AVL's claim for overtime, or conceded that its refusal to pay overtime was in bad faith. Nevertheless, AVL argues that there is sufficient evidence in the record to support an inference that Keystone impliedly authorized overtime. AVL points to evidence that Keystone explicitly authorized the hiring of Anchorage laborers and asked that the work be completed as soon as possible. Thus, AVL claims that it was placed in the position of determining whether it would be less expensive to pay overtime than to ferry the workers back and forth from Anchorage to Valdez during the progress of the job. AVL points out that in order to be finished as soon as possible the job had to continue into the weekend and that the workers could not work during a weekend without being paid overtime. Since reasonable people could differ in deciding whether AVL's evidence established implied authority to pay overtime, Keystone would not have been entitled to summary judgment in the absence of an accord and satisfaction. We hold, however, that when AVL negotiated Keystone's full payment check it implicitly agreed to an accord and satisfaction. ¡ For AVL to avoid summary judgment on the issue of whether the accord was supported by adequate consideration, it would have to establish either bad faith or the absence of a bona fide dispute. AVL could not establish Keystone's bad faith simply by showing that a jury might have found in its favor on the overtime claim. In the absence of some direct evidence of bad faith, AVL must establish that at the time it ignored the restrictive endorsement and cashed the check no bona fide dispute existed as a matter of law. Because reasonable people could differ on the issue of whether Keystone's conduct constituted implied authorization to pay overtime, there was a bona fide dispute on this issue as a matter of law. We therefore hold that AVL negotiated the full payment check at its peril. Although the record would permit an inference supporting the AVL claim that Keystone paid only that part of the debt which was undisputed, a majority of the cases considering this issue hold that a valid accord and satisfaction nevertheless exists. See generally Annot., 112 A.L.R. 1219, 1225-36 (1938). The authorities conclude that the entire claim, including both the disputed and undisputed elements, is unitary and not subject to division so long as the whole claim is unliquidated. See also 1 S. Williston, A Treatise on the Law of Contracts § 129, at 528 (3d ed. 1957); 6 A. Corbin, Corbin on Contracts § 1281, 1289 (1962); Restatement of Contracts § 417 comment c (1932). AVL's entire claim was unliquidated. Keystone's obligation to pay a part of AVL's invoice, even if conceded, did not serve to render the conceded amount liquidated. Restatement (Second) of Contracts § 74 comment c (1981). We are persuaded to adopt the majority rule and hold that Keystone's conditional offer to pay only the undisputed part of the unliquidated debt in full satisfaction of that debt was supported by consideration. AVL had the option either to tear up the check and sue for what it felt was due or to cash the check and consider the contract dispute resolved. When it cashed the check it effectively accepted Keystone's offer to compromise and satisfy the debt. Alternatively, we hold that the contract of accord and satisfaction was fully executed and therefore not dependent on separate consideration for its validity. 6 A. Corbin, Corbin on Contracts § 1289, at 163— 66 (1962). AVL next contends that there is a jury issue as to whether it intended to relinquish its rights by accepting the check. However, regardless of AYL's intentions, a purported reservation of rights is ineffective when a clearly conditional tender is accepted. See 15 S. Williston, A Treatise on the Law of Contracts § 1854-56 (3d ed. 1957); 6 A. Corbin, Corbin on Contracts § 1279 (1962); Restatement of Contracts § 420 (1932). AVL's actions speak louder than words. See Hudson v. Yonkers Fruit Co., 258 N.Y. 168, 179 N.E. 373, 375 (1932). UCC SECTION 1-207 Finally, AVL urges this court to apply UCC § 1-207, AS 45.01.207, to this transaction. It is argued that under section 1-207, tender of part payment in satisfaction of a debt does not bind the acceptor who expressly reserves his rights. The cases and commentators disagree as to whether section 1-207 changes the common law of accord and satisfaction. The authorities are collected in Kelly v. Kowalsky, 186 Conn. 618, 442 A.2d 1355, 1357 n. 3 (1982). We hold that AS 45.01.207 does not preclude summary judgment in Keystone's favor for two reasons. First, we are persuaded by those eases representing the majority of jurisdictions that have considered the issue, which hold that section 1-207 does not alter the common law rules regarding accord and satisfaction by tender of a full payment check, and which limit section 1-207 to continuing disputes on executory contracts. See, e.g., Milgram Food Stores, Inc. v. Gelco Corp., 550 F.Supp. 992, 996-97 (W.D.Mo.1982); Chancellor Inc. v. Hamilton Appliance Co., Inc., 175 NJ.Super. 345, 418 A.2d 1326, 1330 (1980); Brown v. Coastal Truckways, Inc., 44 N.C.App. 454, 261 S.E.2d 266, 269 (1980); State Department of Fisheries v. J-Z Sales Corp., 25 Wash. App. 671, 610 P.2d 390, 395-96 (1980); Jahn v. Burns, 593 P.2d 828, 830 (Wyo.1979). See also Corbin on Contracts § 1279(C) at 395-98 (Kaufmann Supp.1982); Rosenthal, Discord and Dissatisfaction: Section 1-207 of the Uniform Commercial Code, 78 Colum.L. Rev. 48, 70 (1978). Alternatively, we hold that if section 1-207 does apply to an accord and satisfaction, AVL's attempted reservation of rights failed to comply with that section which requires an explicit reservation of rights. To be explicit the reservation must be express. Here no reservation was attached to the check at the time it was cashed. AVL merely sent a letter subsequent to cashing the check purporting to reserve rights. More significantly, the letter did not reach Keystone until after the check had been cashed. Keystone never had the opportunity to consider whether to accept AVL's decision or stop payment on the check once AVL declined to accept the check in full satisfaction of the debt. See Kelly v. Kowalsky, 186 Conn. 618, 442 A.2d 1355 (1982). Under these circumstances we find that AVL failed to comply with UCC section 1-207. See Caraballo, The Tender Trap: U.C.C. § 1-207 and Its Applicability to An Attempted Accord and Satisfaction by Tendering a Check in a Dispute Arising from a Sale of Goods, 11 Seton Hall L.Rev. 445, 455-58 (1980). For the above stated reasons the decision of the superior court is AFFIRMED. MOORE, J., not participating. . AS 45.01.207 states: Performance or acceptance under reservation of rights. A party who with explicit reservation of rights performs or promises performance or assents to performance in a manner demanded or offered by the other party does not thereby prejudice the rights reserved. Such words as "without prejudice," "under protest," or the like are sufficient. (§ 1.207 ch. 114 SLA 1962) . A proper resolution of this case is obscured by the existence of two contracts: (1) the AVL-Keystone contract for services and (2) the alleged accord and satisfaction reached by the parties in light of their dispute about overtime. We agree with the dissent that reasonable people could differ on the question of whether Keystone implicitly authorized AVL to pay overtime and seek reimbursement. Thus neither party was entitled to summary judgment on that issue. We also agree that evidence, whether direct or circumstantial, of Keystone's bad faith in resisting the overtime would defeat its motion for summary judgment. The question that divides us is whether AVL's good faith in pressing its claim for overtime constitutes sufficient circumstantial evidence of Keystone's bad faith in resisting that claim to prevent summary judgment in Keystone's favor, where AVL negotiated the full payment check in disregard of the restrictive endorsement. We reject such a conclusion on policy grounds. The law favors compromise in order to limit litigation. Accord and satisfaction serves this goal. To require Keystone to litigate the underlying dispute as a prerequisite to obtaining judgment on the accord and satisfaction would be to rob the accord of any value and defeat the law's preference for compromise. . "An unliquidated claim is one, the amount of which has not been fixed by agreement or cannot be exactly determined by the application of rules of arithmetic or of law." 1 S. Williston, A Treatise on the Law of Contracts § 128, at 526 (3d ed. 1957). The AVL-Keystone contract was unliquidated under this definition. . Keystone argues that UCC § 1-207 was intended to govern transactions controlled by the sales article (article 2) of the code. Service contracts such as this one are excluded by implication from coverage under article 2. See AS 45.02.102 (limiting coverage to sale of goods); AS 45.02.105(a) (defining "goods"). Consequently, Keystone contends UCC 1-207 should not be considered in connection with the AVL-Keystone agreement. Some courts have drawn this distinction but we decline to do so. The effect of the negotiation of a check with a restrictive endorsement in establishing an accord and satisfaction appears to implicate the law of negotiable instruments more than it does the law of sales. In any event we see little utility in having one rule for sales contracts, another for service contracts, and possibly a third for real estate transactions. See Rosenthal, Discord and Dissatisfaction: Section 1-207 of the Uniform Commercial Code, 78 Colum.L.Rev. 48 (1978). . This conclusion is supported by AS 09.25.090 which provides: The person to whom a tender is made shall at the time specify any objection the person may have to the money, instrument, or property, or the person waives it. If the objection is to the amount of money . the person shall specify the amount . which the per son requires, or is precluded from objecting later. This section shall not be construed to modify or change in any manner corresponding provisions of the Uniform Commercial Code (AS 45.01-45.09). In our view this section does not modify AS 45.01.207 but serves to strengthen our interpretation of that section requiring a creditor seeking to reserve rights in the face of a full payment check to communicate that intent to the debtor before cashing the check to enable the .debtor to consider the creditor's position and either agree or stop payment on the check.

10426601

In the Disciplinary Matter Involving James F. VOLLINTINE, Respondent

In the Disciplinary Matter Involving Vollintine

1983-11-10

No. 6984

755

768

673 P.2d 755

673

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:09:56.146075+00:00

CAP

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

In the Disciplinary Matter Involving James F. VOLLINTINE, Respondent.

In the Disciplinary Matter Involving James F. VOLLINTINE, Respondent. No. 6984. Supreme Court of Alaska. Nov. 10, 1983. Richard J. Ray, Alaska Bar Ass’n, Anchorage, for appellant. Marc Grober, Nenana, for respondent. Before BURKE, C.J., and RABINO WITZ, MATTHEWS, COMPTON and MOORE, JJ.

7821

48408

OPINION PER CURIAM. This is a disciplinary proceeding against an attorney, James F. Vollintine. Vollin-tine is accused of professional misconduct, consisting of statements that he made in letters to two federal officials. We conclude that Vollintine's conduct was improper, and sufficiently serious to require public censure by this court. The proceeding against Vollintine was initiated by the Alaska Bar Association, following receipt of a complaint from Jack M. Allen, Regional Solicitor for the United States Department of the Interior. Allen complained of statements contained in a letter from Vollintine to George Gustafson, Townsite Trustee for the Bureau of Land Management, copies of which had been sent to Allen and others. [Appendix A] The letter was dated December 2, 1980. At the time that he wrote the letter, Vollintine represented the plaintiffs in a federal quiet title and ejectment action, involving a dispute over lands in and around certain Alaska Native villages. See Alek-nagik Natives Ltd. v. Andrus, 648 F.2d 496 (9th Cir.1980). The defendants in that action included the Secretary of the Interior, Gustafson and others. In his letter, Vollintine accused Gustafson and another B.L.M. official of "perjury," asserted that the Secretary of the Interior had committed fraud, alleged that Allen was "cheating and lying" in briefs filed in federal court, and complained of other forms of wrongdoing on the part of federal officials. He warned that Gustafson and Allen might find themselves "criminally liable" and "personally liable in tort," stating: "If [you] . . and Allen think you are going to walk away from this townsite matter unscathed, you are wrong." In a second letter, dated February 5, 1981, Vollintine wrote to James Watt, Secretary of the Interior. [Appendix B] Vol-lintine criticized Gustafson, Allen and Curt McVee, another department official, stating that McVee "is a complete incompetent, . responsible for screwing up land titles in Alaska, . a blatant racist, . [and a person who] constantly creates friction between [Alaska] Natives and non-Natives." Allen was also labelled "an incompetent" and "a pathological liar," and was said to have "the reputation of supporting any position of the local B.L.M. office no matter how deceitful or contrary to law." Gustaf-son, Allen and McVee were all described as "lifer parasites" who should be replaced. The Disciplinary Board of the Alaska Bar Association, adopting a Hearing Committee recommendation, concluded that Vollin-tine was guilty of unprofessional conduct worthy of public censure. [Appendix C] Specifically, the Board found that his actions violated Disciplinary Rules 1-102(A)(5), 7-102(A)(l), and 7-105(A), of the Code of Professional Responsibility. The matter was then submitted to this court, pursuant to Rule II — 15(j), Alaska Bar Rules. JURISDICTIONAL ISSUES Vollintine raises three "jurisdictional" issues, contending: (1) that the Hearing Committee was improperly constituted because of the method of the selection of its members; (2) that he is not subject to discipline under the Alaska Bar Rules in this instance, because his alleged misconduct related to matters within the jurisdiction of a federal tribunal; and (3) that Allen, one of those about whom he wrote, is not admitted to practice in Alaska and, therefore, was not entitled to the same treatment due opposing counsel. We have reviewed each of these arguments and conclude that they are entirely without merit. FREEDOM OF SPEECH Likewise, we reject Vollintine's claim that the imposition of discipline in this instance violates his right of free speech. In Gregoire v. National Bank of Alaska, 418 P.2d 27, 48 (Alaska 1967), this court administered a public reprimand when an attorney "employed abusive and intemperate language in his brief and . accused the trial court and opposing counsel of unethical and underhanded conduct." Here, the situation is much the same. We subscribe to the view stated by Justice Stewart, in his concurring opinion in In Re Sawyer, 360 U.S. 622, 79 S.Ct. 1376, 3 L.Ed.2d 1473 (1959): [A] lawyer belongs to a profession with inherited standards of propriety and hon- or, which experience has shown necessary in a calling dedicated to the accomplishment of justice. He who would follow that calling must conform to those standards. Obedience to ethical precepts may require abstention from what in other circumstances might be constitutionally protected speech. 360 U.S. at 646-47, 79 S.Ct. at 1388, 3 L.Ed.2d at 1489. DUE PROCESS Vollintine also complains that the Disciplinary Rules under which he was cited are overbroad and void for vagueness. The Bar Association argues that those rules incorporate a "reasonable attorney" standard, which gave Vollintine adequate notice of the type of conduct prohibited. See Committee on Professional Ethics v. Durham, 279 N.W.2d 280 (Iowa 1979) (DR 1-102(A)(6) held not void for vagueness). The Code of Professional Responsibility is necessarily written in broad terms. It would be extremely difficult, if not impossible, to develop standards specifically detailing all forms of attorney misconduct. Although capable of broad interpretation, we believe the meaning of the Disciplinary Rules cited in this case is sufficiently clear to satisfy the requirements of due process. ETHICAL VIOLATIONS The Disciplinary Board, as did the Hearing Committee, found that Vollintine's letter of December 2,1980, violated Disciplinary Rule 7-105(A): "A lawyer shall not . threaten to present criminal charges solely to obtain an advantage in a civil matter." This finding, we believe, is supported by the record. The threat of criminal charges is implicit in the language used. Moreover, we can perceive of no purpose for the letter other than to influence the B.L.M.'s handling of a non-Native application for land in the Village of Aleknagik, the rejection of which would provide an advantage to Vollintine's clients. Such conduct, we believe, was well within the purview of DR 7-105(A). Vollintine was also found to have violated Disciplinary Rule 1-102(A)(5): "A lawyer shall not . [ejngage in conduct that is prejudicial to the administration of justice." Again, we believe this finding is supported by the record. There can be little question that his letters served only to make an already difficult situation worse. The natural consequence of those letters would be to cause an even greater deterioration in the relationship between his clients and their opponents. Regardless of the merits of his position, or that of his clients, a lawyer's use of such tactics is necessarily prejudicial to the orderly administration of justice. Among the Ethical Considerations found in the Code of Professional Responsibility, we find guidance in the statement: "Haranguing and offensive tactics by lawyers interfere with the orderly administration of justice and have no proper place in our legal system." EC 7 — 37, Code of Professional Responsibility. Although this particular Ethical Consideration is located in another part of the Code of Professional Responsibility, it states a fundamental principle applicable to all parts of the Code. Finally, Vollintine was found to have violated Disciplinary Rule 7-102(A)(l): "A lawyer shall not . take . 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." This finding was based upon the Disciplinary Board's conclusion that he knew or should have known that [his] action would serve merely to harass or maliciously injure another, Jack Allen. The action referred to includes the underlining of inflammatory words; the wide dissemination of the letter of December 2, 1980, and the writing of the letter dated February 5, 1981, not copied to Mr. Allen, both of which would serve to maliciously injure Mr. Allen. [Appendix C at 5] It is clear that the letters, despite Vollin-tine's assertions to the contrary, were written on behalf of his clients. Moreover, it should be obvious to any lawyer that intemperate statements of the sort contained in Vollintine's letters can serve no real purpose but to harass the objects of his wrath. While the letters themselves might have served some greater purpose, the inclusion of those statements did not. Again, we find Vollintine's conduct to be well within the purview of the applicable Disciplinary Rule, DR 7-102(A)(l). James F. Vollintine is hereby censured for violation of the above mentioned provisions of the Code of Professional Responsibility. APPENDIX A James F. Vollintine ATTORNEY AT LAW 420 "L" Street, Suite 405 Anchorage, Alaska 99501 907-276-8144 December 2, 1980 George Gustafson, Townsite Trustee Bureau of Land Management United States Department of the Interior 701 "C" Street, Box 13 Anchorage, Alaska 99513 Re: Aleknagik Townsite, USS 4873 Dear Mr. Gustafson: Enclosed is my entry of appearance as attorney of record for Aleknagik village in all matters regarding the Aleknagik town-site. This means that in the future you must send me copies of all correspondence, etc. that you send to any individual or entity concerning the Aleknagik townsite. As you know, Roland Moody has applied for Lots 7 and 8, Block 8, Tract A, Alekna-gik Townsite. According to the application filed with your office, he moved a 14 X 16 house on the land on April 6, 1980. He claims that he cleared the land in 1970 but Mr. Ilutsik of Aleknagik says that such is untrue. Mr. Moody moved the building onto the land at a time when there was an outstanding injunction issued by the Ninth Circuit Court of Appeals on June 22, 1979 which directed the Department of the Interior to prevent occupancy claims within the Alek-nagik townsite. Jack Allen wrote to Mr. Moody on May 8, 1980 informing him that he may be in trespass. Mr. Allen, however, has not followed up on the matter. On November 18, 1980 he wrote to Wassillie Ilutsik and advised him that no action would be taken against Mr. Moody until you further investigated his claim, and until your jurisdiction has been clearly established by the courts in the Aleknagik and Klawock cases. Mr. Allen, therefore, is knowingly violating the Ninth Circuit's order. There are other reasons why Mr. Moody's claim to the land must fail. One major reason is that non-Natives are not entitled to rights in Native townsites. Yourself and the BLM have long been illegally administering the Alaska townsite laws by attempting to authorize non-Native occupancy claims in Native villages. Another reason that Mr. Moody's claim is invalid is that the Interior Board of Land Appeals ruled on January 17, 1980 that the repeal of the townsite laws on October 21, 1976 closed Alaska townsites to occupancy claims as of that date. See Royal Harris, 45 IBLA 87 (1980). Since Mr. Moody did not have any improvements on the land as of October 21, 1976, his claim must fail. Finally, the Ninth Circuit ruled in the Aleknagik case that there is a substantial probability that the vacant land in the Aleknagik townsite was withdrawn under ANCSA for Native selection. This too would bar Mr. Moody's claim. The other day when I was in your office some representatives from the State of Alaska were there inquiring about obtaining land or a right-of-way within the Alek-nagik townsite. You are hereby reminded that on June 22, 1979 the Ninth Circuit closed the Aleknagik, Ekwok and Nondal-ton villages to any sort of occupancy claims and directed the Department to prevent entries, and to notify members of the public that the townsites are closed. Enclosed is a copy of that order. I advise yourself, the BLM and Mr. Allen to tread softly with these Native townsites. As you know, it is our position that the Secretary fraudulently determined that townsites in Native villages are "valid existing rights" under ANCSA. Then he opened them up to the general public under your screwy, unpublished policy of holding subdivided areas for Natives and unsubdi-vided areas for non-Natives. I have your's and McVee's deposition and I believe that I can establish that both of you committed perjury in testifying under oath about these townsites. In fact, there is absolutely no question that you committed perjury in stating in an affidavit before the 9th Circuit that "44 townsites were subdivided after ANCSA." Jack Allen is cheating and lying in briefs before the 9th Circuit in a desperate attempt to justify the Department's townsite policies and save his neck in the Alaeknagik case. He is merely buying time. Allen has lied to me all along in this townsite case. Yourself, McYee and Allen may well find yourselves criminally liable in this matter. In addition, your blatant violation of Native rights under ANCSA and the townsite laws may make all three of you personally liable in tort for intentional violation of the Natives' 5th Amendment rights. What a monstrous act the BLM committed in keeping these townsites from Native selection, then opening them up to the general public in a negligent, haphazard way, without any consideration for the law, the villages' rights, or land use policy, etc. You have completely gummed up land titles in Native townsites. The Interior Department has Jack Allen to lie in Court for it, but that can only last so long. Allen is attempting to blame everything on the Court, but, as you will see, the Courts will finally straighten this matter out. If yourself, McYee, and Allen think you are going to walk away from this townsite matter unscathed, you are wrong. Please take prompt action on Mr. Moody's application so we can get this matter over with. Be sure to give us adequate notice as to when you will be in Aleknagik so we can have representatives attend your meeting with Mr. Moody. Sincerely yours, /s/ James Vollintine James F. Vollintine JFV:ksl cc: Wassillie Ilutsik Tom Hawkins Jack Allen AFN Curt McVee Bob Arnold Secretary of the Interior APPENDIX B James F. Vollintine Attorney at Law 420 "L" STREET, Suite 405 Anchorage, Alaska 99501 907-276-6144 February 5, 1981 Honorable James Watt Secretary of the Interior 18th & "C" Street, N.W. Washington, D.C. 20240 Re: John M. Allen, Alaska Regional Solicitor Curtis V. McVee, BLM State Director Dear Mr. Watt: Please accept my congratulations on your appointment as Secretary of the Interior. I am a life-long Alaskan and have been practicing law here since 1974. Approximately 50% of my work involves representing Alaska Native interests before the Department of the Interior. I appreciate your statements that you will attempt to cleanse the Department of as much mismanagement, waste and fraud as possible. In my opinion, you should fire or relocate Messrs. Allen and McVee. McVee has been the State Director for about 10 years, and Acting State Director before then. He is a complete incompetent and is responsible for screwing up land titles in Alaska. In addition, he is a blatant racist. Under his leadership the BLM kept 98 native villages open to entry by the general public under the townsite laws, in violation of the 1971 Alaska Native Claims Settlement Act and the 1926 Alaska Native Townsite Act. The Department was badly burned on this issue in Aleknagik, et a1. v. Andrus, No. 2896 (9th Cir.) April 7, 1980. McVee constantly creates friction between Natives and non-Natives. Some BLM employees have informed me that he is even more hard-line against the Natives than is the Washington office. Jack Allen has been the Regional Solicitor since 1975. He is not only an incompetent, but also a pathological liar. He has the reputation of supporting any position of the local BLM office no matter how deceitful or contrary to law. As a result, he has created a lot of problems and has absolutely no credibility with anyone in Alaska, not even the Interior Department. Since the Department has such massive responsibilities in Alaska, I am hopeful that you will take a sharp look at the Interior affairs up here. In addition to McVee and Allen, Sue Wolf, BLM adjudication, and George Gustafson, townsite trustee, should also get the axe. Only by ridding the Department of these lifer parasites can true policy changes take place. I believe you would do the Country a great service by dismissing or transferring these individuals. Thank you. Sincerely yours, /s/James Vollintine James F. Vollintine JFV:ksl APPENDIX C BEFORE THE ALASKA BAR ASSOCIATION In the Disciplinary Matter ) Involving ) ) JAMES F. VOLLINTINE, ) ) Respondent. ) _) ABA File No. 80-140 REPORT OF THE DISCIPLINARY BOARD OF THE ALASKA BAR ASSOCIATION Following oral argument on May 18, 1982, the Disciplinary Board of the Alaska Bar Association, consisting of Andrew J. Kleihfeld, Harold M. Brown, William B. Ro-zell, Hugh G. Wade and Elizabeth P. Kennedy met and made the following decision: The Board accepts the introduction of the Hearing Committee Report. FINDINGS OF FACT 1. Respondent James F. Vollintine 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 the period commencing on or about September, 1977, and continuing through the date of the hearing, Respondent represented nine native entities in litigation against the Secretary of Interior, George E.M. Gustafson and others, such litigation being hereinafter referred to as the Aleknagik case. 3. Jack Allen is an attorney admitted to practice in the District of Columbia but not a member of the Alaska Bar Association. 4. George Gustafson is the Townsite Trustee for the Bureau of Land Management. 5. Jack Allen, as Regional Solicitor, represents George Gustafson, Curt McVee and the Secretary of the Interior as his clients and in that capacity was acknowledged by Respondent to be the principal author of the briefs filed on behalf of the government in the Aleknagik case and otherwise primarily responsible for the litigation. (Exhibit B) Court proceedings related to that litigation are, however, generally handled by the U.S. Attorney. 6. Respondent prepared a letter dated December 2,1980, a copy of which is Exhibit A to the Petition, to George Gustafson concerning matters which related to the Aleknagik case and the enforcement of an interim injunction prohibiting new entries onto the Aleknagik Townsite. In that letter, Respondent alleged that Mr. Allen had been "cheating" and "lying" in briefs, that the Secretary of Interior had fraudulently determined townsites were valid existing rights under ÁNCSA, that Curt McVee, State Director, and Mr. Gustafson had committed "perjury," and that Respondent believed he could prove such perjury. The referenced letter emphasized, as above, the quoted words. 7. The referenced December 2, 1980 letter, in addition to stating Respondent's belief that he could prove Gustafson committed perjury, advises that there is no question but that Gustafson committed perjury in an identified affidavit, that Mr. Gustaf-son and others may find themselves criminally liable and that Gustafson is wrong if he believes he will walk away from "this townsite matter" unscathed. The letter, in its final paragraph requests Gustafson to take prompt action on a disputed townsite application by Mr. Moody, a non-native, with the inference that the application should be rejected. (This language was understood by both Mr. Allen and Mr. Gustaf-son to be a threat of criminal prosecution, although not one that in fact concerned them. The purpose of the threat was understood by Mr. Allen to be generally to get the Department of the Interior to do what Respondent wanted them to with regard to the townsite matter and to produce the immediate ejectment of Mr. Moody.) 8. Copies of the referenced December 2 letter were sent to two individuals who were representatives of Respondent's clients, Mr. Allen, Curt McVee, Bob Arnold (Associate State Director with the Department of Interior, in charge of ANCSA), the Secretary of the Interior and the Alaska Federation of Natives. 9. Respondent's December 2, 1980 letter was cross copied to the Alaska Federation of Natives, although it was not a party to the case and had not participated at all in the case. The February 5, 1981 letter to the Secretary of Interior was not cross copied to Mr. Allen. These choices were intended to maximize extraneous political pressure to achieve the end Respondent sought, and to interfere with Mr. Allen's opportunity to present the merits of his side of the case. 10. Respondent stated that those copies of the letter directed to employees of the Department of Interior, including Mr. Allen, were for the purpose of letting the people in the Department of the Interior know what a "liar and cheat" Mr. Allen was and to make Mr. Allen mad, or at least with the awareness that the letter would make Mr. Allen mad, because Respondent felt Allen "deserved it." Respondent said that the copies to the Respondent's clients and the AFN were intended to let people know "what kind of fraud, lying and cheating" were going on. 11. Respondent testified at the hearing that he considered amending his complaint in the Aleknagik case to allege a tort action against the four subject Interior Department personnel and that he told Mr. Allen in a conversation that he was "playing with fire and we (plaintiffs) could take his house if he didn't watch his step." The Committee found this type of communication inappropriate and reflective of Respondent's intent to harass Mr. Allen. 12. Mr. Gustafson's reaction to the December 2, 1980, letter was that Mr. Vollin-tine had "slipped a cog" or was drunk. Mr. Allen testified that after receipt of the letter he considered Mr. Vollintine "unbal anced." As a result of the letter Mr. Allen felt he could no longer deal directly with Respondent and any possibility of productive settlement negotiations with regard to the pending case were substantially diminished. 13. Respondent authored the letter dated February 5,1981, to James Watt, Secretary of Interior (Exhibit B to Petition) in which he alleges that McVee is a "blatant racist," Jack Allen is "incompetent" and a "pathological liar," and that Gustafson and Sue Wolf are "lifer parasites." Although Mr. Allen was not copied with that letter, Respondent anticipated that a copy of the letter would eventually be made available to Mr. Allen. 14. Respondent had a subjective belief that the statements he made were true. 15. Respondent admitted during argument of counsel at the hearing before the Disciplinary Board of the Alaska Bar Association: (a) although Respondent had prior dealings with Mr. Gustafson on other matters, the Moody entry application was the first non-native application passed upon by Mr. Gustafson with regard to the Aleknagik Townsite. (b) at no time did Respondent move for an order holding either Mr. Allen or Gustaf-son or both in contempt for violating the terms of the Ninth Circuit injunction. 16. There is no evidence that Respondent attempted to determine if disciplinary action could be filed against Mr. Allen in any jurisdiction. 17. The facts adduced before the Area Hearing Committee and those apparent from the various documents filed and arguments made by the parties reflect an inability of Respondent to deal rationally with the subject matter on the persons involved in the decision making process. Respondent was unable or unwilling to deal with the problem in a rational or emotionally detached manner. 18. The only regret expressed by Respondent with regard to the statements and actions taken was to the effect that if he had known it would come to this he would have implied the same illegal activities but in a more carefully phrased manner. Respondent's stated that he was engaged in "trench warfare" and that his intemperate behavior should be excused. Based on the above Findings of Fact, The Disciplinary Board makes the following CONCLUSIONS OF LAW 1. Respondent's letters of December 2, 1980 and February 5, 1981, are not privileged communications. 2. Respondent has committed misconduct in violation of Disciplinary Rule 7-105(A) by threatening in his letter of December 2, 1980, to present criminal charges (perjury charges) against George Gustafson, a defendant in pending litigation, solely to obtain an advantage in that litigation— prompt and favorable resolution of the Moody townsite application in a manner that would result in Mr. Moody's ejectment from the property. In particular, the Board finds thát the language "I advise yourself, the BLM and Mr. Allen to tread softly with these Native townsites . Yourself, McVee and Allen may well find yourselves criminally liable in this matter . If yourself, McVee and Allen think you are going to walk away from this townsite matter unscathed, you are wrong." and "Please take prompt action on Mr. Moody's application... " indicative of the threat and request for favorable treatment. 3. Respondent has committed misconduct in violation of Disciplinary Rule 7-102(A)(1) by taking action on behalf of a client, Aleknagik plaintiffs, that he knew or should have known that such action would serve merely to harass or maliciously injure another, Jack Allen. The action referred to includes the underlining of inflammatory words; the wide dissemination of the letter of December 2,1980, and the writing of the letter dated February 5, 1981 not copied to Mr. Allen, both of which would serve to harass or maliciously injure Mr. Allen. 4. Respondent has committed misconduct in violation of Disciplinary Rule 1- 102(A)(5) by engaging in conduct that is prejudicial to the administration of justice. He failed to place the question of Mr. Allen's or the Interior Department's conduct before the court in a contempt proceeding or before any disciplinary board and instead copied the letter of December 2,1980, to the Alaska Federation of Natives, not a party to the case, and did not copy the letter of February 5, 1981, to Mr. Allen, in an attempt to maximize extraneous political pressure and to interfere with Mr. Allen's ability to handle the merits of his side of the case. 5. The Board members are mindful of possible First Amendment rights in this case. They have read the case of Hirschkop v. Snead, 594 F.2d 356 (4th Circuit, 1979) in which the court states: Drawing on many prior decisions, Mr. Justice Powell formulated a two-step test in Porcunier v. Martinez, 416 U.S. 396, 413, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974), for determining the constitutionality of governmental restrictions of speech: First, the regulation . in question must further an important or substantial governmental interest unrelated to the suppression of expression . Second, the limitation of First Amendment freedoms must be no greater than is necessary or essential to the protection of the particular governmental interest involved, (at 363) The Board finds that there is a substantial governmental interest in promoting the administration of justice, and that the decision reached herein does not violate the standard of Proeunier. RECOMMENDED DISCIPLINE The Hearing Committee made the following recommendation: The Committee has been advised that Respondent has not previously been subjected to any disciplinary actions and therefore first considered utilization of a private reprimand pursuant to Alaska Bar Rule 12(d). Several factors weigh strongly against that form of discipline, the most important of which is the fact that Respondent would be unaffected by that form of discipline because . it would not serve in any way to cause Respondent to appreciate the nature of his conduct. That reasoning is based primarily upon Respondent's testimony and observations of his demeanor during the hearing. Respondent's deportment at the hearing and his testimony continued a consistent pattern, vis-a-vis the correspondence of December 2,1980, and he in fact expressed his view that the correspondence complained of was not proper. He has failed throughout to recognize any impropriety insofar as the correspondence is concerned. His utterances at the hearing clearly indicated a lack of perspective and judgment, and he freely offered opinions as to the lack of good faith of opposing parties, their attorney and the trial judge. These individuals were generally termed by Respondent to be either racist or actively hostile to interests of natives. Publication of this type of correspondence or utterance severly damages the public's perception of the judicial system. As an attorney, Respondent should be aware of proper forums that are available for presenting grievances of this type and he has failed to utilize them. It further appears, in view of Gregoire v. National Bank of Alaska, 413 P.2d 7, 43-44 (Alaska 1966) which involved attorney comments in court pleadings which were for less vituperous than those involved in the present case; that such misconduct, even in the absence of threatened criminal action, is a serious violation of ethical standards deserving of public censure by the court. The Board hereby adopts the recommendation of the Hearing Committee for public censure in light of the severity of the misconduct under the Gregoire standard, and because the Board feels that in this particular case, such discipline is necessary. DATED this 24 day of June. 1982. /s/ Harold M. Brown HAROLD M. BROWN, Chair /s/ William B. Rozell WILLIAM B. ROZELL /s/ Elizabeth Page Kennedy ELIZABETH P. KENNEDY, Recorder . When fulfilling its responsibilities under the Bar Rules, the Board of Governors serves as the Bar's "Disciplinary Board." Rule II-13(a), Alaska Bar Rules. . With regard to argument (2), we note that an attorney is required to conduct himself in a professional manner at all times: The license to practice law in Alaska is, among other things, a continuing proclamation by the Court that the holder is fit to be entrusted with professional and judicial matters, and to aid in the administration of justice as an attorney and counselor, and as an officer of the courts. It is the duty of every member of the bar of this State to act at all times in conformity with standards imposed upon members of the Bar as conditions for the privilege to practice law. These standards include, but are not limited to, the code of professional responsibility, and the code of judicial conduct, that have been, and any that may be from time to time hereafter, adopted or recognized by the Supreme Court of Alaska. Rule II — 9, Alaska Bar Rules. .Vollintine attempts to distinguish Gregoire, because there "[t]he improper language was found to be (1) contained in the briefs themselves; (2) aimed at the trial judges in the case under review; and (3) unfounded." According to Vollintine, none of those elements exist here. While the cases do involve somewhat different facts, the spirit of our holding in Gregoire applies. . Vollintine criticizes this view, characterizing it an "elitist concept promoted by Justice Stew- • art." If that is indeed the case, we, nevertheless, consider the concept sound. . In our view, the fact that Vollintine believed in the truth of his allegations, as found by the Disciplinary Board, is no excuse. ."Ethical Considerations are aspirational in character and represent the objectives toward which every member of the [legal] profession should strive. They constitute a body of principles upon which the lawyer can rely for guidance in very specific situations." Preliminary Statement, Code of Professional Responsibility. . The Hearing Committee's report included a finding that Vollintine's actions also constituted misconduct under Disciplinary Rule 1-102(A)(6): "A lawyer shall not . [e]ngage in . conduct that adversely reflects on his fitness to practice law." The Disciplinary Board, however, made no such finding; its report contains no reference to DR 1-102(A)(6). We, therefore, elect not to comment on this issue, except to say that we have not considered it in reaching our decision to censure Vollintine.

10380649

Mason BILLINGSLEY, Appellant, v. STATE of Alaska, Appellee

Billingsley v. State

1991-03-29

No. 1117

1102

1108

807 P.2d 1102

807

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T18:06:07.613925+00:00

CAP

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

Mason BILLINGSLEY, Appellant, v. STATE of Alaska, Appellee.

Mason BILLINGSLEY, Appellant, v. STATE of Alaska, Appellee. No. 1117. Court of Appeals of Alaska. March 29, 1991. Blair McCune, Asst. Public Defender, and John B. Salemi, Public Defender, Anchorage, for appellant. Cynthia M. Hora, Asst. Atty. Gen., Office of Sp. Prosecutions and Appeals, Anchorage, and Douglas B. Baily, Atty. Gen., Juneau, for appellee. 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.

3944

24792

OPINION COATS, Judge. Mason Billingsley was convicted of robbery in the first degree, in violation of AS 11.41.500(a)(1). Billingsley v. State, Memorandum Opinion and Judgment No. 664 (Alaska App., August 15,1984) [hereinafter Billingsley /]. At trial, the state introduced evidence of Billingsley's unrecorded custodial confession. Id. at 3. This confession has been the subject of numerous appellate proceedings. In the instant case, both parties are appealing from decisions of Superior Court Judge S.J. Buckalew, Jr., concerning this confession. Billingsley appeals from Judge Buckalew's finding that use of this confession at trial was harmless error. The state, in its cross-appeal, argues that Judge Buckalew erred in deciding Billingsley had not waived the right to argue that evidence of his confession should have been suppressed under Stephan v. State, 711 P.2d 1156 (Alaska 1985). The facts of this case are set out in this court's decision in Billingsley I. Billings-ley was charged and convicted of robbing a Qwik Stop store on Juné 1, 1982. Id. Because the error claim in this appeal concerns evidence which was introduced at trial, we will briefly summarize that evidence. The first witness at trial was James R. Oswald, the Qwik Stop store clerk on duty the night of the robbery. The robbery occurred around 3:00 a.m. When Billings-ley entered, Oswald moved behind the counter to help him. Billingsley stood two feet away from Oswald, facing him across the counter; Billingsley was not wearing a mask or any other form of disguise. Bill-ingsley pointed a gun at Oswald and demanded the money in the cash register. Oswald gave Billingsley the money and watched as he left the store and walked across the parking lot to the Kathy-0 Trailer park. The police arrived one or two minutes after Oswald called to report the robbery. He gave the following description of the robber to Officer Willard Carter: a white male, approximately twenty-eight years old, about six feet tall, medium build, with a ruddy complexion, dark hair, a mustache, and an untrimmed beard about four inches long. He said the man was wearing a well-worn dirty blue jean jacket, dirty blue jeans, and tan scuffed square-toed boots. At trial, Oswald identified the clothing and boots seized from Billingsley as similar to those worn by the robber. Three days after the robbery, Oswald was shown a photo-lineup of six men with beards. He picked out two pictures from this lineup which he said "resembled" the robber; one of these men was Billingsley. He identified Billingsley in court as the robber. After the police spoke to Oswald, they went with a police dog to the place where Oswald said the robber had entered the trailer park. The police found what appeared to be a fresh footprint. The dog followed this scent for about fifty yards. The police were within forty feet of the trailer where Billingsley had been living that week. Carter, who investigated the robbery, testified next. The prosecutor asked him if the day after the robbery he received a dispatch, "this time relating to someone or regarding someone who was — wanted to turn themselves in." Carter said this was correct. As a result of this dispatch, Carter went to "Don's Green Apple" restaurant and met Billingsley. He described Billingsley as having a ruddy complexion, dark hair, and a full, untrimmed beard, and he identified Billingsley in court. He described the clothing Billingsley was wearing: a faded blue jean jacket, blue jeans, a plaid shirt, and square-toed scuffed up brown boots. He also identified the seized clothing in court. Carter drove Billingsley to the Anchorage Police Station. He took him to Lieutenant Foster's office. Carter testified that Billingsley began to make statements to the two officers that "I did it, . I held up the place." Carter told him to wait, then read him his Miranda rights, and had him sign a form waiving those rights. Carter testified to the confession which Billingsley made. Billingsley explained that he was a heroin addict who robbed the store to get money to purchase the drug; he had turned himself in because he wanted help for his drug problem. According to Carter, Billingsley told him details of the robbery that Billingsley would not have known unless he committed the robbery. Carter testified that Billingsley told him he had committed the robbery with a .44 Rug-er handgun with a 7½" barrel which he had removed from a brown holster and pointed at the Qwik Stop clerk with a two-handed grip. Billingsley told Carter that he was hiding in the trailer and saw Carter attempt to track him. Billingsley stated he got $40 from the robbery. Carter testified that he did not record this interview because there were no blank tapes available. Carter reported that Billingsley exhibited physical symptoms which indicated to him that he was in light to moderate narcotics withdrawal and said that Billingsley told him he had a "4 spoon" per day heroin addiction. Carter estimated, based on his experience, that four spoons of heroin would cost $400. Billingsley took the stand and testified in his own defense and denied committing the robbery. He said he read an article in a local newspaper about the robbery. He said he had been drinking a lot and was contemplating suicide. He called the police from Don's Green Apple and said that he wanted to turn himself in. He said he confessed to a crime he did not commit in order to be locked up. On cross-examination, the prosecutor impeached Billingsley by referring to the statement he had made to Carter. Billingsley denied making some of the statements Carter said he had made. He said that he told Carter that he had seen the police and a tracking dog while hiding in a trailer immediately after the robbery. The officer told him about the tracking on the way to the police department. Billingsley said he lied to the police about being addicted to heroin, because he thought they would be more willing to help him get into a rehabilitation program if he said he was addicted to drugs rather than alcohol. Billingsley stated that the clothes he was wearing on June 2, when he spoke to the police, were the same clothes he was wearing the day before, except he had changed his boots. In the patrol car on the way to the police station, when asked whether he committed the robbery, Billingsley responded "yeap." Billingsley testified that this response had been a lie. Billingsley's defense at trial was an alibi. Gregory Dahl, an alibi witness, testified for the defense. He testified that Billingsley had been staying with him in his trailer at the Kathy-0 Trailer park for about a week as of June 1, 1982. At 11:00 p.m. on the night of June 1, Billingsley went out to a local bar to drink; he returned to the trailer at 1:00 a.m. Dahl said that he had stayed awake all night since he worked nights and normally slept during the day. In closing arguments the prosecutor theorized that Billingsley confessed because he thought if he said he had a bad heroin habit and needed help, he might get a sympathetic reaction from the police. The prosecutor stated that since Billingsley did not get a sympathetic reaction, he was now lying in order to evade criminal responsibility. The prosecutor emphasized Billingsley's confession to Carter, pointing out that Bill-ingsley had told the officer details of the robbery that only the actual robber would know. Defense counsel asked the jury to find that Billingsley was driven to confess to a crime he did not commit. She noted that because the statement Billingsley made to the police was not tape-recorded or preserved, there was "no way to prove exactly what sort of questions were asked of Mr. Billingsley during that interview." Billingsley was convicted of robbery in the first degree, in violation of AS 11.41.-500(a)(1). On direct appeal, Billingsley argued that his unrecorded confession should have been suppressed. This court affirmed his conviction based on its decision in Harris v. State, 678 P.2d 397 (Alaska App.1984). Billingsley I, at 11. In Harris, this court rejected a per se suppression rule for unrecorded confessions. Id. at 404. Bill-ingsley did not file a petition for hearing in the supreme court. In November 1984, Billingsley wrote a letter to Judge Buckalew, essentially requesting the appointment of counsel for an ineffective assistance of counsel claim. Judge Buckalew entered an order on November 27, 1984, appointing the Office of Public Advocacy (OPA). On February 4, 1985, the Alaska Supreme Court published an order in Stephan v. State, 705 P.2d 410 (Alaska 1985), reversing the court of appeals in Harris, and remanding for new trials in Stephan's and Harris' cases in which their confessions were to be suppressed. The court's order indicated that a written decision would be forthcoming. On November 14, 1985, Assistant Public Advocate Michael Petit filed an application for post-conviction relief, arguing that Bill-ingsley had been denied effective assistance of counsel. Billingsley v. State, Memorandum Opinion and Judgment No. 1628 (Alaska App., June 29, 1988) [hereinafter Billingsley /]. Although the order reversing Harris had been published, Bill-ingsley did not request any relief regarding his suppression claim. On December 6, 1985, while Billingsley's application for post-conviction relief was pending before Judge Buckalew, the Alaska Supreme Court issued its opinion in Stephan. They held that custodial interrogations conducted in a place of detention must be recorded unless recording is not feasible. Stephan v. State, 711 P.2d 1156 (Alaska 1985). The court further held that the failure to record a defendant's confession will generally result in suppression of the confession. Id. at 1163-65. After an evidentiary hearing on Billings-ley's ineffective assistance of counsel claim, Judge Buckalew denied Billingsley's application. The Office of Public Advocacy then moved to withdraw from the case, stating that it had "fully complied with this court's order and fulfilled the purpose of its appointment." In its motion to withdraw, OPA also asked that the court re-appoint the Public Defender Agency (PDA) if further proceedings were to be conducted. Judge Buckalew ordered the withdrawal on January 27, 1986. OPA and the PDA had, and still have, an agreement whereby OPA will handle and investigate ineffective assistance of counsel claims, but once these claims are resolved, OPA will move to withdraw and let PDA handle the remaining merit issues. Billingsley hired independent counsel and on November 17, 1986, filed a Supplemental Application for Post-Conviction Relief, seeking application of the Stephan decision to his case. The state's opposition to this application was based solely on the contention that the Stephan case should not be applied retroactively. Judge Buckalew summarily denied this application without notice. The state conceded error on appeal because of lack of notice, and the case was remanded for further proceedings. Bill-ingsley II, at 3. On remand, the state submitted a proposed notice of intent to dismiss; this notice raised the issues of waiver and harmless error. Billingsley objected and moved to strike these additional defenses. Judge Buckalew granted a hearing and granted leave to the parties to supplement the motions already before him. The state filed a motion for summary judgment raising res judicata, waiver, and harmless error. Judge Buckalew denied Billingsley's application on the ground that he was not entitled to retroactive application of the Stephan case. The order did not address the waiver and harmless error issues. This court reversed and remanded the case for consideration of these remaining two issues. Billingsley II. On remand, Judge Buckalew read his oral decision into the record on July 5, 1989. He stated that the waiver issue was easy to resolve. The matter which he referred to OPA "was whether or not there was a question of ineffective assistance of counsel." He found that he referred the matter "to address that sole issue." He concluded that he did not see "any real question in this factual situation which effectively raise[d] the waiver" issue. Judge Buckalew found that the state's use of the confession during the robbery trial was harmless error beyond a reasonable doubt. He stated that: Unfortunately for Mr. Billingsley the facts are that the day following the robbery he called the police department and confessed that he had robbed the Quick Stop, he was the man they were looking for and he requested that they come down and pick him up. Judge Buckalew found that this was a "primary confession," it was given "freely and voluntarily," and did not result from interrogation. Judge Buckalew also noted that the clerk gave an accurate description of what Billingsley was wearing and that Bill-ingsley was wearing similar clothing when he was arrested. Judge Buckalew noted that the clerk identified Billingsley in court. He concluded that under these conditions, the error in using the confession at trial was "harmless beyond a reasonable doubt." The state and Billingsley appealed to this court. The state argues that Billingsley waived his right to argue the Stephan issue in post-conviction relief because he did not raise this issue in his first application for post-conviction relief. Alaska Rules of Criminal Procedure 35.1(h) (emphasis added) provides as follows: (h) Waiver of or Failure to Assert Claims. 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. In the instant case Judge Buckalew found that Billingsley had shown a "sufficient reason" why he did not raise the Stephan issue in his original application for post-conviction relief. Judge Buckalew stated that he appointed OPA only to investigate Billingsley's ineffective assistance of counsel claims. This order was consistent with the agreement between PDA and OPA concerning the division of representation. Judge Buckalew's conclusion is supported by the record. We accordingly find that Billingsley did not waive his right to raise the Stephan issue in his current application for post-conviction relief. The harmless error issue raises a more difficult question. The Stephan decision requires the state to record custodial interrogations which occur in a place of detention. Stephan, 711 P.2d at 1162. The court based its decision on the due process clause contained in article I, section 7, of the Alaska Constitution. Id. at 1160. Therefore, the court's error in admitting Billingsley's unrecorded confession into evidence amounts to constitutional error. In order to find constitutional error harmless, we must find the error harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). In determining whether there is harmless error beyond a reasonable doubt, "[t]he question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction." Id. at 23, 87 S.Ct. at 827 (quoting Fahy v. Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963)). Certainly, Billingsley had a difficult case to defend. Even if the court had suppressed the custodial statements which Billingsley made to Carter at the police station, this would not have affected the admissibility of the other admissions which Billingsley made. Billingsley agreed that when Carter originally picked him up in the patrol car, he told Carter that he had committed the robbery. The testimony that Billingsley knew he had been tracked to the trailer park was equivocal. Billingsley stated that he only agreed that the event occurred after the officer told him about the tracking. In any case, these statements contained little detail. Although the statements were certainly solid evidence of Billingsley's guilt, these statements consisted of little more than Billingsley's affirmative acknowledgement that he committed the crime. The inadmissible statements which were the result of the custodial interrogation allowed the prosecutor to show that no one but the person who committed the crime could possibly have known the details which Billingsley provided. Bill-ingsley's other confessions simply did not provide this kind of detail. Although the case against Billingsley was strong without the confession resulting from the custodial interrogation, it was not overwhelming to the point that we would be comfortable finding that the admission of Billingsley's detailed confession was harmless error beyond a reasonable doubt. The clerk's testimony which identified Billingsley was strong. However, the clerk had picked Billingsley and one other man as possible suspects in an earlier photo lineup. Despite the dissent's claim to the contrary, the description of the robber's clothing and general appearance can hardly be said to be uniquely memorable. Bill-ingsley did have an alibi witness. The police did not have any physical evidence which definitely connected Billingsley to the scene of the crime. Based upon our review of the evidence, we are unable to say that the admission of Billingsley's detailed confession into evidence was harmless error beyond a reasonable doubt. We accordingly reverse Judge Buckalew's conclusion that the error was harmless. We accordingly hold that Billingsley is entitled to a new trial. REVERSED. . From Judge Buckalew's findings, it appears that he may have been under the impression that Billingsley made a confession to the dispatcher when he told the dispatcher that he wanted the police to come over and pick up him up. However, the dispatcher never testified at trial and the nature of the statement which Billingsley made to the dispatcher is unclear. Billingsley's statement to the dispatcher, therefore, would not have been properly admissible against him as an admission, given the evidence which was presented in this case.

10373267

Raymond Charles BAYS, Appellant, v. Judy Lynn BAYS, Appellee

Bays v. Bays

1991-03-15

No. S-3635

476-482

487

807 P.2d 482

807

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:06:07.613925+00:00

CAP

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

Raymond Charles BAYS, Appellant, v. Judy Lynn BAYS, Appellee.

Raymond Charles BAYS, Appellant, v. Judy Lynn BAYS, Appellee. No. S-3635. Supreme Court of Alaska. March 15, 1991. James L. Johnston, Anchorage, for appellant. Donald E. Cortis, Anchorage, for appel-lee. Before RABINOWITZ, C.J., and MATTHEWS, COMPTON and MOORE, JJ.

2547

15798

OPINION RABINOWITZ, Chief Justice. I. INTRODUCTION Raymond Bays appeals from a judgment of the superior court which awarded his ex-wife, Judy Wilmarth, formerly Judy Bays, temporary rehabilitative support and an interest in his pension plan. Raymond argues that the superior court abused its discretion by awarding rehabilitation alimony. He also claims that the superior court invaded his "separate" pre-marital and post-separation property without justification when it equally divided his entire pension as of the time of trial. Finally, Raymond argues that the court improperly calculated his child support obligation under Civil Rule 90.3. Judy argues that the award of temporary rehabilitative support was entirely justified because there were no significant assets in the marital estate other than the pension which would not be available for division until Raymond retired. She further argues that the record supports the superior court's finding that the parties agreed that she was "entitled to one-half of the accumulated value/benefits" of the pension plan as of the date of trial. From this she concludes that the superior court did not abuse its discretion when it equally divided Raymond's entire pension. Judy further contends that the superior court correctly calculated Raymond's child support obligation under Civil Rule 90.3 since Raymond's pension contributions are non-taxable and were deducted from his total compensation before being reported on his W-2 form. II. STATEMENT OF THE CASE The parties were married in 1975 after living together for approximately one year. They have two teenage children. The Bays physically separated in March of 1988, and the case went to trial in December 1988. Prior to trial, the parties agreed that Judy would receive sole custody of the children and that Raymond would be granted reasonable visitation rights. Although not formally agreed upon, it was also understood that Raymond would make child support payments to Judy pursuant to Civil Rule 90.3 guidelines, and that he would be responsible for the parties' marital debts. Due to economic reverses, the only significant marital asset held by the parties at the time of their divorce was Raymond's vested pension plan. At the time of trial, Raymond had completed fourteen years and two months of continuous employment as a firefighter for the Municipality of Anchorage, having worked since October 3, 1974. The superior court found Raymond's gross annual earnings were $59,934.42 at the time of trial. Raymond's compensation package also included vested membership in the Municipality's Police and Fire Retirement System Plan III. Raymond began making mandatory monthly contributions to the retirement plan from his date of hire; this was seven months before he and Judy were married, but while they were living together. He continued making monthly contributions during the nine months after he and Judy separated prior to their divorce. The value of the pension plan at the time of trial was in dispute. If Raymond had terminated his employment with the Municipality in December of 1988, he would have been entitled to receive approximately $57,-000 (the amount of his accumulated contributions plus interest). Raymond argued that this figure represents the pension's value for purposes of the property division. In lieu of rehabilitative spousal support, Raymond proposed buying out Judy's half-interest in the pension at a rate that would provide her with $1,500 a month in combined child support and debt payments. However, Judy argued that the pension was worth considerably more than this "cash out" figure, noting that if Raymond continued to work ten more months (i.e. complete 15 full years) he would be entitled to almost $1,600 a month for the rest of his life upon retirement. At the conclusion of the trial, the superi- or court awarded Judy temporary rehabilitative spousal support. It stated, [t]he reason why I've ordered rehabilitative support in this case [is that] there aren't assets which can be resolved and the pension is worth much more than [Mr. Bays] would get out by selling if he quit today and was paid back his contribution plus a little bit of interest.... I also think that this will restore Mrs. Bays to a reasonable position. It appears that she . has been making every effort not to be extravagant during this time.... And, it appears that she is doing those things which are necessary to get herself, her life, back in order. . The superior court concluded that "[t]he testimony of both parties, and the arguments made by their respective attorneys, indicated that the parties are agreed" that Judy is entitled to one-half of the accumulated value/benefits of the pension. The court further found that the parties were "financially interdependent as of the date of trial[.]" The court then awarded Judy a percentage interest in the benefits of [Mr. Bays'] Retirement System Plan, to be evidenced by a Supplemental Qualified Domestic Relations Order, and calculable by dividing the total number of accredited months in service that he [Mr. Bays] has at the time he begins to receive said benefits into 85 months (one-half of the total accredited months [Mr. Bays] had as of the time of trial). In calculating Raymond's child support obligation under the Rule 90.3 formula, the superior court deducted federal taxes and union dues from Raymond's 1987 reported gross income before multiplying the figure by 27%. However the court did not deduct Raymond's mandatory contributions to his Retirement System Plan because it found that those contributions "are made pre-tax, and are thus not included in his reported gross income." III. THE SUPERIOR COURT'S AWARD OF TEMPORARY REHABILITATIVE SUPPORT TO JUDY WIL-MARTH. As indicated previously the superior court awarded Judy Bays $600 per month for thirty-one months as temporary rehabilitative support. Former AS 25.24.160(3) authorizes trial courts to grant maintenance payments to a spouse which are "just and necessary" without regard to fault. Here, it is undisputed that Raymond is a well paid city employee and that Judy has few job skills. Judy has no assets with which to provide for herself and her children while she attends college. Judy's plan to gain job skills was found by the superior court to be "necessary to get herself, her life, back in order[.]" Given the facts of this record and the limited duration of the superior court's award of reasonable rehabilitative support, we conclude that the superior court did not abuse its discretion in awarding this support. One additional facet of this issue remains to be addressed. We take this occasion to advise that our rule which "established a preference for meeting the parties' needs with the division of property, rather than alimony, where the marital assets are adequate to do so," does not apply to rehabilitative alimony or support of limited duration. IV. THE SUPERIOR COURT'S EQUAL DIVISION OF RAYMOND BAYS' PENSION BENEFITS. Raymond contends that the superior court improperly included in the property available for distribution seven months of pre-marital pension contributions and nine months of post-separation contributions. On the basis of our review of the record, we conclude that the superior court did not err in its division of Raymond's pension benefits. As noted above, the superior court found from the testimony of both parties, and the statements of their respective counsel, that the parties agreed Judy was entitled to one-half of the accumulated value of Raymond's pension. Study of the record shows that Raymond considered the entire pension accrued during the parties' cohabitation and marriage to be part of the marital estate. At trial, Raymond never differentiated the pension contributions he made before the parties' marriage or those made after the parties' separation. In light of the superior court's finding as to this issue, and its evidentiary support in the record, we conclude that Raymond waived any objection to the superior court's division of pension benefits as of the date of trial. The superior court's division of Raymond's pension benefits can be sustained on the following alternative grounds. The superior court found that the parties were "financially interdependent" as of the date of trial. In Schanck v. Schanck, 717 P.2d 1, 3 (Alaska 1986), we declined to specify, as a matter of law, that the effective date when [post-separation] earnings become severable from marital property is at separation or at filing for divorce. Each case must be judged on its facts to determine when the marriage has terminated as a joint enterprise. We continued, "the issue of post-separation earnings requires a determination of when a married couple cease functioning economically as a single unit." Id. at 3 n. 7. In Dixon v. Dixon, 747 P.2d 1169, 1174 (Alaska 1987), on facts quite similar to the present case, we upheld the superior court's determination that the marital contributions to a husband's pension ended on a date just after trial. The husband had testified that his wife should be responsible for half of the post-separation debts " 'because I believe that everything until this thing's final is equal, should be 50/50.'" Id. We concluded that "[t]his testimony . indicated] that in [the husband's] view the marriage continued as a 'joint enterprise' until the trial." Id. In this case, Raymond "made interim contributions to the housing, utilities, and support needs of Judy and their two minor children." When asked by her counsel why she had not sought court action to obtain more money from her husband, Judy replied, "[b]ecause I know that he had debts to pay, and I was hoping we could get them paid." Given this evidence, and Raymond's position that he considered the entire pension accrued during cohabitation and the parties' marriage to be part of the marital estate, we hold that the superior court's decision to use the date of trial for division of Raymond's pension was not an abuse of discretion. V. THE SUPERIOR COURT'S COMPUTATION OF RAYMOND BAYS' CHILD SUPPORT OBLIGATION. Rule 90.3 specifies that a non-custodial parent of two children is obligated to pay child support to a custodial parent in an amount equal to 27% of the non-custodial parent's "adjusted annual income." Civil Rule 90.3(a). "Adjusted annual income" is "the parent's total income from all sources minus . mandatory deductions such as federal income tax, social security tax, mandatory retirement deductions and mandatory union dues[.]" Id. In making its child support calculation in this case, the superior court apparently relied on (1) Raymond's 1987 W-2 form; (2) Judy's attorney's statements that the pension contributions are deducted from Raymond's gross income prior to being reported on his W-2; and (3) Raymond's testimony that he was making about the same income as in 1987. Both parties agree that the "only question of interest to this court is whether the $59,934.42 gross income fig ure included the $6,560.72 contributed by [Raymond] to his retirement plan." Raymond argues that "[a]t the very least the court should order a hearing to determine . whether the employee contributions were, or were not, included in the gross income figure found by Judge Carlson." The W-2 form by itself does not provide support for the superior court's finding. However, Judy points out that the report on Raymond's pension deductions indicates that they are non-taxable and therefore, presumably, those deductions would not be included on his W-2 form as the base or gross figure from which to calculate his federal tax liability. According to Raymond the report shows that his contribution to his retirement plan was included in the "other deductions" category and that the total of "gross pay" as contrasted with a lesser sum characterized as "taxable gross" less "taxes" less "other deductions" equals "net pay." It is very clear that this item is reported as part of Mr. Bays [sic] gross income, but is not available to him to spend. We do not find Raymond's argument persuasive. Simply because a single pay statement shows that this pension contribution was deducted from his "gross pay," it does not follow that the total wage figure reported in his W-2 form is also a pre-de-duction figure. In short, we conclude that Raymond has failed to demonstrate a mistake on the superior court's part in its calculation of his child support obligation. AFFIRMED. . Raymond answered an interrogatory regarding his pension plan as follows: Plaintiff [Mr. Bays] is vested under the retirement plan provided public safety employees of the Municipality of Anchorage. The total cash value is about $56,000. Pension will pay 33 ½% of salary upon retirement after 15 years and 50% after 20 years contact Lee Wentworth 343-6440. . In its written decision, the court awarded Judy $600.00 a month for thirty-one months as temporary rehabilitative support. On appeal, Raymond points out that the trial court awarded Judy more than she requested. However, Raymond does not argue that this constituted an abuse of discretion. .At no time prior to or during the trial did Raymond or his attorney contest Judy's claim that the entire fourteen year and two month period should be included in the property division. Raymond repeatedly referred to Judy's interest in the pension as "her half." In propounding a question to Raymond on direct examination, his attorney stated, Okay. Now, we've calculated . that the present value of those pension rights are around $57,000.00. And, they've been all earned during your marriage, so, presumptively Mrs. Bays would be entitled to half.... [h]ow do you propose that she get her half, this say $28,500.00, roughly? (Emphasis added.) However, after the superior court had rendered its oral decision, Raymond objected to the proposed finding of fact concerning the purported agreement of the parties contending that the court's finding "is simply not true." .In a divorce proceeding, the superior court's factual determinations will not be disturbed unless clearly erroneous. Civil Rule 52(a). Under AS 25.24.160(4), the superior court has broad latitude in making its property division. We will not disturb a property division absent a showing of abuse of discretion, i.e., clear injustice. Lang v. Lang, 741 P.2d 1193, 1195 n. 4 (Alaska 1987); see abo Moffitt v. Moffitt, 749 P.2d 343 (Alaska 1988); Brooks v. Brooks, 677 P.2d 1230, 1232 (Alaska 1984). Whether the trial court applied the appropriate legal standard in exercising its broad discretion is a question of law. Laing v. Laing, 741 P.2d 649, 651 (Alaska 1987); Wanberg v. Wanberg, 664 P.2d 568, 570 (Alaska 1983). . The 1990 amendments to this statute do not apply to this case. Moreover, these amendments would not change the outcome. Indeed, the express purpose of the 1990 amendments was to "restate the principal factors found in the case law, not to change them, affect the interpretation given to them, or preclude changes or additions to them by other court rulings." Ch. 130, § 1, SLA 1990. . Schanck v. Schanck, 717 P.2d 1, 5 (Alaska 1986). . Raymond argues that the superior court should have divided 154 months by 2, leaving 77 months (rather than dividing 170 months by 2, leaving 85 months). . It is open to Raymond Bays to seek modification of the child support award, under Civil Rule 90.3, if he can demonstrate that his annual income for 1988 and 1989 is in fact less than the superior court found it to be for 1987.

10567557

Lee HARMON, Glenn McKee and Greater Anchorage Area Borough, Appellants, v. NORTH PACIFIC UNION CONFERENCE ASSOCIATION OF SEVENTH DAY ADVENTISTS, Appellee

Harmon v. North Pacific Union Conference Ass'n of Seventh Day Adventists

1969-12-15

No. 1060

432

442

462 P.2d 432

462

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:08:18.387910+00:00

CAP

Before DIMOND, RABINOWITZ and CONNOR, JJ., and MOODY, Superior Court Judge.

Lee HARMON, Glenn McKee and Greater Anchorage Area Borough, Appellants, v. NORTH PACIFIC UNION CONFERENCE ASSOCIATION OF SEVENTH DAY ADVENTISTS, Appellee.

Lee HARMON, Glenn McKee and Greater Anchorage Area Borough, Appellants, v. NORTH PACIFIC UNION CONFERENCE ASSOCIATION OF SEVENTH DAY ADVENTISTS, Appellee. No. 1060. Supreme Court of Alaska. Dec. 15, 1969. Warren W. Matthews, Jr., and Charles P. Flynn, of Burr, Pease & Kurtz, Anchorage, for appellants. William J. Bailey, of Croft & Bailey, Anchorage, for appellee. Allen McGrath, of McGrath & Wohl-forth, Anchorage, for National Board of Missions of the United Methodist Church, Alaska Mission, as amicus curiae. Before DIMOND, RABINOWITZ and CONNOR, JJ., and MOODY, Superior Court Judge.

5681

35103

CONNOR, Justice. This case concerns the scope of an exemption of real property from taxation. Under constitutional and statutory provisions which render certain property used for religious purposes exempt from taxation, appellee claims exemption from taxes assessed by the Greater Anchorage Area Borough. The borough asserts that the property is not exempt from taxation. Appellants assessed real property taxes for the calendar year 1965 on three parcels of residential property owned by the ap-pellee. These will be referred to as follows : Parcel 1 702 Barrow Street — residence of A. C. Reed. Mr. Reed is a minister of the Seventh Day Adventist Church. He is the assistant to J. C. Hanson, and is also the treasurer of appellee's statewide operations. Parcel 2 134 East Seventh Avenue — residence of David Kuebler. Mr. Kuebler is not a minister of the church, and his position is that of principal of appellee's parochial school and teacher in the 9th and 10th grades. Parcel 3 111 East Seventh Avenue — residence of J. C. Hanson. Mr. Hanson is the president of appellee's statewide operations, and is also a minister in appellee church. Parcels 1 and 2 are located in close proximity to appellee's Alaska Mission. Parcel 3 is located next to the church building of appellee. All of the parcels are located within the same block in Anchorage, Alaska. In addition to being used as residences, it is stated that the dwellings on these parcels of property are used for counseling, social gatherings of a church nature, and as residences by visiting members and staff of the church when they attend conferences at Anchorage. It is the policy of appellee to provide housing for all of its employees in Alaska, whether or not it designates them as ministers. For example, one of the secretaries of appellee occupies an apartment contained in the residence of Mr. Hanson on Parcel 3. Appellee's statewide operations are extensive. It operates- ten schools in the State of Alaska, only one of these being within the Greater Anchorage Area Borough. It operates nine organized churches and five organized church companies. None of the organized companies is in the Greater Anchorage Area Borough, and only one of the organized churches is within the borough. Neither the physical church building located in the Greater Anchorage Area Borough nor the home of the pastor of the local congregation is taxed by the borough. The assessments were appealed by the appellee to the board of equalization of the borough. This appeal was denied by the board on April 5, 1965; and on May 17, 1965, appellee brought an action for a declaratory judgment asserting that these properties were exempt from taxation. Appellants moved to dismiss on the grounds that appellee had not appealed to the superior court under AS 29.10.426, providing for appeals from the determinations of boards of equalization, and that appellee should not be allowed to collaterally attack the decision of the board. This motion was denied, without opinion. Both parties then filed cross motions for summary judgment and stipulated on this method of disposing of the case. Summary judgment was granted to appellee church, declaring the properties in question to be exempt from real property taxation. The two main issues presented on appeal are: (1) whether the bringing of a declaratory judgment action instead of following the statutory method of appeal from a tax equalization board determination should bar appellee from litigating its claimed tax exemption, and (2) whether the properties in question are exempt from taxation. THE PROCEDURAL ISSUE Appellants argue that the exclusive method of review of the equalization board's determination is that found in AS 29.10.426, which provides: "A person aggrieved by an order of the board of equalization may appeal to the superior court for review de novo after he has exhausted his administrative remedy under § 369-540 of this chapter." Both parties concede that this type of appeal was not sought, that the action before us was an original action when filed, and that the right of appeal from a board of equalization determination differs in certain cases from the right to commence an independent action. In Keiner v. City of Anchorage, 378 P. 2d 406 (Alaska 1963), this court laid down the rule that on appeal from administrative agencies or district (then magistrate) courts there may not be a trial de novo unless the superior court requires it. This rule was based upon an interpretation of legislative enactments subsequent to Alaska statehood and a procedural rule promulgated by this court. The court stated: "[I]f the agency record is not sufficient to determine the issue on appeal, or if the record discloses that justice requires evidence to be taken de novo, the superior court has the discretion to do what is necessary by granting a new trial or hearing, either in whole or in part." Keiner v. City of Anchorage, supra, at 410. Appellants argue that the review of the board of equalization's determination should have been on the record, including a transcript of the board hearing and any other documents which might have been available. Appellants argue that only if the record were inadequate, or if the superior court in its discretion granted a de novo hearing, should the review have been de novo and not limited only to the record. It is argued that unless the rule laid down in Keiner is enforced, it means a reversion to the system by which all review of administrative action would be de novo. Additionally, appellants argue that the substantial evidence rule will be overturned if an independent action such as the one before us is permitted. It is true that the substantial evidence rule is of great importance. One of the purposes of administrative agencies is to serve as fact-finding boards in fields in which they possess expertise greater than, or at least equal to, that of the judiciary. The litigation of various questions before administrative tribunals, which are vested with power to act within a given field, also results in judicial economy, as many administrative determinations are final and are not appealed by either party. Running through the entire field of administrative law is the policy of not overturning the factual findings of administrative agencies unless there is a lack of substantial evidence in the record as a whole to sustain the agencies' determinations. Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). Appellee argues that whatever may be the general rule, in the case before us the standard of review was the same because there were no genuine factual issues in dispute. It urges that the only point at issue is whether, under agreed facts, the residential properties in question are taxable as a matter of law. Appellee argues that even if it had followed the prescribed procedure, only this question would have been presented for consideration by the superior court. It also points out that if this action were to be dismissed on procedural grounds it would only result in the same questions being brought before the court at some later date, with essentially the same facts, the same legal issues, and with additional expense to all parties. In Matanuska-Susitna Borough v. King's Lake Camp, 439 P.2d 441 (Alaska 1968), the borough contended that the appellee had incorrectly instituted an action for both declaratory and injunctive relief instead of paying its taxes under protest and suing for recovery, and that appellee had not obtained a ruling from the board of equalization, thereby failing to exhaust its administrative remedy. This court in that case stated its opinion that the procedural questions presented should await a more appropriate occasion for their resolution. We feel similarly in the case before us. Appellee's only procedural irregularity was in terming its action before the superior court an original action for declaratory relief instead of an appeal from an adverse ruling of the board of equalization. Unlike the King's Lake Camp case, appellee here did in fact apply for relief from the board of equalization before seeking relief in the courts. It is noteworthy that the superior court indicated its willingness to make a determination on the merits when it denied appellants' motion to dismiss for failure to state a claim. This can be regarded as an exercise of the court's discretion to hear the matter de novo on appeal from the board of equalization. We have already noted that the facts in this case were not seriously in dispute. Considering all of these circumstances, we have concluded that any procedural irregularities committed by appel-lee should not bar it from a determination on the merits. THE SUBSTANTIVE ISSUE The pertinent parts of the statute which we must construe, AS 29.10.336, read as follows: "(a) Property used exclusively for nonprofit religious purposes [is] exempt from [property] taxation. (b) The term 'property used exclusively for religious purposes' includes the following types of property owned by a religious organization: (1) the residence of the pastor, priest, rabbi, minister, or religious order, which residence is owned by a recognized religious organization; (2) a structure, and the land it stands on, which is used for public worship, solely charitable purposes, religious education, or a nonprofit hospital; (3) the furniture and fixtures in a structure used exclusively for religious purposes; (4) lots adjacent to a structure or residence mentioned in (1) or (2) of this subsection, and which are reasonably necessary to the convenient use of the structure; (5) lots required by local ordinance for parking in connection with the structure as defined in (2) of this subsection. (c) Property or part of the property described in (a) or (b) of this section from which rentals or income are derived is not exempt from taxation under (a) of this section, unless the rentals or income are derived from the rental of the property by religious or educational groups for classroom space." This statute was enacted pursuant to Article IX, Section 4, of the Constitution of the State of Alaska, which reads in part: "All, or any portion of, property used exclusively for nonprofit religious, charitable, cemetery, or educational purposes, as defined by law, shall be exempt from taxation. Other exemptions of like or different kind may be granted by general law." While this court in Evangelical Covenant Church of America v. City of Nome, 394 P.2d 882 (Alaska 1964), held that more than one parsonage exemption could attach to a given church, and referred to "these broadened tax exemption provisions," 394 P.2d, at 885, as a basis for that holding, it should be noted that the statute has been repealed and re-enacted since this court rendered that decision. We view the action of the legislature in deleting the language "and other property of the organization not used for business, rent, or profit," as narrowing the type of residence which can be exempt from property taxation under AS 29.10.336(b) (1), as it now reads. Appellants argue that we should apply the almost universally accepted canon of construction that taxing statutes should be construed in favor of the taxing authority and that exceptions to general tax provisions should be narrowly construed. More particularly, they point to cases in which tax exemptions for property used in religious and educational activities are construed narrowly, or where the property is treated as being exempt only if it falls within the plain meaning of the statute. As the court observed in Cedars of Lebanon Hospital v. Los Angeles County, 35 Cal.2d 729, 221 P.2d 31, 15 A.L.R.2d 1045 (Cal. 1950), "Constitutional provisions and statutes granting exemption from taxation are strictly construed to the end that such concession will be neither enlarged nor extended beyond the plain meaning of the language employed. In this regard, it is immaterial that the institutions in question may contribute to the public welfare and serve the interests of the state, for they, like other private owners of property, have the burden of showing that they clearly come within the terms of the exemption." 221 P.2d, at 34. A number of cases hold that under statutes similar to our own the residences of church administrators and teachers do not qualify for property tax exemption. In International Missions, Inc. v. Borough of Lincoln Park, 87 N.J.Super. 170, 208 A.2d 431 (1965), it was held that the residence of a clergyman who functioned as an officer of an international missionary corporation was not exempt as property actually and exclusively used for religious purposes, or as a parsonage of an officiating clergyman of a religious corporation, as required by the applicable statute. The court stressed that the person occupying an exempt residence must possess some degree of permanency and must be serving the needs of a reasonably localized and established congregation. Partly because the clergyman in question was primarily an administrative officer and not a pastor or minister of a particular parish, church, or congregation, his dwelling was held not to be exempt. In Township of Teaneck v. Lutheran Bible Institute, 20 N.J. 86, 118 A.2d 809 (1955), the court denied an exemption to homes provided by a bible institute for faculty members and their families. The fact that the faculty members maintained studies and offices in these homes so that students could seek counseling and guidance was of no avail. The homes failed to fulfill the statutory criterion that the " 'buildings [be] actually and exclusively used in the work of associations and corporations organized exclusively for religions purposes.' " In so ruling, the court emphasized the rule of construction that all doubts are resolved against those seeking the benefit of a statutory exemption from taxation. Similarly, in St. John Evangelical Lutheran Congregation v. Board of Appeals, 357 Ill. 69, 191 N.E. 282 (1934), the court held taxable the residence owned by a church and occupied free of rent by a teacher who sometimes tutored pupils in the residence, under a statute granting an exemption to property used "exclusively for school and religious purposes." Worcester District Stewards New England Conference of Methodist Episcopal Church v. Assessors of Worcester, 321 Mass. 482, 73 N.E.2d 898 (1947), holds taxable a dwelling of a minister who was an administrative supervisor over a number of churches within a district, but who was not the incumbent minister of any particular church or congregation. Even when the uses of a piece of property are highly related to the primarily exempted activity, the exemption will not apply when the statute requires "exclusive" use. In Sisterhood of Holy Nativity v. Tax Assessors, 73 R.I. 445, 57 A.2d 184 (1948), the statute exempted "buildings for free public schools, buildings for religious worship and the land on which they stand" insofar as they were occupied and used exclusively for religious or educational purposes. In that case a building used as a residence by sisters who conducted retreats for women, conferences of a religious nature, and who instructed children of the local parish church, was held subject to taxation. The court noted that the building was devoted to both secular and exempted uses. Under the canon of strict construction the court found that the exemption failed. Even though there was a high degree of religious use, the court found it not exclusively religious in nature. Appellee argues that the rule of interpretation should focus upon whether the property is reasonably necessary for the efficient functioning of the organization claiming the exemption. Appellee points out that there is a respectable group of cases in which courts have declared that properties reasonably and incidentally necessary to the function of the exempted activity are to be included within the tax exemption. We have examined these cases and find that they are largely distinguishable either on the facts or on the statutory language which they apply. Some of these cases are highly persuasive, and they employ sound judicial technique, hut we do not find them sufficient to overcome the precise terminology of our own statute or the more general policy of strict construction in interpreting tax exemptive laws. Appellee cites Cedars of Lebanon Hospital v. Los Angeles County, supra, which has already been discussed earlier in this opinion. We find this case distinguishable on its facts and on the statutory language. In that case the court found an institutional necessity to provide living quarters for resident doctors and other members of the hospital staff. The statutory terminology was different from what we must here construe. Serra Retreat v. Los Angeles County, 35 Cal.2d 755, 221 P.2d 59 (1950), held that a portion of a retreat house used as living quarters for priests and lay brothers was exempt from taxation. This case is also distinguishable on its facts and on the statutory language applied. The court there found that it was vitally necessary that the priests and lay brothers live within the retreat house in order to perform their religious functions. The actual dispute in that case was over less than one-quarter of the structure, the remaining part of the structure being admittedly exempt. Elder v. Trustees of Atlanta University, 194 Ga. 716, 22 S.E.2d 515, 143 A.L.R. 268 (1941), exempted faculty dwelling houses owned by a college and located across the street from the main campus. The statute there construed exempted all buildings "used as a college." 22 S.E.2d, at 519. Thus it was unlike the Alaska provision which we interpret in the case before us. Appellee cites Nebraska Conference Association of Seventh Day Adventists v. Board of Equalization, 179 Neb. 326, 138 N.W.2d 455 (Neb.1965), which exempted faculty houses, located adjacent to academic grounds on tax exempt land owned by a religious association. That case also exempted faculty houses located one-half mile from the academic grounds and occupied by faculty members. However, the school was a rural boarding school, and it was required that faculty members live on or near the campus in order to maintain the constant supervision, instruction, and counseling of students which was necessary to the functioning of the educational institution itself. The argument presented by amicus curiae stresses heavily the point that the Alaska statute is not merely a "parsonage exemption." It is urged that the many cases which interpret a "parsonage" exemption narrowly have no bearing upon the Alaska statute, which is phrased in terms of exempting "the residence of the pastor, priest, rabbi, minister, or religious order." As amicus curiae points out, many of the cases which are restrictive about the scope of religious tax exemptions deal with statutory language which refers to the term "parsonage" as the specific category of exemption. But there are many aspects which must be considered in interpreting these statutes other than the accidental presence or absence of the term "parsonage" as opposed to some other word. To us the term "parsonage" is a fair equivalent for the term "residence" of a pastor, minister, rabbi, priest, or religious order, referring to a religious congregation having an identifiable, local situs. The term "parsonage" originally had an ecclesiastical meaning, referring to a benefice of land, or of a house, belonging to a parish and appropriated to the maintenance of an incumbent or settled pastor of a church. In its modern signification it simply refers to the residence of a parson attached to a local church or congregation. In re Wells Estate, 63 Vt. 116, 21 A. 270 (1891). St. Joseph's Church v. City of Detroit, 189 Mich. 408, 155 N.W. 588 (1915). Some authorities have treated a parsonage as being different in nature from the church to which it relates, viewing a parsonage as property which is a non-spiritual means of aiding worship in the church proper. Although it is ordinarily used as a residence for the pastor, there is nothing to prevent a parsonage frota being used for other purposes, including profit. Everett v. Trustees of First Presbyterian Church, 53 N.J.Eq. 500, 32 A. 747 (1895). We fail to perceive a meaningful difference between the notion of "parsonage" and "residence" of the spiritual leader of a local religious congregation. If it were not for the particular exemption provisions of the Alaska statute, one could even argue that parsonages are not to be exempted, following the narrow • distinctions drawn in some of the cases cited above. The crux of the problem before us is that we are confronted with a legislative determination, within its apparent constitutional powers, that in the category of property used exclusively for religious purposes there shall be included "the residence of the pastor, priest, rabbi, minister, or religious order." This language is noteworthy for its use of the term "the" in its specific enunciation. Thus, though it might be argued under cases decided in other jurisdictions that even the residence of a minister who is attached to a particular church or congregation should not be exempt, for the reason that it is devoted partly to other than exclusively religious uses, the legislature has made a determination that such a residence shall be exempt. But it has said no more than this. To us the words "the residence of the pastor," etc., imply that only those residences may qualify that have some direct relationship to a structure used primarily as a house of worship. If the legislature desires a broader form of exemption, it may amend the statute. Under the policy of strict construction of such statutes we cannot, under the existing statutory language, extend the statute to cover those objects not plainly within its meaning. Under the approach we have employed it is clear that Parcel 2, the residence of Mr. Kuebler, who is not a minister but a teacher in appellee's parochial school, is subject to taxation. It is likewise clear that Parcels 1 and 3 are subject to taxation. Parcel 1 is the residence of A. C. Reed, who, although a minister of the church, is an assistant to J. C. Hanson and is treasurer of appellee's statewide operations. Parcel 3, the residence of J. C. Hanson, who is president of appellee's statewide operations, and who is also a minister, is similarly subject to taxation. The judgment below is reversed with directions to enter summary judgment in favor of appellants. NE'SBETT, C. J., not participating. . While in Walz v. Tax Comm. of the City of New York, 395 U.S. 957, 89 S.Ct. 2105, 23 L.Ed.2d 744, the United States Supreme Court has granted review to determine the constitutional validity of religious property tax exemptions, that question is not raised in the briefs and, therefore, is not before us. . The portion of the statute passed upon in Evangelical Covenant Church v. City of Nome, supra, reads as follows: "(c) The term 'property used for religious purposes' includes the residence of the pastor, priest, or minister of a religious organization, and other property of the organization not used for "business, rent, or profit." The italicized language was deleted in the repeal and re-enactment of the statute in 1964. SLA 1964, eh. 34, § 2. . We need not decide in this case whether Evangelical Covenant Church of America v. City of Nome, 394 P.2d 882 (Alaska 1964), has been altered legislatively so that only a single parsonage can obtain exemption in connection with any one organized, local congregation or church structure. Nor do we otherwise, than in the case before us, determine the extent of change in the religious tax exemption which results from the repeal and re-enactment of the statute in 1964.

10473848

Winslow Dave DEVEROUX, Appellant, v. STATE of Alaska, Appellee

Deveroux v. State

1976-04-26

No. 2636

1296

1299

548 P.2d 1296

548

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:08:46.626956+00:00

CAP

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

Winslow Dave DEVEROUX, Appellant, v. STATE of Alaska, Appellee.

Winslow Dave DEVEROUX, Appellant, v. STATE of Alaska, Appellee. No. 2636. Supreme Court of Alaska. April 26, 1976. Kermit E. Barker, Jr., Phillip P. Weid-ner, Asst. Public Defender, Brian Shortell, Public Defender, Anchorage, for appellant. Stephen G. Dunning, Asst. £>ist. Atty., Joseph D. Balfe, Dist. Atty., Anchorage, Avrum M. Gross, Atty. Gen., Juneau, for appellee. Before BOOCHEVER, Chief Justice, and RABINOWITZ, CONNOR, ERWIN and BURKE, Justices.

1265

7956

OPINION CONNOR, Justice. This appeal questions the propriety of using certain information in the sentencing process, and involves the standards used therein. Winslow Deveroux pleaded guilty to the charge of being a felon in possession of a prohibited weapon, and was sentenced to four years imprisonment. The maximum sentence for the crime is five years. The pre-sentence report revealed that Deveroux was frisked at a traffic stop while suspected of robbing the Hong Kong Restaurant in Anchorage, Alaska. Although the police were unable to establish any connection between Deveroux and the robbery, they did find a .25 caliber pistol and over $1,000 on his person. Possession of the pistol and the discovery of his prior conviction for burglary gave rise to the present charge. Besides his 1970 burglary conviction, Deveroux's criminal record reveals 11 other convictions for offenses ranging from breach of the peace to petty larceny, 13 traffic offenses, and one entry of "Obtaining Money by False Pretense 2 Cts. & Assault & Battery" in 1973 for which no disposition is listed. The pre-sentence report also contains a note to the court: "in addition to the indicated offenses, there are seven additional arrests for violation of the criminal statutes, varying from suspicion of theft to Frequenting a Gambling Establishment to Assault With a Dangerous Weapon." In addition to this, Deveroux's plea bargain in the instant case entailed his admitting, for purposes of sentencing, a charge of larceny in a building although the charge itself was to be dropped later. Deveroux raises, directly or indirectly, several contentions as to why his sentence should be reconsidered. He first argues that the trial court failed to conform to proper standards in sentencing, and failed to articulate its reasons for'and the purpose to be served by the' sentence. We disagree. In State v. Chaney, 477 P.2d 441, 444 (Alaska 1970), we said : "Under Alaska's Constitution, the principles of reformation and necessity of protecting the public constitute the touchstones of penal administration. Multiple goals are encompassed within these broad constitutional standards. Within the ambit of this constitutional phraseology are found the objectives of rehabilitation of the offender into a noncriminal member of society, isolation of the offender from society to prevent criminal conduct during the period of confinement,- deterrence of the offender himself after his release from confinement or other penological treatment, as well as deterrence of other members of the community who might possess tendencies toward criminal conduct similar to that of the offender, and community condemnation of the individual offender, or in other words, reaffirmation of societal norms for the purpose of maintaining respect for the norms themselves." (Footnotes omitted) In the case at bar, the trial judge specifically stated: "looking at the record, there's no question in my mind that this person is a danger to society." This would seem to fall under the objective and purpose of isolating the offender from society, mentioned in Chaney. The court also indicated that it considered and rejected the possibility of rehabilitation, "at least . . . unless there's a complete change of attitude by the defendant." The information in the report which was taken into account in reaching such a conclusion was also specified by the trial judge: "As I say, I look at the person's earning record, his contacts with the police, what his friends say about him, what his friends say against him. . I look at his record." Traffic offenses, at least when there are'a great number of them, may be included in a pre-sentence report, as here, and considered as evidence of a defendant's antisocial life style. See Peterson v. State, 487 P.2d 682, 683 (Alaska 1971). We have repeatedly cautioned that "police contacts" not leading to conviction should not be considered. In addition to the cases cited by appellant, we note that Alaska Criminal Rule 32(c)(2) has provided since 1973 that no record of arrest or other police contacts shall be included in a pre-sen-tence report. But our reading of the record convinces us that unexplained police contacts were not a significant factor in the trial court's decision to impose a four year sentence. Deveroux's prior "police contacts" not leading to convictions were discussed in ascertaining how long he had served on a prior conviction, and other matters which are not direct bases for increasing his sentence. Deveroux does have an extensive history of criminal and traffic convictions. Although some of these are petty in nature, their number warrants consideration. Furthermore, for purposes of sentencing there are two felonies to be considered: burglary and a recent larceny in a building. Although Deveroux's list of convictions does not necessarily show a propensity for violence, his former probation officer's letter to the court did. This officer also indicated that Deveroux had not benefited from his probation on the burglary charge, in the past. We hold that the trial judge was not clearly mistaken in imposing sentence on Deveroux. AFFIRMED. . See AS 11.55.030. . AS 11.55.040 provides: "A person who violates § 30 of this chapter is punishable by imprisonment for not less than one year nor more than five years, or by a fine not exceeding $500, or by both." . Since the charge was verified in this manner by the defendant himself, it may be considered for sentencing purposes even though not proven. See Hixon, v. State, 508 P.2d 526, 527 n. 1 (Alaska 1973) ; State v. Galaktionoff, 486 P.2d 919, 922-923 (Alaska 1972). . Appellant does not directly raise this point on appeal, but he did raise it below. . Typical of our position on this matter is the following: "In our opinions in Waters v. State, 483 P.2d 199 (Alaska 1971) and Robinson v. State, 484 P.2d 686 (Alaska 1971), which were decided after the date of this sentencing, we cautioned against placing reliance on previous 'contacts' with the police. We feel constrained herein to note again that mention was made of 'contacts' by the trial court and again caution against the reliance on such information in the sentencing process." Peterson v. State, 487 P.2d 682, 683 n. 1 (Alaska 1971) ; see Galaktionoff v. State, 486 P.2d 919, 924 (Alaska 1971). . In Waters v. State, 483 P.2d 199, 201-02 (Alaska 1971), we upheld a 10-year maximum sentence for sale of cocaine even though Waters was not a "titan" of the narcotics traffic or otherwise a "worst offender" for drugs. We reasoned: "Appellant's commission of the robbery and larceny in a building offenses demonstrate [s] that he is a risk to the public. His antisocial behavior indicates that a period of incarceration is called for . . . ."

10419651

Edgar MIDDLETON, Appellant, v. ANCHORAGE, A Municipal Corporation, Appellee

Middleton v. Anchorage

1983-12-16

No. 7722

283

285

673 P.2d 283

673

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T18:09:56.146075+00:00

CAP

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

Edgar MIDDLETON, Appellant, v. ANCHORAGE, A Municipal Corporation, Appellee.

Edgar MIDDLETON, Appellant, v. ANCHORAGE, A Municipal Corporation, Appellee. No. 7722. Court of Appeals of Alaska. Dec. 16, 1983. Eric L. Hanson, Lynch, Farney & Crosby, Anchorage, for appellant. James A. Crary, Asst. Municipal Prosecutor, Allen Bailey, Municipal Prosecutor and Jerry Wertzbaugher, Municipal Atty., Anchorage, for appellee.

820

5311

OPINION Before BRYNER, C.J., and COATS and SINGLETON, JJ. SINGLETON, Judge. Edgar Middleton was convicted of driving while intoxicated, AMC 09.28.020(A), and operating a vehicle without a valid driver's license, AMC 09.12.010(A). The maximum sentence for driving while intoxicated is imprisonment for one year and a fine of $1,000. AMC 09.48.010(D). The mandatory minimum sentence for a first conviction is incarceration for seventy-two consecutive hours. A subsequent conviction within five years results in a minimum ten-day sentence, or twenty days if it occurs within one year of a previous conviction. AMC 09.28.020(C). This was Middleton's third conviction for DWI within five years. He received a sentence of 360 days with 260 days suspended and his license was revoked for three years. In addition, he was required to attend alcohol screening and to have no similar violations for five years. As an additional penalty for driving without a valid operator's license, Middleton received a sentence of sixty days with thirty days suspended to run consecutively to his DWI sentence. Thus Middleton received a total sentence of 130 days to serve. He appeals, contending that the sentence is excessive. Middleton makes two arguments. First, he contends that the minimum sentence as set out in the ordinance should be treated as the conceptual equivalent of a presumptive sentence in the revised criminal code. He argues that Austin v. State, 627 P.2d 657 (Alaska App.1981), requires sentencing courts to confine themselves to the legislative "sentencing scheme" for DWI convictions absent an "exceptional case." We reject Middleton's argument for two reasons. First, he erroneously equates minimum sentences with presumptive sentences. While, a minimum sentence is appropriate for the offender whose conduct is the least serious contemplated by the definition of the offense, a presumptive sentence is aimed at the typical offender. In addition, even if we were to equate minimum and presumptive sentences, Austin addresses the appropriate sentence for a "first offender" who is not subject to presumptive sentencing. Middleton is a third offender. He would not qualify as a typical offender, nor can his conduct be characterized as the least serious contemplated by the definition of the offense. Middleton also argues that his sentence is excessive because it disproportionately exceeds the sentences he received for his first two convictions. Those convictions resulted in five- and ten-day sentences. Middleton advocates a "stair-step" approach to sentencing. He implies that a recidivist's sentence should gradually increase with each offense or increase by the same amount each time. This argument is merit-less. "Sentencing is a discretionary func tion which in each . case is to be exercised in accordance with the criteria and goals . enunciated in State v. Chaney [477 P.2d 441 (Alaska 1970).]" Adams v. State, 521 P.2d 516, 520 (Alaska 1974) (sentence not excessive simply because it is more severe than sentence imposed in a similar case). See also Creer v. State, 600 E.2d 1095 (Alaska 1979). In sentencing Middleton, Judge Andrews considered the Chaney criteria: I have to consider the Chaney criteria when I sentence you. What that means legally is the fact that I have to consider what type of sentence will rehabilitate you Mr. Middleton; what society needs to be isolated from you and your propensity to drive after you've been drinking; what will deter you and others; what society actually thinks this crime is worth in the grand scheme of things. Judge Andrews concluded that Middleton was not a good candidate for rehabilitation because he had previously been convicted and sentenced, and had not learned from his mistakes. She labelled him a "dangerous person on the road." She indicated that she would have imposed the maximum sentence but for the minor nature of the collision which resulted in Middleton's arrest. Instead, she imposed a sentence which falls between the legislative minimum and maximum. "Drunken "driving is extremely dangerous and presents a tremendous risk to the driving public." Connors v. State, 652 P.2d 110, 111 (Alaska App.1982). See also Sandahl v. Anchorage, 670 P.2d 716, (Alaska App., 1983). Consequently, one convicted of drunken driving should receive a commensurate sentence. In Sandahl we said: Sandahl next contends that his sentence is excessive because others with comparable records for driving while intoxicated have received substantially shorter sentences. It is not the function of appellate review to enforce uniformity in sentencing by requiring similar sentences for the same offense without consideration of each defendant's background. 670 P.2d at 718. We are not persuaded that Middleton's sentence is excessive. Taking into account his record and the circumstances of this offense we are satisfied that Judge Andrews was not clearly mistaken. The sentence of the district court is AFFIRMED.

10419898

Jesus GUTIERREZ, Appellant, v. STATE of Alaska, Appellee

Gutierrez v. State

1983-12-23

No. 7110

287

290

673 P.2d 287

673

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T18:09:56.146075+00:00

CAP

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

Jesus GUTIERREZ, Appellant, v. STATE of Alaska, Appellee.

Jesus GUTIERREZ, Appellant, v. STATE of Alaska, Appellee. No. 7110. Court of Appeals of Alaska. Dec. 23, 1983. Daniel T. Saluri, Fairbanks, for appellant. Richard W. Maki, Asst. Atty. Gen., Anchorage, and Norman C. Gorsuch, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

1750

10904

OPINION COATS, Judge. On March 29, 1982, Fairbanks police officers executed a search warrant at a residence which was sublet to Constantine Mal-kin. At the time of the search, Jesus Gutierrez was also staying in the residence, and had apparently stayed there for several days. In Malkin's bedroom, underneath Malkin's bed, Officer Frank Colletta found a silver metallic briefcase. The briefcase was shut and had a combination lock. Officer Coletta asked Malkin and Gutierrez for the combination. Gutierrez remained silent and Malkin said he had forgotten the combination. Colletta pried open the briefcase and found that it contained personal papers belonging to Gutierrez and several bags which contained a total of nineteen ounces of cocaine. The police also found a scale and rolled dollar bills which appeared to have been used for ingesting cocaine. When Colletta told Gutierrez and Malkin what he had found, according to Colletta, Malkin "claimed that all the items that were found, including the cocaine, . belonged to him." Gutierrez and Malkin were charged with possession of cocaine. A motion to suppress evidence was ultimately granted in Malkin's case, and the trial court's ruling is currently pending before us in another case. Gutierrez was convicted following a jury trial and was sentenced to eight years' imprisonment. He appeals his conviction and sentence to this court. Gutierrez's main point on appeal is that the trial court erred in not letting him introduce statements of Constantine Malkin where Malkin admitted ownership of the cocaine. We agree with Gutierrez that the trial court should have admitted Malkin's statements and accordingly reverse Gutierrez's conviction. Our disposition of this issue makes it unnecessary for us to address Gutierrez's other contentions. Malkin twice made statements that the cocaine belonged to him. The first was the statement which he made to Officer Collet-ta and in front of Gutierrez during the search. Malkin also made a similar statement in court. This admission occurred when he interjected comments during Col-letta's testimony in a preliminary hearing. Gutierrez's counsel attempted to introduce Malkin's statements at trial during the testimony of Officer Colletta. The court sustained the state's hearsay objection. Gutierrez' counsel made an offer of proof. The court again sustained the state's objection. Later in the trial Gutierrez's counsel tried to bring in evidence that Malkin had admitted ownership of the cocaine through Gutierrez's testimony. The following exchange occurred: DEFENSE ATTORNEY: Now, was there ever a time that you heard Chris [Malkin] admit and say that that was his cocaine? PROSECUTOR: Objection. GUTIERREZ: Yes. THE COURT: Sustained. DEFENSE ATTORNEY: We'd like to argue that, Your Honor. THE COURT: Counsel, put another question to the witness. We've gone over that. DEFENSE ATTORNEY: I have no further questions. On appeal, Gutierrez argues that Malkin's statement should have been admitted as a hearsay exception under Alaska Rule of Evidence 804(b)(3) as a declaration against interest: Hearsay Exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: Statement Against Interest. 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 him to civil or criminal liability, or to render invalid a claim by him against another, that a reasonable man in his position would not have made the statement unless he believed 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. As the state points out, the rule plainly provides that in order for a declaration against interest to be admissible, the hearsay declarant, in this case Malkin, must be unavailable. Evidence Rule 804(a) defines unavailability and provides in part: (a) Definition of Unavailability. Unavailability as a witness includes situations in which the declarant (1)is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of his statement; or (2) persists in refusing to testify concerning the subject matter of his statement despite an order of the court to do so; or (3) establishes a lack of memory of the subject matter of his statement; or (4) is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or (5) is absent from the hearing and the proponent of his statement has been unable to procure his attendance (or in the case of a hearsay exception under subdivision (b)(2), (3), (4), or (5), of this rule, his attendance or testimony) by reasonable means including process. A declarant is not unavailable as a witness if his exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of his statement for the purpose of preventing the witness from attending or testifying. The state contends that Gutierrez made no showing that Malkin was unavailable. We do not believe that an explicit showing was required in this case. Malkin was also under indictment for possession of the cocaine and it is reasonable to assume that he would exercise his fifth amendment rights. We note, by analogy, that the prosecution is generally allowed to assume that a co-defendant will exercise his fifth amendment rights in cases where the prosecution wishes to introduce hearsay statements of a co-defendant at grand jury. Galauska v. State, 527 P.2d 459, 465 (Alaska 1974), modified on other grounds, 523 P.2d 1017 (Alaska 1975). We also note that the prosecution did not object to the evidence on the ground that Gutierrez had not shown that Malkin was unavailable. This appears to be because the prosecution knew Malkin was unavailable. We therefore hold that Gutierrez could reasonably presume that Malkin was unavailable because Gutierrez was "unable to procure . his . testimony by reasonable meansincluding process." A.R.E. 804(a)(5). Gutierrez was entitled to rely on this presumption that Malkin was unavailable, at least where there was no objection on the ground that he had not shown that Malkin was unavailable. The state also argues that Gutierrez did not sufficiently alert the trial court that he was admitting a declaration against interest. There is no question that Gutierrez's attorney could have been clearer on his grounds for admitting Malkin's statement. However, we do not believe that his attorney was required to name the particular hearsay exception in this case. He made an offer of proof in which he told the judge that Malkin had stated in court that the "cocaine is mine, was all mine, and it didn't belong to anyone else." The trial judge knew that Gutierrez wanted to admit Mal-kin's confession, and we doubt that referring to Malkin's statements as a declaration against interest would have further clarified matters. It also would have been apparent to the trial judge that Malkin would almost certainly exercise his fifth amendment privilege if called, so that Malkin was unavailable. Also, because Gutierrez was unable to make a full offer of proof when he attempted to introduce Malkin's statements during his own testimony, it is hard to fault him for not arguing this matter more fully. Of course, Evidence Rule 804(b)(3) states that "[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." The trial court did not find Mal-kin's statement untrustworthy. The state has not argued that Malkin's statements did not comply with this portion of the rule. We note that the record reflects that the cocaine was found in a residence which was subleased to Malkin and where Malkin was apparently the primary occupant. The silver briefcase was found underneath Mal-kin's bed. Malkin's fingerprints were present on two items in the briefcase and there were no fingerprints which belonged to Gutierrez. Malkin's first admission was to a police officer immediately after the cocaine was found. The other admission occurred in open court and on the record. Furthermore, Gutierrez testified in essence that he loaned his briefcase to Malkin, that he left some of his papers in the briefcase, and that the cocaine was not his. Based on the record presently before us, we conclude that Malkin's statements were sufficiently corroborated so that Gutierrez was entitled to have them admitted. Compare Larson v. State, 656 P.2d 571, 574 (Alaska App.1982). (A.R.E. 804(b)(3) inapplicable where witness available and no corroborating circumstances.) The state has not argued that the failure to admit Malkin's statements was harmless. We cannot say that the admission of Mal-kin's statements "did not appreciably affect the jury's verdict." Love v. State, 457 P.2d 622, 632 (Alaska 1969). We accordingly reverse Gutierrez' conviction. REVERSED AND REMANDED. . Not only could the prosecution and Gutierrez assume that Malkin was unavailable because he was awaiting charges for possession of the same cocaine with which Gutierrez was charged, but it also appears that Malkin may have been unavailable for reasons having to do with his mental health. A.R.E. 804(a)(4). At a hearing held on June 7, 1982, in front of Judge Hodges, the state referred to a psychiatric report by Dr. Rothrock in which Dr. Rothrock concluded that Malkin was incapable of assisting in his own defense. The state joined in a motion by Malkin's attorney to commit Malkin to a mental hospital until Malkin was competent to assist in his defense. Gutierrez's trial started about one month after this court proceeding. . Evidence that another person has confessed to committing a crime with which a defendant is charged may be so critical that the failure to admit the evidence violates due process of law. See Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 1049, 35 L.Ed.2d 297, 313 (1973). See also Green v. Georgia, 442 U.S. 95, 97, 99 S.Ct. 2150, 2151, 60 L.Ed.2d 738, 741 (1979). Because we are able to resolve the question raised by this case under the evidence rules, we do not need to consider Gutierrez's due process argument. However, the due process argument does tend to illustrate the fundamental nature of the evidence which Gutierrez wished to introduce.

10373147

WIEN AIR ALASKA and Scott Wetzel Services, Inc., Petitioners, v. Daniel KRAMER, Richard Matthews dba Enchanted Lake Lodge and Industrial Indemnity Company and State of Alaska, Workers' Compensation Board, Respondents

Wien Air Alaska v. Kramer

1991-03-15

No. S-3221

471

476-482

807 P.2d 471

807

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:06:07.613925+00:00

CAP

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

WIEN AIR ALASKA and Scott Wetzel Services, Inc., Petitioners, v. Daniel KRAMER, Richard Matthews dba Enchanted Lake Lodge and Industrial Indemnity Company and State of Alaska, Workers’ Compensation Board, Respondents.

WIEN AIR ALASKA and Scott Wetzel Services, Inc., Petitioners, v. Daniel KRAMER, Richard Matthews dba Enchanted Lake Lodge and Industrial Indemnity Company and State of Alaska, Workers’ Compensation Board, Respondents. No. S-3221. Supreme Court of Alaska. March 15, 1991. Phillip J. Eide, Guess & Rudd, Anchorage, for petitioners. Eric Olson, Olson Law Office, Inc., Anchorage, for respondent Kramer. Mark L. Figura, Rose & Figura, Anchorage, for respondents Matthews, Enchanted Lake Lodge and Indus. Indem. Co. No appearance by respondent, State of Alaska. Before MATTHEWS, C.J., and RABINO WITZ, BURKE, COMPTON and MOORE, JJ.

2437

15478

OPINION BURKE, Justice. We granted review in this case to determine whether a workers' compensation claimant, Daniel Kramer, can rely on the statutory presumption of compensability, AS 23.30.120(a)(1), to establish, absent substantial evidence to the contrary, that a work-related injury resulted in a compensa-ble disability. In addition, we consider whether the trial court properly raised, sua sponte, the issue of Kramer's status as an "independent contractor" under the last injurious exposure rule. Finally, we examine whether the superior court abused its discretion by ordering Kramer's medical payments reinstated after ordering the case remanded for further proceedings before the Workers' Compensation Board. I Daniel Kramer was injured in November 1984, while working as a cook for Wien Air Alaska. Kramer suffered back and shoulder injuries and received therapy and treatment from two doctors. Wien Air paid Kramer temporary total disability benefits from the date of his injury until May 1985 when Kramer was released for work as a chef. After working a short time as a chef for Enchanted Lake Lodge, Kramer suffered a "flare-up" of his shoulders and back injury which caused him to leave his job on July 14, 1985. The doctors who examined Kramer after the "flare-up" concluded that Kramer's symptoms could be attributed to his original injury rather than his employment at Enchanted Lake Lodge. In August 1985, Kramer applied for unemployment benefits which he received, from October 26, 1985 until March 22, 1986. To procure these benefits, he certified on a biweekly basis that he was able to work as a chef. On November 5, 1985, Kramer filed for an adjustment of his claim seeking temporary total disability benefits from July 15, 1985 and continuing indefinitely. Wien Air controverted Kramer's claim and petitioned to have Enchanted Lake Lodge joined in the proceeding, citing the last injurious exposure rule. Even so, Wien Air reinstated Kramer's temporary total disability benefits under a reservation of rights, in October 1986. However, it stopped paying benefits in October 1987, after the Board denied Kramer's claim. In proceedings before the Board in July 1987, Kramer argued that he was still disabled as a result of his 1984 injury and was entitled to temporary total disability compensation. Wien Air argued that Kramer's sworn statements regarding his ability to work on his unemployment claims barred him from receiving any further disability benefits. Although Kramer had not made an earlier showing of disability before the Board, the Board was aware that Kramer was seeking a continuation of his temporary total disability benefits. The Board did not apply the statutory presumption of compensability to the question of whether a continuing disability existed. Instead, it required Kramer to establish the fact by a preponderance of the evidence relying, in part, on our decision in Brunke v. Rogers & Babler, 714 P.2d 795, 801 (Alaska 1986). The Board stated that the issue of Kramer's disability since July 15, 1985 was "the first and only issue to be decided." The Board concluded that Kramer had failed to prove that he continued to be disabled as of that date and denied his claim. On appeal, the superior court reversed the Board's decision ruling that "there was not a reasonable basis for the Board's placing the burden of proof on Kramer" to establish the existence of a continuing disability. The court also ruled that Wien Air failed to rebut the presumption with substantial evidence. On remand, the superior court ordered the Board to determine the actual dates for which Kramer was drawing unemployment benefits and was thereby statutorily prohibited from receiving disability compensation. The court raised, sua sponte, the issue of Kramer's possible "independent, contractor" status at Enchanted Lake Lodge and ordered reinstatement of Kramer's medical benefits pending determination of the issues on remand. Wien Air then petitioned this court for review of the superior court's decision. II A In past cases, we have applied the presumption of compensability, AS 23.30.-120(a), primarily in situations where problems in proving causation or "work relatedness" would make it difficult, if not impossible, for an employee to establish a claim. See Rogers Electric Co. v. Kouba, 603 P.2d 909 (Alaska 1979) (presumption applicable to question whether employee's back injury was the result of a congenital condition or a work related accident); Thornton v. Alaska Workmen's Compensation Bd., 411 P.2d 209 (Alaska 1966) (presumption applicable to question whether employee's heart attack was caused by a work related event). In a case similar to the facts presented here, we assumed that the presumption applied to a claim for continuing temporary total disability, but held that the employer had overcome the presumption. Bailey v. Litwin Corp., 713 P.2d 249, 252 (Alaska 1986); see also Kodiak Oilfield Haulers v. Adams, 777 P.2d 1145 (Alaska 1989) (where an intervening injury occurred, presumption applicable to question whether a work related injury remained the source of an employee's continuing disability). More recently, in Anchorage v. Carter, 807 P.2d 476, 478-79, (Alaska 1991), we applied the presumption to a non-causation issue, holding that an injured employee may rely on the presumption to establish the existence of a continuing disability in a claim for continuing treatment or care under AS 23.30.095(a). These cases indicate that we have approved of the application of the statutory presumption to questions of this type. The Board relied on our decision in Brunke to conclude that the presumption of compensability does apply to establish the existence of a disability. In that case, we held that the employee bears the burden of proof of lost earning capacity in a claim for permanent partial disability compensation. We stated that the Board found that while MAPCO was liable for compensation for Brunke's back injury, Brunke had failed to produce evidence of his post-injury earnings. Therefore, the Board denied his claim for compensation.... 714 P.2d at 800. We then went on to state that The Board apparently placed the burden of producing evidence of loss of earning capacity on Brunke. The explicit language of AS 23.30.210 does not clarify who bears the burden of proof of lost earning capacity. We have not previously addressed this problem. We have, however, held that "[t]he burden of proof as to each element of the claim is on the claimant," once the employer rebuts the presumption of com-pensability. 714 P.2d at 801 (quoting Delaney v. Alaska Airlines, 693 P.2d 859, 862 (Alaska 1985)). Loss of earning capacity is the defining characteristic of a compensable disability. Hewing v. Peter Kiewit & Sons, 586 P.2d 182, 185-86 (Alaska 1978). It would be difficult to reconcile Brunke with Carter and Bailey if the ease is read to hold that the presumption of compensability does not apply to the question whether an employee's injury resulted in a loss of earning capacity. In Brunke, we were concerned with the employee/claimant's obligation to present evidence concerning his current earning capacity so that the Board could make a reasoned assessment of his lost earning capacity under AS 23.30.210. Brunke, 714 P.2d at 800-01. There the Board found that Brunke had suffered a compensable disability. However, Brunke submitted no evidence of his current wage earning capacity. Id. The only question was whether the Board was required to solicit evidence of Brunke's post-injury earnings so as to determine his present wage earning capacity. Our holding did not address, in the slightest, the applicability of AS 23.30.-120(a) to the question of whether a compen-sable disability existed. Moreover, Brunke dealt with the proper construction of AS 23.30.210 which was repealed by the Alaska legislature in 1988. Ch. 79, § 44, SLA 1988. Brunke's precedential value on this matter is, therefore, rather limited. Our decision in Brunke does not support the Board's ruling. Kramer was entitled to rely on the statutory presumption to meet his burden of production in establishing that he suffered from a continuing disability. We affirm the superior court's ruling on this matter and hold that AS 23.30.-120(a)(1) creates the presumption of a com-pensable disability once the employee has established a preliminary link between employment and injury. Because the Board erred in its preliminary allotment of the burden of production, it did not address the question of whether Wien Air successfully rebutted the presumption of compensability. Although Wien Air invites us to decide this issue on the record before us, we decline to reach this evidentiary issue without the benefit of a decision by the Board. B The superior court ordered the Board, on remand, to determine whether Kramer was an employee of Enchanted Lake Lodge or merely an independent contractor before adjudicating the question of employer liability. Wien objects to this order on the ground that Enchanted Lake Lodge never raised this issue, and further contends that Enchanted Lake Lodge was ready to concede that Kramer was an employee. Enchanted Lake Lodge does, in fact, concede in its brief that Kramer was its employee. Enchanted Lake Lodge asserts that it "has admitted throughout the proceedings below that Kramer was its employee." An issue not raised by any party is normally not considered on review, unless failure to address the issue would constitute plain error or result in a miscarriage of justice. In re L.A.M., 727 P.2d 1057, 1059 (Alaska 1986). In light of the parties' concession of Kramer's employment status, the superior court's order requiring a factual determination of that question is reversed. C In its memorandum opinion, the superior court stated: The cessation or continuance of Kramer's medical benefits was not considered. The medical benefits ceased without ruling. The court hereby orders the reinstatement of Kramer's medical benefits pending determination of the issues on remand to the Board. Memo. Op. at 6. Wien argues that only the Board has the power to order reinstatement of medical benefits. Therefore, it contends that the superior court erred in not remanding this issue to the Board. Kramer argues that the Board's failure to address this issue constituted an "implicit denial of all benefits, including medical care, [because] Wien has refused to provide medical care since the date of the Board's decision." Accordingly, Kramer contends the superior court had the appellate power to restore the position of the parties to status quo ante and reinstate medical benefits. AS 44.62.570 provides that the superior court, when sitting as an appellate court, may "exercise its independent judgment on the evidence" and "enter judgment setting aside, modifying, remanding or affirming the order or decision, without limiting or controlling in any way the discretion legally vested in the agency." AS 44.62.570(c) & (e) (emphasis added). This statutory provision, we believe, is broad enough to allow the superior court to reinstate benefits pending a final determination by the Board, without impinging upon the Board's discretion and power to adjudicate medical benefit claims. We note also that under Appellate Rule 609 the superior court, when sitting as an intermediate court of appeal, "shall have power to make such orders as are necessary and proper to aid its appellate jurisdiction." Considerations pertaining to the medical or financial status of a party before the court are often, of necessity, implicated. In light of the broad grant of power contained in these provisions, we affirm the superior court's exercise of discretion and its deci sion to reinstate medical benefits pending final disposition by the Board. The decision of the superior court is REVERSED in part and AFFIRMED in part. . The Board erroneously found that Kramer received unemployment benefits starting August 8, 1985. On appeal to the superior court, Wien Air conceded that the Board was mistaken on this point. . The last injurious exposure rule applies when subsequent employment exacerbates, aggravates, accelerates or combines with a pre-exist-ing condition to cause a disability. Full liability is imposed on the employer at the time of the most recent injury. Ketchikan Gateway Borough v. Sating, 604 P.2d 590, 596-97 (Alaska 1979). Wien Air contends that Kramer was reinjured while working at Enchanted Lake Lodge, and therefore, claims that the Lodge is liable for any further disability compensation. . The Board examined the time periods that Kramer was and was not collecting unemployment benefits. For the period that Kramer was collecting such benefits, the Board also ruled that Kramer was statutorily prohibited from collecting disability compensation. AS 23.30.-187 mandates that disability "compensation is not payable to an employee . for a week in which the employee receives unemployment benefits." . Our cases are quite consistent in holding that the presumption shifts only the burden of production and that, once the employer rebuts the presumption with substantial evidence, the presumption drops out and the employee must establish each element of his claim by a preponderance of the evidence. See generally Veco, Inc. v. Wolfer, 693 P.2d 865 (Alaska 1985). . As the superior court noted in its decision in the present case, the Brunke case involved claims for both temporary total and permanent partial disability compensation. It is significant that in Brunke, the Board applied the presumption of compensability to the temporary total disability claim and we affirmed their ruling. Brunke, 714 P.2d at 798. .The fact that Kramer suffered a work related injury for which he received compensation from Wien Air is sufficient to establish a preliminary link between his employment and his continuing disability thus implicating AS 23.30.-120(a). See generally Burgess Construction Co. v. Smallwood, 623 P.2d 312 (Alaska 1981). . The superior court, sitting as an appellate court, chose to rule on the record alone that Wien Air failed to rebut the presumption with substantial evidence. However, we are under no obligation to defer to the superior court's judgment in this matter and vacate this portion of its order. See Wolfer, 693 P.2d at 869. . Enchanted Lake Lodge argues primarily that it did not have proper notice of Kramer's claim and therefore the claim against it should be barred. Neither the Board nor the superior court addressed this issue. Enchanted Lake Lodge asks us to reach the matter positing that the "interests of justice require a timely consideration of Enchanted Lake Lodge's defense." In light of our conclusion regarding Kramer's failure to prove his disability before the Board, this issue need not be addressed.

10373450

KENAI PENINSULA BOROUGH, a Municipal Corporation; and Donald E. Thomas, Borough Assessor, Appellants, v. COOK INLET REGION, INC.; Salamatof Native Association, Inc., Appellees

Kenai Peninsula Borough v. Cook Inlet Region, Inc.

1991-03-15

No. S-3117

487

502

807 P.2d 487

807

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:06:07.613925+00:00

CAP

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

KENAI PENINSULA BOROUGH, a Municipal Corporation; and Donald E. Thomas, Borough Assessor, Appellants, v. COOK INLET REGION, INC.; Salamatof Native Association, Inc., Appellees.

KENAI PENINSULA BOROUGH, a Municipal Corporation; and Donald E. Thomas, Borough Assessor, Appellants, v. COOK INLET REGION, INC.; Salamatof Native Association, Inc., Appellees. No. S-3117. Supreme Court of Alaska. March 15, 1991. Gerald L. Sharp, Peggy A. Roston, Preston, Thorgrimson, Ellis & Holman, Anchorage, for appellants. Mark Rindner, Lane, Powell & Barker, Anchorage, for appellee Cook Inlet Region, Inc. Russell L. Winner, Bruce A. Moore, Winner & Associates, Anchorage, for appellee Salamatof Native Ass’n, Inc. Marjorie L. Odland, Gary I. Amendola, Asst. Attys. Gen., Juneau, Douglas B. Baily, Atty. Gen., Juneau, for amicus curiae, State of Alaska. Before MATTHEWS, C.J., and RABINO WITZ, BURKE, COMPTON and MOORE, JJ.

8483

51965

OPINION MATTHEWS, Chief Justice. The Alaska Native Claims Settlement Act (ANCSA), 43 U.S.C. § 1601-1628 (1982), extinguished all claims of the Native people of Alaska based on aboriginal title in exchange for 962.5 million dollars and 44 million acres of public land. See United States v. Atlantic Richfield Co., 612 F.2d 1132, 1134 (9th Cir.1980). The act authorized the creation of 13 regional and over 200 village corporations to receive this money and land. In enacting ANCSA, Congress declared as a policy that "the settlement should be accomplished . without adding to the categories of properties and institutions enjoying special tax privileges_" 43 U.S.C. § 1601(b). Congress did, however, provide for an exemption from real property taxation for lands conveyed under the act. The exemption was limited in time to 20 years, and in content to lands "which are not developed or leased to third parties." 43 U.S.C. § 1620(d)(1). This case concerns the meaning of the term "developed" in the act. PROCEDURAL HISTORY A. Salamatof Native Association, Inc. Salamatof Native Association, Inc. (Sala-matof) is a village corporation which received land under ANCSA. At issue in this appeal are the tax years 1981 through 1985 and 161 tax parcels. Salamatof paid real property taxes to the Kenai Peninsula Borough (borough) on all parcels and appealed to the borough assessor. The assessor found that taxes for 1981 through 1983 were not protested in a timely manner and denied the appeal as to all parcels for those years. He found that taxes for 1984 and subsequent years were protested on time. On the merits, the assessor found that a number of parcels were exempt. However, he denied exemptions to some of the parcels presently before us on the grounds that the parcels were developed. As to these, the assessor stated, in relevant part: a. That these parcels are within a platted subdivision and are capable of use for gainful and productive purposes as they are now, they are presently offered for sale; and b. These parcels were created by subdivision plat. A subdivision plat is more than just mere surveying, and creates new legally defined parcels and rights regarding sale of the resulting parcels. A subdivision constitutes a purposeful modification of the land from its original state and in this case, makes it capable of a present productive gainful use. Salamatof took a timely appeal of this decision to the superior court. The parties by stipulation added parcels on which the assessor made no ruling. In the superior court this case was consolidated with the appeal of Cook Inlet Region, Inc. B. Appeal of Cook Inlet Region, Inc. Cook Inlet Region, Inc. (CIRI) is a regional corporation under ANCSA and an Alaska business corporation. The tax years in question are 1981 through 1986 involving some 67 parcels. CIRI paid its taxes and appealed to the borough assessor. On January 27 and June 4, 1986, hearings were held before the assessor. The assessor ruled that a number of parcels were exempt, but denied exemptions as to many others. In general, the grounds for denial were that the parcels are considered developed as they are surveyed or subdivided lots capable of gainful and productive present use and need no further modification to be marketable. From this decision CIRI appealed to the superior court. COURSE OF PROCEEDINGS IN THE SUPERIOR COURT After procedural skirmishes and a substantial period of delay by the borough in filing its appellee's brief, the trial court entered a written decision ruling that all the parcels, with one exception, were "clearly undeveloped" and thus tax exempt. The excepted parcel, the so-called Homer radio station property owned by CIRI, was remanded to the assessor for further proceedings. Final judgments in favor of CIRI and Salamatof were entered pursuant to Civil Rule 54(b) as to all of the parcels except the parcel containing the radio station. CIRI moved for full attorney's fees and costs of $30,761.48 and for an award of sanctions against the borough of $2,500. Salamatof made a similar motion, requesting actual attorney's fees of $64,258, actual costs of $4,088.92, and sanctions of $2,400. The borough asked for and received an extension in which to oppose these motions. When this period ended it requested a further extension. While this request was pending the trial court awarded CIRI and Salamatof what they had asked for in actual attorney's fees, costs, and sanctions, noting that no opposition had been filed. On appeal to this court, the borough challenges the superior court's ruling that CIRI's and Salamatof's property is exempt and the award of actual attorney's fees and sanctions. FAILURE TO ASSERT AN EXEMPTION As a threshold matter, the borough argues that neither CIRI nor Salamatof asserted that its property was exempt in a timely manner for the tax years 1981-1985. The borough relies on section 2 of Kenai Peninsula Borough (KPB) Ordinance 5.12.-055, passed in 1985, which sets forth the procedure for appealing tax assessments to the borough assessor. Section 2 provides [t]hat appellants who have claimed or asserted that properties are exempt prior to the time taxes were due for that year but whose properties have been assessed by the Borough assessing staff for the 1985 assessment year and all prior assessment years, have until December 31, 1985 to appeal such assessments pursuant to the procedures established under Section 1 of the ordinance; except that no appeal right under this ordinance shall exist if the property claimed to be exempt has been the subject of a final determination of taxes due through a tax foreclosure or other legal action. The borough argues that the taxpayers under this section were required to have asserted their exemptions prior to the yearly tax due date of August 15, and that they did not do so. The borough assessor found that Salamatof did not protest the taxation of its parcels in a timely manner for the tax years 1981-1983. The superior court reversed the assessor's ruling on this point, stating that the ordinance "was enacted especially to deal with the taxpayers' complaints." The trial court's conclusion concerning the purpose of the ordinance is warranted in part. The ordinance was designed to accommodate the appeals of Native corporations for years prior to 1985. However, the ordinance requires as a condition of appeal that an appellant "have claimed or asserted" an exemption "prior to the time taxes were due for that year." This condition cannot be read out of the ordinance. There was substantial evidence to support the assessor's ruling that Salama-tof failed to object to taxation of its property in a timely fashion for the tax years 1981 through 1983. The first assertion of immunity appearing of record was made January 23, 1984, when Salamatof made a late payment of its 1983 taxes under protest. Accordingly, the assessor's ruling should have been affirmed. Although the ordinance on which the borough relies was not enacted until 1985, statutory procedures existed prior to that time for obtaining a refund of taxes paid under protest. AS 29.45.500. Such actions were barred if not brought within one year after the due date of the tax. AS 29.45.-500(b). In addition, a statutory right of appeal from assessments existed prior to the ordinance under AS 29.45.190 and AS 29.45.200(c). These, however, had to be exercised within 30 days after the date of mailing of the notice of assessment. The deadlines for both of these methods had passed by the time Salamatof first initiated action as to the tax years 1981 through 1983. The assessor found that Salamatof's protests were on time for the years 1984 and 1985. The ordinance only requires that taxpayers claim or assert exemptions. KPB Ordinance § 5.12.055(2). No particular form of claim or assertion is required. Since it appears that Salamatof began protesting taxation beginning January 23, 1984, prior to the time taxes were due for 1984, we conclude that the assessor's decision that Salamatof's protest for 1984 and 1985 were timely under the ordinance is supportable. By the same standard, CIRI's protests are timely for all tax years in question as it had been protesting taxation since 1981. We thus conclude that the borough's argument concerning the timeliness of Sala-matof's appeal for 1981 through 1983 is correct and that all of Salamatof's property involved in this case was taxable for those years. The borough's timeliness arguments concerning Salamatof's property for 1984 and 1985 and CIRI's property for all of the tax years lack merit. STATUTORY FRAMEWORK FOR THE CLAIMS OF EXEMPTION There are four statutes which are relevant to the exemption issue. The first is ANCSA, enacted by Congress in 1971 to extinguish Alaska Natives' claims to aboriginal title and to grant compensation for those claims. As noted, section 21(d) of ANCSA (43 U.S.C. § 1620(d)) provided that lands conveyed under ANCSA would be tax exempt for 20 years except for developed lands or lands leased to third parties. The legislative history of section 21(d) of ANCSA has been described as "sparse." Price, Purtich and Gerber, The Tax Exemption of Native Lands Under Section 21(d) of the Alaska Native Claims Settlement Act, 6 U.C.L.A.Alaska L.Rev. 1, 3 (1976) (hereafter "Price"). Price's explanation of the purpose the exemption is as follows: Section 21(d), as part of the Alaska Native Claims Settlement Act, is most clearly a provision implementing the policy of gradual adjustment to the economic mainstream. The twenty year moratorium on taxation of undeveloped and un-leased land serves as a period during which the Natives can experiment in financial and real estate transactions and achieve managerial capability, without fear of immediate tax burdens arising from the ownership of vast tracts of undeveloped land. Furthermore, the tax moratorium permits the Natives to pursue a traditional subsistence lifestyle, at least temporarily, without the need to exploit hunting grounds in order to raise revenue for taxation. An exemption is also important because of the danger of foreclosure for nonpayment and the possibility of rapid movement of land ownership from Native to non-Natives. Price at 6. While this is an explanation for the moratorium on taxation, it does not explain the exception to the moratorium for developed or leased land. Price describes the draftsmen of ANCSA as "generally hostile to [tax] exemptions." Id. at 5. However, "[t]here is evidence that the moratorium on taxation was a bargained-for compensation and part of the liquidation of the Native claim." Id. at 6. The influential report of the Federal Field Committee for Development Planning in Alaska, Alaska Natives and the Land (U.S. Government, Anchorage, 1968) discusses the tax exemption problem as follows: Tax exemptions could have significant fiscal implications for the state and local government. The real estate exemption of S.B. 3586, for instance, keeps all lands granted off the property tax rolls whether they are "in fee or in trust." This provision applies as well to any minerals associated with the land grant which could otherwise be made subject to ad valorem levies where tax bodies existed. Conceivably, these sums might amount to considerable amounts of public receipts foregone. Some caution is appropriate here, however, in that too early and too much land taxation can result in confiscation of the land, which result would clearly be counter-productive to the policy resolution intended. The problem here seems to be to distinguish among the different purposes for which land might be granted. In the case of homesites, fishing camps, and the like, or of lands granted to protect subsistence activities, maximum insurance is required against confiscation because of the owner's inability to pay taxes. In the case of grants of commercially valuable land for income purposes, however, the point is to get them into a productive, income-earning position and, indeed, to get them on the tax rolls. To the extent that these lands are in fact capable of producing income, there is no obvious justification for keeping them off the tax rolls simply because they happen to be owned by Natives or Native groups. Id. at 531 (emphasis in original). From the committee standpoint at least, land capable of producing income which was selected for its income producing potential should be taxable in fairness to the state and local governments. This sentiment seems to have been carried forward to the final enactment of ANCSA, as illustrated by the Congressional declaration that there be no addition to the categories of property enjoying special tax privileges, 43 U.S.C. § 1601(b), and in the provision of section 21(d) of ANCSA itself, providing that developed or leased property is immediately taxable. The next act of importance to this case is the Alaska National Interest Lands Conservation Act of 1980, P.L. 96-487 (ANILCA). ANILCA, so far as relevant here, amended section 21(d) to begin the running of the 20-year exemption period "from the vesting of title pursuant to the Alaska National Interest Lands Conservation Act or the date of issuance of an interim conveyance or patent, whichever is earlier...." ANILCA also created the Alaska Land Bank program. 43 U.S.C. § 1636. Under this program, private land owners, including Native corporations, could make agree ments with the Secretary of the Interior so that their lands would be managed in a manner compatible with the management plan for adjoining federal lands. As to lands owned by Native corporations which were included in such agreements, ANIL-CA provided that there would be permanent immunity from state and local property taxes. 43 U.S.C. § 1636(d). In addition, ANILCA expanded the tax exemption to reach property used "solely for the purposes of exploration" and added language to the first proviso of section 21(d) of ANCSA which was aimed at re-establishing tax exemption when property was no longer "leased or being developed." In 1983 the Alaska Legislature passed Senate Bill 260 (effective January 1984), which added property exempt under ANC-SA to the list of property exempt from taxation. AS 29.45.030(a)(7). The legislature then defined the meaning of the term "developed," among other terms used in ANCSA, "unless superseded by applicable federal law" as follows: "developed" means a purposeful modification of the property from its original state that effectuates a condition of gainful and productive present use without further substantial modification; surveying, construction of roads, providing utilities or similar actions normally considered to be component parts of the development process, but which do not create the condition described in this paragraph, do not constitute a developed state within the meaning of this paragraph; developed property, in order to remove the exemption, must be developed for purposes other than exploration, and be limited to the smallest practicable tract of the property actually used in the developed state; The last act of relevance is Public Law 100-241, 101 Stat. 1806, the Alaska Native Claims Settlement Act Amendments of 1987. This act extended the Alaska Land Bank tax exemption to all lands conveyed under ANCSA, regardless of whether they are subject to a Land Bank Agreement, "so long as such land and interests are not developed or leased or sold to third parties...." 43 U.S.C. § 1636(d)(l)(A)(ii). Also, the act defines "developed" in terms which at the outset are substantially identical to the terms used in the 1983 state statute, but which go on to specify that land which is subdivided under an approved and recorded subdivision plat is "developed". 43 U.S.C. 1636(d)(2)(B)(iii). The House explanatory statement to Public Law 100-241 discusses the term "developed" at length. The statement makes clear Congress' intent that, whatever else the word "developed" might mean, it encompasses lots in an approved and recorded subdivision: Land in Alaska is subdivided by the State or by local platting authorities. Action by the appropriate platting authority enables development of the subdivided property. Regardless of whether a tract of land has been physically modified from its original state, the tract is 'developed' from the date an approved subdivision plat is properly recorded by the landowner or his or its authorized agent. House Explanatory Statement, 100th Cong., 1st Sess. § 11, reprinted in 1987 U.S.Code Cong. & Admin.News 3299, 3311. DISCUSSION OF THE MERITS The borough argues that there is a generally accepted meaning of the term "developed" in the context of land. This meaning is, "converted into an area suitable for residential or business uses." The borough contends that this definition encompasses land which has been platted and is ready for sale. The borough argues that Congress intended that the term "developed" would mean this in section 21(d) of ANCSA. Further, the borough argues that if the state law definition of "developed" exempts property that would not be exempt under ANCSA, state law is unconstitutional because non-Native corporation owners of property identical in character and use are not afforded the same tax exemption. The appellees argue that in order to be "developed" under ANCSA, property must be actually productive of income rather than merely potentially productive. Appel-lees contend that AS 29.45.030 is consistent with ANCSA. Alternatively, they argue that there is no common or ordinary meaning of the term "developed," that it is ambiguous, and that therefore the rule of construction that in Indian law all ambiguities must be resolved in favor of Indians should control this case and requires a construction which exempts any parcel which had not been purposefully modified and is not presently economically productive. The meaning of the term "developed" under ANCSA is a question of federal law. Consequently, the primary consideration in determining meaning is the intent of Congress. Although it is well established that ambiguities in ANCSA are to be resolved favorably to Natives, Alaska Public Easement Defense Fund v. Andrus, 435 F.Supp. 664, 670-71 (D.Alaska 1977); People of South Naknek v. Bristol Bay Borough, 466 F.Supp. 870, 873 (D.Alaska 1979), if congressional intent is clear, we must defer to it. Hakala v. Atxam Corp., 753 P.2d 1144, 1147 (Alaska 1988). One indication of congressional intent is the ordinary meaning of the words used in the statute. In the context of raw land, the common meaning of "developed" includes subdivided property which is ready for sale. Webster's Third New Interna tional Dictionary of the English Language, Unabridged (1968), defines "develop" in a land context as follows: to make actually available or usable (something previously only potentially available or usable)_: as (1): to convert (as raw land) into an area suitable for residential or business purposes [they ed several large tracts on the edge of town]; also: to alter raw land into (an area suitable for building) [the subdivisions that they ~ed were soon built up].... Cases dealing with the term "developed" in the context of land confirm that "develop" connotes conversion into an area suitable for use or sale. Winkelman v. City of Tiburon, 32 Cal.App.3d 834, 108 Cal.Rptr. 415, 421 (1973) ("The term 'developed' connotes the act of converting a tract of land into an area suitable for residential or business uses."); Muirhead v. Pilot Properties, Inc., 258 So.2d 232, 233 (Miss. 1972) (same holding); Prince George's County v. Equitable Trust Co., 44 Md. App. 272, 408 A.2d 737, 742 (1979) ("Develop [is defined as] the conversion of raw land into an area suitable for residential or business uses.") (Quoting Webster's New International Dictionary, (2d Ed.1959)); Best Building Co. v. Sikes, 394 S.W.2d 57, 63 (Tex.App.1965) (court approved trial court finding based in part on extrinsic evidence that "developed" included subdividing, building streets, and installing utilities). The appellees' position that in order to be developed property must actually be producing income is not supported by any generally accepted definition of the term. It would mean, for example, that a vacant office building located on a city lot is undeveloped. Since having an income producing character is not a necessary component of the word "developed" in ordinary usage, we reject the appellees' interpretation. At the hearing before the assessor, CIRI advocated a different definition of developed. CIRI took the view that a small tract of land was developed if profits from its sale would be maximized without further physical or legal alteration. CIRI's position was illustrated by Steve Planchón, its land development manager: [W]e do have . nine, ten properties . that we decided not to appeal.... They're one acre tracts. There's something that we can't do anything further. We can't subdivide them, we can't put a road in, the power isn't there. These things are there — it's something if a guy came to us tomorrow and said, "[L]isten, I'd like to sell it to you [sic]," and my boss came in and said "[W]ell before we sell it to him, what else can we do it, you know, can we make any more money off of this piece of property?" I'd say to him no. I'd say there's a fair market value for that piece of land. I can't do a thing else to enhance the value. That's a piece of property that we leave out of our appeals.... [I]f my boss came in tomorrow and said we've got a guy in here that wants to buy that 5-acre tract and . he wants to develop it, he says "can you guys do anything else to enhance the property value on that?" My answer to him would be yes . and we take that on as land department project, enhance the values.... We would put in roads. We would do the subdivision design and we would carry those costs up until we sell the property and make the profit throughout the process. There's no reason for us to give the profit away. [S]eems that we're arguing about is do you take it down to five acres. Do you take it to two acres. Do you take it to one acre. And our answer would be that, uh, from CIRI's point of view, it's not developed unless we can't get an additional dollar out of it from doing something else to the property. Mark Friedman, CIRI's land management officer, gave another example: And here it's probably a good instance to look at the criteria that we've used to determine what should be taxed and what shouldn't be taxed, in terms of whether the property is in a developed state or isn't in a developed state. If we look at that one, tract 8 is in fact appropriately being taxed. We've got a parcel that's 1.86 acres. There is a — there's roads. Utilities are right on the boundary of the property. The fact is that we would not have to do anything, expend any monies to sell that property . as a developed state. CIRI's position at the hearing before the assessor is consistent with the common meaning of developed. CIRI regarded its land as developed when it had been converted into an area suitable for sale in both a legal and a practical sense. The legal sense of suitability for sale is that a parcel of land may not be divided into two or more parcels for sale without an approved and recorded plat. AS 40.15.010. See Kenai Peninsula Borough v. Kenai Peninsula Board of Realtors, Inc., 652 P.2d 471, 472 (Alaska 1982). The practical sense is that as to some parcels which legally may be sold, a knowledgeable developer desiring to maximize revenue would not sell without re-platting or making additional improvements. In our view the word "developed" as used by Congress in ANCSA includes parcels which are not only legally but practically suitable for sale under these standards. We do not mean that a particular piece of property is "developed" simply because a market exists for its sale. Although these parcels did not present this situation, it is conceivable that a Native corporation that is not itself a land developer would sell raw land that would not generally be considered developed. Land that common sense tells us is not developed does not become taxable simply by virtue of a market existing for its sale in its unimproved state; to be within this definition of "developed" the land must be practically and legally suitable for sale to the ultimate user. It is our view that AS 29.45.030 is consistent with ANCSA with respect to the meaning of developed. The definition of developed in that statute is broad enough to include subdivided land which is ready for sale. Subdividing is legally a purposeful modification of property, for it enables separate parts of the property to be sold. Similarly, as a sale of property is a use, a subdivision which suffices to permit sales effects a gainful and productive condition. We reach this conclusion for two reasons. First, AS 29.45.030(a)(7) expressly exempts only property which is also exempt under ANCSA. Second, if we were to construe the state statute to exempt property which is not exempt under ANC-SA, serious questions concerning the constitutionality of the statute as so construed under the equal rights clause of the Alaska Constitution would be raised. Because statutes are to be construed to avoid a substantial risk of unconstitutionality where adopting such a construction is reasonable, we construe the state statute to be eo-extensive with ANCSA. IS SALAMATOF'S PROPERTY DEVELOPED? Salamatof's property can be divided into the three general categories; (1) subdivided lands in Moose Range Meadows Subdivision, (2) unsubdivided parcels in Moose Range Meadows Subdivision, and (3) two parcels in North Kenai. We discuss these below. (1) Moose Range Meadows Subdivision This subdivision was created by Sa-lamatof. Its plat has been approved and recorded. Roads have been dedicated and constructed and utilities are available to the subdivision lots and Salamatof is actively marketing the property. The lots themselves have not been leveled or cleared. There are 142 Moose Range Meadows Subdivision lots involved in this appeal. As the subdivision has made these lots suitable for sale, they are developed within the meaning of section 21(d) of ANCSA. (2) TJnsubdivided parcels in Moose Range Meadows These are four unsubdivided parcels ranging in size from 80 acres to 27 acres. They are adjacent to subdivided lots in Moose Range Meadows and they have road access. An electrical line , runs along the road which they front. Since these four parcels have not been subdivided and are substantially larger than the adjacent parcels which have been subdivided, we conclude that they are not suitable for sale from the standpoint of a knowledgeable owner wishing to maximize profits and thus they should not be considered developed. (3) North Kenai parcels These are two vacant parcels which lie along the bluff of the eastern shore of Cook Inlet, 14 miles north of the City of Kenai. They are 36 and 42 acres in size and have no regular road access. They have not been subdivided and according to the testimony at the hearing before the assessor, cannot reasonably be made marketable until roads are installed. Since these parcels are not suitable for sale at present, they are not developed under the standards announced above. IS CIRI'S PROPERTY DEVELOPED? CIRI's property is not easy to categorize. The borough breaks it down into five categories, which are somewhat overlapping. They are: (1) platted and subdivided parcels; (2) surveyed land which is divided into government lots; (3) surveyed land which has utilities available to it; (4) lake front property; and (5) the Homer radio station property. The parties' briefs contain no comprehensive discussion of the characteristics of the parcels falling within the first four categories. Our review of the record reveals that in none of the categories is it clear that all of the property is either taxable or exempt. With respect to the first category, platted and subdivided parcels, it appears that most of the lots owned by CIRI in the Stephenkie Subdivision are developed. However, at least two lots, 066-380-21 and 065-530-17, are substantially larger than the other lots in the subdivision and may not be suitable for sale without resubdivid-ing. In the second category, surveyed land which is divided into government lots, fall various township lots. CIRI claims that some of these are too large to be suitable for sale, e.g., parcel 133-120-20, a 7.9-acre parcel in the township of Kasilof, fronting the Sterling Highway. In other cases CIRI claims that they are too small and would have to be replatted with adjoining property, e.g., parcels 133-130-10 and 11, two quarter-acre lots in the Kasilof townsite. The third category, surveyed land which has utilities available to it, seems to overlap with the second category as utilities are available to some of the land which the borough has placed in the earlier category. In any case, this category includes two 2.5-acre lots in the city of Kenai, fronted by streets and served by all utilities. (Tracts 045-070-03 and 045-210-01.) The borough argued at the hearing before the assessor that the parcels were appropriate for sale as is and CIRI contended that it would not sell the tracts without first subdividing them into parcels of one acre. The fourth category is lake front property. Some of these are clearly suitable for sale as they are. For example, parcels 013-042-04, 12, 20 are parcels less than two acres in size, not adjacent to other CIRI lands. CIRI acknowledged that as to these properties there could be no further steps that could be taken to improve their marketability. As to other parcels in this category, CIRI contends that they should be subdivided, e.g., parcel 012-010-14, a 5-acre tract bordering a lake and Cook Inlet, which CIRI contends it would divide into two 2.5-acre parcels. Since the taxability or exemption of the property in these four categories was not addressed in the superior court under appropriate legal standards, a remand to the superior court for such a determination is necessary. The superior court may in turn remand some or all of these properties to the assessor if it appears that the assessor's findings are inadequate or that he used an improper standard. The Homer radio station property must be remanded for a different reason. This 16-acre parcel is in downtown Homer. It is served by roads and utilities and contains various structures, including several buildings, a radio tower and a network of cables and antennae. The property is used by a public radio station which pays CIRI $500 per year for the privilege. In our view, that portion of the property which is built on is clearly developed. A remand, however, is necessary to limit the land subject to taxation to the smallest practicable tract which is actually developed. AS 29.45.030(m)(l). Even though this statute only applies to the tax years after 1984, we consider the smallest practicable tract requirement of the statute to be a sensible construction of ANCSA. The superior court is thus directed to determine the smallest practicable tract which shall be considered developed within the Homer property for all tax years involved in this case. SANCTIONS The superior court awarded sanctions to CIRI of $2,500 and to Salamatof of $2,400 against the borough. The corporations requested these amounts for the legal expenses expended responding to two borough motions which the corporations claimed were frivolous, and for legal expenses incurred preparing revisions to their reply briefs after the borough had changed its brief in violation of a briefing deadline. Sanctions in administrative appeals are governed by Appellate Rule 510. Part (a) of Appellate Rule 510 allows sanctions in addition to interest, costs and attorney's fees where an appeal or a petition for review is filed merely for delay. Part (b) of Appellate Rule 510 allows the assessment of costs or attorney's fees for any infraction of the appellate rules. Part (c) allows the assessment of a fine not to exceed $500 against' any attorney who fails to comply with the appellate rules or any rules promulgated by the supreme court. Although the superior court did not specify under which subsection of Appellate Rule 510 it made its sanction award, the award can only be justified under subsection (b). Subsection (c) seems not to have been intended because the sanctions were directed against the borough rather than the borough attorneys. Subsection (a) speaks to delay on the part of an appellant or a petitioner. It is thus inapplicable to the dilatory conduct of the borough in this case, as the borough was the appellee. The borough did not file a timely opposition to the corporations' motions for sanctions. Accordingly, the borough has waived its right to object to them on appeal except on plain error grounds. In re L.A.M., 727 P.2d 1057, 1059 (Alaska 1986); A.R.C. Industries v. State, 551 P.2d 951, 961 (Alaska 1976). We have observed that plain error exists where "an obvious mistake has been made which creates a high likelihood that injustice has resulted." Miller v. Sears, 636 P.2d 1183, 1189 (Alaska 1981). We find that the possibility of plain error exists in this case in one respect. The trial court awarded full attorney's fees to the corporations independent of the award of sanctions under Appellate Rule 510(b). Since 510(b) sanctions are limited to costs and attorney's fees, there will be an impermissible double recovery of attorney's fees if both the awards of sanctions and the awards of attorney's fees were allowed to stand. However, at this juncture the sanction awards need not be reversed because, as noted below, the awards of attorney's fees must be vacated. ATTORNEY'S FEES The superior court awarded both corporations their actual attorney's fees. The awards included legal expenses incurred at the administrative level at the hearings before the assessor. The corporations' motions for attorney's fees were combined with their motion for sanctions and were •not opposed by the borough. We thus will review the awards only for plain error. A superior court acting as a court of appeal- from the decision of an administrative agency has authority to make an award of attorney's fees under Appellate Rule 508(e). Appellate Rule 601(b). Ordinarily, where such an award is made it should only partially compensate the prevailing party for attorney's fees and be limited to attorney's fees incurred in court, not those incurred in a prior administrative proceeding. McMillan v. Anchorage Community Hospital, 646 P.2d 857, 867 (Alaska 1982); State v. Smith, 593 P.2d 625, 630-31 (Alaska 1979); Kodiak Western Alaska Airlines, Inc. v. Bob Harris Flying Service, Inc., 592 P.2d 1200, 1204-05 (Alaska 1979); Appellate Rule 508(b), (c), and (e). However, actual costs and attorney's fees may be awarded where authorized by statute. Further, actual costs and attorney's fees may be awarded to a successful appellee where the court finds that the appeal is frivolous or has been brought simply for the purposes of delay. Appellate Rule 508(e). There is no explicit authority authorizing the award of actual costs and attorney's fees in favor of an appellee for frivolous conduct of a case on the part of an appellant. However, for specific misconduct on the part of either party, actual costs and fees may be awarded under Appellate Rule 510(b). The trial court held that the corporations were entitled to actual attorney's fees and costs under AS 29.45.500(a) and, alternatively, that the corporations were entitled to actual attorney's fees under Appellate Rule 508 on the grounds that "the Borough's judicial action was replete with unexcused delay and frivolous action." The court concluded "that the entire Borough action was motivated by bad faith." Alaska Statute 29.45.500(a) provides that in tax refund suits the successful taxpayer is entitled to a refund with interest plus "costs." The trial court evidently construed the term "costs" as used in this statute to include attorney's fees. Further, the attorney's fees included within the statute were actual attorney's fees rather than the partial standard ordinarily contemplated under our rules. Finally, this statute was construed to apply to prior administrative proceedings as well as to proceedings in court. We do not find plain error with respect to any of these conclusions. Nonetheless, we believe that the award of attorney's fees should be vacated because the ultimate disposition on the merits will be substantially different than the outright reversal ordered by the superior court. See e.g., Appellate Rule 508(c) (in cases of reversal, costs shall be allowed the appellant unless otherwise ordered by the court; in cases of partial affirmance and partial reversal the court will determine which party, if any, shall be allowed costs). Further, it is apparent that the trial court's opinion concerning the bad faith, as distinct from the dilatory conduct, of the borough was influenced by the trial court's mistaken view as to the merits of the tax exemption issue. Finally, assuming AS 29.45.500(a) authorizes an award of actual attorney's fees for administrative and judicial proceedings, such fees should be apportioned and not awarded for those parcels for which taxes are due. CONCLUSION For the above reasons we conclude: As to Salamatof Native Association, Inc.: 1. As to all properties for the tax years 1981 through 1983, the judgment is REVERSED. 2. As to Moose Range Meadows Subdivision for the tax years 1984 through 1986, the judgment is REVERSED. 3. As to the unsubdivided parcels in Moose Range Meadows Subdivision and the North Kenai parcels for the tax years 1984 through 1986, the judgment is AFFIRMED. 4. The award of sanctions is AFFIRMED. 5. The award of attorney's fees and costs is VACATED. As to Cook Inlet Region, Inc.: 1. As to all parcels, the judgment is REVERSED and the matter is REMANDED for further proceedings in accordance with this opinion. 2. As to sanctions, the judgment is AFFIRMED. 3. As to costs and attorney's fees, the judgment is VACATED. . Both corporations also brought original actions seeking a tax refund under AS 29.45.-500(a). These cases were consolidated with the present administrative appeal. . The borough includes within its appeal the trial court's decision concerning the Homer radio station property. As there has been no final judgment concerning this property, it should not be considered part of the appeal. However, because the issues concerning taxation of the radio station property are closely related to the issues presented on appeal, we consider this aspect of the borough's appeal to be a petition for review from a non-final order. We grant the petition and consider the taxability of the radio station property in this opinion. . Salamatof's claim that the borough ordinance allows the filing of claims raised at any time prior to foreclosure is without merit. The same is true of its contention that the borough's decision to permit consideration of only those tax protests raised prior to the tax due date is somehow violative of due process. . Section 21(d) of ANCSA initially provided: Real property interests conveyed, pursuant to this chapter, to a Native individual. Native Group, or Village or Regional Corporations which are not developed or leased to third parties shall be exempt from State and local real property taxes for a period of twenty years after [December 18, 1971]: Provided, That municipal taxes, local real property taxes, or local assessments may be imposed upon leased or developed real property within the jurisdiction of any governmental unit under the laws of the State: Provided further, That easements, rights-of-way, leaseholds, and similar interests in such real property may be taxed in accordance with State or local law. All rents, royalties, profits, and other revenues or proceeds derived from such property interests shall be taxable to the same extent as such revenues or proceeds are taxable when received by a non-Native individual or corporation. . 43 U.S.C. § 1620(d)(1) as amended by ANILCA reads: Real property interests conveyed, pursuant to this chapter, to a Native individual, Native Group, Village or Regional Corporation or corporation established pursuant to section 1613(h)(3) which are not developed or leased to third parties or which are used solely for the purposes of exploration shall be exempt from State and local real property taxes for a period of twenty years from the vesting of title pursuant to the Alaska National Interest Lands Conservation Act or the date of issuance of an interim conveyance or patent, whichever is earlier, for those interests to such individual, group, or corporation: Provided, That municipal taxes, local real property taxes, or local assessments may be imposed upon any portion of such interest within the jurisdiction of any governmental unit under the laws of the State which is leased or developed for purposes other than exploration for so long as such portion is leased or being developed: Provided further, That easements, rights-of-way, leaseholds, and similar interests in such real property may be taxed in accordance with State or local law. All rents, royalties, profits, and other revenues or proceeds derived from such property interests shall be taxable to the same extent as such revenues or proceeds are taxable when received by a nonNative individual or corporation. . AS 29.45.030 provides: (a) The following property is exempt from general taxation: (7) real property or an interest in real property that is exempt from taxation under 43 U.S.C. 1620(d), as amended. (m) For the purpose of determining property exempt under (a)(7) of this section, the following definitions apply to terms used in 43 U.S.C. 1620(d) unless superseded by applicable federal law: (1) "developed" means a purposeful modification of the property from its original state that effectuates a condition of gainful and productive present use without further substantial modification; surveying, construction of roads, providing utilities or other similar actions normally considered to be component parts of the development process, but that do not create the condition described in this paragraph, do not constitute a developed state within the meaning of this paragraph; developed property, in order to remove the exemption, must be developed for purposes other than exploration, and be limited to the smallest practicable tract of the property actually used in the developed state; (2) "exploration" means the examination and investigation of undeveloped land to determine the existence of subsurface nonrenewable resources; (3) "lease" means a grant of primary possession entered into for gainful purposes with a determinable fee remaining in the hands of the grantor; with respect to a lease that conveys rights of exploration and development, this exemption shall continue with respect to that portion of the leased tract that is used solely for the purpose of exploration. (n) If property or an interest in property that is determined not to be exempt under (a)(7) of this section reverts to an undeveloped state, or if the lease is terminated, the exemption shall be granted, subject to the provisions of (a)(7) and (m) of this section. . The 1987 amendments to ANCSA provide: 43 U.S.C. § 1636(d) Automatic protections for lands conveyed pursuant to the Alaska Native Claims Settlement Act. (1)(A) Notwithstanding any other provision of law or doctrine of equity, all land and interests in land in Alaska conveyed by the Federal Government pursuant to the Alaska Native Claims Settlement Act [43 U.S.C.A. § 1601 et seq.] to a Native individual or Native Corporation or subsequently reconveyed by a Native Corporation pursuant to section 39 of that Act [43 U.S.C.A. § 1629(e) ] to a Settlement Trust shall be exempt, so long as such land and interests are not developed or leased or sold to third parties from— (ii) real property taxes by any governmental entity: (2) Definitions. (A) For purposes of this subsection, the term— (i) "Developed" means a purposeful modification of land, or an interest in land, from its original state that effectuates a condition of gainful and productive present use without further substantial modification. Surveying, construction of roads, providing utilities, or other similar actions, which are normally considered to be component parts of the development process but do not create the condition described in the preceding sentence, shall not constitute a developed state within the meaning of this clause. In order to terminate the exemptions listed in paragraph (1), land, or an interest in land, must be developed for purposes other than exploration, and the exemptions will be terminated only with respect to the smallest practicable tract actually used in the developed state; (ii) "Exploration" means the examination and investigation of undeveloped land to determine the existence of subsurface nonrenewable resources; and (iii) "Leased" means subjected to a grant of primary possession entered into for a gainful purpose with a determinable fee remaining in the hands of the grantor. With respect to a lease that conveys rights of exploration and development, the exemptions listed in paragraph (1) shall continue with respect to that portion of the leased tract that is used solely for the purposes of exploration. (B) For purposes of this subsection— (i) land shall not be considered developed solely as a result of— (I) the construction, installation, or placement upon such land of any structure, fixture, device, or other improvement intended to enable, assist, or otherwise further subsistence uses or other customary or traditional uses of such land, or (II) the receipt of fees related to hunting, fishing, and guiding activities conducted on such land; (ii) land upon which timber resources are being harvested shall be considered developed only during the period of such harvest and only to the extent that such land is integrally related to the timber harvesting operation; and (iii) land subdivided by a State or local platting authority on the basis of a subdivision plat submitted by the holder of the land or its agent, shall be considered developed on the date an approved subdivision plat is recorded by such holder or agent unless the subdivided property is a remainder parcel. (4) Exclusion, reattachment of exemptions. (C) If the exemptions listed in paragraph (1) are terminated with respect to land, or an interest in land, as a result of development (or a lease to a third party), and such land, or interest in land, subsequently reverts to an undeveloped state (or the third-party lease is terminated), then the exemptions shall again apply to such land, or interest in land, in accordance with the provisions of this subsection. (5) Tax recapture upon subdivision plat rec-ordation. (A) Upon the recordation with an appropriate government authority of an approved subdivision plat submitted by, or on behalf of, a Native individual, Native Corporation, or Settlement Trust with respect to land described in paragraph (1), such individual, corporation, or trust shall pay in accordance with this paragraph all State and local property taxes on the smallest practicable tract integrally related to the subdivision project that would have been incurred by the individual, corporation, or trust on such land (excluding the value of subsurface resources and timber) in the absence of the exemption described in paragraph (l)(A)(ii) during the thirty months prior to the date of the recordation of the plat. (B) State and local property taxes specified in subparagraph (A) of this paragraph (together with interest at the rate of 5 per centum per annum commencing on the date of rec-ordation of the subdivision plat) shall be paid in equal semi-annual installments over a two-year period commencing on the date six months after the date of recordation of the subdivision plat. (C) At least thirty days prior to final approval of a plat of the type described in sub-paragraph (A), the government entity with jurisdiction over the plat 'shall notify the submitting individual, corporation, or trust of the estimated tax liability that would be incurred ls a result of the recordation of the plat at the time of final approval. (6) Savings. (B) Enactment of this subsection shall not affect any real property tax claim in litigation on the date of enactment [February 3, 1988]. . Since ANCSA contemplated a transfer of 44 million acres of public land, an area larger than the state of Washington, raw land is the general context in which Congress was speaking. As the 1987 Senate Report states, the conveyance included "tens of millions of acres of land which is only valuable as wildlife habitat." S.Rep. No. 201, 100th Cong., 1st Sess. 21, reprinted in 1987 U.S.Code Cong. & Admin.News 3269, 3271. . We do not imply that this is all "developed" means. Obviously land which has been improved with buildings or other structures is also developed. See Kenai Peninsula Borough v. Tyonek Native Corp., 807 P.2d 502 (Alaska 1991). . The equal rights clause of the Alaska Constitution is contained in article I, section 1, which provides "that all persons are equal and entitled to equal rights, opportunities, and protection under the law[.]" .State v. Fairbanks North Star Borough, 736 P.2d 1140, 1142 (Alaska 1987). . This point was raised by CIRI in its appeal to the superior court. . Appellate Rule 510 provides: (a) When Appeal Brought for Delay. Where an appeal or petition for review shall delay the proceedings in the trial court or the enforcement of the judgment or order of the trial court, and shall appear to have been filed merely for delay, monetary sanctions may be awarded in addition to interest, costs and attorney's fees. (b) Infraction of Rules. For any infraction of these rules, the appellate 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. (c) Fines. In addition to its authority under (a) and (b) of this rule and its power to punish for contempt, the appellate court may, after reasonable notice and an opportunity to show cause to the contrary, and after hearing by the court, if requested, impose a fine not to exceed $500 against any attorney who practices before it for failure to comply with these rules or any other rules promulgated by the Supreme Court. . AS 29.45.500(a) provides: (a) If a taxpayer pays taxes under protest, the taxpayer may bring suit in the superior court against the municipality for recovery of the taxes. If judgment for recovery is given against the municipality, or, if in the absence of suit, it becomes obvious to the governing body that judgment for recovery of the taxes would be obtained if legal proceedings were brought, the municipality shall refund the amount of the taxes to the taxpayer with interest at eight percent from the date of payment plus costs.

10561859

CITY OF KOTZEBUE, Appellant, v. Percy IPALOOK, Jr., Appellee

City of Kotzebue v. Ipalook

1969-12-05

No. 1033

75

81

462 P.2d 75

462

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:08:18.387910+00:00

CAP

Before NESBETT, C. J., and DIMOND, RABINOWITZ, BONEY and CONNOR, JJ-

CITY OF KOTZEBUE, Appellant, v. Percy IPALOOK, Jr., Appellee.

CITY OF KOTZEBUE, Appellant, v. Percy IPALOOK, Jr., Appellee. No. 1033. Supreme Court of Alaska. Dec. 5, 1969. Stephen S. DeLisio, Merdes, Schaible, Staley & DeLisio, Fairbanks, for appellant. C. R. Kennelly, Nome, for appellee. Before NESBETT, C. J., and DIMOND, RABINOWITZ, BONEY and CONNOR, JJ-

3754

22267

RABINOWITZ, Justice. On January 13, 1966, Percy Ipalook was shot by Officer Eisenhower, a city of Kot-zebue policeman. Claiming no justification for the act, Ipalook instituted suit against the city of Kotzebue for damages. At trial, Ipalook received a $25,000 jury verdict. Appellee city of Kotzebue then moved, pursuant to Civil Rule 59(a), for remittitur and alternatively for a new trial limited to the issue of damages. In its order of remittitur, the trial court remitted the sum of $10,000. Ipalook accepted the order of remittitur and an amended judgment was entered in the amount of $15,000 plus costs and attorneys' fees. During counsel for Ipalook's voir dire examination of the jury panel, five prospective jurors were asked if'they owned interests in any insurance company. In addition to these questions, counsel fqr Ipalook asked one juror whether he had ever worked for an insurance company. As its first specification of error, the city of Kotzebue contends that the trial court committed error in permitting Ipalook's counsel to ask these questions pertaining to insurance. Most jurisdictions permit the questioning of jurors respecting their interests in, or connections with, insurance companies provided such questions are propounded in good faith. Appellant asserts that bad faith on the part of Ipalook's counsel is demonstrated by the latter's knowledge of the size and location of the community where the trial took place. A determination of such good faith issues must be made in light of all the relevant circumstances. One such circumstance is the fact that trial counsel for Ipalook claimed that he had no actual knowledge of the absence of any possibility that any of the prospective jurors had any interest in, or connection with, an insurance company. Quite possibly some prospective juror might have sold insurance, or held stock in an insurance company, or investigated claims for an insurance company. Our review of the record has not left us with a firm conviction that the trial court abused its discretion in permitting Ipalook's counsel to ask these questions pertaining to insurance. We therefore hold that no error was committed by the trial court in permitting such questioning on voir dire. Appellant city of Kotzebue's second specification of error is that the superior court erred in failing to sustain its challenge for cause which was directed against juror Lorena Wright. AS 09.20.010 of Alaska's Code of Civil Procedure provides that "A person is qualified to act as a juror if he is (5) in possession of his natural faculties Civil Rule 47(c) (1) establishes grounds for challenges for cause, one of which is that "the person is not qualified by law to be a juror." The basis of the city of Kotzebue's challenge of juror Lorena Wright was that her hearing was impaired. In ruling on this challenge, the trial court said, in part, "I think she's just shy and at this time I'm going to overrule the objection." When the city subsequently renewed its challenge, the trial court said: "She states that she's heard everything that's been said. I'm going to overrule objections." Trial court discretion as to challenges for cause is interfered with only in exceptional circumstances and to prevent miscarriages of justice. We find no such abuse of discretion in the trial court's rejection of the city's challenge for cause of juror Lorena Wright, especially since the city did not exhaust its peremptory challenges. For its third specification of error, the city of Kotzebue argues that the superior court erroneously sustained Ipalook's challenge for cause to prospective juror Elizabeth Cross. Ipalook's counsel challenged juror Cross on the ground that she was related to one of the "major witnesses" and "major parties" on the other side. It was established that the prospective juror was the wife of John Cross, mayor of Kot-zebue at the time Officer Eisenhower was hired and at the time the shooting of Ipa-look occurred. In Borman v. State the general rule regarding a prospective juror's relationship to a witness was articulated in the following manner: Neither mere acquaintance nor mere relationship to witnesses, other than parties, is sufficient basis for challenging a prospective juror for cause. Bias on the part of prospective jurors will never be presumed, and the challenging party bears the burden of presenting facts, in addition to mere relationship or association, which would give rise to a showing of actual prejudice. We agree with appellant that relationship to a witness does not fall within any of the enumerated grounds under Civil Rule 47(c) upon which a prospective juror can be challenged for cause. Because of the context in which this issue has been raised, we need not at this time decide whether the grounds enumerated in Civil Rule 47(c) are exclusive. For here, even assuming it was error to have excused juror Cross for cause, we can discern no resultant prejudice to appellant city of Kotzebue flowing from the trial court's ruling. As we noted previously, the city of Kotzebue did not exhaust its peremptory challenges. A further basis for disposition of this assertion of error arises from the failure of the city of Kotzebue to make a timely objection to the trial court's ruling dismissing juror Cross. By virtue of this omission, the city of Kotzebue is thus precluded from raising the question at this time. In its fourth specification of error, the city of Kotzebue advances the argument that the trial court erred in limiting its cross-examination of the witness Frank Ferguson. This witness had been called by Ipalook and on direct had testified that he was present in the Eskimo Building in Kotzebue on the night that Officer Eisenhower shot Ipalook. Ferguson testified that he saw Eisenhower immediately after he had shot Ipalook, and that in the latter's attempt to go up the stairs leading from the basement of the Eskimo Building, Eisenhower knocked Ipalook over. Upon cross-examination, counsel for the city attempted to inquire into events which occurred immediately prior to those to which Ferguson had testified on direct examination. Ipalook objected that such questions were beyond the scope of his direct examination of the witness. The trial court sustained Ipalook's objections indicating that its ruling would not preclude appellant from calling Ferguson either as its own witness or "in rebuttal." In Fajeriak v. State and Pederson v. State, we held that determination of the scope of permissible cross-examination lies within the trial court's discretion. Also pertinent is Civil Rule 43(g) (7) wherein it is provided that : An adverse party may cross examine a witness as to any matter stated in the direct examination or connected therewith We are of the view that the trial judge's administration of Civil Rule 43(g) (7) was too restrictive. For in our opinion, the subject matter of the prohibited attempted cross-examination related to facts and circumstances which were "connected" with matters Ferguson had testified to on his direct examination. We further con- elude that such rulings were in the nature of nonprejudicial or harmless error. For the record does not indicate any reasons why the city of Kotzebue failed to call Frank Ferguson as its own witness as part of its case in chief, or in rebuttal. Since these options were available to the city of Kotzebue despite the court's scope of cross-examination rulings, we fail to discern any prejudice to the city attributable to these scope of cross-examination rulings. As its fifth specification of error, the city of Kotzebue's position is that the trial court erred in permitting counsel for Ipalook, during his final argument, "to comment on purported statements by Officer William Eisenhower, which statements were not in evidence." It is a well established rule that counsel, in his argument to the jury, may not include statements which are unsupported by evidence, but that his arguments may include reasonable inferences or deductions from the evidence. Although Eisenhower did not testify, there was testimony from other witnesses as to what he had said and done. What Ipalook's counsel said in final argument could be fairly characterized as reasonable inferences or deductions from such other testimony. But even if there were some question as to the propriety of what counsel was arguing, possible prejudice to appellee was obviated by the court's admonition to the jury, made at the time ap-pellee's counsel objected to the argument made by Ipalook's counsel, that if the jury found any basis in the evidence for support of such argument they could consider it, but if not, they may not consider such argument, and that the jury was the final arbiter of the evidence involved. We therefore hold that no error was committed by the trial judge in overruling the city's objections to this portion of counsel for Ipalook's final argument. Appellant city of Kotzebue, in its last specification of error, states that, "The trial court erred in granting remittitur of only $10,000.00 and in entering an Amended Judgment of $15,000.00, based on said re-mittitur." We earlier indicated that the jury returned a verdict of $25,000 in Ipa-look's favor, and that this verdict was remitted to $15,000 as a result of appellant's motion for a remittitur, or for a new trial on the issue of damages. In ruling on appellant's motion for re-mittitur, the trial judge found that the jury's verdict was not the result of passion or prejudice. In making this decision, the trial judge stated: I do not find that the jury made a decision in this case based on passion, bias or prejudice . I find that the jury award of $25,000.00 is excessive and unjust under the evidence and circumstances as presented to the Court and jury. In the course of his oral decision in regard to the remittitur motion, the trial judge also found that "a verdict of $15,000 is the highest verdict and the largest amount which the evidence and testimony in this case will support." Also of significance is the following portion of the trial judge's oral decision where he said: The Court in its observations of the plaintiff as a witness in the case states that the witness was stoic. By this I mean that he manifested indifference to pain and aches. He even minimized his injuries and certainly did not exaggerate. What testimony he gave with regard to his damages was literally dragged out of him. I do not think that he should be penalized for not speaking up or exaggerating his injuries. In granting the remittitur, the trial judge referenced his authority to Civil Rule 59 (a). Civil Rule 59(a) provides in part that: A new trial may be granted to all or any of the parties and on all or part of the issues in an action in which there has been a trial by jury or in an action tried without a jury, if required in the interest of justice. Both under this rule of civil procedure and its federal counterpart, it is established that trial courts are empowered to deny a new trial on the condition that plaintiff accept a remittitur. Although differences exist as to the criterion to be employed by the trial court in determining the proper amount of remittitur, the standard used by the trial court in the case at bar finds considerable judicial support. In Hash v. Hogan, we had occasion to point out that the trial court's authority to condition an order for new trial upon a re-mittitur is not absolute. We said: In regard to the use of remittiturs, it is established that "they are not proper where the verdict was the result of passion and prejudice, since such prejudice may have infected all the decisions of the jury." Our study of the record has brought us to the conclusion that the trial court's finding that the $25,000 jury verdict was not the result of passion or prejudice is not clearly erroneous and therefore should remain undisturbed. We are of the further view that the trial court did not abuse its discretion in determining that the proper amount of remittitur should be fixed at $10,000 instead of $23,500 as urged by appellant city of Kotzebue. Appellee Ipalook's recoverable damages fall exclusively within the category of pain and suffering. In Beaulieu v. Elliott, we said in regard to pain and suffering that: [T]here is no fixed measure of compensation in awarding damages for pain and suffering, and such an award necessarily rests in the good sense and deliberate judgment of the tribunal assigned by law to ascertain what is just compensation. At the time he was shot by Officer Eisenhower, Ipalook was 26 years old. At trial, Ipalook testified that the wound was painful when inflicted, and that he could not walk on it for a week; that the wound healed over in four or five days but that his leg still aches occasionally; that in cold weather his leg tightens up; and that he favors the leg which was wounded by Officer Eisenhower. In light of the foregoing evidence as to pain and suffering and the trial court's characterization of Ipalook as a stoic who manifested an indifference to pain and tendency to underplay his injuries, we cannot find that the trial court abused its discretion in granting a remittitur of $10,000 instead of the greater remittitur which was contended for by appellant city of Kotzebue. . Originally Ipalook sought punitive damages in addition- to compensatory damages. Prior to trial the claim for punitive damages was abandoned. . The order of remittitur reads in part as follows: [G]ranted to the sum of $10,000.00, conditioned upon [Ipalook's] consent on or before July 12, 1968, to accept $16,000 in full satisfaction of die judgment herein, in lieu of the $25,000 verdict awarded by the jury ⅜ [I]n the event [Ipalook] fails or refuses to consent or stipulate to said remittitur on or before July 12, 1968, Defendant shall he entitled to a new trial solely on the issue of damages . . Annot., 4 A.L.R.2d 761, 792 ff. (1949). . In this regard, appellant states in his brief that : In view of the very small size and remote location of the Kotzebue community, from which all of these jurors were drawn, it was exceedingly unlikely that any of them currently were employed by or owned any interest in an insurance company. All of the prospective jurors were Eskimos who had been born, raised and lived all of their lives in the remote Arctic regions of Alaska, most of them in or around Kotzebue. Questions by counsel on voir dire revealed such a background with regard to most of the jurors. . Out of the presence of the jury, counsel for the city of Kotzebue said: I venture to say that Mr. Kennelly knows just as well as I do that none of these people never have, ever will have or do at the present time do have any interest of any connection with any insurance company. To this statement counsel for Ipalook replied, "I don't know that Your Honor." .Mitchell v. Knight, 394 P.2d 892, 897 (Alaska 1964); Civ.R. 47(c). . Lyda v. United States, 321 F.2d 788, 790-791 (9th Cir. 1963); State v. Reed, 206 La. 143, 19 So.2d 28, 29 (1944). . 1 Md.App. 276, 229 A.2d 440, 441-442 (1967). . Note 7 supra. . Mitchell v. Knight, 394 P.2d 892, 897 (Alaska 1964); Ahlstrom v. Cummings, 388 P.2d 261, 262 (Alaska 1964); Thomson v. Wheeler Const. Co., 385 P.2d 111, 115 (Alaska 1963); Gregory v. Padilla, 379 P.2d 951, 953 (Alaska 1963). . The record shows that at the time of trial the witness Frank Ferguson was in court "representing" the city of Kotzebue. In sustaining these objections to the scope of cross-examination, the trial judge said: Well, I'm going to at this time, this is not necessarily the crucial stage, both parties will have the right to put on their proof, I'm going to sustain the objection at this time. Counselor, you may have the right to put on this evidence by this witness at a later time, either as your own witness or in rebuttal, if need be. I'm going to sustain the objection at this time and see where we lead to. Later in again sustaining appellee's objection to the scope of cross-examination of Ferguson, the trial judge said: I'm going to sustain the objection at this time with the understanding counselor, you may you have the right to get this evidence before the jury either in your own case or on rebuttal. . 439 P.2d 783, 785-786 (Alaska 1968); . 420 P.2d 327, 337-338 (Alaska 1966). . Since the witness Ferguson was a member of the city council of the city of Kotzebue at the time the trial was held, Civil Rule 43(g) (12) has potential relevance. A party may call an adverse party or an officer, director or managing agent of a public or private corporation, or of a partnership or association which is an adverse party,, and interrogate him by leading questions and contradict and impeach him in all respects as if he had been called by the adverse party, and the witness thus called may he contradicted and impeached hy or on behalf of the adverse party only upon the subject matter of his examination in chief, (emphasis added) . In 5 J. Wigmore, Evidence § 1368, at 33 (3d ed. 1940), the author states: [A] witness, on his direct examination, discloses but a part of the necessary facts. That which remains suppressed or undeveloped may be of two sorts, (a) the remaining and qualifying cir- cumstanees of the subject of testimony, as known to the witness, and (b) the facts which diminish the personal trustworthiness of the witness. See also O. McCormick, Law of Evidence § 21 (1954). We believe that cross-examination should have been allowed in order to extract the remaining qualifying circumstances known to the witness but previously undisclosed by him, as well as to bring to light any facts which might diminish the personal trustworthiness or credit of the witness. . At oral argument before this court, counsel for the city of Kotzebue failed to offer any explanation as to why the witness Ferguson was not called by the city later in the case. . During the course of his argument, Ipalook's counsel attributed the following thoughts to Officer Eisenhower during Eisenhower's argument with Arthur Fields, all of which preceded the shooting in question. [Y]ou haven't got any right to argue with me I'm a city policeman, I can stop this game any time I want, I got a badge on, that's my authority. That and this and I can . pull it out and enforce it any time. You're not doing anything wrong but I can stop your game, I can make you do anything I want because I'm the boss here. I can even shoot somebody off hand who has nothing to do with my argument with you. .McLaney v. Turner, 267 Ala. 588, 104 So.2d 315, 321-322 (Ala.1958); Affett v. Milwaukee & Suburban Transp. Corp., 11 Wis.2d 604, 106 N.W.2d 274, 277, 86 A.L.R.2d 227 (Wis.1960). See Veal v. Newlin, Inc., 367 P.2d 155, 156 (Alaska 1961). . Hash v. Hogan, 458 P.2d 468 (Alaska 1969); 3 W. Barron & A. Holtzoff, Federal Practice & Procedure § 1305.1, at 374-75 (1958). . The following authorities support the rule that the verdict should be reduced to the maximum amount which the trial court considers the jury should have awarded on the evidence: Curtis Publishing Co. v. Butts, 351 F.2d 702, 718-719 (5th Cir. 1965), aff'd, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967); Boyle v. Bond, 88 U.S.App.D.C. 178, 187 F.2d 362, 363 (1951); Miller v. Boeing Co., 245 F.Supp. 178, 184 (D. Mont.1965); Rice v. Union Pac. R. R., 82 F.Supp. 1002, 1007 (D.Neb.1949). See also 3 W. Barron & A. Holtzoff, Federal Practice & Procedure § 1305.1, at 376 (1958) ; 6A J. Moore, Federal Practice ¶ 59.05 [3], at 3743-45 (2d ed. 1966). . 453 P.2d 468, 473 (Alaska 1969) (footnote omitted). . "The trial court's determination as to whether the verdict is the result of passion or prejudice will not be disturbed on appeal, unless the determination is clearly erroneous." 6A J. Moore, Federal Practice ¶ 59.05 [3], at 3746 (2d ed. 1966) (footnote omitted). . In Hash v. Hogan, 453 P.2d 468, 471-472 (Alaska 1969), we had occasion to refer to the scope of appellate review pertaining to remittitur questions. In that case, we quoted from our prior opinion in Ahlstrom v. Cummings, 388 P.2d 261, 262 (Alaska 1964) (footnote omitted), where we said: The matter of granting or refusing a new trial rests in the sound discretion of the trial judge. We shall not interfere with the exercise of his discretion except in the most exceptional circumstances and to prevent a miscarriage of justice. In Hash we also quoted from our previous decision in National Bank of Alaska v. McHugh, 416 P.2d 239, 244 (Alaska 1966). In McHugh, we said: We have held that the granting or refusing of a request for a new trial is discretionary with the trial judge. We do not interfere in the exercise of that discretion except in the most exceptional circumstances and to prevent a miscarriage of justice. In order for us to hold, that the trial judge has abused his discretion, we would have to be left with the definite and firm conviction on the whole record that the judge made a mistake in refusing to order a remittitur or grant a new trial in response to appellant's motion. (emphasis added) (footnotes omitted) . Although appellee Ipalook originally sued for both compensatory and punitive damages, this latter claim was inexplicably abandoned prior to trial. . 434 P.2d 665, 676 (Alaska 1967). . Note the trial occurred some two years after the shooting took place. Appellee's residual scars from the gunshot wound were shown to the jury. In the trial judge's words, the jury saw the following: Where the scars were located there is a roughness and discoloration of the skin. The scar where the bullet entered was approximately the size of a dime and the scar where the bullet came out was the approximate size of a nickel. . No evidence was adduced which would support any recovery for loss against earnings, impairment of future earning capacity, or past or future medical expenses.

10576508

Richard INGLIMA, Luned Inglima, Jack English, Susan English, and Tyndle M. Lipke, Appellants, v. ALASKA STATE HOUSING AUTHORITY, Appellee

Inglima v. Alaska State Housing Authority

1970-01-02

No. 1050

1002

1006

462 P.2d 1002

462

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:08:18.387910+00:00

CAP

Before DIMOND, RABINOWITZ and CONNOR, JJ., and LEWIS, Superior Court Judge.

Richard INGLIMA, Luned Inglima, Jack English, Susan English, and Tyndle M. Lipke, Appellants, v. ALASKA STATE HOUSING AUTHORITY, Appellee.

Richard INGLIMA, Luned Inglima, Jack English, Susan English, and Tyndle M. Lipke, Appellants, v. ALASKA STATE HOUSING AUTHORITY, Appellee. No. 1050. Supreme Court of Alaska. Jan. 2, 1970. Clifford J. Groh and William A. Greene of McCutcheon, Groh & Benkert, Anchorage, for appellants. Clayton J. Parr and Warren W. Matthews, Jr., of Burr, Pease & Kurtz, Anchorage, for appellee. Before DIMOND, RABINOWITZ and CONNOR, JJ., and LEWIS, Superior Court Judge.

2649

15213

OPINION CONNOR, Justice. This case centers on the nature of an appeal from a master's determination of just compensation in an eminent domain proceeding. On August 16, 1965, and on December 20, 1965, appellee filed condemnation proceedings, later consolidated, to acquire parcels of land owned by appellants in Seldovia, Alaska, in order to carry out an urban renewal project occasioned by the 1964 Alaska earthquake. A master's hearing was held in November of 1966, and his report was filed in December of that year. The total amount deposited in court by appellee for all parcels came to $119,950. The total amount of the master's awards came to $164,225. Appellee filed timely notices of appeal in January of 1967. Appellants did not file notices of appeal. A pre-trial conference was held in January 1968, and the cases proceeded to trial in the superior court on July 8, 1968, at Homer, Alaska. This was some eighteen months after the filing of the master's report. The jury was selected during the week of July 8, 1968, and appellants appeared on July 15, 1968, for the commencement of the trial proper. On this day appellee filed notices of dismissal as to all of its appeals from the master's award. Appellants filed a memorandum and presented argument against allowing the dismissal. On the following day the court took the question of dismissal under advisement, but ordered the trial to proceed. At the close of trial the jury rendered verdicts which as to each parcel were higher than the master's awards, the total amounting to $211,000. After hearing further arguments, the court allowed the appellee's dismissals and entered judgment for the amounts of compensation awarded by the master. Appellants assert that appellee does not have an absolute right to dismiss its appeal from the master's awards without the consent of appellants, who filed no notice of appeal on their own behalf. They urge that the right to a jury trial vested in both parties to the eminent domain proceeding when either party filed a notice of appeal pursuant to Rule 72(h) (4) and (5), Rules of Civil Procedure. The trial court apparently agreed with appellee that it had a right to dismiss without the consent of the appealing party, either because appellants' failure to appeal from the master's awards amounted to a waiver of the right to a jury trial or because under Rule 41(a) (2), Rules of Civil Procedure, the court could order dismissal of the action by the condemnor, without the consent of the condemnees, upon such terms as the court might deem proper. It is argued that this would put appellants in the position they wanted to be placed in, as shown by their lack of appeal from the master's awards and their apparent satisfaction with those awards. It is possible that the trial court was also influenced by the widely accepted rule that an appellant may, before submission of a case, dismiss its appeal without the consent of its opponent, who has taken no cross-appeal, unless the opponent is prejudiced by the dismissal. The statute which governs generally the rights of the parties upon appeal from a master's award is AS 09.55.320, which provides : "An interested party may appeal the master's award of damages and his valuation of the property, in which case there shall be a trial by jury on the question of the amount of damages and the value of the property, unless the jury is waived by the consent of all parties to the appeal." Appellants argue that once an appeal is taken the statute grants a right to jury trial to all parties, particularly when one considers the phrase "unless the jury is waived by the consent of all parties to the appeal." Because the statute makes mandatory a jury trial, absent a waiver, it is urged that the appeal from the master's award is an appeal in name only and that the proceeding after appeal should be regarded as any ordinary civil action in which a party has a right to a jury trial. Appellants point out that there is no transfer of the cause from one tribunal to another, as the action is brought originally in the same superior court in which, after appeal from the master's award, the jury trial is held. Discovery before trial, motions, and pre-trial proceedings occur in these cases just as in any civil action. When the case is tried to the jury, the entire evidence is presented anew without reference to what was placed before the master. The proceeding before the jury is truly de novo in nature. Appellants' position is supported by City of Wellington v. Miller, 200 Kan. 651, 438 P.2d 53 (1968). There, under a statute similar to our own, the condemnor dismissed its appeal over the objection of the owners. The court held that the statute serves as a cross-appeal by operation of law for all interested parties, and that the appeal cannot be dismissed without the consent of all other parties. In opposition appellee urges that the right to jury trial in eminent domain proceedings is not absolute but is conditioned on compliance with Rule 72(h) (4) and (5), requiring that a party file an appeal within ten days from receiving notice of the master's report. It is argued that failure to file an appeal should result in a waiver of the right to jury trial and that one who has taken no steps to preserve his interests should not complain if his adversary decides to abandon the appeal. Rule 72(h) (5) requires that the notice of appeal state the part of the master's report appealed from and a concise statement of the grounds of appeal. From this appellee reasons that this court, in promulgating the rule, recognized that appeals from the masters' reports have the attributes of other appeals, which may be dismissed in certain instances without the consent of the opponent. Appellee's position is supported by the decisions in State by State Road Commission v. Boggess, 147 W.Va. 98, 126 S.E.2d 26 (1962); State ex rel. State Highway Commission v. Kimberlin, 267 S.W.2d 51 (Kan.City App., Mo.1954); Short v. State Highway Commission, 151 Okl. 85, 1 P.2d 676 (1931), and Upper Coos R. Co. v. Parsons, 66 N.H. 181, 19 A. 10 (1889). These cases stress that rights, such as jury trial, which are an incident of the appeal should accrue only to the one who has taken the appeal, and that one claiming the benefit of these rights should show diligence in preserving them, by himself filing an appeal within the prescribed period. To some extent these cases are distinguishable. In State by State Road Commission v. Boggess, supra, the statute required the actual filing of a demand for jury trial by either party. The Alaska statute grants a jury trial to any party and without the necessity of any action or demand by the passive party to the proceeding once the appeal has been taken by any party. State ex rel. State Highway Commission v. Kimberlin, supra, does indeed hold, under a statute similar to our own, that the non-appealing party cannot object to dismissal. But the authority for that decision is an older case, State ex rel. State Highway Commission v. James, 115 S.W.2d 225 (Mo.App.1938), which concerned the imposition of an attorney's fee as a condition of dismissal in a case where the owners did not otherwise object to the action of the con-demnor. That case did not concern the right to jury trial. Short v. State Highway Commission, supra, sustains appellee's position. But it construes a statute that permitted either party to a condemnation proceeding to file a demand for a jury and to prosecute further proceedings for the determination of compensation. The court held that the non-appealing party had no right to claim a jury trial based upon the demand made by the dismissing party. Upper Coos R. Co. v. Parsons, supra, stresses mainly the appellate nature of the proceeding and seems to rely on the common law rule that a party could choose to have himself non-suited at any time before final submission of his cause to the jury. We find none of these cases determinative of the one before us. Appellee argues that under Civil Rule 41 (a) (2) the trial court could regard the dismissals as matters to be determined within its discretion and to be granted on such terms as it might think proper. We do not think that reliance on that rule is well placed. Appellants are arguing that the statute creates a right to jury trial by operation of law. If this is so, then the situation is the same as if a counterclaim had been filed by appellants. Rule 41(a) (2) would not operate to justify the dismissals, as appellants' claim for relief would still stand and require adjudication. In resolving the question presented we are influenced by the precise language of the statute and by the peculiar nature of eminent domain proceedings. The statute is not totally free of ambiguity, as one could read it as implying that only at the instance of the appealing party shall there be a trial by jury. But one can also read it as commanding that once an appeal is taken by any party there shall ensue a jury trial unless the jury is waived. By such a reading either an owner or his counsel might reasonably conclude that the filing of a cross-appeal is unnecessary when the condemnor has filed an appeal from the master's report. Once an appeal is taken from a master's report the opponent is placed in the position of any other party to a contested civil action. He may be called upon to make discovery, engage in motion practice, and prepare for trial. He must plan for the presentation of evidence. In whatever manner the burden of proof may be distributed in a condemnation case, the owner bears at least some burden if he is to hope for success. For what type of trial should he be expected to prepare? According to the statute it is a trial by jury. The proceeding before the master may be relatively informal. It is conceivable, especially when the arguable property value is within a low range, that an owner might not seek counsel until after the -master's award and an appeal by the condemnor. An owner might well rely on the statutory language as a guaranty of jury trial in the event that an appeal is taken. The meaningfulness of the right to jury trial is illustrated by the events in the case before us. What an owner might be willing to accept as a master's award is not necessarily what he might justly expect after being put to the pain of discovery and preparation for jury trial. In eminent domain cases the owner must part with his property against his will. If he succeeds in the master's proceeding in establishing a value higher than the condemnor's offer, the condemnor may well take an appeal. The owner's position at that point is of one who has incurred a detriment, unwillingly, because he must go forward with the litigation. He may have to hire real estate appraisers at great expense and risk to himself and incur other expenses. We believe that the legislature intended in these circumstances that the owner against whom appeal is taken is entitled to look forward to a jury trial as a matter of right, even though he may be the passive party. We are persuaded by the argument that the proceedings after the master's report are an appeal in name only and that the right to a jury trial vests by operation of law in all parties to the appeal. It seems to us unfair that an owner can be put to the emotional and economic distress of preparation for a jury trial but not receive the benefits of it. Although the point is a close one, any ambiguity in the statute should be resolved in favor of the owner where the language is capable of that result by a reasonable reading of its terms. It may be argued that condemning authorities are not always aware of deficiencies in their cases at the time an appeal is taken from the master's award, and that condemnors, later, becoming aware of mistakes in valuation, should be able to concede their errors and revert to the master's valuation by dismissing the appeal. But this should pose no genuine problem. The condemnor can always attempt settlement negotiations or make a formal offer of judgment like any other litigant in a civil action. In such instances it should not be necessary to go all the way through jury trial in order to see that justice is done. The case is reversed and remanded with directions that judgment be entered on the verdicts of the jury. NESBETT, C. J., not participating. . Rule 72(h) (4): "A party who has appeared or answered before the filing of a master's report may appeal within ten (10) days after being served with notice of the filing of the master's report. Any other interested person desiring to appeal from a master's report must take his appeal within ten (10) days after the filing of such report." Rule 72(h) (5) : "A party or other interested person may appeal from the master's report by filing with the clerk a notice of appeal in duplicate, with sufficient additional copies 'for all parties who have appeared or answered. The notice of appeal shall contain the following: [a] The title of the action, [b] The names of the parties taking the appeal. [c] The master's report or part thereof appealed from and the date of its filing. [d] The name of the court to which the appeal is taken, [e] A concise statement of the grounds of appeal. J> . The pertinent parts of the Kansas statute, K.S.A. 26-508, read as follows: "If the plaintiff, or any defendant, is dissatisfied with the award of the appraisers, he may, within thirty (30) days after the filing of the appraisers' report, appeal from the award by filing a written notice of appeal with the clerk of the district court. An appeal by the plaintiff or any defendant shall bring the issue of damages to all interest in the tract before the court for trial de novo. The appeal shall be docketed as a civil action and tried as any other civil action: Provided, however, The only issue to be determined therein shall be that of just compensation to be paid for the land or right therein taken at the time of the taking and for any other damages allowable by law." . See also State by State Highway Commissioner v. Stark, 95 N.J.Super. 152, 230 A.2d 184 (1967). . Rule 41(a) (2) provides as follows: "Except as provided in paragraph (1) of this ' subdivision of this rule, an action shall not be dismissed at the plaintiff's instance save upon order of the court and upon such terms and conditions as the court deems proper. If a counterclaim has been pleaded by a defendant prior to the service upon him of the plaintiff's motion to dismiss, the action shall not be dismissed against the defendant's objection unless the counterclaim can remain pending for independent adjudication by the court. Unless otherwise specified in the order, a dismissal under this paragraph is without prejudice."

10459850

Marc A. BAILEY, Appellant, v. STATE of Alaska, Appellee

Bailey v. State

1976-04-12

No. 2647

373

376

548 P.2d 373

548

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:08:46.626956+00:00

CAP

Before BOOCHEVER, C. J., and RAB-INOWITZ, CONNOR, ERWIN and BURKE, JJ.

Marc A. BAILEY, Appellant, v. STATE of Alaska, Appellee.

Marc A. BAILEY, Appellant, v. STATE of Alaska, Appellee. No. 2647. Supreme Court of Alaska. April 12, 1976. Paul L. Davis of Edgar Paul Boyko & Assoc., Anchorage, for appellant. David Mannheimer, Asst. Dist. Atty., Harry L. Davis, Dist. Atty., Fairbanks, Avrum M. Gross, Atty. Gen., Juneau, for appellee. Before BOOCHEVER, C. J., and RAB-INOWITZ, CONNOR, ERWIN and BURKE, JJ.

1762

10798

OPINION RABINOWITZ, Justice. In this appeal we are asked to determine whether the superior court was "clearly mistaken" in imposing a sentence of six years imprisonment with three years suspended. The trial court entered this sentence after appellant Marc A. Bailey, a 22-year old black, entered a plea of guilty to an information charging him with assault with a dangerous weapon. On the evening of February 12, 1975, in downtown Fairbanks, two groups of young men encountered each other at the French Quarter, a local bar. One of the groups consisted of whites, and the other of blacks. It is asserted by witnesses that the victim, James McFadden, made some unsavory comments about blacks. In response to these remarks, Bailey, seated at the next table among the blacks, drew a gun. At that point the groups separated, but trouble erupted a half an hour later at the Flame Lounge (another local bar), where the same individuals met again and subsequently a fight occurred. Although our record contains conflicting information as to whether the fight began on the premises of the Flame or shortly thereafter outside the bar, during this scuffle Bailey shot McFadden in the leg. It is Bailey's contention that the probation officer "virtually ignored the rehabilitative aspects of the appellant's history in making the pre-sentence report," which resulted in the sentencing court giving minimal consideration to the objective of rehabilitation in favor of those objectives of sentencing stressed by the probation officer. Bailey further argues that since his past history indicates he would be an excellent candidate for a sentence not requiring institutionalization, the sentence meted out to him was clearly erroneous in light of the rehabilitation goal of sentencing. Marc Bailey was born in Anchorage in 1953 and raised in both Anchorage and Fairbanks. His parents are presently divorced, his mother residing in Fairbanks and his father in Ohio. Since graduation from high school in Fairbanks, Bailey has held several jobs. A year after graduation appellant moved to Ohio where he resided with his aunt and uncle. On February 2, 1974, approximately three months after his arrival in the Youngstown, Ohio area, he was arrested along with his cousin and charged with the theft of a shotgun from a store display. Maintaining his innocence of the charge, Bailey claimed, according to the Ohio probation report, that he pled guilty in order "... to have his involvement in the [theft charge] over with, hoping to get probation and return to his home in Alaska." On August 15, 1975, Bailey was sentenced to one year's probation and was given permission to complete this probation in Alaska. He was thus on probation at the time of the instant offense. Upon returning to Alaska appellant married, and in February of 1975, he obtained employment with Green Construction Company, a subcontractor working on the Alaska Pipeline in the area of the Yukon River. The probation report recommended Bailey receive a sentence of eight years with four years suspended. In meting out a six-year sentence with three years suspended, the superior court asserted that "[t]he recommendation, considering Marc Bailey's near-exemplary background, and it's not without its blemish, but that period of eight years, I believe, is . probably a little bit on the heavy side." The court's rationale for imposing the sentence it did is reflected in the following excerpts from its oral decision : The assault with a dangerous weapon shooting another person, is a serious offense under any circumstances. The court would note the prior conviction is a non-violent crime, and it appears that violence is not an accepted way of life of Mr. Bailey, that this offense was committed while he was on probation, that violence was not a part of that first offense. . Mr. Bailey . . . does not appear to me to have the ability to rehabilitate himself; the fact that he's currently employed and would be employable in the future. It appears to me that an accepted way of American life —it may be rather unfortunate — the use of force seems to be accepted. And that same society is repelled by the excess of violence . . . that a lot of time violence is not necessarily warranted under the circumstances, and I don't find . . . that there was . . . justification to such an assault; . . . Mr. Bailey had a weapon and the court can only infer to the fact that he used it, that he intended to use it. To reinforce the norms of society, and to impress upon society that offenses such as this will be punished and a sentence — a person will serve time for not abiding by the law. One other comment, I think Mr. Bailey realizes now, that [he] would have been a far better person to have walked away from a confrontation, regardless of the fact that he might have felt that it was an affront or a slur upon his national background and origins, and I think . that he would have done that other person more to have shown him utter contempt, by turning around and walking away, rather than affording him the dignity of an assault, but that's behind us and all we have to do now is look to the future. Our study of the presentence report and the sentencing proceedings leads us to conclude that appellant's assertions are without merit. Review of the court's stated reasons for imposing a sentence of six years with three years suspended indicates that the sentencing court considered the relevant sentencing criteria to which we alluded in Chaney and its progeny. Nothing in our prior sentencing decisions mandates that reformation or rehabilitation are to be accorded controlling weight by the sentencing judge in a given case. In Asitonia v. State, 508 P.2d 1023, 1026 (Alaska 1973), appellant advanced arguments similar to those presented in this appeal by Bailey. In Asitonia we stated (footnote omitted) : A review of the record indicates that the court below considered a great many other criteria than the crime itself in sentencing the defendant. (1) the nature and seriousness of the crime, (2) the need to rehabilitate Asi-tonia, (3) the need to protect society through isolating him, (4) the deterrent effect of the sentence both on Asitonia and others in the community, and (5) the . . . reaffirmation of societal norms. Each of these are valid criteria and the consideration of all of them shows a heightened sense of responsibility on the part of the superior court judge. It is the judge who must determine the priority and relationship of these objectives in any particular case. In the case at bar we cannot say that the trial court's weighing and application of the Chaney criteria was clearly mistaken. Nor can we find any merit in appellant's arguments pertaining to the manner in which the presentence report was formulated, or to the contents of the presentence report itself. On the whole, we think the presentence report provided the sentencing court with balanced information and did not ignore Bailey's potential for rehabilitation. We further note that appellant has failed to demonstrate that any significant aspect of his life or of the offense itself was overlooked in the presentence report. We therefore hold that the superior court was not clearly mistaken in imposing the sentence it did. Affirmed. . Our standard of review on an appeal from sentencing is to determine whether the trial court's imposition of the sentence was clearly mistaken. Bradley v. State, 535 P.2d 1031, 1032 (Alaska 1975); Smith v. State, 531 P.2d 1273, 1276 (Alaska 1975); Galaktionoff v. State, 486 P.2d 919, 922 (Alaska 1971); Nicholas v. State, 477 P.2d 447, 449 (Alaska 1970); State v. Chaney, 477 P.2d 441, 444 (Alaska 1970). . Appellant was originally indicted for the crime of shooting with intent to kill. A subsequently filed information charged Bailey with the crime of assault with a dangerous weapon, in violation of AS 11.15.220. This statute provides: A person armed with a dangerous weapon, who assaults another with the weapon, is punishable by imprisonment in the penitentiary for not more than 10 years nor less than six months, or by imprisonment in jail for not more than one year nor less than one month, or by a fine of not more than $1,000 nor less than $100. . The probation officer's report, which was filed in the superior court in June of 1975, took the format of a supplemental report to an extensive probation report prepared in late 1974 by an Ohio probation officer upon appellant's plea of guilty in Ohio to the crime of theft of a shotgun from a store. Bailey contends in part that the lack of personal contact between himself and the Alaska probation officer rendered the report insufficient and inaccurate. . We first articulated the considerations a sentencing judge must take into account in State v. Chaney, 477 P.2d 441, 444 (Alaska 1970), where we said (footnotes omitted) : Under Alaska's Constitution, the principles of reformation and necessity of protecting the public constitute the touchstones of penal administration. Multiple goals are encompassed within these broad constitutional standards. Within the ambit of this constitutional phraseology are found the objectives of rehabilitation of the offender into a noncriminal member of society, isolation of the offender from society to prevent criminal conduct during the period of confinement, deterrence of the offender himself after his release from confinement or other penological treatment, as well as deterrence of other members of the community who might possess tendencies toward criminal conduct similar to that of the offender, and community condemnation of the individual offender, or in other words, reaffirmation of societal norms for the purpose of maintaining respect for the norms themselves. . Inherent in our rejection of appellant's attack on the presentence report is our conclusion that the contents of the presentence report cannot be characterized as inaccurate. Nor can we find, in the particular circumstances of this case where the Alaska pre-sentence report was functionally a supplemental report to a recent comprehensive Ohio presentence report, that extensive "personal contact" between the author of the , Alaska report and the subject was required. . See Thomas v. State, 524 P.2d 664 (Alaska 1974); Grow v. State, 517 P.2d 756 (Alaska 1973); Stevens v. State, 514 P.2d 3 (Alaska 1973); Nielsen v. State, 492 P.2d 122 (Alaska 1971).

6996224

Lawrence J. ETHELBAH, Appellant and Cross-Appellee, v. Mary Sue WALKER f/k/a Ethelbah, Appellee and Cross-Appellant

Ethelbah v. Walker

2009-11-13

Nos. S-12994, S-13013

1082

1096

225 P.3d 1082

225

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T18:08:21.955654+00:00

CAP

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

Lawrence J. ETHELBAH, Appellant and Cross-Appellee, v. Mary Sue WALKER f/k/a Ethelbah, Appellee and Cross-Appellant.

Lawrence J. ETHELBAH, Appellant and Cross-Appellee, v. Mary Sue WALKER f/k/a Ethelbah, Appellee and Cross-Appellant. Nos. S-12994, S-13013. Supreme Court of Alaska. Nov. 13, 2009. As Corrected on Rehearing March 26, 2010. Gregory W. Lessmeier, Lessmeier & Winters, Juneau, for Appellant and Cross-Appel-lee. Chrystal Sommers Brand, Family Lawyer (An Alaska Corp.), Juneau, for Appellee and Cross-Appellant. Before: FABE, Chief Justice, EASTAUGH, CARPENETI, WINFREE and CHRISTEN, Justices.

7564

46249

OPINION CARPENETI Justice. I. INTRODUCTION A husband appeals the property division in his divorce. He argues that the trial court erred in distributing a retirement survivor ship benefit by present value instead of by a qualified domestic relations order; in valuing a retirement health insurance benefit, an excavator machine, and two trucks; and in ordering recapture of marital income earned from his pension during the period of separation. The wife cross-appeals, arguing that the court erred in depriving her of the right to devise a pension survivorship benefit and in valuing a marital escrow account. We affirm the superior court's decision in all respects except its order that pension income paid to the husband during the separation period should be recaptured. II. FACTS AND PROCEEDINGS A. Facts Lawrence Ethelbah and Mary Sue Walker married in Arizona in 1966. They divorced in October 2007. At the time of divorce, Lawrence was sixty-eight years old and Mary Sue was sixty-four. They had one adult son. During the marriage, Mary Sue worked for the Alaska Department of Education and for Alaska school districts. Lawrence worked for the United States Bureau of Indian Affairs. Lawrence retired from the federal government in 1994 and Mary Sue retired from state service in 1998. The Ethelbahs lived summers in Alaska and winters in a home in Pinetop, Arizona on an Apache Indian reservation. During retirement, the parties started two businesses that bought, sold, and leased machinery. Mary Sue was the corporate officer of both corporations. On January 10, 2007, Mary Sue was diagnosed with breast cancer and underwent surgery and chemotherapy. The parties permanently separated on or about January 12, 2007. The separation was not amicable. Each party accused the other of stealing personal property from the estate. Law rence filed an action in an Arizona tribal court seeking to have Mary Sue arrested for these alleged thefts. Mary Sue offered testimony (which the court called "believable") that she filed the Arizona home after Lawrence threatened her with a gun. B. Proceedings The divoree trial was held October 11-12, 2007. Superior Court Judge Patricia A. Collins ordered the sale of several items of real and personal marital property, with the proceeds to be divided equally. Other property items were allocated to the parties, with the distribution to be balanced later by an equalizing payment. These included a number of vehicles, boats, trailers, pieces of heavy machinery, halibut fishing quotas, and other items. The court found that Lawrence had received but not shared certain marital funds during the period between separation and trial, including pension income, proceeds from halibut fishing quotas, income from rental properties, and proceeds from selling a Linkbelt excavator machine. The court placed these funds on Lawrence's side of the marital property ledger so they would be factored later into an equalizing payment. At the time of the divorcee, each party was receiving a defined benefit retirement pension. Mary Sue's was from the Teachers Retirement System (TRS) and Lawrence's was a federal civil service pension. The trial court ordered that the marital portion of each party's pension benefits be divided equally by qualified domestic relations order (QDRO) or Court Order Acceptable for Processing (COAP). Each party was also awarded survivorship benefits associated with the other spouse's pension, and they were to share the costs of the survivorship benefits. Mary Sue also had a medical insurance retirement policy from TRS that the court determined to have a present value of $111,821. This policy provided a survivor-ship benefit to Lawrence in the form of lifetime medical coverage should he survive Mary Sue, which the court estimated had a present value to him of $45,064. Rather than distribute the TRS medical survivorship benefits by QDRO, the court used the present value estimates, placing $45,064 on Lawrence's side of the ledger in the tabulation of marital assets, and $111,821 on Mary Sue's side. The court ordered that bank accounts, which likely contained more than $400,000, be divided equally after tracing by a jointly-selected CPA. The court prepared a property distribution table dividing the assets fifty-fifty "as closely as possible." An equalizing payment would be calculated after the CPA completed the tracing of the assets in the marital bank accounts. Later, however, the parties stipulated that there would be no tracing and that monies withdrawn from these accounts by the parties during the separation were used for reasonable living expenses. III. STANDARD OF REVIEW A trial court has broad discretion to provide for the equitable division of property between the parties in a divorce. We review the trial court's equitable distribution under an abuse of discretion standard, and will reverse only if the division is clearly unjust. We review a trial court's decision to classify property as marital for abuse of discretion, and review the court's underlying factual findings on classification and valuation of marital property for clear error. Clear error exists when we are "left with a definite and firm conviction that the superior court has made a mistake." We review questions of law de novo, adopting the rule of law that is most persuasive in light of precedent, reason, and policy. IV. DISCUSSION A. The Superior Court Did Not Err in Assigning a Present Value to Lawrence's Survivorship Interest in Mary Sue's Retirement Health Insurance, Rather than Distributing It Through Qualified Domestic Relations Order. Lawrence objects to the way the court distributed the health insurance surviv-orship benefit that he was entitled to under Mary Sue's retirement plan. He argues that the law prohibits distributing a survivorship benefit according to an estimate of present value, that doing so was unfair, and that it should have been distributed by QDRO instead. While we ordinarily prefer the QDRO method for distributing pension benefits, the trial court retains discretion to use a present value distribution for vested pension benefits, including survivorship benefits, where justified by the cireumstances and the need for an equitable distribution. We find the trial court did not abuse its discretion in this case. An expert witness testified that Mary Sue's post-retirement medical insurance benefit had a present value of $111,821 to her, based on actuarial calculations given her age and history of cancer. The expert similarly estimated Lawrence's survivorship benefit from that insurance to have a present value worth of $45,064 to him. The court accepted these valuations and treated these amounts as marital property possessed by each party in its tabulation for the equitable division of property. Lawrence argues that assigning a present value to the survivorship benefit places an unfair risk on him by crediting him with possession of $45,064 in marital property, even though he will receive this benefit only if he outlives Mary Sue and enjoys the benefit for the amount of time the expert predicted. He calls the benefit "speculative" and "highly contingent." Lawrence points out that the other survivorship benefits in this case were not assigned present values. Citing Tanghe v. Tanghe and Nicholson v. Wolfe, he says that it was error to capitalize this survivorship benefit because "doing so placed an unfair risk on the non-employee[ ] spouse and was inconsistent with the wait and see approach underlying the use of qualified domestic relation orders." He also cites Laing v. Laing, in which we rejected the present value method of dividing non-vested pensions in favor of a QDRO approach. Mary Sue argues that there was a good reason to treat the medical survivorship benefit differently from the other retirement benefits that were distributed by QDRO. Unlike those pension benefits, which provided each party a corresponding survivorship benefit, only Mary Sue had retirement health insurance benefits with a survivorship for the other spouse. Therefore there was no offsetting health insurance survivorship benefit that a QDRO could allocate to Mary Sue from Lawrence's retirement plan. As we noted in Laing, courts have used two primary methods of valuing and dividing pension benefits upon divorce: the present value approach and the reserved jurisdiction approach. In the present value approach, the court uses actuarial and other calculations to estimate how much the future receipt of pension benefits is worth to the beneficiary in present value dollars. That amount is then awarded at the time of divorce, with an equalizing offset to the other party. In contrast, we have called the QDRO a "wait and see" approach. Unlike the present value, immediate offset approach, a QDRO provides that when the nonowning spouse becomes eligible for benefits in the future, the owning spouse or the pension plan pays him or her those benefits at that time. We have considered whether the superior court should use a QDRO or a present value distribution in several similar but distinct contexts. In Laing, we rejected the present value method of dividing nonvested pension benefits, because it "unfairly places all risk of possible forfeiture on the employee spouse." In Broadribb v. Broadribb, we affirmed the distribution of survivorship benefits in a vested retirement plan according to present value, albeit under unusual cireum-stances. In Nicholson, we held that the choice between a present value and QDRO approach was within the trial court's discretion for the distribution of vested retirement benefits. In Tanghe, we expressed disfavor for the present value method of distributing pension survivorship benefits, although we did not actually hold that using it would necessarily be error. In Mellard v. Mellard, we affirmed that a present value approach to distributing vested pension surviv-orship benefits lay within the trial court's discretion. Lawrence, citing Laing and Tanghe, argues that the present value approach is unfair because it means that the non-owning spouse "bears all the risk that the benefit may never be realized." It is true that a spouse in Lawrence's position bears the risk of forfeiture, that is, of getting nothing. Mary Sue gets her offset up front during the divorce, and Lawrence gets nothing unless he outlives her. However, as we noted in Laing, the situation changes when a pension vests, making a present value payout much less speculative and reducing the risk of forfeiture: [Rleserving jurisdiction does not necessarily mean that a protracted pay-out to the former spouse will follow vesting. Once vesting occurs, that portion of the pension which is marital property can be calculated as of the time of the divorce. The non-employee spouse's share of this figure may, in appropriate cases, be payable in a lump sum or in installments which do not particularly have to be keyed to the time that the pension benefits are actually received.[ ] Although the QDRO method is ordinarily preferable, the court in the present case had reasons of equity for taking a present value approach to this particular asset. Alaska's divorcee statute calls for the division to "fairly allocate the cconomic effect of divorce" by taking into account several factors, including the station in life of the parties during the marriage, their age and health, earning capacity, and financial condition. In this case, it is likely that Mary Sue will predecease Lawrence due to her age and breast cancer, and that Lawrence will thus benefit financially from the survivorship benefit. A present value distribution allows both parties to share this marital asset during their lifetimes. The trial court was consistent in its treatment of this retirement health insurance benefit, crediting Lawrence with the estimated present value of the survivorship benefit, but also crediting Mary Sue with the estimated present value of her insurance coverage. The court did not abuse its discretion in distributing these benefits. B. The Superior Court Did Not Err in Its Valuation of Mary Sue's Retirement Health Insurance Benefits. The court valued Mary Sue's post-retirement medical insurance benefit at $111,821. Lawrence argues that the court undervalued this asset. He cites Hansen v. Hansen to argue that the superior court failed to "look to the amount of the premium subsidy provided by the employer, rather than to either the proceeds or the cost of procuring comparable insurance." We conclude that the trial court did not err and followed the Hansen requirement to base the valuation on the amount of the employer premium subsidy. An expert witness provided three different ways of estimating the value of the health insurance benefit. The court selected the middle estimate of $111,821 based on what the expert termed the "individual rate." Lawrence argues that the court should have chosen a higher estimate based on the so-called "composite rate," which would have placed the value at $166,026. Retirement medical insurance for TRS members is provided by AlaskaCare, a health insurance plan funded by the State of Alaska Retiree Health Fund, and administered by the State's Division of Retirement and Benefits. The State of Alaska's Commissioner of Administration sets premiums to cover estimated costs of claims to be paid in the coming year. Mary Sue's expert witness described the difference between the use of the "individual rate" and the "composite rate" for estimating the employer premium subsidy: The individual rate approaches reflect what Ms. Ethelbah would pay to the Teachers' Retirement Fund, if she were required to pay premiums (for herself only). The composite rate reflects what TRS pays from the Teachers' Retirement fund to the State of Alaska Retiree Health Fund. Each month during 2007, employers participating in the [Teachers' Retirement System] pay $876 per benefit recipient . to the Retiree Health Fund. (Emphasis in original.) TRS paid the composite rate of $876 per month per employee to cover its Tier I employees such as Mary Sue. Because Mary Sue was a Tier I TRS member, she received fully subsidized health insurance. Employees in certain other categories (which are determined based on factors such as date of hire) have to pay their own premiums. Individual employees without dependents who purchased their own insurance paid the individual rate of $590 per month. The expert testified that the composite rate is higher than the individual rate because it is based on an average cost of coverage for all employees that "includes not only coverage of the participant, but also spouses and minor children. So this results in the composite rate being about 50 percent higher than the individual rate." Thus, the composite rate is actually a less precise measure than the individual rate as to how much it costs TRS to insure Mary Sue. The expert witness observed that the composite rate "is a weighted average that reflects the value and incidence of coverage of spouses and children, as well as the retiree." It takes into account not only the coverage of spouses and dependents, but also the probability that a given individual will acquire a new spouse or new children in the future. The assumptions inherent in the composite rate, for dealing with unknown future familial status, are not applicable to Mary Sue. It was known that Mary Sue was sixty-four years old and had breast cancer, making her less likely than the average insured to remarry or acquire additional dependent children. The composite rate is better viewed not as the size of the subsidy provided to an individual like Mary Sue, but as an estimate of average per-employee costs for all insureds, used to assure that in aggregate TRS pays Alaska-Care enough to cover the claims of its entire pool of insureds. Thus, the expert witness concluded that in Mary Sue's case, the individual rate would be more appropriate than the composite rate because the composite rate would likely overstate the cost of Mary Sue's coverage: The composite rate primarily reflects the probability of marriage, remarriage following divorcee. And I think to some extent a person would want to discount that where a person has a life-threatening illness. So I think, in this case, given Ms. Ethelbah's breast cancer, one might want to shy away from the composite rate. The expert testified that in his view both the individual and composite rates were different ways of estimating the employer's premium subsidy in accord with the Hansen mandate. As the trial court concluded, the individual rate "most closely approximates the likely premium rate charged by the State for estimated costs of claims, given Ms. Walker's life expectancy and personal cireumstances." We conclude that the court did not err as a matter of law or make any erroneous factual findings in adopting the individual rate calculation to value this asset. C. It Was Error To Order Recapture of Pension Income Lawrence Received During the Separation Without Finding that the Income Was Wasted, Dissipated, or Converted to Non-Marital Form. Both parties received monthly retirement income after they separated, which the court classified as marital property. Lawrence's pension payments were higher than Mary Sue's by $1,216 per month. This monthly difference in retirement income totaled $10,945 during the period between separation and trial. The trial court concluded that Lawrence "failed to share this marital asset," and placed a $10,945 marital property credit on Lawrence's side of the property distribution table. We conclude that it was error to order recapture of these funds without making sufficient findings based on evidence that the funds had been dissipated, wasted, or converted to non-marital form. The party that controls a marital asset during separation may have to compensate the other party if he or she dissipates or wastes the asset or converts it to non-marital form. The marital asset is not considered to have been dissipated, wasted or converted if it was expended "for marital purposes or normal living expenses." In a majority of courts, "[the spouse claiming dissipation bears the burden of proving the first two elements of dissipation-the fact that the asset in question existed, and the fact that it was lost during or after the marital breakdown." Onee that burden is met, the burden shifts to the owning spouse to show that he or she did not dissipate the asset. An order of recapture is thus not justified without findings of fact that the assets in question were actually wasted, dissipated, or converted to non-marital form. These findings cannot be merely conclusory, but must be based on evidence. In Ogden v. Ogden, we noted that "[olrdinarily, . neither party is charged for loss in the value of marital property occurring in the interim between separation and trial." However, "we have occasionally recognized an exception that allows recapture of property that has been dissipated or wasted in the interim between separation and trial" where there are "exceptional cireumstances" warranting recapture. In Brandal v. Shaongin, we vacated a trial court's recapture of Exxon Valdez settlement monies paid to the husband during separation because "[it was error to charge the settlement amount . without first conducting a recapture analysis." In Foster v. Foster, we reversed an order recapturing pension payments received by the husband after separation but spent by the time of trial. We held that the trial court "erred . in 'recapturing' the payments which had been made to and spent . before trial without making findings that circumstances existed which warranted their recapture." In this case, the trial court appears to have inferred the dissipation, waste, or conversion of the pension income solely from the fact that Lawrence had a larger income than Mary Sue during the period of separation, and that his various sources of income, taken together, exceeded his living expenses. However, the court did not cite any evidence or make any findings about what Lawrence actually did with his pension income. The court does not appear to have considered the possibility that Lawrence deposited any pension income beyond his normal living expenses into marital bank accounts, as Lawrence asserts in his brief. These marital bank accounts likely contained more than $400,000 at the time of trial. It appears that no tracing of withdrawals or deposits was made because the parties stipulated that withdrawals from these accounts were for reasonable living expenses. If Lawrence did deposit any excess pension income into marital bank accounts, it would be double-counting to order its recapture because these accounts were divided equally. We conclude there were insufficient findings supporting the order of recapture. D. The Superior Court Did Not Clearly Err in Its Valuation of the Linkbelt Excavator. After separation, Lawrence sold an item of marital property, a Linkbelt excavator, without notice to or the consent of Mary Sue. The court found that the sale was an unjustified dissipation of marital assets and that Lawrence had sold it for "far less than market value." It added the "fair market value," which it set at $92,000, to Lawrence's side of the marital property ledger. In his points on appeal, and in the headings of his brief, Lawrence disputes both the conclusion that he dissipated this asset and the valuation. However, in his brief he provides arguments regarding only the valuation. We therefore treat the dissipation issue as waived and focus on the valuation question. We conclude the court did not commit clear error in this valuation. When a marital asset is sold after separation and there is evidence that the asset was wasted or converted to nonmarital form, the court may recapture the asset by crediting all or part of its value to the account of the party who controlled the asset. The court accepted Mary Sue's estimate of $92,000, while Lawrence argued that the fair market value was $51,156. Mary Sue argued that the excavator was purchased for $98,085. Lawrence did not dispute this. It was three and a half years old at the time Lawrence sold it to a broker for $54,240. However, what he actually received was $25,865 in cash and a sawmill that he testified was worth $26,400. This totals $52,265, so it is unclear why he also states that the sales price was $54,240. In any event, he put its value at $51,156, so he said the price he got was a "good deal." Mary Sue estimated its value at the time of sale at $92,000, based on the exceavator's low number of hours, and its excellent condition, and her familiarity with this kind of equipment. In explaining why $54,240 (or less) reflected fair market value, Lawrence factored in a twelve percent annual depreciation rate, along with a ten percent brokerage fee. Mary Sue testified that Lawrence overstated the amount of depreciation because the machine "only had 71.6 hours on it. So that is very low mileage.... This is a practically new machine...." Lawrence argues that Mary Sue "did not support her opinion of the excavator's value with any documentation or any informed third-party opinion." While that is true, the same can be said of Lawrence's opinion of the exeavator's value. In general, the opinion of a lay owner as to the value of his or her property is admissible evidence. The evidentiary weight to be accorded such opinion and the adequacy of its foundation "are matters which fall squarely within the trial court's discretion." Mary Sue was the corporate officer of the Ethelbahs' equipment leasing and sales companies, and was involved in the buying and leasing of its equipment. The trial court accepted her valuations of all the heavy equipment assets at issue, finding her testimony on their value "more credible" than Lawrence's. On appeal, we "will generally accept the determination of witnesses' credibility that are made by the court as a trier of fact, since the court heard and observed the witnesses first hand." Part of Lawrence's argument is that the court erred by ignoring depreciation. We have held that we "disapprove[ ] of property divisions which fail to consider appreciation and depreciation." However, in this case, the court did not fail to consider depreciation. Rather, it credited Mary Sue's testimony regarding the condition of the machine and the amount of depreciation. Given conflicting testimony, it is not error for the trial court to decide which testimony it finds more credible. "Evidence of the price paid for personal property is probative of value where there has been no substantial change in the property's condition in the interim." Lawrence also faults the trial court for failing to consider the ten percent broker's fee. However, Lawrence offered no explanation of why it was necessary to use a broker to sell the excavator. The most likely explanation is that Lawrence was in a hurry to sell the excavator and therefore chose to use a broker for his own benefit. He sold the machine to a broker a week before he filed the complaint for divorcee, taking $2,000 in "earnest money." A week later, the court issued a domestic relations order prohibiting the sale of marital assets. Several weeks later he received the cash and the sawmill, minus the broker's fee. When asked why he sold the excavator, and why he could not get more money for it, he said, I knew this was going to become a very costly divorce, and [I] wanted the sawmill worse than I did the excavator. So I thought, well, a 50/50 split between the cash and the sawmill would be a good deal for me. And . I don't have any more work under [the machinery company]. She owns [that] company. And so I sold the excavator, and I sold it for what I felt like was well within fair market value . I've got a bunch of logs to mill here. Because Lawrence likely used a broker to further his own financial gain rather than to maximize the return on the sale, it was within the court's discretion to view the expenditure of the broker's fee as a dissipation of marital assets. E. The Superior Court Did Not Clearly Err in Its Valuation of Two Trucks. In his points on appeal, Lawrence asserts that the court erred in concluding that the parties owned a 2006 John 'Deere loader motor and in assigning its value to Lawrence. He also claims the court erred in its valuation of several trucks in Lawrence's possession, and that it erred in not ordering them sold so the proceeds could be divided equally. Lawrence has abandoned several of these issues by not arguing them in his brief, but two remain: the valuations of a 1995 Dodge Ram pickup truck and a 1999 Ford pickup truck. We conclude the court did not err in valuing these assets. The court adopted the values for these vehicles proposed by Mary Sue, which it found "generally track Blue Book when available." 1. Value of the 1999 Ford truck Mary testified that she looked up "Blue Book" values for each of the vehicles (although it appears she actually looked up the values on the website AutoTrader.com). The court accepted the value of $10,000 for the 1999 Ford truck Mary Sue researched in this way. She testified that the estimate was based on her classification of the Ford as being in "very good" condition. Lawrence does not agree the truck is worth $10,000. He testified that he had been trying to sell it for $9,000 without success, and then reduced the price to $7,000 and "nobody's called me yet." Therefore, he concludes that the truck would probably sell for $6,000. He testified that it was formerly a Forest Service truck and as such had an uncomfortable bench seat, and that the air conditioning did not work. The court was thus faced with conflicting testimony about the condition and value of this truck. It concluded that Mary Sue's estimates "generally track Blue Book when available" and that her testimony was "far more credible" than Lawrence's regarding the value of the vehicles. As noted above, we generally defer to the finder of fact with regard to the credibility of witnesses. We conclude it was not clearly erroneous to accept Mary Sue's estimate of the market value of this truck. 2. Value of the 1995 Dodge truck The court also adopted the $8,500 value Mary Sue estimated for the value of the 1995 Dodge truck. It is not clear from the record how she classified its condition when she looked up its market value. Lawrence testified that this truck was not worth the book value because it was inoperable due to a leaky transmission. He testified that a repair service, A-1 Transmission, estimated a repair cost of $5,500. He offered into evidence a photo of the truck showing a pool of liquid underneath it, which he testified was transmission fluid. In valuing the Dodge truck according to its book value, the trial court evidently chose to discount Lawrence's testimony about the condition of the transmission. Again, the court had to base its valuation on the eredi-bility of the witnesses. As noted already, it did not find Lawrence as credible as Mary Sue on the value of the vehicles, and we generally defer to the finder of fact with regard to the credibility of witnesses. We have also held that "it is the duty of the parties, not the court, to ensure that all necessary evidence is before the court in divoree proceedings and that a party who fails to present sufficient evidence may not later challenge the adequacy of the evidence on appeal. Given that Lawrence's challenge to the court's valuation is based only on his own testimony, that the court doubted the credibility of this testimony, and that such judgments of credibility are afforded strong deference, we find that the court's valuation of the Dodge truck was not clearly erroneous. F. The Superior Court Did Not Err in Taking Mary Sue's Right To Devise Her Share of Lawrence's Retirement Benefits to her Heirs. The distribution of Mary Sue's TRS retirement plan is governed by a QDRO, under which in the event the non-owning spouse, Lawrence, predeceases the owning spouse, Mary Sue, then Lawrence's share of the plan benefits must revert to Mary Sue. In order to balance this out, the court attempted to fashion a symmetrical treatment of Lawrence's retirement plan. It ordered that for Lawrence's pension, if the non-owning spouse, Mary Sue, predeceased Lawrence, then Mary Sue's share of the plan benefits would revert to Lawrence. Mary Sue argues that this order deprives her of her "full property interest" in Lawrence's pension and that she should have retained the right to devise her share of the benefits to her heirs or estate. Mary Sue cites the cases of Wahl v. Wahl and Zito v. Zito for the proposition that an award of retirement benefits in a divorcee must include the "full benefit of her property interest," including "the right to devise her share to her children." She also cites Turner's treatise to the effect that most courts grant a non-owning spouse the right to devise retirement benefits awarded in a divorce, in keeping with the principle that "deferred distribution is a full transfer of all ownership rights, including the right to devise to an heir." However, Mary Sue misconstrues these authorities, none of which states or implies that a court must always award to one party the full suite of property interests associated with a given pension. Trial courts have broad discretion to reallocate property rights in pursuit of equitable division. Alaska's divorce statute provides: [The court, in making the division, may invade the property . of either spouse acquired before marriage when the balane-ing of the equities between the parties requires it; and to accomplish this end the judgment may require that one or both of the parties assign, deliver, or convey any of their real or personal property, including retirement benefits, to the other party; the division of property must fairly allocate the economic effect of divorce. . [ ] Neither of the main cases cited by Mary Sue, Waht and Zito, limits the discretion of the court to alter existing property rights associated with a pension. The only question posed in those cases was whether an award of retirement benefits under a divorce agreement should be construed as including associated property rights such as survivorship benefits and devisability where the agreement was silent on that question. In other words, these items should be treated like other kinds of property, and should ordinarily carry the full suite of property rights unless otherwise stated. As Turner's treatise notes, the fact that pension benefits awarded in divorcee are ordinarily devisable is "merely another application of the general rule that deferred distribution is a full transfer of all ownership rights, including the right to devise to an heir." None of these authorities states or implies that a court lacks discretion to award a spouse something less than the full bundle of property rights normally associated with a pension plan, any more than it lacks such discretion with regard to other property such as a house or business. To take the example of a house, a party awarded title to a house ordinarily gains the rights of occupancy and devisability. However, trial courts may separate and reallocate the bun-die of property rights associated with the marital home. For example, a court may award a spouse raising children an exclusive right of cccupaney during the minority of the children without granting him or her a right to devise the house to heirs. Similarly, an award of a pension benefit is ordinarily an award of all the property rights associated with that benefit, and in most circumstances such an award is preferable. However, a court has discretion to do otherwise where cireumstances make that more equitable. The court's order to have Mary Sue's portion of Lawrence's pension benefits revert to him if Mary Sue predeceased him was not an abuse of that discretion. The court ordered this because it was attempting as nearly as possible to divide the marital estate equally, and this arrangement made the benefit Mary Sue received from Lawrence's pension more closely resemble the benefit Lawrence received from Mary Sue's pension. Mary Sue's other argument against making her portion of the pension revert to Lawrence upon her death is that she wants to be "free of any control or entanglements with Lawrence." She says she is fearful of Lawrence and cites some incidents in which she says Lawrence physically threatened her, including one in which he threatened her with a gun. It is true that we have stated a "strong policy 'to disentangle fully inter-spousal affairs upon dissolution.'" But the trial court's order does not require that Mary Sue have any contact with Lawrence, nor does it create any more entanglement than the parties have as a result of the survivor-ship interest that exists with respect to Mary Sue's retirement plan; the order merely makes Mary Sue's survivorship benefit mirror Lawrence's survivorship benefit. We see no reason why this arrangement would unacceptably "entangle" Mary Sue's affairs with Lawrence's or bring the two into unwanted contact. G. The Superior Court Did Not Clearly Err in Failing To Value the Roswell Escrow as of the Date of Separation. The Ethelbahs had an escrow account containing proceeds from the sale of real property near Roswell, New Mexico. At trial, Lawrence introduced into evidence a statement from the escrow company indicating that the account had a balance of $5,298 as of May 1, 2006. The trial court credited this $5,208 to Mary Sue's side of the marital property ledger. Mary Sue objected that this overvalued the account, which she claims was worth only $3,403 at the date of separation. The court concluded that it was using "the most recent valuation available at trial." Mary Sue appeals this determination. The date of the account statement relied upon by the court was May 1, 2006, which was about eight and a half months before the separation date of January 12, 2007. Mary Sue arrives at the lower figure of $38,403 by taking the monthly amount that was being dispersed from the account and multiplying it by the number of months from May 1 to the date of marital separation, and then subtracting that total ($1,896) from the known May 1 balance shown on the account statement. Mary Sue is almost certainly correct that the account was worth less at the time of trial than the amount it was valued at by the court. -It is not clear why Mary Sue argues that the date of separation should be used, rather than the date of trial. However, there is no dispute the account contained less than the $5,298 valuation used by the court. Lawrence agreed that there had been some monthly payments out of the account after May 1, although Lawrence disputes the number and amount of those payments. Mary Sue testified that based on a conversation with the escrow company, she expected to receive the balance of the account in a check for "about 4,200." Lawrence estimated in his own testimony the balance was "4,000-some-thing." -It is true that the date on which the trial court values marital property generally should be "as close as practicable to the date of trial." However, "as close as practicable" is an important qualifier. It was not clearly erroneous to view the amount on the escrow statement admitted into evidence as being the best estimate as close as practicable to the date of trial. If Mary Sue did not want to use that statement, she could have obtained and introduced a more recent statement. We have held that "it is the duty of the parties, not the court, to ensure that all necessary evidence is before the court in divorce proceedings and that a party who fails to present sufficient evidence may not later challenge the adequacy of the evidence on appeal." The court's only alternative to using the $5,298 figure based on the May 1, 2006 escrow statement would have been to pick a number out of the air that roughly matched the parties' back-of-the-napkin calculations. The court reasonably relied on the most recent solid evidence it had of the value of the escrow account. v. CONCLUSION While we generally favor use of a QDRO to distribute pension benefits, a present value distribution of vested pension benefits, including survivorship benefits, is not barred where cireumstances make that method more equitable. Because only Mary Sue had a retirement health insurance benefit, and given her shorter life expectancy, the trial court did not abuse its discretion in making a present value award of her retirement health insurance and Lawrence's survivor interest in that benefit. We also conclude that the court properly based its valuation of Mary Sue's retirement health insurance on the amount of the employer subsidy. Because we defer to the trial court in its assessment of witress credibility, and because it is the obligation of the parties to produce sufficient valuation evidence, we conclude that the court did not clearly err in its valuation of the excavator, two trucks, and the "Roswell" escrow account. Although an award of pension benefits is normally devisable, we conclude the trial court did not err in making Mary Sue's interest in Lawrence's pension benefits non-devisable, because courts retain broad discretion to reallocate property rights in pursuit of an equitable property division. It was error, however, to order recapture of pension income Lawrence received during the separation period, because there were no findings that he wasted, dissipated, or converted these assets to non-marital form. We therefore VACATE the order for recapture of these funds, and REMAND for the trial court to reconsider the distribution of these assets. It should only order recapture if it can make evidence-based findings that Lawrence dissipated, wasted, or converted the disputed income to non-marital form. We AFFIRM on all the other issues raised in this appeal. . QDROs are orders that may be used to distrib-ule TRS spousal benefits to a former spouse. Federal civil service pensions are divided by COAP. 5 C.F.R. § 835.305. Since the distinction between QDRO and COAP is not important for purposes of this case, we will refer to qualified orders for deferred division of both kinds of pensions as QDROs. . AS 25.24.160(a)(4); Nicholson v. Wolfe, 974 P.2d 417, 421 (Alaska 1999). . Brotherton v. Brotherton, 941 P.2d 1241, 1244 (Alaska 1997). . Carr v. Carr, 152 P.3d 450, 454 (Alaska 2007); Doyle v. Doyle, 815 P.2d 366, 368 (Alaska 1991). . Josephine B. v. State, Dep't of Health and Soc. Servs., Office of Children's Servs., 174 P.3d 217, 220 (Alaska 2007) (citations omitted). . Cox v. Cox, 882 P.2d 909, 913 (Alaska 1994). . See, eg., Tanghe v. Tanghe, 115 P.3d 567, 570 (Alaska 2005). . A pension is said to have "vested" at the point in time when an employee would still have a right to receive benefits even if he or she were to leave the employer immediately. Brerr R. Tour-wer, Equmaste Distrisurion or Property § 6.2, at 6-7 (3d ed.2005). . Mellard v. Mellard, 168 P.3d 483, 487 (Alaska 2007). . 115 P.3d 567 (Alaska 2005). . 974 P.2d 417 (Alaska 1999). . 741 P.2d 649 (Alaska 1987). . Id. at 656. . Id. at 656-57. . Id. at 657. . Tanghev. Tanghe, 115 P.3d 567, 568-69 (Alaska 2005). . 2 TurNBr supra note 8, § 6:30, at 192. A domestic relations order granting property rights to the pension owner's spouse is "qualified" if it is determined by the pension plan administrator to comply with the requirements of federal law. See id. § 6:19, at 96-98. . Laing, 741 P.2d at 657-58. . 956 P.2d 1222 (Alaska 1998). . Id. at 1227. Broadribb dealt with a couple that married and lived in England before moving to Alaska, and the trial court ruled that under British law the pension and survivorship benefits were not subject to QDRO or division by the court,. Id. Broadribb thus did not deal with a situation where the court had a choice between a present value and a QDRO approach. . Nicholson v. Wolfe, 974 P.2d 417, 425-26 (Alaska 1999). . Tanghe v. Tanghe, 115 P.3d 567, 568-71 (Alaska 2005). . 168 P.3d 483 (Alaska 2007). . Id. at 487. . Laing v. Laing, 741 P.2d 649, 657 (Alaska 1987). . See AS 25.24.160(a)(4). . 119 P.3d 1005 (Alaska 2005). . Id. at 1016. . Neither party argues the lowest of the three estimates, referred to as the "post-65" rate, should have been chosen. The "post-65" rate attempts to factor in the cost savings for retirees in the health plan as a result of receiving Medicare. . State or Araska Retiree Hearta Funp, Financiat StatEmEnts, June 30, 2007 and 2006, available at http://doa.alaska.gow/drb/ghlb/retiree/pdf/fs07rhf. pdf. . See id. . Foster v. Foster, 883 P.2d 397, 400 (Alaska 1994). . Jones v. Jones, 942 P.2d 1133, 1139 (Alaska 1997). . 2 Turner, supra note 8, § 6:105, at 557. . Id. . See Korn v. Korn, 46 P.3d 1021, 1023 (Alaska 2002) ("Although we have sometimes recognized that orders dividing marital property may recapture a marital asset's pre-trial loss in value, we have held that such orders must be supported by findings that the asset's value was dissipated, wasted, or converted to a non-marital form by the party who controlled the asset during the period of separation.") (internal citations omitted); Foster, 883 P.2d at 400 ("Where there is evidence that a marital asset was dissipated, wasted, or converted to a non-marital form, the court can 'recapture' the asset... ."). . 39 P.3d 513 (Alaska 2001). . Id. at 521. . Id. . 36 P.3d 1188 (Alaska 2001). . Id. at 1194-95. . 883 P.2d 397 (Alaska 1994). . Id. at 400. . Id. . Shearer v. Mundt, 36 P.3d 1196, 1199 (Alaska 2001) ("[Issues not briefed or only cursorily briefed are considered waived."). . Jones v. Jones, 942 P.2d 1133, 1139 (Alaska 1997). . Schymanski v. Conventz, 674 P.2d 281, 286 (Alaska 1983). . Id. . Dodson v. Dodson, 955 P.2d 902, 907 (Alaska1998) (quoting Demoski v. New, 737 P.2d 780, 784 (Alaska 1987)). . Zimin v. Zimin, 837 P.2d 118, 122 (Alaska 1992). . 31A C.J.S. Evipence § 339, at 478 (2008) (citing Esteel Co. v. Goodman, 82 N.C.App. 692, 348 S.E.2d 153 (1986)). . See Vezey v. State, 798 P.2d 327, 336 (Alaska 1990); Kodiak Elec. Ass'n, v. DeLaval Turbine, 694 P.2d 150, 153 n. 4 (Alaska 1984). . Dodson v. Dodson, 955 P.2d 902, 907 (Alaska 1998). . Id. . Root v. Root, 851 P.2d 67, 69 (Alaska 1993). . The Alaska Division of Retirement and Benefits requires this arrangement-reversion back to the owner in the event the non-owning spouse dies-for many of the pension plans it oversees, including TRS pensions. See Araska Division or Retirement anp Benerits, State or Araska QuaLirep Domestce Retations Orpsr (QDRO) Divorce anp Dissorurion Inrormation Packer 8, 16 (January 2006) (applying to TRS pensions, and requiring reversion as a minimum requirement of any QDRO), available at http://doa.alaska.gow/drb/ forms/pdf/qdro-booklet.pdf. . 945 P.2d 1229 (Alaska 1997). . 969 P.2d 1144 (Alaska 1998). . See 2 Turner, supra note 8, § 6.33, at 213-14. . Nicholson v. Wolfe, 974 P.2d 417, 421 (Alaska 1999). . AS 25.24.160(a)(4). . Wahl, 945 P.2d at 1232; Zito, 969 P.2d at 1147-48. . 2 Turner supra note 8, § 6:33, at 214. . See id., § 6:85, at 444-45 (noting that a court "can recognize one spouse's special need for the marital home by awarding that spouse exclusive use of the home and its contents" until the emancipation of the youngest minor child, at which point the occupying spouse could purchase the home or it could be sold and the proceeds divided). . Musgrove v. Musgrove, 821 P.2d 1366, 1370 n. 7 (Alaska 1991) (quoting Voyles v. Voyles, 644 P.2d 847, 849 (Alaska 1982)). . Ogard v. Ogard, 808 P.2d 815, 819 (Alaska 1991). . Root v. Root, 851 P.2d 67, 69 (Alaska 1993).

12121626

In the DISCIPLINARY MATTER INVOLVING KEVIN G. BRADY, Attorney

In re Brady

2016-10-28

Supreme Court No. S-16342

1

16

387 P.3d 1

387

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T18:09:01.821055+00:00

CAP

Before: Stowers, Chief Justice, Winfree, jMaassen, and Bolger, Justices. [Carney, Justice, not participating.]

In the DISCIPLINARY MATTER INVOLVING KEVIN G. BRADY, Attorney.

In the DISCIPLINARY MATTER INVOLVING KEVIN G. BRADY, Attorney. Supreme Court No. S-16342 Supreme Court of Alaska. October 28, 2016 Before: Stowers, Chief Justice, Winfree, jMaassen, and Bolger, Justices. [Carney, Justice, not participating.]

8774

53002

Order Bar Counsel for the Alaska Bar Association and attorney Kevin G. Brady entered into a stipulation for discipline by consent that would result in Brady's six-month suspension from the practice of law in Alaska. The Bar Association's Disciplinary Board approved the stipulation and now recommends that we do so, as well, and so suspend Brady. The facts of Brady's misconduct are set forth in the stipulation, which is attached as an appendix. We take these facts as true, and we apply our independent judgment to the sanction's appropriateness. Based on the uncontested facts we agree with the legal analysis—set out in the stipulation—that a six-month suspension is an appropriate sanction for Brady's misconduct. Accordingly: Kevin G. Brady is suspended from the practice of law in Alaska for a period of six months, effective November 28, 2016. In addition: 1. Although no claims presently are pending, Brady shall make full restitution of any amounts owed to the Lawyers' Fund for Client Protection, to the Alaska Bar Association, and for client fee arbitration awards should such matters subsequently arise; 2. Brady shall pay $2,500 to the Alaska Bar Association within 30 days from entry of this order for disciplinary costs and fees incurred in this case; and 3. As a condition of reinstatement to practice, Brady shall be supervised for a period of six months by a supervising attorney acceptable to Bar Counsel. Entered by direction of the court. Appendix IN THE SUPREME COURT OF THE STATE OF ALASKA In The Disciplinary Matter Involving ATTORNEY B, Respondent. Supreme Court No. S-16342 CONFIDENTIAL ABA Membership No. B ABA File No. 2015D060 STIPULATION FOR DISCIPLINE BY CONSENT PURSUANT TO ALASKA BAR RULE 22(h) PROPOSED ORDER September 26, 2016 Certification of Service I certify that on September 26, 2016, a copy of the above-named documents were mailed to the Attorney for Respondent at his address of record. By/s/ Annette Blair ANNETTE BLAIR BEFORE THE ALASKA BAR ASSOCIATION DISCIPLINARY BOARD In The Disciplinary Matter Involving KEVIN G. BRADY, Respondent. ABA Membership No. 9211068 ABA File No. 2016D060 STIPULATION FOR DISCIPLINE BY CONSENT PURSUANT TO ALASKA BAR RULE 22(h) Pursuant to Alaska Bar Rule 22(h), Kevin G. Brady, Respondent, and Louise R. Dris-coll, Assistant Bar Counsel, stipulate as follows: JURISDICTION AND VENUE 1. Kevin Brady is, and was at all times pertinent, an attorney at law admitted to practice by the Supreme Court of Alaska, and a member of the Alaska Bar Association. At all times relevant, Mr. Brady practiced law in Anchorage, Third Judicial District, Alaska. 2. Mr. Brady is, and was at all times pertinent, subject to the Alaska Rules of Professional Conduct ("ARPCs") and to Part II, Rules of Disciplinary Enforcement, Alaska Bar Rules, giving the Alaska Supreme Court and the Disciplinary Board of the Bar jurisdiction to resolve this matter. BACKGROUND FACTS Trial Court and Appellate Proceedings 3. Following a referral from the Alaska Supreme Court, the Bar opened this grievance for investigation. This stipulation addresses breaches of duties by Mr. Brady owed to his client to be diligent during civil litigation (Rule 1.8) and to the court to expedite litigation during civil appeal proceedings (Rule 3.2). 4.A taxi cab driver sexually assaulted his passenger E.G. Attorney KeriAnn Brady of Brady Law Office filed a civil complaint for damages on Ms. G's behalf on August 6, 2013, in Anchorage Superior Court against the cab owner and permit holder. 6.Attorney James Brennan appeared on behalf of defendants and answered the amended complaint on December 3, 2013, responding to an application for entry of default that Ms. Brady filed. On December 4, 2013, the court issued the initial pretrial order. 6. On January 9, 2014, defendants made an offer of judgment in the amount of $6,000. A distribution stamp reflects that the Brady Law Office distributed the offer of judgment to its client. Plaintiff did not accept the offer which was considered withdrawn after ten days under Alaska Civil Rule 68. 7. On January 16, 2014, defendants filed a third party complaint and asked to add the cab driver as a third party defendant. On January 31, 2014, the court allowed the addition of the third party. 8. On February 10, 2014, defendants filed a summary judgment motion. Defendants argued that-the-driver leased the taxicab under a chauffeur's lease agreement and was an independent contractor, not an employee. Defendants denied they negligently failed to conduct an adequate background check and failed to train and supervise the driver properly because the Municipality of Anchorage performed those functions under the municipal chauffeur licensing regulations. 9. Brady did not timely oppose the summary judgment motion. 10. On March 4, 2014, the court granted defendants' motion for summary judgment. On the same day, four days after the opposition was due to be filed, plaintiff, through her counsel, Mr. Brady, moved for an extension of time to file the opposition. 11. Contending there was no excusable neglect to warrant setting aside the order, defendants opposed the request for additional time. Mr. Brennan remarked on his inability over the past several months to reach Mr. Brady to discuss mutual exchange of initial disclosures and to establish a trial schedule. At the same time, defendants filed a proposed judgment. 12. On March 25, 2014, the court denied plaintiffs motion for additional time. The court also granted defendants' proposed final judgment and dismissed the case. 13. On March 27, 2014, defense counsel moved for attorneys' fees, enhanced by defendants prevailing on the offer of judgment. They also filed a cost bill. 14. On April 1, 2014, Mr. Brady moved for reconsideration of the orders granting summary judgment and denying plaintiffs motion for extension of time. After allowing defendants time to respond, the court denied the motions for reconsideration on May 28, 2014. 15. The final judgment was first distributed on March 25, 2014. On June 30, 2014, the court filed a final judgment which included its calculation of attorney's fees. Under Appellate Rule 204(a)(5), Mi\ Brady should have filed an appeal on the merits in April with the time to appeal running from the initial entry of final judgment in March, 16. Mr. Brady filed a notice of appeal on July 24, 2014. Appellees filed a motion to strike the appeal as untimely. Mr. Brady filed an opposition to the motion to strike, filing it eight days late. The Supreme Court allowed the appeal to proceed to avoid injustice, exercising its authority under Appellate Rule 521. 17. The Supreme Court issued its opening notice on September 11, 2014, setting out deadlines for preparation of the file and transcripts. 18. On April 10, 2015, the Alaska Supreme Court issued an order to show cause why Mr. Brady should not be sanctioned for his failure to file documents by their due dates and his failure to file timely motions for extension of the deadlines to file those documents. The order detailed a pattern of delay, missed deadlines, and failure to request extensions prior to the due date. 19. The court ordered Mr, Brady to show Cause by April 17, 2015. Mr. Brady did not file a response to the order to show cause by that deadline. 20. After the appellate clerk called Mr. Brady to remind him to respond, he filed a response on April 23. He described that his failure to file timely pleadings was "somewhat resultant from caseload volume and frequency of court appearances which impacts office production," Mr. Brady admitted that he was at fault for failing to file a timely response to the show cause order and he agreed that some sanction was warranted. 21. On May 5, 2015, the court personally sanctioned Mr. Brady in the amount of $250 for his failure to file documents by their due dates and his failure to file timely motions for extension of the deadlines to file those documents. 22. The Court further personally sanctioned Mr. Brady an additional $250 for failing to file a timely response to the order to show cause or to ask for an extension of time to file a response, The court additionally ordered Mr. Brady to pay the appellees' full reasonable attorney's fees for the time spent in filing their motion to dismiss the appeal for failure to file a brief. The court directed appellees to file an affidavit of fees on or before May 15, 2015. The court ordered Mr. Brady to pay the attorneys' fees no later than June 1, 2015. 23. On June 26, 2015, appellees filed a notice that Mr. Brady had not paid their attorney fees, despite counsel sending Mr. Brady a June 12 e-mail reminder of the overdue payment. 24. Mr. Brady paid the fees on June 30, 2015. 25. On July 9, 2015, the clerk of the appellate courts e-mailed Brady at 8:47 a.m. to ask about the status of the sanctions payment. Mr. Brady paid the $500 sanction at 9:56 a.m., but the payment was mistakenly made to the trial court clerk's office rather than the appellate clerk's office. 26. On July 9, 2015, the court issued an order to show cause why Brady should not be personally sanctioned $100 for his failure to pay timely the personal sanctions of $500 that the May 5, 2015, order directed him to pay. The court also questioned his failure to pay on or before June 1, 2015, the attorney fees award of $620, The court ordered him to respond by July 17, 2015 and warned no extension requests would be granted. The order was copied to Bar Counsel 27. On July 21, 2015, the court ordered Mr. Brady to pay opposing counsel $250 to reimburse opposing counsel for the time to email him a reminder to pay the fee award and to file the noncompliance notice. The court ordered Mr. Brady to pay $250 in fees by August 3, 2015, and to notify the court when payment was made. Mr. Brady filed a notice of compliance on July 24, 2015. 28. On September 25, 2015, the Court issued an opinion in Supreme Court Case No. S-15634, affirming the trial court's dismissal of the plaintiffs claims and denying the plaintiffs late-filed motion to extend time to oppose summary judgment as well as the motion for reconsideration or relief from judgment. The court said that plaintiffs attorneys never demonstrated the failure to timely request an extension of time was caused by excusable neglect. 29. Mr. Brady promptly wrote his client to tell her that he lost the appeal and this his failure to file an opposition was not excusable. He informed her that she might have a cause of action against him but that he could not provide her with any legal advice on that issue and she would need to consult with another attorney about that. Disciplinary Proceedings 30. In its May 5, 2015 sanctions order, the court referred this matter to the Bar's discipline counsel, "[I]n light of the recent public censure administered against Brady in open court on August 28, 2013 for neglect of client matters." The court directed the Bar Association to "report back to the court on the status of the matter no later than July 6, 2015, and every [30 days] thereafter until the matter is resolved." (Emphasis in original.) (A copy of the May 5, 2015 order is attached as Exhibit 1.) 31. On June 10, 2015, Bar Counsel opened a confidential formal investigation into issues of neglect and failure to respond to court orders in the trial and appellate court cases. Under Bar Rule 22(a), Mr. Brady had to provide full and fair disclosure in a verified writing of all facts and circumstances pertaining to the grievance. 32. Mr. Brady timely filed his response. He explained that the court referral arose from "a convergence of circumstances within our office in February and March of 2015." For unclear reasons the briefing deadline for the trial court litigation did not get entered on to the law firm's calendar. Mr. Brady explained that his office discontinued using its calendaring and case management software program that had been in place since June 2012 for a new system. During the transition to the new software program, the calendar system was manually updated with staff entering the information. 33. Mr. Brady explained that during the pendency of the appeal, the law office had a caseload consisting of one administrative appeal, one original state procurement code contract controversy, nineteen Child in Need of Aid cases, seventeen misdemeanor criminal matters, thirty eight felony criminal matters, twenty-eight civil cases, three delinquency cases, one criminal appeal before the Alaska Court of Appeals and two civil appeals in the Alaska Supreme Court. This summary excluded all criminal probation matters. 34. Mx". Brady explained that during the same period of time, the office appeared at approximately 400 separate healings in five different courts for the 116 active pending cases. The office also conducted two CINA trials, five felony criminal trials, and a civil trial, meeting pleading deadlines or timely requesting extensions of the deadlines in state and federal courts for civil and criminal matters and appeals. DISCIPLINARY VIOLATIONS 35. Alaska Rule of Professional Conduct 1.3 states that "[a] lawyer shall act with reasonable diligence and promptness in representing a client." 36. Mr. Brady violated Rule 1.3 by failing to act with reasonable diligence on his client's behalf which included failure to pro vide pretrial discovery, failure to meet deadlines established under the' scheduling orders in the trial and appellate proceedings, failure to file responsive pleadings timely, failure to answer show cause orders timely, and failure to pay sanctions and attorney fees timely. Mr. Brady failed to control his work load so that he could handle this matter competently. 37. Alaska Rule of Professional Conduct 3.2 states that "[a] lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client." 38. Mr. Brady failed to prosecute his client's claim in both the trial and appellate courts without undue delay. By failing to meet court-imposed deadlines in both trial and appellate courts, Mr. Brady failed to make reasonable efforts to expedite litigation. SANCTION ANALYSIS 39. The American Bar Association Standards for Imposing Lawyer Sanctions (1986) ("ABA Standards"), adopted in In re Buckalew, 731 P.2d 48 (Alaska 1986), and reported decisions of the Alaska Supreme Court, govern the sanctions for respondent's misconduct. 40. Under ABA Standard 3.0, the following factors are to be considered in imposing sanctions after a finding of lawyer misconduct: (a) the duly violated; (b) the lawyer's mental state; (c) the actual or potential injury caused by the lawyer's misconduct; and (d) the existence of aggravating or mitigating factors. 41. These factors are addressed in a three part methodology: 1) determine the first three factors; 2) determine recommended sanction; and 3) determine whether aggravating or mitigating circumstances exist. In Re Schuler, 818 P.2d 138, 140 (Alaska 1991). Part 1: Duty Violated; Lawyer's Mental State; Actual or Potential Injury A. Duty Violated 42. Violation of ARPO 1.3 is a violation of a duty owed to clients. See ABA Standards 4.0 Violations of Duties Owed to Clients. Violation of ARPC 3.2 is a violation of a duty owed to the legal system. See ABA Standards 6.0 Violations of Duties Owed to the Legal System. B. Mental State 43. Under the ABA standards: " 'Intent' is the conscious objective or purpose to accomplish a particular result." " 'Knowledge' is the conscious awareness of the nature or attendant circumstances of the conduct but without the conscious objective or purpose to accomplish a particular result." " 'Negligence' is the failure of the lawyer to heed 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." 44. For purposes of the violations of the ARPCs listed above, the' parties agree the history of neglect at the trial court level and the need for the appellate court to issue orders to show cause and to issue sanctions to compel performance supports a finding that Mr. Brady acted knowingly. C.Actual or Potential Injury 46. Mr. Brady's neglect resulted in the dismissal of his client's case—a serious injury. His continuing neglect caused delay and required unnecessary intervention from the appellate court. Mr. Brady's failure to abide by appellate procedures interfered with the timely and efficient administration of justice. Part 2: Recommended Sanction under ABA Standards 46. ABA Standards § 4.4 sets - out the sanctions for lack of diligence, Section 4,42 provides that suspension is generally appropriate when: (a) a lawyer knowingly fails to perform services for a client and cause injury or potential injury to a client; or (b) a lawyer engages in a pattern of neglect and causes injury or potential injury to a client. 47. ABA Standards § 6.2 sets out the sanctions for failure to expedite litigation and abuse of the legal process. 48. Section 6.22 provides: Suspension is appropriate when a lawyer knows that he is violating a court order or rule, and there is injury or potential injury to a client or a party, or interference or potential interference with a legal proceeding. Part 3: Aggravating and Mitigating Factors 49. ABA Standards § 8.0 discusses sanctions to be imposed on lawyers engaged in the same misconduct for which they were previously disciplined. Section 8.2 states: Suspension is generally appropriate when a lawyer has been reprimanded for the same or similar misconduct and engages in further acts of misconduct that cause injury or potential injury to a client, the public, the legal system, or the profession. 60. The court publicly censured Mr. Brady in 2013 for neglecting an ERISA appeal for a union client. He failed to produce records and failed to oppose a motion for partial summary judgment and did not tell his client that the court had ordered production of trust fund records. His neglect led to a court-ordered audit and damages in the amount of $225,000. Successor counsel minimized the financial harm by negotiating a stipulated judgment of $37,000 to resolve the lawsuit. (A copy of the 2013 Stipulation for Discipline with Consent is attached as Exhibit 2.) 51.Other factors that may be considered in aggravation are set out in § 9.22. In addition to prior disciplinary offenses (9.22(a)), Mr. Brady also has substantial experience in the practice of law. 51. (a) Other factors that may be considered in mitigation are set out in § 9.32. Factors include: absence of a dishonest or selfish motive, 9.32(b); personal or emotional problems, 9.32(c); full and free disclosure to disciplinary board or cooperative attitude toward proceedings, 9.32(e); and remorse 9.32(1). OTHER AUTHORITY 52. While other disciplinary cases in Alaska are instructive with respect to the level of discipline that the Alaska Supreme Court may impose for similar misconduct, the range of imposed discipline can vary based on individual facts presented in each disciplinary matter. Mr. Brady and Bar Counsel considered the following reported cases involving neglect: In re Brion, 212 P.3d 748 (Alaska 2009) (three year suspension, one year to serve for neglect, failure to communicate, failure to account, and respond to Bar—six clients); In re Cyrus, 241 P.3d 890 (Alaska 2010) (lawyer suspended for six months for repeated neglect of client matters, failure to timely appear at court proceedings, failure to communicate with clients, failure to answer disciplinary charges and his admission that he was unable to manage his calendar.) 53. Mr. Brady and Bar Counsel considered the following unreported eases involving neglect: In re Edgren, S-15401 Amended Order 3/7/14 (six month suspension stayed on conditions and public censure for client neglect, failure to communicate, failure to refund unearned fee, failure to properly withdraw and failure to respond to fee arbitrator and bar counsel) In re Austin, S-15605 Order 8/7/14 (three year suspension with one year stayed for neglect of client matters, failure to communicate, failure to account for and deliver client funds, failure to supervise nonlawyer assistant, failure to return client files and property, failure to safekeep client property, failure to pay fees and costs, and failure to honestly advise clients regarding her ability to provide legal services.); In re Rosenbaum, S-15604 Order 7/9/15 (42 month suspension for failure to keep clients reasonably informed, failure to refund unreasonable fees, failure to disclose absence of malpractice, failure to account for fees, and failure to respond to requests from disciplinary authority.) STIPULATED DISCIPLINE 54. Subject to approval by the Disciplinary Board of the Bar and by the Alaska Supreme Court, Mr. Brady and Bar Counsel agree that the appropriate level of discipline under Bar Rule 16(a)(2) is a suspension from the practice of law for a period of six months with the period of suspension to become effective thirty days from the entry of the court's order with the following conditions: 1. Bar Counsel and Mr. Brady agree that although no claims are pending, Mr. Brady agrees that he must make full restitution of any amounts owed to the Lawyers' Fund for Client Protection, the Alaska Bar Association, and to any clients for any fee arbitration awards if any such matters subsequently arise. 2. Mr. Brady will pay $2,500 to the Alaska Bar Association for disciplinary costs and fees incurred in his case within thirty days from entry of the court's order. 3. As a condition of reinstatement to practice, Mr. Brady is required to be supervised for a period of six months by a supervising attorney who is acceptable to Bar Counsel. DATED this 19th day of September, 2016, at Anchorage, Alaska. ALASKA BAR ASSOCIATION /s/ Louise R. Driscoll Louise R. Driscoll Assistant Bar Counsel Bar Member No. 8511152 DATED this_day of_2016, at Kevin G. Brady Respondent Attorney Bar Member No. 9211068 1.Bar Counsel and Mr. Brady agree that although no claims are pending, Mi1. Brady agrees that he must make full restitution of any amounts owed to the Lawyers' Fund for Client Protection, the Alaska Bar Association, and to any clients for any fee arbitration awards if any such matters subsequently arise. 2. Mr. Brady will pay $2,500 to the Alaska Bar Association for disciplinary costs and fees incurred in his case within thirty days from entry of the courts order. 3. As a condition of reinstatement to practice, Mr. Brady is required to be supervised for a period of six months by a supervising attorney who is acceptable to Bar Counsel. DATED this 19th day of September, 2016, at Anchorage, Alaska. ALASKA BAR ASSOCIATION /s/ Louise R. Driscoll Louise R. Driscoll Assistant Bar Counsel Bar Member No. 8511152 DATED this 22nd day of September 2016, at Seattle, Washington. /s/ Kevin G. Brady Kevin G. Brady Respondent Attorney Bar Member No. 9211068 DATED this 22nd day of Sept, 2016, at Anchorage, Alaska. /s/ John M. Murtagh John M. Murtagh Attorney for Respondent Bar Member No. 7610119 CONSENT OF RESPONDENT Respondent hereby consents, pursuant to Alaska Bar Rule 22(h), to the discipline stipulated above and states that this consent is freely and voluntarily given and is not the subject of any coercion or duress and that respondent admits to the allegations set forth above. DATED this 22nd day of September, 2016, at Seattle, Washington. /s/ Kevin G. Brady Kevin G. Brady Respondent Attorney Bar Member No. 9211068 SUBSCRIBED AND SWORN to before me this 22 day of September 2016. /s/ [illegible text] Notary Public in and for Seattle, WA My commission expires: 4/27/20 Exhibit 1 In the Supreme Court of the State of Alaska Erica Gibbs, Appellant, v. Taylor Taxis, Inc., Taylor Revocable Trust, and L&J Cabs, Inc., Appellees. Supreme Court No. S-15634 Order Sanctions Date of Order: May 5, 2015 Trial Court Case # 3AN-13-08668CI Before: Fabe, Chief Justice, Winfree, Stow-ers, Maassen, and Bolger, Justices On April 10, 2015, this court issued an order to show cause why attorney Kevin Brady should not be sanctioned for his- failure to file documents by their due dates and his failure to file timely motions for extension of the deadlines to file those documents, as follows: • Brady failed to file a timely notice of appeal; • Brady failed to respond to appellee's motion to strike the notice of appeal as untimely. (The motion to strike was denied in the interest of justice); • Brady failed to file a timely notice regarding settlement as required by Appellate Rule 221 and in the Opening Notice sent to the parties, and he failed to file a motion to extend the time to file the required notice; • Following receipt of the second extension of time to file the opening brief (the request for which was filed late), Brady failed to file a brief by the deadline set in the second extension order, and he failed to file a motion for extension of time to file the brief; • After receipt of an overdue brief notice and a motion to dismiss filed by appel-lee for failure to file the brief, Brady filed a motion to extend time to file the brief. That motion was granted; • Due to the foregoing pattern of delay, missed deadlines, and failure to request extensions prior to the due date, the April 10, 2015 order to show cause was issued, requiring a response by April 17. But Brady did not file a response to the order to show cause by that deadline. He did not file a response until April 23, after he received a reminder call from the appellate clerk, In that response, he indicated that his failure to file timely pleadings was "somewhat resultant from caseload volume and frequency of court appearances which impacts office production" and he admitted that he is "at fault for failing to file an appropriate timely pleading in the Alaska Supreme Court per this court's order of April 10, 2015, and agree[d] that some sanction is warranted and appropriate." Based on the foregoing, It is ORDERED: Attorney Kevin Brady is personally sanctioned in the amount of $250 for his failure to file documents by their due dates and his failure to file timely motions for extension of the deadlines to file those documents. Brady is further personally sanctioned an additional $250 for failing to file a timely response to the order to show cause or to ask for an extension of time to file a response. In addition, Brady must pay the appellees' full reasonable attorney's fees for the time incurred in filing their motion to dismiss the appeal for failure to file a brief. Appellees shall file an affidavit of fees on or before May 15,2015. In light of the recent public censure administered against Brady in open court on August 28, 2013 for neglect of client matters, this matter is referred to the Alaska Bar Association's discipline counsel. The Bar Association shall report back to the court on the status of the matter no later than July 6, 2015, and every [30 days] thereafter until the matter is resolved. Entered at the direction of the court. Clerk of the Appellate Courts /s/ Marilyn May Marilyn May Exhibit 2 BEFORE THE ALASKA BAR ASSOCIATION DISCIPLINARY BOARD In The Disciplinary Matter Involving KEV-JN G. BRADY, Respondent. ABA Membership 9211068 ABA File No. 2011D107 STIPULATION FOR DISCIPLINE BY CONSENT PURSUANT TO ALASKA BAR RULE 22(h) Pursuant to Aaska Bar Rule 22(h), Kevin G. Brady, Respondent, and Louise R. Dris-coll, Assistant Bar Counsel, stipulate as follows: JURISDICTION AND VENUE 1. Kevin Brady is, and was at all times pertinent, an attorney at law admitted to practice by the Supreme Court of Aaska, and a member of the Aaska Bar Association. At all times relevant, Mr. Brady practiced law in Anchorage, Third Judicial District, Aaska. 2. Mr. Brady is, and was at all times pertinent, subject to the Aaska' Rules of Professional Conduct ("ARPCs") and to Part II, Rules of Disciplinary Enforcement, Aas-ka Bar Rules, giving the Aaska Supreme Court and the Disciplinary Board of the Bar jurisdiction to resolve this matter. BACKGROUND FACTS 3. Mr. Brady represented Don Crane and AVM, Inc., in an Employee Retirement Income Security Act, ("ERISA") action filed in federal court. The suit alleged delinquent contributions to multi-employer trust funds. The case was captioned Alaska Plumbing & Pipefitting Industry Pension Fund, et al. v. AVM, Inc., 3:09-ev-0044-HRH. 4. On April 6, 2009, Mr. Brady filed an entry of appearance, answer and counterclaim to the complaint. He also wrote plaintiffs counsel to explain AVM's perspective, "in the hopes of avoiding costly litigation regarding this matter." 5. Aaska Plumbing & Pipefitting Industry Pension Fund ("Trust Funds") filed a motion for partial summary judgment on February 1, 2010, -in which, among other points, they asked the court to compel production of records and to compel AVM to cooperate in scheduling an audit. 6. Mr. Brady did not tell the client that the motion had been filed. Mr. Brady did not file a response or opposition to the motion. 7. The court granted the motion on March 10, 2010. The order required AVM to submit to an audit and granted other forms of related relief. Mr. Brady did not tell his client that the court had issued its order. 8. In response to the court's order, the Trust Funds tried to contact Mr. Brady to schedule the audit. He did not reply. 9. The Trust Funds filed a second motion to strike AVM's counterclaim and to hold AVM in contempt for failing to comply with the court's March 10, 2010, order, Mr. Brady did not tell his client that the second motion had been filed. He did not file a response or opposition. 10. On July 29, 2Ó10, the court granted the second motion and entered a partial default judgment against AVM. Mr. Brady did not tell his client that the order had been entered. 11. AVM learned about the prior motions, orders, and judgment when Trust Funds representatives contacted AVM to schedule the court-ordered audit. At this point AVM retained new counsel, attorney Gregory S. Fisher. 12. Ater the audit was conducted, the Trust Funds demanded an amount in the approximate range of $225,000, from AVM, an amount exclusive of fees, costs, liquidated damages, interest and penalties. 13. Mr. Fisher stated that AVM had several meritorious legal defenses that could have been asserted to the Trust Funds allegations. However, he stated that prevailing Trust Funds are presumptively eligible for fees and costs in ERISA multi-employer trust fund litigation. Thus, a relatively minor amount of liability may dramatically increase once fees and costs are included. This fact weighed heavily in AVM's decision to accept a stipulated judgment of $37,000 to resolve the lawsuit. 14. AVM later learned that Mr. Brady did not have any legal malpractice insurance, a fact that he did not disclose when he undertook to represent AVM. DISCIPLINARY VIOLATIONS Count One Competence (ARPC 1.1) 15. Rule 1.1 requires a lawyer to provide competent representation to a client. "Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation." 16. Mr. Brady had experience, with ERISA audits for union fringe benefits and by writing counsel he unsuccessfully attempted to trigger negotiations to resolve the matter .without litigation. However, he failed to recognize in April 2009 that this case was beyond his limited experience and would involve substantial time and effort that his schedule could not accommodate. Mr. Brady violated Rule 1.1 when he failed to recognize that his limited proficiency and lack of time to gain the requisite knowledge and skill required him to refer his client to another attorney with expertise in ERISA litigation. Count Two Neglect (ARPC 1.3) 17. Alaska Rule of Professional Conduct 1.3 requires that a lawyer "shall act with reasonable diligence and promptness in representing a client." 18. Mr. Brady violated ARPC 1.3 by failing to timely and diligently advance the interests of his client as set forth above, in particular by failing to file responsive pleadings and to comply with court-ordered audits. Count Three Communication (ARPC 1.4) 19. Alaska Rule of Professional Conduct 1.4 addresses communication issues involving case status and malpractice insurance disclosure. ARPC 1.4(a) requires a lawyer to keep a client reasonably informed about the status of a case and to respond promptly to a client's requests for information. 20. ARPC i.4(c) states in part that a lawyer has to inform clients in writing, "if the lawyer does not have malpractice insurance of at least $100,000 per claim and $300,000 annual aggregate and shall inform the client in writing at any time the lawyer's malpractice insurance drops below these amounts or the lawyer's malpractice insurance is terminated." 21. Mr. Brady violated Rule 1.4(a) and (c) when he. failed to keep AVM informed of significant litigation events and failed to advise his client that adverse orders, sanctions, and a judgment had been entered against the client. Mr. Brady also failed to tell his client that he had no malpractice insurance. SANCTION ANALYSIS 22. The American Bar Association Standards for Imposing Lawyer Sanctions (1986) ("ABA Standards"), adopted in In re Buckalew, 731 P.2d 48 (Aaska 1986), and reported decisions of the Aaska Supreme Court, govern the sanctions for respondent's misconduct. 23. Under ABA Standard 3.0, the following factors are to be considered in imposing sanctions after a finding of lawyer misconduct: (a) the duty violated; (b) the lawyer's mental state; (e) the actual or potential injury caused by the lawyer's misconduct; and (d) the existence of aggravating or mitigating factors. 24. These factors are addressed in a three part methodology: 1) determine the first three factors; 2) determine recommended sanction; and 3) determine whether aggravating or mitigating circumstances exist. In Be Schuler, 818 P.2d 138, 140 (Alaska 1991). Part 1: Duty Violated; Lawyer's Mental State; Actual or Potential Injury A. Duty Violated 25. Violations of ARPC 1.1, 1.3, and 1.4 are a violation of duties owed to the client. See ABA Standards § 4.4 and 4.5. B. Mental State 26. Under the ABA standards: "'Intent' is the conscious objective or purpose to accomplish a particular result." " 'Knowledge' is the conscious awareness of the nature or attendant circumstances of the conduct but without the conscious objective or purpose to accomplish a particular result." " 'Negligence' is the failure of the lawyer to heed 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." 27. For purposes of the violations of the ARPCs listed above, Mr. Brady acted negligently. C.Actual or Potential Injury 28. Mr. Brady's negligent acts harmed his client, costing his client money by increasing the damages and requiring additional legal services. His failure to act promptly delayed resolution of issues. Part 2: Recommended Sanction under ABA Standards 29. ABA Standards § 4.4 and § 4.5 sets out the sanctions for these violations. Section 4.43 provides: Reprimand is generally appropriate when a lawyer is negligent and does not act with reasonable diligence in representing a client, and causes injury or potential injury to a client. Section 4.53 provides in part: Reprimand is generally appropriate when a lawyer: (b) is negligent in determining whether he or she is competent to handle a legal matter and causes injury or potential injury to a client. Part 3: Aggravating and Mitigating Factors 30. ABA Standards § 9.0 sets out factors that may be considered in aggravation and mitigation. Mr. Brady was admitted to the practice of law in 1992 and has substantial experience, a factor that may be considered in deciding what sanction to impose. (9.22(i)). 31. Mr. Brady and Bar Counsel agree that several factors should serve to mitigate the disciplinary sanction. • On May 12, 2007, Mr. Brady's home burned down due to an exterior fire of unknown origin and he suffered minor injury. The next 18 months were spent on efforts to rebuild the family home. During this time he attempted to limit his practice to part-time and he let go his support staff. During this same time he became involved in a complex construction arbitration that required him to hire an associate. In August 2009, the arbitrator issued a decision that he considered contrary to the contract issues, evidence and law. There were no adequate grounds for appeal from the arbitration. The arbitration results added to already substantial stress. He struggled with issues of depression for which he began to self-medicate with alcohol. Mr. Brady took no new cases from August 2009 until approximately May 2010 in recognition that he wasn't functioning as well as he should. However, he contributed approximately 300 hours of pro bono time to a matter involving CINA cases dating back to 2005 which included mental health issues and an extremely dysfunctional family dynamic. He also assisted a close family friend who had a pending dispute with the Alaska Corps of Engineers, donating approximately 100 hours of legal services. In late 2010 he changed the focus of his practice and started to share an office with his wife, also an attorney. He recognized that the isolation of his former office practice had not been beneficial to his mental health and led to major errors in judgment. (9.32(c)); • the absence of a prior disciplinary record (9.32(a)); • absence of a dishonest or selfish motive (9.32(b)); and, • remorse (9.32(1)). Other Authority 32. Mr. Brady and Bar Counsel considered other disciplinary eases in Alaska in which attorneys were publicly reprimanded for isolated misconduct involving issues of competency, neglect, and failure to communicate: In re James Wendt (public reprimand by the Disciplinary Board for neglecting a client matter and missing court deadlines in a civil case); In re Randall Patterson, Supreme Court No. S-11502 (Order of 7/22/04) (public censure for neglect of a criminal appeal and ignoring multiple court orders to file appellant's brief); In re Miles, Supreme Court No. S-12042 (Order of 9/14/05) (90 day stayed suspension and public censure for neglect, failure to account, and failure to provide mandatoiy responses during the Bar's investigation). In re Cyrus, Supreme Court No. S-12247 (Order of 4/3/06) (lawyer suspended for six months and publicly censured for a pattern of neglect and failure to communicate and lack of candor with the court); In re Pallister, Supreme Court No. S-14489 (Order of 11/10/2011) (lawyer suspended for two years and one day for neglect leading to entry of $990,621 judgment against client and publicly censured for failure' to respond to the grievance against him. STIPULATED DISCIPLINE 33. Subject to approval by the Disciplinary Board of the Bar and by the Alaska Supreme Court, Mr. Brady and Bar Counsel agree that the appropriate level of discipline is a public censure by the Supreme court under Alaska Bar Rule 16(a)(4). I certify that the primary text of. this document was prepared using 13 point Book-man Old Style font. DATED this 26th day of April; -2013, at Anchorage, Alaska. ALASKA BAR ASSOCIATION /s/ Louise R. Driscoll Louise R. Driscoll Assistant Bar Counsel Bar Member No. 8511152 DATED this 25 day of April, 2013, at Anchorage, Alaska. /s/ Kevin G. Brady Kevin G. Brady Respondent Bar Member No. 9211068 CONSENT OF RESPONDENT Respondent hereby consents, pursuant to Alaska Bar Rule 22(h), to the discipline stipulated above and states that this consent is freely and voluntarily given and is not the subject of any coercion or duress and that respondent admits to the allegations set forth above. DATED this 25 day of April, 2013, at Anchorage, Alaska. /s/ Kevin G. Brady Kevin G. Brady Respondent Bar Member No. 9211068 SUBSCRIBED AND SWORN to before me this 25th day of April, 2013. /s/ [illegible text] Notary Public in and for Alaska My commission expires: 9-3-13 Exhibit 1 Gregory S. Fisher DAVIS WRIGHT TREMAINE LLP 701W. 8th Avenue, Suite 800 Anchorage, Alaska 99501 Telephone: 907-257-5300 Facsimile: 907-257-5399 Email: gregoryfisher@dwt.com Attorneys for Defendant AVM, Inc. UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALASKA ALASKA PLUMBING & PIPEFITTING INDUSTRY PENSION FUND, et al., Plaintiffs, vs. AVM, INC., Defendant. Case No. 3:09-cv-00044-HRH DECLARATION OF DON CRANE I,Don Crane, declare under penalty of perjury as follows: 1. I am an adult citizen competent to testify in court. The facts stated here are based on my first-hand knowledge or on facts made known to me by reliable sources, and all such facts are true and accurate to the best of my knowledge and belief. 2. AVM is a mechanical contractor (plumbing, heating, air conditioning, electrical) that was incorporated in 1997. I am currently AVM's Director and registered agent. I previously served as AVM's president for many years. AVM is incorporated under the laws of Alaska, has paid all applicable taxes, and is a corporation in good standing. 3. On August 15, 2000,1 signed an agreement on behalf of AVM that subjected AVM to the terms of the 2000-2003 Alaska Pipe Trade collective bargaining agreement. On August 16, 2000, I signed a supplemental agreement on behalf of AVM that obligated AVM to make fringe benefit contributions to Local 375's Pension Trust Fund. 4. I never signed another agreement subjecting AVM to the terms of any other collective bargaining agreement. However, I know that the 2000-2003 Alaska Pipe Trade collective bargaining agreement was replaced by another agreement that covered the period from July 20, 2003 to July 30, 2006. I also know that a subsequent agreement covered the period from July 10, 2006 to June .30, 2009. I never received a copy of any of these agreements. I never received notice of "any negotiations. I also know that another agreement covering the period from July 1, 2009 to June 30, 2012 is now in place. I never received a copy of that agreement. I never received any notice of any negotiations for that agreement. 5. Although I never signed any additional agreement on behalf of AVM, AVM continued to make trust fund contributions from 2003 through September 2006. I believe AVM's final contribution was made in October 2006 for the period ending in September 2006. 6. The August 15, 2000 agreement that I signed on behalf of AVM related to the collective bargaining agreement with Local 367 and simply stated that "the undersigned hereby agrees to honor and abide by the terms and conditions of the current version of the collective bargaining agreement referenced above and any successor agreement thereto." 7. The August 16, 2000 supplemented agreement that I signed on behalf of AVM was with Local 375's Pension Trust. With respect to termination, the supplemental agreement stated, "This Agreement shall be effective as of July 15, 2000 and shall continue in effect for the duration of the CBA and any continuation, renewal of extension thereof; provided, however, that the palsies may modify or terminate this Agreement in the same manner and at the same time or times as the CBA." (underscore added). 8. Although the August 16, 2000 supplemental agreement linked termination procedures to procedures in the collective bargaining agreement, the 2000-2003 Alaska Pipe Trade collective bargaining agreement never had any provision regarding termination. The nearest provision addressed modification, and it stated that if "either party desire [sic] to modify any portion of any terms hereof, it shall notify the other party, in writing, at least sixty (60) days prior to the expiration date of this Agreement." There was no provision that specifically addressed termination. 9. Although I do not recall ever receiving copies of the subsequent collective bargaining agreements, I have recently reviewed them. All of the subsequent collective bargaining agreements included the same provision addressing modification at least sixty (60) days prior to the end of an agreement. Not one of the agreements has anything that addresses termination procedures. 10. By September 2006, AVM only had one employee covered by the Alaska Pipe Trade collective bargaining agreement. This was Pat Hubbs. The job AVM was working on was Alpine Terrace in Anchorage. A dispatcher from Local 367, Craig Hatley, called me in September 2006. He advised me that if I did not sign the new contract the Union would recall Pat Hubbs. I told Craig that AVM did not want to sign the new contract. 11. After my conversation with Craig, I wrote and sent a letter dated September 11, 2006. I emphasized that I would not sign the current agreement. I also expressly stated that AVM considered the existing agreement null and void. My intent was and remains to make sure that the Union understood that AVM was terminating its obligations under the Alaska Pipe Trade collective bargaining agreement. Nothing in the collective bargaining agreement addressed termination procedures. Moreover, AVM only had one employee at the time. I therefore believed that AVM had terminated its obligations under the collective bargaining agreement. 12. The Union responded to me on September 14, 2006. The Union told me that I was still obligated under the collective bargaining agreement because "the rollover language binds you to the new version until and unless you terminate the Agreement during the window period prior to expiration in a timely manner." This meant nothing to me at the time and it still means nothing to me. There is no termination provision in any of the collective bargaining agreements. Moreover, there is no "window period" in any of the collective bargaining agreements. Instead, there is an opt out period for modification of terms that is at least sixty (60) days prior to the expiration of an agreement. 13. In February 2007, the Trust Funds requested to audit AVM. AVM's former counsel, Kevin Brady, responded on February 20, 2007. Mr. Brady noted that AVM had discontinued its participation in the collective bargaining agreement. As was- the case in September 2006, AVM only had one employee covered by' the collective bargaining agreement in February 2007. The employee was Russ Goss and he was working on the North Slope. In response to Mr. Brady's letter, the Trust Funds sent a "routine audit" agreement that had been executed on November 1, 2006. I had never seen this agreement. I do not know how this agreement could modify any of AVM's obligations trader the 2006-2009 Alaska Pipe Trades collective bargaining agreement since it was executed after the agreement took effect. 14. On March 12, 2007, I wrote to the Trust Fund's accountants on behalf of AVM regarding the audit. I explained that the agreement was terminated on September 15, 2006. 15. On April 30, 2008, I wrote to the lawyers representing the Trust Fund. I stated, "This is to advise you that A Viking Mechanical provided written notice of separation on September 13, 2006 from any and all union agreements as of September 15, 2006." 16. It was and remains my intent to make it clear that AVM terminated its obligations under the Alaska Pipe Trade collective bargaining agreement. However, even if I was mistaken in terms of when or whether termination notices had to be served, all of these letters (the September 11, 2006 letter, the February 20, 2007 letter, the March 12, 2007 letter, and the April 30, 2008 letter) were sent "at least sixty (60) days prior to the expiration date" [June 30, 2009] of the 2006-2009 Alaska Pipe Trades collective bargaining agreement. Consequently, I do not see how AVM could have any continuing obligations under the 2009-2012 Alaska Pipe Trades collective bargaining agreement. 17. At no time after September 2006, did AVM make any fringe benefit contributions. I am not a lawyer. I believed in good faith that I had properly terminated AVM's obligations under the collective bargaining agreement and that I had properly communicated that fact to the Union. 18. The Trust Funds filed suit on March 9, 2009. AVM retained Kevin Brady as counsel. AVM filed an answer and counterclaim on April 7, 2009. After that, I had infrequent communications with Mr. Brady, however it was my understanding that nothing significant was going on in the case. 19. I contacted Mr. Brady by email on or about January 6, 2010. I asked him for a status check. He told me that he was busy but that he would get back to me. I did not hear from him again or speak to him until August 2010. I did not know that anything was going on in my case, I am not a lawyer. I assumed that everything was fine. I assumed that if anything happened my lawyer would let me know. 20. In early August, the Trust Fund or the Union (I forget which) sent me a copy of a July 22, 2010, judgment that the Court had entered. It was at that time that I first learned that the Court had entered judgment against AVM. The judgment stated: "Defendant is contractually bound by the plaintiffs' several collective bargaining agreements and successor agreements to make contributions to the plaintiff trust funds in accordance with the foregoing agreements." The judgment also stated, "Plaintiffs are entitled to audit defendant's records for purposes of computing the contributions owed." 21. Until I received this from the Trust Funds or the Union in early August 2010, I did not know that the Trust Funds had filed any motions. I did not know that the Court had entered prior orders on related subjects. I did not know that anything was going on at all in my case. I have since learned that Mr. Brady never responded or filed any oppositions to any of the motions that the Trust Funds filed. 22. Upon receipt of the judgment, I immediately contacted Mr. Brady. He told me that the Court had entered orders requiring AVM to produce records. He also confirmed that motions had been filed, that he had never opposed any of the motions, and that the Court had entered a judgment against AVM. He apologized to me. Mr. Brady said something like, "I really let this one get by me." I then asked him to get me a copy of the orders and other documents. He said that he would do that, however he never followed up. 23. My greatest concern regarding the Court's judgment is that it is not clear to which collective bargaining agreements AVM is made subject I believed and believe that I effectively terminated any obligations in September 2006. I also think that AVM was not covered by the 2006-2009 Alaska Pipe Trade collective bargaining agreement because it only had one employee at operative times in question. However, leaving aside those issues, I do not think that AVM is or should be subject to the current 2009-2012 Alaska Pipe Trade collective bargaining agreement. The September 11, 2006, March 12, 2007, and April 30, 2008, letters that I sent were all sent at least 60 days prior to the expiration of the July 10, 2006-June 30, 2009 Alaska Pipe Trade collective bargaining agreement. 24. After receiving the July 29, 2010 judgment, I have done my best to cooperate with the Trust Funds to schedule an audit. An audit of AVM's records was scheduled for October 18, 2010. My new counsel sent me a September 17, 2010 "status report" that the Trust funds filed. The status report states that "The plaintiffs attorney has spoken with the owner of defendant, but defendant continues to refuse to return calls or submit to the audit." This is not true. I spoke with Noelle Dwarski on at least two occasions prior to September 17, 2010. She told me that someone named Joel Steiner (an accountant for the Trust Funds) had been trying to reach me to schedule the audit. I checked my phone and did not see that anyone from Seattle had called me. I called Mr. Steiner. Eventually we were able to get the audit arranged, and it is scheduled for October 18, 2010. I would have had this done before had I known about the Court's March 10, 2010 order. FURTHER YOUR DECLARANT SAY-ETH NAUGHT. DATED this 2 day of June, 2011. By: /s/ Don L. Crane Don L. Crane Director AVM, Inc. . Cf. In re Miles, 339 P.3d 1009, 1018 (Alaska 2014) (stating we independently review entire disciplinary proceeding record while affording great weight to Disciplinary Board's findings of fact). . Id. . The Declaration of Don Crane is attached as Exhibit 1. The Declaration was prepared to support a Rule 60(b) motion and sets put in more detail facts pertaining to the underlying case. Following settlement discussions, AVM agreed to a stipulated judgment rather than incur costs to try to vacate the judgment and contest the audit.

6996274

Jhyshain WEE, Appellant, v. Charles EGGENER, Appellee

Wee v. Eggener

2010-03-12

No. S-13465

1120

1128

225 P.3d 1120

225

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T18:08:21.955654+00:00

CAP

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

Jhyshain WEE, Appellant, v. Charles EGGENER, Appellee.

Jhyshain WEE, Appellant, v. Charles EGGENER, Appellee. No. S-13465. Supreme Court of Alaska. March 12, 2010. Justin Eschbacher and Gary Eschbacher, Law Offices of G.R. Eschbacher, Anchorage, for Appellant. Robert C. Erwin, Robert C. Erwin, LLC, Anchorage, for Appellee. Before: CARPENETI, Chief Justice, FABE, WINFREE, and CHRISTEN, Justices.

4363

27294

OPINION WINFREE, Justice. I. INTRODUCTION Following a five-day custody trial between unmarried parents regarding their young son, the trial court found that the father has a history of domestic violence. It nonethe less awarded shared physical custody and temporary joint legal custody, deferring final determination of legal custody for one year. When issuing its oral findings and conclusions, the trial court also granted the father's request for a mutual no contact order. The mother appealed the trial court's awards of temporary joint legal custody and shared physical custody. She argued that a court may not award any type of custody to a parent who has a history of domestic violence unless the statutory presumption against custody is overcome, and that the court failed to find the father had overcome that presumption. She also appealed the trial court's deferral of final legal custody, its award of unsupervised visitation to the father, and the mutual no contact order. After oral argument, we issued an order: (1) vacating the trial court's order awarding shared physical custody and temporary joint legal custody to the father; (2) vacating the shared physical custody schedule ordered by the trial court; (83) remanding limited jurisdiction to the trial court to establish a reasonable unsupervised visitation schedule for the father; and (4) vacating the mutual no contact order as it applied to the mother contacting the father. We now explain the basis for our decision. II. FACTS AND PROCEEDINGS A. Facts IJhyshain Wee and Charles Eggener's son was born in September 2004. The two have never married, but began cohabiting when Wee became pregnant. Within a few months of their son's birth their relationship became strained and plagued with abuse accusations. Wee reported that the relationship deteriorated due to verbal and physical abuse Eg-gener directed towards her. In July 2006 one such incident led to a long-term protective order against Eggener. Wee claimed she sought that protective order after Eg-gener grabbed her, causing a large bruise on her upper arm. Wee explained Eggener grabbed her when she attempted to leave the house during one of his "rage outburst[s]." Two weeks after obtaining the protective order, Wee modified it to allow Eggener contact with their son. And two months after obtaining the protective order, Wee "rescinded" or asked for a dismissal of the proceedings. Wee also detailed a January 2007 incident when Eggener's escalating anger frightened her, and out of concern for her safety and that of their son, she attempted to dial 9-1-1. Wee claimed Eggener disconnected the call, pushed her onto the bed, and restrained her movement. Eggener confirmed he took the phone out of Wee's hand and hung it up. But Eggener claimed he had been unaware Wee actually had dialed 9-1-1, because she often picked up the phone and threatened to call for help without dialing any number. Wee testified that Eggener often physically restrained her, as during the January 2007 incident or when she would threaten to leave the house with their son or call for help after tiring of Eggener's shouting. Wee claimed that while restraining her, Eggener would shout at her for periods of five to fifteen minutes, sometimes when their son was watching. She claimed this sort of incident happened about three or four times a month. Eggener admitted that he and Wee argued when their son was young, but he blamed the arguments on his desire to increase Wee's involvement in their son's life and in household chores. Eggener testified that during these arguments Wee would threaten to take their son and leave the country, to go to a shelter, or to call the police and claim Eggener physically abused her. Eggener estimated that Wee made threats like these at least twice a week. Eggener also claimed Wee twice threatened to kill their son. According to Eggener, Wee became depressed around December 2007. Eggener thought that about that time their son began preferring Eggener's company to Wee's, contributing to Wee's depression. During this time Wee told Eggener she thought he might be sexually abusing their son. Although Eg-gener claimed this allegation was unfounded, Wee went to the Office of Children's Services (OCS) and alleged Eggener was sexually abusing their son. Wee then filed for a protective order against Eggener on behalf of her son based on the abuse allegation. At the same time, Wee filed for a protective order against Eggener on her own behalf. In early January 2008 the superior court granted Wee's motion on behalf of the son for a twenty-day ex parte protective order against Eggener. At the subsequent hearing Wee withdrew the son's motion for a long-term protective order but pursued her own domestic violence protective order against Eggener. The court granted Wee's motion for a domestic violence protective order against Eggener based on the order granted in 2006, finding that she was "still in fear." The court also ordered a 4/3, 3/4 custody schedule. B. Proceedings In early 2008, shortly after Wee filed for the domestic violence protective orders, Eg-gener filed a complaint for sole legal and primary physical custody of their son. Wee countered with her own request for sole legal and primary physical custody. On December 30, 2008, after a five-day trial, the trial court entered its custody orders. The trial court first found that: the child's relationship with each parent was loving and affectionate; both parents were capable of providing for the child's needs; and the child had spent his whole life with both parents. The court also found there was no evidence that substance use affects the child's well-being. The trial court stressed that the custody case focused on two issues-Eggener's alleged child sexual abuse and domestic violence. With regard to the former, the court found Wee failed to prove that any sexual abuse had occurred or that the child was in danger in that regard. The court then addressed Wee's claim that Eggener has a history of domestic violence under AS 25.24.150(g) and (h). The trial court noted Eggener had two domestic violence orders entered against him, one in 1994 and one in 2006. The trial court noted that it had granted the 2008 order "based on the prior granting of the 2006 domestic violence protective order finding that [Wee was] still in fear." The trial court stated it must consider all incidents of domestic violence, but the age and nature of each incident would influence its finding. Considering those factors, the trial court found the 1994 incident "attenuated by age," yet it "hald] some weight in determining this case." The trial court noted that the incident, which involved Eggener restraining his teenage daughter, was "consistent with" the 2006 incident involving Eggener restraining Wee. The trial court also found Eggener's actions in January 2007, when he disconnected Wee's 9-1-1 call and restrained her, constituted domestic violence. Because these examples demonstrated Eggener engaged in multiple domestic violence incidents, the trial court found by a preponderance of evidence that Eggener has a history of domestic violence under AS 25.24.150(h). The trial court ordered Eggener to complete a state-ap proved domestic violence course and a parenting course. Applying AS 25.24.150(G) the trial court found by a preponderance of evidence that Eggener did "not abuse alcohol or psychoactive drugs" or "pose a danger of mental or physical harm to [his son]." The trial court then found "that unsupervised visitation [was] in the child's best interests" and ordered Eggener and Wee to continue the existing 4/3, 3/4 custody schedule. The trial court awarded shared physical custody but deferred determining legal custody for one year, requiring the parents to "submit to binding arbitration" for non-emergency medical and educational decisions regarding their son. The trial court ordered temporary joint legal custody in the interim. During the oral decision, Eggener requested, and the trial court granted, a mutual civil no contact order between Wee and Eggener, except for issues concerning their son. Wee filed a motion for reconsideration, arguing the trial court erred by ordering a mutual no contact order and "joint legal custody with the requirement of arbitration." In response to that motion, the trial court affirmed the mutual no contact order but deleted the requirement of binding arbitration in its custody order. Wee appealed the trial court's decisions regarding custody, visitation, and the mutual no contact order. Shortly after oral argument, we issued an order addressing Wee's appeal. We vacated: (1) "[tlhose portions of the trial court's . order granting shared physical custody and temporary joint legal custody to Eggener"; (2) the shared physical custody schedule; and (8) the mutual no contact order as it applied to Wee's ability to contact Eggener. We remanded limited jurisdiction "to the trial court to establish a reasonable unsupervised visitation schedule for . Eggener," based on Wee having sole legal and primary physical custody of their son. This opinion explains the basis for our order. III. STANDARD OF REVIEW A trial court has broad discretion in deciding child custody issues. We review a trial court's child custody decision for abuse of discretion and review underlying factual findings for clear error. Abuse of discretion in child custody cases occurs when a trial court considers improper factors or improperly weighs factors in its decisional process. We find clear error when, after review of the entire record, "we are left with a definite and firm conviction" a mistake occurred. But 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, performs the function of judging the credibility of witnesses and weighing conflicting evidence." We review questions of law, such as whether the trial court applied the correct legal standard, de novo. IV. DISCUSSION A. It Was Error To Order Temporary Joint Legal Custody and Shared Physical Custody After Finding Eg-gener Has a History of Domestic Violence Without Addressing the Presumption Against Custody in AS 25.24.150(g). In 2004 the legislature added several subsections to the child custody statute, AS 25.24.150. One of the additions, subsection (g), "creates a rebuttable presumption against awarding sole or joint legal or physical custody to a parent who 'has a history of perpetrating domestic violence against the other parent'" Under AS 25.24.150(b), another 2004 addition to the child custody statute, "[a] parent has a history of perpetrating domestic violence" if "the parent caused serious physical injury" during a domestic violence incident or "has engaged in more than one incident of domestic violence." Alaska Statute 25.24.150(g)'s presumption against custody may be overcome if a parent with a history of domestic violence: completes an intervention program for batterers, when reasonably available; "does not engage in substance abuse"; and the child's best interests "require that parent's participation as a custodial parent. ." If the presumption is not overcome, AS 25.24.150(g) prohibits awarding the perpetrating parent any type of eustody. Here the trial court found Eggener has a history of domestic violence but failed to address AS 25.24.150(g)'s presumption against custody. We have explained that "the path charted in subsection .150(g)-(1) must be followed" when a court finds one parent has a history of domestic violence. The trial court's custody awards cannot be sustained, and we therefore vacated the trial court's award of temporary joint legal custody and shared physical custody to Eggener, along with the 4/3, 3/4 shared physical eusto-dy schedule. We do not reach Wee's challenge to the court's deferral of final legal custody because without a finding that Eg-gener overcame the presumption against custody, he has no right to any type of custody. Wee has sole legal and primary physical custody of the child, although Eggener may move for a change in custody if he can overcome the statutory presumption against custody." B. It Was Not an Abuse of Discretion To Award Eggener Unsupervised Visitation. When a court finds a parent has a history of domestic violence, it generally can grant the perpetrating parent only supervised visitation. But AS 25.24.150(j) outlines an exception to this general rule-a court may award unsupervised visitation if a preponderance of evidence shows the perpetrating "parent has completed a substance abuse treatment program if the court considers it appropriate, is not abusing alcohol or psychoactive drugs, does not pose a danger of mental or physical harm to the child, and unsupervised visitation is in the child's best interests." After finding Eggener has a history of domestic violence, the trial court looked to AS 25.24.150(j) and determined Eggener met the requirements for unsupervised visitation. The trial court found by a preponderance of evidence that "Eggener does not abuse alcohol or psychoactive drugs," nor does he "pose a danger of mental or physical harm to [his son]." The trial court also found by a preponderance of evidence that the child's best interests warranted unsupervised visitation by Eggener. Wee challenges the trial court's finding that Eggener does not pose a risk of harm to the child. She argues "[the evidence at trial was overwhelming that Mr. Eggener posed a risk of harm to [their son] given his mental health issues and his inability to control his anger." To support her argument Wee cites testimony describing Eggener's past sexual behavior, "potential for aleohol abuse in the future," narcissistic personality traits, and anger management issues. Ample testimonial evidence in the record supports the trial court's finding. Dr. Bruce Smith, who performed a psychological evaluation of Eggener, testified that the "results . do not reflect a concern that [Eggener] is prone to use physical abuse in his interaction with [his son]." Dr. Smith concluded "there is nothing from [his] data that [he] can rely on to state that [Eggener] should not be in the role of parent to his child." Dr. David Wilcox, a clinical psychologist with expertise in anger management, drug and alcohol issues, and sexual compulsivity and who also serves as Eggener's therapist, reached a similar conclusion: "I have no new information that would make me believe that Mr. Eggener shouldn't be able to have visits with his child, unsupervised visits...." The custody investigator, Elizabeth Still, also recommended unsupervised visitation, suggesting she did not believe Eggener posed a risk of harm to his son. Based on this evidence, the finding that Eggener does not pose a risk of harm to his son is not clearly erroneous. And conflicting evidence does not by itself indicate an abuse of discretion. For these reasons, we affirm the trial court's unsupervised visitation award to Eggener; we have already remanded limited jurisdiction to the trial court to determine a reasonable unsupervised visitation schedule for Eggener. C. It Was an Abuse of Discretion To Issue the Mutual No Contact Order Because the Order Was Not Supported by an Independent Basis Against Wee and Conflicts with Public Policy. Eggener requested and was granted a mutual no contact order while the court was issuing its oral decision. The trial court noted Wee had contacted Eggener throughout the 2006 domestic violence protective order and without a mutual order Eggener was "set[ ] . up for failure." In response to Wee's motion for reconsideration, the trial court affirmed its mutual no contact order "based upon the conduct of [Wee] throughout the relationship." Wee argues the entry of the mutual no contact order was an abuse of discretion because the trial court did not find Wee "had committed any acts of domestic violence against Mr. Eggener, nor in any way posed a danger to Mr. Eggener." Eggener responds that the mutual no contact order is "within the inherent power of the court" and should be affirmed. The legislature has expressed a policy against issuing mutual no contact orders in a domestic violence proceeding: "[al court may not grant protective orders against the petitioner and the respondent in the same action under [the Domestic Violence and Sexual Assault] chapter." We have stated that this policy applies in divorce litigation when only one partner has committed acts of domestic violence, and we now extend this policy to divorce-like litigation between unmarried couples when only one partner has committed acts of domestic violence. In addition to social concerns underlying this policy, unwarranted mutual orders in divorce-like settings may create enforcement problems because police will not know whose conduct prompted the order, who is actually afraid of being seriously hurt, or how to proceed. In Cooper v. Cooper we addressed a challenge to the factual basis for a mutual restraining order. The superior court had issued a mutual restraining order, upon the husband's request, based on safety concerns expressed by both parties and the "high level of animosity and distrust exhibited throughout the litigation." On appeal the wife challenged the order's mutuality, claiming the court lacked a factual basis for imposing a restraining order against her. We quoted Siggelkow v. State for the rule that "where an 'independent basis' exists for a restraining order, 'it may issue pursuant to the court's equitable power." But we also stated that when a court imposes a mutual restraining order, an independent basis for the order must exist with respect to each party. We further explained that neither "an expression of concern by the parties" nor a "general acknowledgment of animosity and distrust" creates an independent basis for an order. We concluded that the restraining order against the wife lacked a "specific factual basis" to support a belief that the wife would commit future harassment or contact, and held that the superior court had abused its discretion by issuing a mutual restraining order. Although Cooper addressed a mutual restraining order issued during a divorcee proceeding, it relates directly to Wee's contention that there was no factual basis for the trial court to issue a no contact order against her. Neither the trial court's findings nor the evidence presented at trial indicates Eg-gener "is or has been a victim of a crime involving domestic violence." In accordance with Cooper, Eggener's "expression of concern" that Wee may contact him is insufficient to establish an independent basis for a protective order. It was therefore an abuse of discretion to issue a mutual no contact order lacking an independent factual basis against Wee. On the other hand, a specific and independent factual basis supported the portion of the no contact order prohibiting Eggener from contacting Wee-the trial court found Wee had been a victim of Eggener's domestic violence, and the trial court entered the no contact order because Wee's domestic violence protective order against Eggener was scheduled to expire soon. For these reasons we vacated the mutuality of the no contact order-preserving the no contact order as it applies to Eggener, but eliminating the no contact order as it applies to Wee. v. CONCLUSION As provided in our earlier order, we VACATE the trial court's order granting temporary joint legal custody and shared physical custody to Eggener, we VACATE the 4/3, 3/4 shared physical custody schedule, and we VACATE the portion of the mutual no contact order prohibiting Wee from contacting Eggener. The trial court's award of unsupervised visitation to Eggener is AFFIRMED, but we REMAND for the trial court to establish a reasonable visitation schedule for Eggener based on the statutorily required grant of sole legal and primary physical custody to Wee. . AS 25.24.150(g) and (h) state: (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. (h) A parent has a history of perpetrating domestic violence under (g) of this section if the court finds that, during one incident of domestic violence, the parent caused serious physical injury or the court finds that the parent has engaged in more than one incident of domestic violence. The presumption may be overcome by a preponderance of the evidence that the perpetrating parent has successfully completed an intervention program for batterers, where reasonably available, that the parent does not engage in substance abuse, and that the best interests of the child require that parent's participation as a custodial parent because the other parent is absent, suffers from a diagnosed mental illness that affects parenting abilities, or engages in substance abuse that affects parenting abilities, or because of other circumstances that affect the best interests of the child. . Eggener's ex-wife obtained the 1994 order after an incident during an exchange of their teenage daughter. . AS 25.24.150(h) describes two ways in which a parent can be found to have a history of domestic violence: (1) the parent engaged in one incident of domestic violence that led to serious physical injury or (2) the parent has engaged in multiple incidents of domestic violence. See note 1, above. . AS 25.24.150(j) states: (§) If the court finds that a parent has a history of perpetrating domestic violence under (g) of this section, the court shall allow only supervised visitation by that parent with the child, conditioned on that parent's participating in and successfully completing an intervention program for batterers, and a parenting education program, where reasonably available, except that the court may allow unsupervised visitation if it is shown by a preponderance of the evidence that the violent parent has completed a substance abuse treatment program if the court considers it appropriate, is not abusing alcohol or psychoactive drugs, does not pose a danger of mental or physical harm to the child, and unsupervised visitation is in the child's best interests. . Millette v. Millette, 177 P.3d 258, 261 (Alaska 2008) (citing Jenkins v. Handel, 10 P.3d 586, 589 (Alaska 2000). . Jaymot v. Skillings-Donat, 216 P.3d 534, 538 (Alaska 2009) (citing Millette, 177 P.3d at 261). . Id. at 538-39 (quoting Millette, 177 P.3d at 261). . Dingeman v. Dingeman, 865 P.2d 94, 96 (Alaska 1993) (quoting Brosnan v. Brosnan, 817 P.2d 478, 480 (Alaska 1991)) (emphasis and internal quotation marks omitted). . Millette, 177 P.3d at 261 (quoting v. Ebertz, 113 P.3d 643, 646 (Alaska 2005)) (internal quotation marks omitted). . Harvey v. Cook, 172 P.3d 794, 797 (Alaska 2007) (citing Eberfz, 113 P.3d at 646). . Ch. 111 § 5, SLA 2004; Puddicombe v. Dreka, 167 P.3d 73, T7 (Alaska 2007); see generally Lisa Bolotin, Note, When Parents Fight: Alaska's Presumption Against Awarding Custody to Perpetrators of Domestic Violence, 25 Auaska L.Rev. 263, 272-87 (2008). . Parks v. Parks, 214 P.3d 295, 299 (Alaska 2009) (quoting AS 25.24.150(g) and citing Puddicombe, 167 P.3d at 77); see Bolotin, note 11, above at 287-89 (noting AS 25.24.150(g) "ensures that courts consider the existence of domestic violence in making custody decisions"). . AS 25.24.150(h); see also Parks, 214 P.3d at 299. . AS 25.24.150(h); see Michele M. v. Richard R., 177 P.3d $30, 837 (Alaska 2008) (citing Puddicombe, 167 P.3d at 77) ("If a history of domestic violence is found, then the lower court must test, per AS 25.24.150, whether the presumption against awarding custody to the parent with a history of abuse has been overcome."); see Bolo-tin, note 11, above, at 285. . See AS 25.24.150(g). . Puddicombe, 167 P.3d at 77. . The court's order that Eggener complete a state-approved domestic violence course implies Eggener had not overcome the presumption at the time of the custody trial. . See AS 25.24:150(). . Id. . Cf, Harding v. Harding, 377 P.2d 378, 380 (Alaska 1962) (citing Chirikoff Island Cattle Corp. v. Robinette, 372 P.2d 791, 794 (Alaska 1962)) (''The fact that the award of custody was based upon extremely conflicting evidence does not of itself show an abuse of discretion."). . We have held that in appropriate circumstances trial courts may issue no contact orders under their "inherent equitable powers." See Siggelkow v. State, 731 P.2d 57, 61 (Alaska 1987). We review decisions to grant a mutual no contact order for abuse of discretion. See Cooper v. Cooper, 144 P.3d 451, 454 (Alaska 2006) (citing State v. Kluti Kaah Native Vill. of Copper Ctr., 831 P.2d 1270, 1272 n. 4 (Alaska 1992)). . AS 18.66.130(b). AS 18.65.530 expresses a similar policy by discouraging arrest of all parties involved in domestic violence incidents: "If a peace officer receives complaints of domestic violence from more than one person arising from the same incident," the officer should arrest "the principal physical aggressor" and "may not threaten or suggest the possible arrest of all persons involved in the same incident in a manner that would have a tendency to discourage" domestic violence reporting. AS 18.65.530(b), (d). Both AS 18.65.530 and AS 18.66.130 were enacted in 1996 as part of House Bill 314, "An Act relating to domestic violence and to crime victims and witnesses...." Ch. 64, § 29, 33, SLA 1996. . Cooper, 144 P.3d at 459 n. 25 (citing AS 18.66.130(b) and recognizing that "mutual restraining orders have come to be disfavored in domestic violence cases," and stating that "this should carry over to divorce litigation as well when only one partner has committed acts of domestic violence."). . For example, one commentator suggests that rather than empowering a domestic violence victim, mutual protective orders restrict, condemn, and isolate the victim. Sandra S. Park, Note, Working Towards Freedom From Abuse: Recognizing a "Public Policy" Exception to Employment-at-Will for Domestic Violence Victims, 59 N.Y.U. Ann. Surv. Am. L. 121, 148 (2003). . See Fred G. Zundel & Patrick D. Costello, Domestic Violence Trends & Topics, 52 ApvocatE (Idaho), Jan. 2009, 23, 23. . 144 P.3d at 459. . Id. at 454, 459. . Id. at 459. . Cooper, 144 P.3d at 459 (quoting Siggelkow, 731 P.2d at 61). . Id. . Id. . Id. . AS 18.66.100(a); see also AS 18.66.990(3) (defining domestic violence). . See Cooper, 144 P.3d at 459. . See id. (holding "that because the order lacked an independent basis, it was an abuse of discretion to issue the mutual restraining order"). Although a domestic violence protective order cannot be entered against Wee, the trial court is free to pursue other avenues to address any tendency by Wee to inappropriately contact Eggener.

12121909

CHEVRON U.S.A., INC., Conocophillips Alaska, Inc., Exxonmobil Alaska Production Inc., and FOREST OIL CORPORATION, Appellants, v. STATE of Alaska, Department of Revenue, Appellee

Chevron U.S.A., Inc. v. State, Department of Revenue

2016-12-16

Supreme Court No. S-15891

25

42

387 P.3d 25

387

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T18:09:01.821055+00:00

CAP

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

CHEVRON U.S.A., INC., Conocophillips Alaska, Inc., Exxonmobil Alaska Production Inc., and FOREST OIL CORPORATION, Appellants, v. STATE of Alaska, Department of Revenue, Appellee.

CHEVRON U.S.A., INC., Conocophillips Alaska, Inc., Exxonmobil Alaska Production Inc., and FOREST OIL CORPORATION, Appellants, v. STATE of Alaska, Department of Revenue, Appellee. Supreme Court No. S-15891 Supreme Court of Alaska. December 16, 2016 Leon T. Vance, Faulkner Banfield, P.C., Juneau, for Appellants. Dario Borghesan, Kenneth J. Diemer, Joanne M. Grace, Assistant Attorneys General, Anchorage, and Craig W. Richards, Attorney General, Juneau, for Appellee. Before: Stowers, Chief Justice, Fabe, Winfree, Maassen, and Bolger, Justices.

9990

65372

OPINION STOWERS, Chief Justice. 1. INTRODUCTION In this appeal oil producers (the Producers) challenge an administrative decision (the Decision) in which the Alaska Department of Revenue (DOR) decided to treat separate oil and gas fields operated by common working interest owners as a single entity when calculating the Producers' oil production tax obligations. Relying on a statute that gave DOR the discretion to "aggregate two or more leases or properties (or portions of them), for purposes of determining [their effective tax rate], when economically interdependent oil or gas production operations are not confined to a single lease or property," DOR concluded that operations on a number of smaller oil fields were economically interdependent with larger operations on the adjacent Prudhoe Bay oil field. The Producers argue that in interpreting the phrase "economically interdependent" in the Decision, DOR effectively promulgated a regulation without following the procedures established in the Alaska Administrative Procedure Act (APA) and, as a result, DOR's Decision was invalid. We conclude that DOR's Decision was not a regulation because it was a eommonsense interpretation of the statute and, therefore, DOR was not required to comply with APA rulemaking requirements. We affirm the superior court's decision upholding DOR's decision. II. FACTS AND PROCEEDINGS A. Facts 1. An overview of Alaska's taxes on oil production The Prudhoe Bay oil field is one of the largest oil and gas fields yet discovered in the United States. Explorers discovered the Prudhoe Bay oil field in 1967 and the field began producing oil about ten years later. Just as oil production began in Prudhoe Bay, Alaska passed the initial version of the Oil and Gas Production Tax, which laid out a new system for taxing oil production in Alaska. During the relevant time frame this legislation set the production tax rate for oil fields by multiplying, a constant nominal tax rate of 15% by the economic limit factor (ELF),, a coefficient between zero and one calculated for each individual oil field. In other words, a higher ELF resulted in a higher tax rate, and a lower ELF resulted in a lower tax rate for any given oil field. The legislature passed House Bill 118 in 1989, adding the "field size factor" as a component of the ELF formula. The field size factor is the total volume of production from a field during a given reporting month. All else being equal, the field size factor produced a higher ELF (and therefore a higher tax rate) for larger fields and a lower ELF (and therefore a lower tax rate) for smaller fields. The legislature reasoned that smaller fields needed similar production infrastructure to larger fields but, because they produced less oil, smaller fields had poor economies of scale and were less profitable. The legislature hoped that including the field size factor in the ELF formula would create an economic incentive for oil producers to develop marginal fields that they would otherwise shut down or neglect for economic reasons. However, including the field size factor in the ELF formula also created an incentive for oil producers to capitalize on tax breaks for smaller fields by classifying certain areas as independent fields even if the areas were economically interdependent with other, larger oil fields. Therefore, AS 43.55.013© (the Aggregation Statute) permitted DOR to aggregate two or more fields for the purpose of calculating the ELF "when economically interdependent oil or gas production operations are not confined to a single lease or property." Aggregating several fields into a single field for the purpose of calculating the ELF increased the field size factor and, by extension, increased both the ELF and the tax rate for these aggregated fields above what the ELF and the tax rate would have been for the individual areas. Whether DOR could aggregate the fields in question depended on whether the' fields were "economically interdependent." However, the legislature never defined this term in the production tax statutes, and DOR never defined the term in related regulations. To eliminate uncertainty whether DOR would aggregate particular fields, DOR adopted 15 Alaska Administrative Code 55.027(b), a regulation permitting producers to petition for assurance that DOR would not aggregate specific oil fields for the purpose of calculating the ELF. To obtain this guarantee, producers had to show that (1) using comjnon production facilities would lower the costs of production; (2) DOR's guarantee would increase the likelihood that producers would develop a new field; (3) oil would be accurately allocated; and (4) "operations .,. would not be economically interdependent in the absence of the proposed use of common production facilities." However, proving these factors did not guarantee an advance ruling because DOR had the discretion to aggregate or to decline to do so. As with other related regulations, 15 AAC 55.027(b) also did not define "economically interdependent." In August 2006 the legislature repealed the ELF-based tax system and replaced it with a new production tax system, effective . retroactively to April 1, 2006. 2. Oil production at Prudhoe Bay Before beginning production at Prudhoe Bay, the working interest owners of the field's oil and gas leases combined those leases into a unit called the Prudhoe Bay Unit so that the working interest owners could conduct operations as if the entire unit area were a single lease. The Alaska Department of Natural Resources approved the creation of two separate Participating Areas within the Prudhoe Bay Unit; we refer to .them jointly^as the Initial Participating Areas (Initial PAs). Participating areas are made up of multiple lease tracts that participate in the production of hydrocarbons. The owner of each individual lease tract receives a certain percentage of the total production of all the wells drilled in that participating area. For tax purposes producers typically treat a participating area as a single lease or property when calculating production taxes, and DOR has typically accepted this characterization. At the start, the two Participating Areas making up the Initial PAs were divided such that one area .produced oil and the other produced gas. In 1986 the Department of Natural Resources approved an additional participating area on a separate reservoir, known as the Lisburne Participating Area (Lisburne PA). The working interest owners built a separate set of production facilities to handle production from the Lisburne PA. Later, the working interest owners identified nine additional reservoirs within the Prudhoe Bay Unit, and the Department of Natural Resources approved separate participating areas for each of these nine reservoirs. Six of these nine participating areas are involved in this appeal, and we refer to these areas as the "Satellite PAs." The Satellite PAs covered separate reservoirs, were developed long after the development of the Initial PAs, and produced significantly smaller oil outputs than the Initial PAs. The Satellite PAs integrated operations with the Initial PAs, because, unlike the Lisburne PA, the Satellite PAs did not have their own production facilities. Instead, production facilities originally built to serve both the Initial PAs also processed the fluids produced at the Satellite PAs. Until oil and gas are separated from one another and from any waste present in the well fluids, producers cannot accurately measure oil and gas output. Therefore, the measurement of production typically takes place downstream of the production facilities. In this case measurement of output from the production facilities serving the Initial PAs and the Satellite PAs took place at pump station number one of the Trans-Alaska Pipeline System. The working interest owners attributed total metered volume to various properties based on estimates of each well's production as determined by periodic tests of the wells. Furthermore, the amount of oil developed from each participating area depended on the amount and quality of oil produced at the others. Because the centralized production facilities serving the Initial PAs and the Satellite PAs could not process all production from all wells in those participating areas, fluids from some wells were "backed out," or blocked, in favor of fluids from other wells based on the "best well produces" principle. This principle favored well fluids with the highest ratio of oil to gas, which were ultimately the most profitable fluids to produce, regardless of their participating area of origin and regardless of which working interest owner owned that participating area. In the Prudhoe Bay Unit, each Satellite PA had a smaller field size factor and therefore a lower ELF than the Initial PAs. Consequently, while DOR taxed production from the Initial PAs at a rate of about 12.5%, DOR taxed production from the Satellite PAs at a rate of less than 0.5%. Furthermore, the older Initial PA wells tended to produce more gas and water per barrel of oil than wells in the Satellite PAs. Therefore, lower-tax oil from the Satellite PAs backed out higher-tax oil from the Initial PA wells at increasing rates. The number of barrels of Initial PA production backed out in favor of Satellite PA production increased substantially from 217,896 barrels in 2000 to 1,224,-090 barrels in 2004. As the low-tax oil from the Satellite PAs increasingly backed out the high-tax oil from the Initial PAs, the total amount of tax DOR collected from the Pru-dhoe Bay Unit decreased accordingly. The Producers sought advance rulings from DOR that it would not aggregate several Satellite PAs that used Initial PA'production facilities. Between August 1998 and November 2001 the Producers filed multiple requests for advance rulings involving the Aurora, Borealis, Midnight Sun, and Polaris Participating Areas. As early as 2000 DOR informed the Producers that it was examining the issue, but it never acted on these applications. During that time period DOR considered the requests and conducted internal analyses on the best way to clarify the phrase "economic interdependence" as it was used in the Aggregation Statute. 3. DOR's internal analyses of the Aggregation Statute DOR produced a variety of internal memo-randa and internal departmental position papers acknowledging confusion over the interpretation of "economic interdependence" and analyzing whether it would be better to clarify the term via statute, regulation, or administrative decision. In August 2001, Dan E. Dickinson, the Director of DOR's Tax Division (the Director) prepared an internal memorandum expressing concern that the Aggregation Statute did not clearly define the grounds for aggregation and that the then-existing regulations did not remedy the confusion. The Director complained that "[t]he ELF is difficult to administer because the base criteria for aggregation and segregation are not clearly articulated in the statute.... [0]ur attempts to further clarify the criteria in the regulations are self-contradictory and have not dispelled the murkiness." In particular, the Director was concerned that a straightforward reading of the term "economically interdependent" would permit aggregation only if the fields were "mutually contingent," (emphasis added) preventing DOR from aggregating older fields and satellite fields relying on the production facilities originally built to serve only those older fields, the situation DOR faced with regard to the Initial PAs and the Satellite PAs. The Director wrote that DOR may aggregate [fields] when they are economically interdependent. Going to Webster suggests that [DOR] must show that the [fields], are "mutually contingent" before [DOR] aggregated]. The argument can always be made that as long as new production comes on and uses empty space in old production facilities, there is no mutual dependency. The Director suggested that DOR could repeal 15 AAC 55.027(b) and adopt new regulations evaluating economic interdependence using analytical factors. The Director believed that the use of his suggested analytical factors would represent "a 180-degree switch in the roles played by production facilities in the ELF decision." In May 2002 the Director issued a separate internal memorandum proposing adding new provisions to 15 AAC 55.027 that would take production constraints in common production facilities into account when interpreting the phrase "economic interdependence" as it was used in the Aggregation Statute. While DOR never adopted those proposed regulations, it continued to internally discuss the need for clarification. The Director began drafting a departmental position paper (the White Paper) on the application of the Aggregation Statute, particularly the meaning of "economic interdependence." August and September 2002 versions of the White Paper draft suggested that the term "economically interdependent" as it was used in the Aggregation Statute was ambiguous, theorized that DOR could change its "established reading" of the statute to a "better, alternative reading of the law" that could "turn the current ELF practice on its head," and suggested that such changes would be so extensive that they should probably occur through legislation rather than regulation. Shortly after the completion of the September 2002 White Paper.draft, the Director acknowledged that upcoming advance ruling decisions, which were likely to result in the "granting of separate ELFs," would provide an opportunity to clarify the Aggregation Statute's reference to economic interdependence. However, he expressed doubt that DOR should use the decisions to change the existing interpretation of the statute and stated that DOR "do[es] not inten[d] to amend that policy without either (a) legislative direction or (b) encountering a factual situation that is so egregious that to preserve any measure of original legislative intent it becomes necessary for us to act." In subsequent drafts of the White Paper circulated internally from February 2003 to November 2004, DOR continued to explore options for addressing its concerns about the interpretation of the phrase "economic interdependence." In the February 2003 draft DOR suggested that these changes to ELF policy "should [be] . enshrined in a regulation." The White Paper also pointed out that DOR "ha[s] the power through regulation . to raise an additional 100 million dollars a year in taxes by changing course and raising taxes on the [Satellite PAs]." A March 2003 draft of the White Paper again stressed the need to clarify the statutory standard through the adoption of regulations, emphasizing that "the definition of economic interdependence . [is] sufficiently vague in statute that [DOR] ought to adopt regulations to clarify the definition." The draft recognized the policy implications of such a decision, explaining that DOR likely "has the discretion through regulation to either validate its current practices, or take a much more aggressive revenue stance." In its analysis of the then-current policy, DOR acknowledged that one of the primary dictionary definitions of the term "interdependence" involved mutual dependence, which could require each field to be contingent upon the existence of the other before DOR could aggregate the fields. The draft reasoned that under this definition, the Satellite PAs and the Initial PAs could not be economically interdependent because the Initial PAs were developed long before and independently of the Satellite PAs, and, therefore, the Initial PAs could not be contingent upon the Satellite PAs. This March 2003 draft also explored alternative interpretations of "economic interdependence" that would produce different results when applied to the Prudhoe Bay Unit. The draft concluded this analysis by recognizing that the "words and concepts" of the Aggregation Statute "are not well defined." Finally, the August 2004 draft, seeming to assume that DOR would proceed via regulation—the White Paper draft discussed what would happen "[o]nce the regulations are written," for instance—presented various alternative interpretations of the Aggregation Statute, one of which required mutual contin-gence for interdependence to be found. A ]STovember 2004 draft of the White Paper repeated this line of reasoning, but it also mentioned that DOR was planning to aggregate some of the Satellite PAs with the Initial PAs. B. Proceedings In January 2005 the Director issued POR's Decision notifying the Producers that POR had decided to aggregate the Initial PAs and the Satellite PAs in the Prudhoe Bay Unit for the purpose of calculating production tax obligations effective February 1, 2005, the start of a new monthly period for determining production tax obligations. POR found that operations at the Initial PAs and the Satellite PAs were economically interdependent, and, therefore, DOR aggregated them, referencing a variety of policy reasons for its decision. The Decision effectively treated the aggregated areas as a single lease or property for calculating the ELF, resulting in a higher ELF and a higher tax rate on the oil produced from these properties. The Decision explained that DOR's prior administrative decisions related to aggregation provided "only limited guidance" on the meaning of the term "economically interdependent." The Decision then reviewed judicial decisions analyzing the term in other legal contexts in jurisdictions outside of Alaska and a 1998 DOR decision in which DOR aggregated multiple leases covering a single reservoir developed under a sole management plan. DOR concluded that "while the guidance provided by past administrative precedent is sparse, the applicable generality . seems to be that economic interdependence is shown by or associated with unified or integrated operations or enterprise encompassing the several leases or properties in question." Based on that review, DOR's Decision stated that "if [ñelds] are so integrated as to be reasonably treated as an economically unitary activity," the fields are economically interdependent. DOR further explained that a "weak" form of economic interdependence "exists between two or more things when the economic activity or condition of each has a material effect on the economic activity or condition of the other" and a "strong" form of economic interdependence "exists when formally distinct entities or activities are sufficiently economically integrated that for some practical purpose they may reasonably be considered as equivalent to a single or unitary economic entity or activity." DOR observed that these two concepts often, if not always, "differ . only in the degree of interdependence that exists." DOR did not decide which standard controlled for the purposes of the Aggregation Statute. However, DOR concluded that the areas in question easily satisfied the more demanding standard because (1) the Initial PAs and the Satellite PAs shared common production facilities for oil and gas, and the use of common facilities made the volume of oil produced from any participating area dependent on the volume of oil produced from the others; (2) the working interest owners made decisions about which wells to produce and which wells to back out "across participating areas, not within each participating area on an isolated basis"; and (3) "the commingling of produced fluids in common production facilities and the consequent need to estimate and allocate volumes from different [participating areas] renders the production volumes of all the [participating areas] interdependent." DOR then explained the policy rationale behind its Decision. First, DOR concluded that "the backout phenomenon, taken together with highly disparate economic limit fac tors as between the Initial PAs and the [S]atellite PAs, results in a tax structure that is grossly at odds with the economics of oil production." DOR explained that the legislature intended the ELF system to serve as a tax break for costlier production, but in Prudhoe Bay, non-aggregation gave a tax break to oil from the Satellite PAs even though that oil was less costly to produce due to its higher ratio of oil to gas than the oil from the Initial PAs. Second, due to the rising cost of oil in recent years, oil production on all Prudhoe Bay fields was moving further away from its economic limit; therefore, increasing the tax rate on oil from the Satellite PAs would not discourage the Producers from continuing to produce oil from the Satellite PAs. Third, DOR believed "[i]t [was] inherently problematical to tax oil at widely differing effective rates when the determination of how much oil is subject to which rate is based not on accurate metering but on estimation." DOR acknowledged that it had approved the use of allocation in previous instances of facility sharing but that "its subsequent experience ha[d] not been without significant problems." Finally, based on the history of North Slope development, DOR found "little reason to believe" that declining to aggregate the Satellite PAs with the Initial PAs in the Prudhoe Bay Unit would "promot[e] additional development." DOR concluded its Decision by determining that the Satellite PAs in question were eligible for aggregation with the Initial PAs, relying on factors including the use of common production facilities, the coordination of well production to deal with constrained capacity in shared production facilities, the use of backout volume and compensation arrangements, and the allocation of production to wells without exact metering. In March 2005 the Producers appealed the Decision and requested an informal conference with DOR under AS 43.05.240(a) and 15 AAC 05.020(a). In November 2008 after the informal conference, DOR affirmed its earlier decision. Pursuant to AS 43.05.241 and AS 43.05.405 the Producers then appealed to the Office of Administrative Hearings, where Administrative Law Judge Christopher Kennedy presided over the appeal. At the administrative hearing the Producers argued that DOR's Decision violated the Administrative Procedure Act and the Producers' due process rights. The Producer's maintained that DOR should have implemented any changes to its interpretation of the relevant statutes by proper rulemaking under the APA, not through its decision process. In support of their arguments, the Producers relied heavily on DOR's internal documents, which the Producers had acquired from DOR during the informal conference process. Judge Kennedy's decision acknowledged that the internal memoranda and White Paper drafts "suggest that the question of how to interpret 'economically interdependent' and other phrases in the ELF statute could have been approached by asking the legislature for clarifying amendments or by adopting an interpretive regulation[ 3, and that the department considered those options," but that "[a]s preliminary, informal, internal, confidential, and generally unattributed papers, the[y] . show nothing more." In October 2012 Judge Kennedy upheld DOR's decision and concluded that DOR was not required to engage in formal rulemaking in interpreting the Aggregation Statute the way it did in its Decision. The Producers then appealed Judge Kennedy's decision to the superior court, again raising APA and due process arguments. In March 2015 Superior Court Judge Michael D. Corey held that DOR had adopted a commonsense interpretation of the Aggregation Statute that did not require formal rulemak-ing under the APA. The court also held that DOR did not abuse its discretion or violate the Producers' due process rights. The Producers appeal to this court. The Producers claim that DOR's Decision constitutes a regulation and, since a regulation adopted without complying with the APA is invalid, the Decision itself is invalid. The Producers argue that DOR should recalculate the production tax for the period from February 2005 through March 2006 and refund any amounts the Producers paid in excess of the recalculated production tax for that period with interest. III. STANDARD OF REVIEW "Whether an agency action is a regulation is a question of law that does not involve agency expertise, which we review applying our independent judgment." Therefore, "more deferential standards of review sometimes reserved for agency interpretations are inappropriate here" where "[t]he threshold question . is whether the APA applies" to DOR's action. IV. DISCUSSION A. DOR's Decision Applying The Term "Economically Interdependent" To The Initial PAs and Satellite PAs Was A Commonsense Interpretation Of The Statute And Did Not Trigger APA Rulemaking Requirements. 1. Defining a regulation under Alaska law The APA defines a regulation as "every rule, regulation, order, or standard of general application or the amendment, supplement, or revision of a rule, regulation, order, or standard adopted by a state agency to implement, interpret, or make specific the law enforced or administered by it." Regulations that are not promulgated under APA procedures are invalid. "[T]he label placed on a particular statement by an administrative agency does not determine the applicability of the APA. Under the Alaska statute, 'regulation' encompasses many statements made by administrative agencies, including policies and guides to enforcement." But while the APA's definition of regulation is construed broadly, not every agency action or decision constitutes a regulation. An agency action must meet both of the following criteria to be a regulation: (1) "the [agency action] implements, interprets, or makes specific the law enforced or administered by the agency"; and (2) "the [agency action] affects the public or is used by the agency in dealing with the public." An agency action must satisfy both prongs in order for APA rulemaking requirements to apply to that action. In analyzing whether an agency action was adopted "to implement, interpret, or make specific the law enforced or administered by it" we have recognized that agencies must have some freedom to apply relevant statutes without the burden of adopting a regulation each time they do so. We have explained that "[n]early every agency action is based, implicitly or explicitly, on an interpretation of a statute or regulation authorizing it to act. A requirement that each such interpretation be preceded by rulemaking would result in complete ossification of the regulatory state." Therefore, we have clarified that agency actions that are merely "[commonsense] interpretation^" of existing requirements are not regulations requiring compliance with APA rulemaking standards. In other words, "obvious, commonsense interpretations of statutes do not require [rule-making].". We have further explained that agency actions may not be "commonsense interpretations" of existing laws (1) when the agency adds "requirements of substance" and does more than just "interpret[ ] . the [statute] according to its own terms"; (2) when the agency interprets a statute, in a way that is "expansive or unforeseeable"; or (3) when the agency "alters its previous interpretation of a statute." 2. DOR interpreted the Aggregation Statute according to its own terms. An agency action may not be a commonsense interpretation of existing law when it adds "requirements of substance" rather than serving as an "interpretation of the [statute] according to its own terms." In its Decision, DOR determined that oil production operations are economically interdependent when they are "so integrated as to be reasonably treated as an economically unitary activity." Comparing our previous decisions in Jerrel v. State, Department of Natural Resources and Burke v. Houston NANA LLC with Alaska Center for the Environment v. State and Alyeska Pipeline Service Company v. State, Department of Environmental Conservation, we conclude that DOR's Decision was a commonsense interpretation of the statute according to its own terms, and DOR's interpretation does not add any requirements of substance. In Jerrel, the Jerrels held grazing leases on state land subject to a statute and its implementing regulation requiring them to mark their horses that grazed on the leased land, The Department of Natural Resources sent a letter informing the Jerrels that they were not in compliance with the statute, which required that the livestock owners "tag[], dye[], or otherwise mark[]" their animals. The Department of Natural Resources directed them to mark their animals with ."[sufficiently] permanent" markings visible from at least twenty feet, even though neither the statute nor relevant regulations contained that specific requirement. We rejected the agency's argument that a twenty-foot requirement was an informal "poliey rule," concluding that the requirement was a regulation developed "precisely in order to interpret, make specific, and implement the statutory requirement that a mark or brand 'show[ ] distinctly.' " Similarly, in Burke, we held that an agency's action was a regulation when that agency decided that its filing deadline's exemption for extenuating circumstances included an unwritten "discovery rule" that capped the grace period at ninety days. In both Jerrel and Burke, the agency action in question added specific criteria or values that clarified the existing statutory or regulatory standard and required the public to comport with precise criteria not specified in existing rules. In other words, the agencies' actions in Jerrel and Burke added requirements of substance and, therefore, we held that the agencies' actions were regulations. In contrast, in Alaska Center for the Environment, an agency clarified that the term "major energy facility" as used in a regulation did not include an airport expansion project because the regulation was not meant to include businesses that used fuel incidentally in daily operations. We held that the agency's interpretation was a commonsense interpretation of the statute that did not require rulemaking under the APA. In Alaska Center for the Environment, the agency did not add anything to the existing rule; it merely interpreted a broad phrase and decided whether a certain type of project was included in the definition of "major energy facility." Similarly, in Alyeska Pipeline Service Company, an agency concluded that a statute authorizing it to recoup costs of reviewing ah- quality permit applications from the applicant included the costs the agency incurred in defending related permit appeals. We held that the agency's decision was a commonsense interpretation under the terms of the statute, not a regulation. In other words, the agency did not add anything to the statute; it merely clarified whether costs related to the defense of permit appeals fell under the broad umbrella of "costs," as that term was used in the statute. In this case, DOR's Decision is more similar to the agencies' actions in Alaska Center for the Environment and Alyeska Pipeline Service Company than to the agencies' actions in Jerrel and Burke. DOR clarified the scope of the statute by indicating the degree of economic interdependence that could warrant aggregation, but it did not add any specific criteria to the term "economically interdependent" that went beyond the scope of the Aggregation Statute's existing language. Instead, DOR's Decision was based only on existing statutory language, and the Decision served only to clarify whether the broad term "economically interdependent" covered the specific situation involving the Satellite PAs and the Initial PAs. Notably, the interpretation of "economically interdependent" set forth in DOR's Decision does not do much to clarify the Aggregation Statute until that intei'pretation is applied to the specific facts of this case. This suggests that DOR narrowly tailored its interpretation of the phrase "economically interdependent" to the facts of this case and applied the existing language of the Aggregation Statute to this case without adding any additional terms. DOR acknowledged in its White Paper drafts that there were a variety of possible definitions of "economically interdependent" based on dictionary definitions of related terms. The Producers argue the decisions by the superior court and the Office of Administrative Hearings "ignore completely the confusion and wildly different valid interpretations that DOR acknowledged, and the effort it expended over several years evaluating alternative interpretations different from the one obtained by looking at the primary dictionary definition." The Producers claim that this "demonstrates that it achieved the desired interpretation through considerable, complicated effort, not through a routine, [commonsense] intei'pretation of clear statutory language." The Producers also fault DOR for failing to cite any of the dictionary definitions related to the phrase "economically interdependent" in its Decision. But it is not uncommon for there to be multiple ways to read a given phrase in a statute without adding any additional substantive terms or requirements; if this were not the case, agencies would always be required to proceed via rulemaking. Furthermore, DOR's interpretation of "economic interdependence" is consistent with dictionary definitions of the terms. Webster's Dictionary defines "inter-" as a prefix meaning "reciprocal." It defines "dependent" as "determined or conditioned by another" and "dependence" as "the quality or state of being influenced or determined by or subject to another." DOR's determination that oil production operations may be economically interdependent "if [fields] are so integrated as to be reasonably treated as an economically unitary activity" is consistent with these definitions. In Smart v. State, Department of Health & Social Services, we held that an agency, in selecting one of several definitions of the term "statistically valid sampling methodologies" to use in selecting a "statewide sample" of a group of service providers for auditing, did not impose new substantive requirements because the agency chose its interpretation from an array of approaches laid out in published sources like statistics books. Just as the agency in Smart chose from among various established definitions of a broad phrase, DOR internally reviewed dictionary definitions relating to the phrase "economic interdependence" and interpreted the broad phrase in the Aggregation Statute based on these established definitions. In doing so DOR did not add anything to the Aggregation Statute that was not present in the statute's existing language. 3. DOR's interpretation of the term "economically interdependent" was foreseeable. The legislature enacted the ELF tax regime and gave DOR the discretion to aggregate oil fields in order to accomplish its main purpose: to tax different oil fields at different rates to reflect each field's underlying economies and to incentivize oil production in smaller, less profitable fields. When oil and gas operations in different fields become integrated such that there is no meaningful separation between production in the different fields, there is no justification for maintaining different effective tax rates on those fields. The Initial PAs and the Satellite PAs used common production facilities, coordinated well production to deal with constrained capacity in shared production facilities, implemented backout and compensation agreements based on the interconnections between the Initial PAs and the Satellite PAs, and allocated production to wells without exact metering. This meant that the Satellite PAs received tax breaks that were designed to alleviate costs they did not face, and the Satellite PAs began to back out oil taxed at the higher rate. DOR's Decision to interpret "economically interdependent" such that "economic substance . prevailed] over form" should therefore have been foreseeable in light of the ELF tax regime and the well-known purposes behind it; DOR's Decision was consistent with the legislature's intent. What had changed was the way in which the Producers increasingly integrated their operations among the Initial PAs and the Satellite PAs. It was foreseeable that DOR would use the tool the legislature gave it—its discretionary ability to aggregate fields if they were economically interdependent—to aggregate the Satellite PAs with the Initial PAs to better reflect the economic realities of the Prudhoe Bay Unit. 4. DOR's decision did not depart from a previous interpretation of the Aggregation Statute. The Producers rely mainly, on internal DOR memoranda and White Paper drafts to argue that "DOR's extended internal analysis of the [Ajggregation [Sjtatute and the then-existing interpretation of and policy under that statute" demonstrate that "the Decision . altered DOR's prior interpretation of the statute." The Producers highlight the fact that in one memo, the Director acknowledged that an interpretation of the Aggregation Statute similar to DOR's interpretation in its Decision represented a "180-degree switch in the roles played by production facilities in the ELF decision." In another 2002 draft, the Director wrote that "two very different— almost opposite—interpretations can be drawn from" the ELF statute and that DOR supports an "alternative reading of the law" that would "turn the current ELF practice over on its head." While these comments may offer weak support for the Producers' arguments, the Producers also cite portions of documents where the Director wrote, "Going to Webster suggests that we must show that the [leases or properties] are 'mutually contingent' before we aggregate" and that based on dictionary definitions, "[t]he argument can always be made that as long as new production comes on and uses empty space in old production facilities, there is no mutual dependency," But even considering these quotes, we conclude that the character of this evidence, the internal documents as a whole, and DOR's reasoning within its Decision demonstrate that DOR's Decision was not a departure from its previous interpretation of the Aggregation Statute. First, these documents were never meant to represent DOR's official policy positions, These documents were internal, and DOR clearly labeled them as drafts. Thus, an official decision, such as DOR's Decision, that reaches a conclusion different from those reached in internal White Paper drafts or memoranda does not represent a change in official policy that requires rulemaking because the internal documents never purported to set forth DOR's official position on the interpretation of the Aggregation Statute. Relying on these internal documents as evidence of DOR's previous interpretations of the Aggregation Statute under the facts of this case would be problematic because agency officials would fear that any written materials, even internal ones, could invalidate later official actions that differed from initial, non-public approaches. This would dissuade agency officials from conducting important internal written analyses and examining policy issues from all sides while in the process of establishing the agency's official position on vital administrative matters. Second, the internal documents as a whole do not suggest that DOR's Decision represented a departure from DOR's previous interpretations of the Aggregation Statute's use of the phrase "economically interdependent." At most, the internal documents suggest that the term "economically interdependent" is subject to more than one commonsense reading. But the mere fact that a term can be intei'preted in more than one way does not automatically mean that rule-making is required or that DOR changed its interpretation of the Aggregation Statute. In multiple internal documents, DOR concluded that the Satellite PAs and the Initial PAs were not economically interdependent under one of the definitions of interdependence it found in the dictionary. But DOR also noted that within - the same dictionary, other listed definitions for the same terms yielded different interpretations of economic interdependence that supported aggregation of the Satellite PAs and the Initial PAs. Third, the Producers fail to cite or describe earlier decisions addressing aggregation, much less demonstrate how DOR's Decision was inconsistent with precedent. Most importantly, the Producers themselves admit that the Decision was the first time DOR formally addressed the meaning of the term 'economically interdependent." DOR's interpretation could not have changed if this was, as both parties agree, the first time DOR was called upon to articulate its understanding of the term. Furthermore, in reaching its Decision, pOR carefully reviewed its own administrative precedent surrounding the Aggregation Statute. It found that early decisions were "not particularly informative" but that they did "contain a common factual predicate that logically supports a finding of economic interdependence, namely, that a single operator manages the production operations." DOR also analyzed a 1998 decision aggregating multiple leases covering a single reservoir developed under a sole management plan. pOR acknowledged that the 1998 decision focused on development history in deciding whether to aggregate, but it clarified that it took that approach because the agency was aggregating the leases for a retroactive determination of tax burdens. DOR determined that "insofar as the question of economic interdependence of current or future production operations is concerned, the manner in which development previously occurred may not necessarily be of much relevance." After closely reviewing past precedent, DOR concluded that "while the guidance provided by past administrative precedent is sparse, the applicable generality . seems to be that economic interdependence is shown by or associated with unified or integrated operations or enterprise encompassing the several leases or properties in question." Rather than disavowing precedent, DOR looked to its past decisions and interpretations of the Aggregation Statute and determined that its interpretation of "economically interdependent" as meaning "so integrated as to be reasonably treated as an economically unitary activity" did not conflict and was consistent with its prior decisions. Overall, while DOR may have changed the way it exercised its discretion in deciding to aggregate, this was the first time that DOR had been called upon to articulate its understanding of the phrase "economically interdependent," and its analysis in the Decision was not inconsistent with related, but not entirely analogous, precedent. Instead, DOR observed changing realities in the Prudhoe Bay Unit and decided to aggregate increasingly interdependent operations. B. The Producers Had An Opportunity To Be Heard Throughout The Proceedings. Although the Producers dropped their argument that DOR violated their right to due process by issuing its Decision, we note that we have explained that in agency decision-making contexts, due process requires an opportunity to be heard. We note that the Producers had a fair opportunity to be heard and to challenge DOR's interpretation of "economic interdependence" throughout these proceedings. After DOR issued its Decision, the Producers appealed the Decision and requested an informal conference with DOR under AS 43.05.240(a) and 15 AAC 05.020(a). After DOR affirmed the Decision, the Producers appealed to the Office of Administrative Hearings pursuant to AS 43.05.241 and AS 43.05.405. The Producers then appealed the administrative law judge's decision to the superior court. During oral argument to this court, the Producers admitted that "[t]he [Producers] did have an opportunity to challenge [DOR's] interpretation," but they argued that they did not have the opportunity to challenge the interpretation "in the context of a clean slate the way there would be with the discussion of a regulation.... Instead of going through the public regulation process where anybody could participate, any interested party could state what their concerns were, now you're just dealing with the arguments about the application." The Producers argued that they did not have the opportunity to propose a better interpretation of "economic interdependence" and that, instead, they were confined to arguing that DOR's interpretation was "an impermissible, irrational interpretation." However, the Producers fail to articulate what they would have argued during the process of adopting a regulation that they did not argue during these various proceedings, and they agree that them arguments during these proceedings included arguments for alternative definitions of the phrase "economic interdependence." We conclude that during each stage of the proceedings, the Producers were able to set forth their preferred alternative definition of the phrase "economic interdependence," satisfying their right to be heard. y. CONCLUSION We AFFIRM the superior court's conclusion that DOR's Decision was not a regulation but instead was a eommonsense interpretation of the Aggregation Statute. We also AFFIRM the superior court's decision upholding DOR's Decision. . The Producers involved in this appeal are Chevron U.S.A., Inc., ConocoPhillips Alaska, Inc., ExxonMobil Alaska Production Inc., and Forest Oil Corporation. . Former AS 43.55.013(j) (2005). . AS 44.62.180-290. . See former AS 43.55.011(a) (2005). In August 2006 the legislature amended this statute and eliminated the key provisions at issue in this case. The legislature made these changes effec-' tive retroactively to April 1, 2006. Ch, 2, § 34, 39 TSSLA 2006. This appeal only concerns events that took place before April 1, 2006, so we cite to AS 43.55.011 and the associated regulations as they existed during the time frame relevant to this appeal. . Former AS 43.55.011(a) (2005) ("The tax is equal to . the percentage-of-value amount calculated under (b) of this section . multiplied by the economic limit factor determined for the oil production of the lease or property' under AS 43.55.013."). . See former AS 43.55.011 (2005); former AS 43.55.013 (2005). The oil ELF formula was: "PEL" represents the monthly production rate at the economic limit; "TP" represents the field's total volume of production during a reporting month; "WD" represents the total number of well days, or days the well operates, during the month; and "Days" is the number of days in the month. The first exponent in this equation is commonly known as the "field size factor." .As the legislature contemplated adding the field size factor to the ELF formula through House Bill 118, the DOR Commissioner at the time, Hugh Malone, described the reason behind the proposed change to the Speaker of the House in a letter dated March 21, 1989. This letter stated that [tjhere are many economies of scale realized as a result of larger field size. For instance, each field, regardless of size, still would require the following: operations center, base camp, airstrip, roads, warehouse, power plant, drill pads, sewage treatment, water storage, transportation support vehicles, gas conditioning and compression facility, oil/gas/water separation plant, flow station, waterflood facility, water injection facility, dehydration plant, and so forth. ConocoPhillips Alaska, Inc. used a similar rationale to advocate for the proposed change in a letter to members of the House Resources Committee dated February 7, 1989. The letter stated that [a]ll fields, regardless of size, must possess living quarters, roads, pipelines, and personnel transportation infrastructure in addition to the normal production handling facilities. In Alaska's high cost environment, these factors result in significant diseconomies of scale for smaller fields. For smaller fields to be economically developed, we believe some adjustments must be made in the tax or royalty structure. . During a House Resources Committee meeting discussing House Bill 118, House Speaker Sam Cotten explained that House Bill 118 "would encourage development in some of the smaller fields. It would reduce taxes in some of those areas that are so marginal that that might actually make a difference whether they go into production." Transcription of House Resource Committee Meeting, House BillNo. 118ELF, Hearing on H.B. 118 Before the H. Res, Comm., 16th Leg., 1st Sess. 3 (Feb. 9, 1989) (statement of Sam Cotten, H. Speaker, H.R.). And DOR's Sectional Analysis of House Bill 118 stated that "[t]he current ELF is not giving Alaska an attractive enough tax climate to encourage development of marginal oil fields.... House Bill 118 would target tax breaks toward marginal fields...." . Former AS 43.55.013(j) (2005) ("The department may aggregate two or more leases or properties (or portions of them), for purposes of determining economic limit factors under this section and applying them to AS 43.55.011 or AS 43.55.016, when economically interdependent oil or gas production operations are not confined to a single lease or property."). . 15 AAC 55.027(b) (eff. 1/1/95) (repealed 2007). This regulation was repealed in 2007, but it was in effect during the relevant time period in this case. We cite to the regulation as it appeared during the relevant time period. . Id. . Id. ("Upon application of a producer . the department will, in its discretion, issue an advance ruling that the department will not aggregate specified leases or properties for purposes of determining economic limit factors...."). . Id.; 15 AAC 55.900 (am. 1/1/04). . Ch. 2, § 34, 39 TSSLA 2006. . See 11 AAC 83.351(a) (2005) ("At least 90 days before sustained unit production from a reservoir, the unit operator shall submit to the commissioner for approval a description of the proposed participating area, based on subdivisions of the public land or its- aliquot parts. The participating area may include only the land reasonably known to be underlain by hydrocarbons and known or reasonably estimated through use of geological, geophysical, or engineering data to be capable of producing or contributing to production of hydrocarbons in paying quantities_Under 11 AAC 83.371(a), the unit operator also shall submit to the commissioner for approval of a proposed division of interest or formula setting out the percentage of production and costs to be allocated to each lease or portion of lease within the participating area. Upon approval by the commissioner, the area of productivity constitutes a participating area."). . Later, ownership interests in the Prudhoe Bay Unit realigned such that each worldng interest owner had rights to a single percentage interest in both oil and gas in the combined reservoirs of the Prudhoe Bay Unit. This realignment of ownership essentially made the Initial PAs "the equivalent of a single participating area." Thus, we refer to them jointly as "the Initial PAs" in this opinion. . These nine areas were the Aurora, Borealis, Midnight Sun, Nialcuk, North Prudhoe Bay, Orion, Pt. McIntyre, Polaris, and West Beach Participating Areas. Some documents refer to the Pt. McIntyre Participating Area as N. McIntyre, but we use Pt. McIntyre to refer to the area in question tb remain consistent with DOR's Decision. . The participating areas involved in this appeal are those that DOR aggregated with the Initial PAs. These areas include the Aurora, Borealis, Midnight Sun, Orion, Polaris, and Pt. McIntyre Participating Areas. The Producers involved in this appeal owned working interests in the Pru-dhoe Bay Unit during the relevant period, February 1, 2005 through March 31, 2006. These worldng interests included worldng interests in the two Initial PAs, the Lisburne PA, and the Satellite PAs. . Lisburne PA production facilities initially processed production from Pt. McIntyre, one of the Satellite PAs, but in 2004, Initial PA facilities began processing a portion of production from Pt. McIntyre as well. . Well fluids include gas, oil, and water. The Satellite PAs sent their well fluid to centralized production facilities originally built to serve the Initial PAs. There, fluids from the Satellite PAs commingled with fluids from the Initial PAs. Six coordinated processing centers processed the commingled fluids, separating crude oil from the other well fluids and using small pipelines to deliver the oil to pump station number one of the Trans-Alaska Pipeline System. The processing centers sent the separated natural gas to a central gas facility to further separate natural gas liquids from the natural gas. Some of tire natural gas liquids were blended back into the crude oil or taken in kind as natural gas liquids, while the rest were sent to the central compression plant for re-injection into the reservoirs. . Former AS 43.55.013(j) (2005). See supra note 9 and accompanying text. . The Decision aggregated the Aurora, Borealis, Midnight Sun, Orion, Polaris, and Pt. McIntyre Participating Areas with the Initial PAs. The superior court's statement that the Lisburne and Niakuk Participating Areas were also aggregated is not correct. Aggregation changed the production tax obligations for all four of the Producers and for BP Exploration (Alaska) Inc. . See former AS 43.55.020(a) (2005) (providing that oil production taxes should be paid on a monthly basis). . See 15 AAC 05.001-05.050 (governing appeal procedures related to tax matters under AS 43). . AS 43.05.240(a) ("A taxpayer aggrieved by the action of the department in fixing the amount of a tax or penalty may apply to the department within 60 days after the date of mailing of the notice required to be given to the taxpayer by the department, giving notice of the grievance, and requesting an informal conference to be scheduled with an appeals officer."). BP Exploration (Alaska) Inc. participated in the informal conference, but it did not participate in subsequent appeals. . 15 AAC 05.020(a) ("Upon receipt of a written request for appeal under 15 AAC 05.010 requesting an informal conference, an appeals officer will promptly schedule the informal conference.... The informal conference will be conducted in person, through correspondence, or by telephone, audio, or video teleconference, or other electronic means. The appeals officer shall make available to the person who filed the request for appeal the relevant portion of that person's file, and shall explain at the informal conference the action taken by the department. A person who wants to present facts and information in support of its position must bring all pertinent books, records, schedules, and other documents to the conference.... The person who filed the request shall supply additional information that the appeals officer considers necessary."). . AS 43.05.241 ("For a matter within the jurisdiction of the office of administrative hearings (AS 44.64) under AS 43.05.405, the taxpayer aggrieved by an informal conference decision entered under AS 43.05.240 may file with the office of administrative hearings a notice of appeal for formal hearing, as provided in AS 43.05.430, no later than 30 days after service of the decision resulting from an informal conference."). . AS 43.05.405 ("The office has original jurisdiction to hear formal appeals from informal conference decisions of the Department of Revenue under AS 43.05.240. Appeal to the office may be taken only from an informal conference decision under AS 43.05.240."). . Friends of Willow Lake, Inc. v. State, Dep't of Transp. & Pub. Facilities, Div. of Aviation &Airports, 280 P.3d 542, 548-49 (Alaska 2012) (citing Smart v. State, Dep't of Health & Soc. Servs., 237 P.3d 1010, 1017 (Alaska 2010)). . State, Dep't of Nat. Res. v. Nondalton Tribal Council, 268 P.3d 293, 299 (Alaska 2012) (citing Alyeska Pipeline Serv. Co. v. State, Dep't of Envtl. Conservation, 145 P.3d 561, 564 (Alaska 2006)). . Id. (first alteration in original) (quoting Jerrel v. State, Dep't of Nat. Res., 999 P.2d 138, 141 (Alaska 2000)). . AS 44.62.640(a)(3). . Friends of Willow Lake, Inc., 280 P.3d at 548-49 (citing Smart, 237 P.3d at 1017). . Kenai Peninsula Fisherman's Coop. Ass'n v. State, 628 P.2d 897, 905 (Alaska 1981). . Friends of Willow Lake, Inc., 280 P.3d at 549 (quoting Smart, 237 P.3d at 1017). . Nondalton TribalCouncil, 268 P.3d at 300 (quoting Kachemak Bay Watch, Inc. v. Noah, 935 P.2d 816, 825 (Alaska 1997)). . Id. at 300-01. . AS 44.62.640(a)(3); see also Nondalton Tribal Council, 268 P.3d at 300-01. . Alyeska Pipeline Serv. Co. v. State, Dep't of Envtl. Conservation, 145 P.3d 561, 573 (Alaska 2006). . Alaska Ctr. for the Env't v. State, 80 P.3d 231, 243-44 (Alaska 2003) (holding that an agency interpretation "[did] not satisfy the Administrative Procedure Act's definition of 'regulation,' as it was not an 'amendment, supplement, or revision of a rule, regulation, order, or standard' so much as it was a [commonsense] interpretation of the regulation's applicability" because "[i]t neither provided new requirements nor made the existing ones any more specific," and concluding that the agency interpretation "thus was not a 'regulation' and did not need to be promulgated in accordance with the Alaska Administrative Procedure Act." (internal citations omitted)). . Alyeska Pipeline Serv. Co., 145 P.3d at 573. The Producers characterize this holding—that "obvious, commonsense interpretations of statutes do not require rulemaking"—as an exception to the definition of a regulation set forth in the APA. The Producers use this characterization to argue that the exception does not apply to DOR's Decision because (1) Alaska courts only— or at least predominantly—apply the exception in cases where an agency is interpreting its own regulations, as opposed to legislation and (2) even where Alaska courts have applied the commonsense exception to situations where an agency interpreted a statute directly, as opposed to interpreting its own regulation, Alaska courts have only done so when the agency's "interpretation was ,.. routine." But the commonsense "exception" is not an exception at all; rather it is the rule, clarifying when an agency action is not a regulation. And apart from the Producers' incorrect characterization of the commonsense language as an exception, the Producers' arguments that the commonsense language does not apply to the case at hand are not persuasive. The Producers cite Friends of Willow Lake, Inc. v. State, Department of Transportation & Public Facilities, Division of Aviation & Airports, 280 P.3d 542 (Alaska 2012), Smart v. State, Department of Health & Social Services, 237 P.3d 1010 (Alaska 2010), and Alaska Center for the Environment v. State, 80 P.3d 231 (Alaska 2003) in support of their proposition that Alaska courts only.—or at least predominantly—apply the commonsense language to cases where an agency has already interpreted a statute through regulation. But we have specifically stated that "obvious, commonsense interpretations of statutes do not require rulemaking." Alyeska Pipeline Serv. Co., 145 P.3d at 573 (emphasis added). Notably, we did not state that "obvious, commonsense interpretations of regulations based on statutes do not require rulemaking," and we did not qualify this statement in any other way that would suggest that we exclusively or even predominantly apply the commonsense language to cases where an agency has already interpreted a statute, through regulation. Second, the Producers argue that even where Alaska courts have applied the commonsense "exception" to situations where an agency interpreted a statute directly, as opposed to interpreting the agency's own regulation, Alaska courts have only done so when the agency's "interpretation was . routine." But whether the challenged interpretation was "routine" is not a factor courts must analyze when determining whether an agency action is a regulation under the APA's definition of a regulation or relevant case law. The Producers merely use the word "routine" to attempt to distinguish this case from those they cite in support of their argument, such as Squires v. Alaska Board of Architects, Engi neers & Land Surveyors, 205 P.3d 326 (Alaska 2009) and Alaska Center for the Environment v. State, 80 P.3d 231 (Alaska 2003). . Alyeska Pipeline Serv. Co., 145 P.3d at 573 (quoting Alaska Ctr. for the Env't, 80 P.3d at 244). . Id, (quoting Alaska Ctr. for the Env't, 80 P.3d at 244). . 999 P.2d 138 (Alaska 2000). . 222 P.3d 851 (Alaska 2010). . 80 P.3d 231. . 145 P.3d561. . Jeirel, 999 P.2d at 142. .Id. . Id. at 142-43. . Id. at 143 (alteration in original) (quoting AS 03.40.020). . Burke v. Houston NANA LLC, 222 P.3d 851, 868-69 (Alaska 2010). . Alaska Ctr. for the Env't v. State, 80 P.3d 231, 242-44 (Alaska 2003). . Id. at 244. . Alyeska Pipeline Serv. Co. v. State, Dep't of Envtl. Conservation, 145 P.3d 561, 563, 572 (Alaska 2006). . Id. at 573. . Inter-, Webster's Collegiate Dictionary (10th ed. 1998). . Dependent, Webster's Collegiate Dictionary (10th ed. 1998). . "Reciprocal" means "shared, felt, or shown by both sides." Reciprocal, Webster's Collegiate Dictionary (10th ed. 1998). DOR's reference to "economically unitary activity" (emphasis added) is consistent with this meaning, in that DOR views fields engaged in shared economic activity as economically interdependent. And DOR's reference to "integrated" fields is consistent with the fields being "determined or conditioned" by each other or "being influenced or determined by or subject to" each other. . 237 P.3d 1010, 1012, 1017-18 (Alaska 2010). . DOR convincingly asserts that this statement was a mistake because that memo incorrectly assumed that 15 AAC 55.027(b) prohibited DOR from aggregating operations if " 'production operations on the respective leases or properties would not be economically interdependent in the absence of the proposed use of common production facilities,' when in fact the regulation merely gave the agency the discretion not to aggregate properties in that situation.", (quoting 15 AAC 55.027(b)). Administrative Law Judge Kennedy noted .that "[a]nalysis in some of the documents is veiy preliminary and rough, reflecting confusion" and, regarding the Director's statement, agreed that Mr. Dickinson seems to have been under the impression that 15 AAC 55.027(b) prohibited the department from aggregating [participating areas] if they would not be economically interdependent in the absence of common production facilities. This is a reading of 15 AAC 55.027(b) that is sufficiently unsupportable that the [Producers] themselves have abandoned it in this appeal. .Looking at the White Paper as a whole, it is not entirely clear that these comments are referring to DOR's interpretation of "economically interdependent." Instead, a close reading of these comments in context suggests that they may address issues related to alternative readings of the term "lease or property" or, more broadly, to alternative readings of the statutory purpose guiding DOR's exercise of its discretion whether to continue taxing small fields lightly to encourage development or to aggregate the smaller fields in order to better reflect the realities of oil production in certain areas. DOR explains that "producers have generally treated each participating area as a lease or property for the purposes of calculating oil and gas production taxes, and [DOR] has generally accepted this treatment." But the internal documents suggest that DOR was considering changing this approach. The Director's comments, at best, offer only weak support for a conclusion that the Decision represented a departure from DOR's previous interpretations of the phrase "economically interdependent" in the Aggregation Statute. . The Producers concede that they "do not claim that the [internal] documents established DOR's official position or policy." They do, however, claim that the internal documents serve as evidence that DOR "for years wrestled with the problems presented by the statutory standard and a [commonsense] interpretation of it." . See Alyeska Pipeline Serv. Co. v. State, Dep't of Envtl. Conservation, 145 P.3d 561 (Alaska 2006); Alaska Ctr. for the Env't v. State, 80 P.3d 231 (Alaska 2003). . Amerada Hess Pipeline Corp. v. Alaska Pub. Utils. Comm'n, 711 P.2d 1170, 1178 (Alaska 1986) ("While we endorse the judicial bridling of excessive administrative discretion by requiring guiding regulations, we will only do so to the extent necessary to assure a fair administrative process. Thus, we will not reverse an administrative adjudication on procedural due process grounds unless there exists an element of unfairness, vagueness or lack of notice or opportunity to be heard.").

10426656

TORKKO/KORMAN/ENGINEERS, a Professional Corporation, Appellant, v. PENLAND VENTURES, An Alaska Limited Partnership, Appellee

Torkko/Korman/Engineers v. Penland Ventures

1983-11-18

No. 6489

769

774

673 P.2d 769

673

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:09:56.146075+00:00

CAP

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

TORKKO/KORMAN/ENGINEERS, a Professional Corporation, Appellant, v. PENLAND VENTURES, An Alaska Limited Partnership, Appellee.

TORKKO/KORMAN/ENGINEERS, a Professional Corporation, Appellant, v. PENLAND VENTURES, An Alaska Limited Partnership, Appellee. No. 6489. Supreme Court of Alaska. Nov. 18, 1983. Raymond A. Nesbett, Anchorage, for appellant. Jerome H. Juday and George M. Kapol-chok, Atkinson, Conway, Bell & Gagnon, Anchorage, for appellee. Before BURKE, C.J., and RABINOWITZ, MATTHEWS and COMPTON, JJ.

3599

22202

OPINION RABINOWITZ, Justice. This appeal arises from a dispute over the validity of a mechanic's lien filed by Tork-ko/Korman/Engineers (TKE) against an undeveloped parcel of land in Anchorage leased by Penland Ventures (Penland) from the State of Alaska. The superior court, ruling on the validity of the lien during foreclosure proceedings, held that TKE's lien was untimely and therefore a nullity. Final judgment was entered in favor of Penland and this appeal followed. We affirm, but on an alternative ground. I. In July 1971, Robert C. Penney executed on behalf of Penland, Inc. a lease with the State of Alaska for a 162-acre parcel of land in northeast Anchorage. The lease stipulated that Penland, Inc. would develop the property "in whole or in part" as a Planned Unit Development (PUD). A PUD plan for the property was adopted. Penland, Inc. subsequently assigned its interest to Penland Ventures (Penland). In 1973, Penland successfully sought several amendments to the PUD plan for the entire 162-acre area. One of Penland's requests was that the density restrictions on tracts B-2 through B-5 (which comprise the 11.3 acres at issue here) be revised to permit townhouse condominiums as well as single-family residences. The Greater Anchorage Area Borough (GAAB) Planning and Zoning Commission subsequently gave "concept approval" to a density of fifteen units per acre on tracts B-2 through B-5. Final approval for the townhouse units was requested and received. In April 1974, Penland granted to Polar Bear Builders, Inc. (Polar Bear) an option to sublease tracts B-2 through B-5. The contract contemplated that Polar Bear would perform actual construction on the property in accordance with the PUD plan. During March 1974, Robert Sowash, president of Polar Bear, hired TKE to prepare the plans for the condominium project. TKE employed the California architectural firm of Kamnitzer, Marks, Lappin and Vreeland, Inc. (KMLV) to assist in this work. TKE and KMLV prepared the drawings and plans necessary for obtaining "final approval" from the GAAB Planning and Zoning Commission for a PUD on tracts B-2 through B-5. In late May of 1974 final approval was granted. On June 15, 1974, TKE and Polar Bear entered into a written contract delineating their respective responsibilities during execution of the condominium project. Specific services were expressly included, and others excluded, from the scope of TKE's responsibilities. The project was divided into four phases, and fees were allocated accordingly, although the contract specifically stated that "[TKE's] fee is based upon the continuous involvement in the total project." Phase I fees were set at $58,500 and were due on September 1,1974, regardless of whether Polar Bear had received a construction draw by that time. After preparing the preliminary drawings and plans that enabled Polar Bear to obtain final approval for the project from the GAAB Planning and Zoning Commission, TKE and its subcontractors completed by July 1974 the detailed drawings and plans necessary for obtaining building permits and beginning construction. Construction never began. In August 1974, TKE learned that the anticipated source for construction financing had declined to underwrite the project. TKE then wrote to Polar Bear concerning various possible means of securing payment of the Phase I fees. No agreement was reached. Thus, on September 1,1974, TKE sent Polar Bear a statement of fees earned and due as of that date. The outstanding balance of $58,517.29 was for work done prior to September 1, 1974. Polar Bear did not pay the bill. Charles Torkko of TKE moved the TKE offices to his home and took a full time position with another firm. At Mr. Sowash's request, TKE and KMLV began canvassing developers for financing. In early 1975, Torkko personally discussed financing of the project with Mike Barry, a Penland general partner. On March 14,1975, Torkko agreed to defer Phase I fees "until the new Owner/Developer/Contractor is able to make this lump sum payment" but no later than August 31, 1975. Throughout early 1975, Torkko devoted an average of four to five hours per week to meetings, conferences, and correspondence with potential sources of financing for the project. All efforts to salvage the project failed. No site preparation, excavation or other physical preparatory work was ever started. Design of Phase II was never begun. Thus, in February 1975, Penland sued Polar Bear for breach of the first parcel sublease agreement. On July 31,1975, the sublease agreement was formally terminated. KMLV filed and recorded a claim of lien against tracts B-2 through B-5 on April 25, 1975, claiming $33,597.72 due for labor and materials expended on the project. TKE filed its claim of lien against the property on May 2, 1975. The claim stated that $58,517.29 was due TKE, an amount equal to the sum billed on September 1, 1974 which included the monies due KMLV. KMLV filed suit to foreclose its lien, naming inter alia TKE and Penland as defendants. TKE answered and cross-claimed for foreclosure of its lien. TKE at this time also brought a third-party complaint against Polar Bear. KMLV voluntarily dismissed its complaint, and the case proceeded on the cross-claim and third-party complaint. On the eve of trial, Polar Bear confessed judgment in favor of TKE in the principal amount of $24,919.57 and the case went to trial with Penland as the sole defendant. The superior court held that the ninety-day statutory period for filing a lien commenced to run on September 1, 1974, and that efforts expended by TKE after that date were beyond the scope of the contract with Polar Bear and therefore gratuitous. The superior court further concluded that the lien was a nullity because it was filed more than ninety days after TKE's contractual obligations were fulfilled. II. On appeal, Penland contends that TKE's lien should be invalidated because no work was commenced on the project at the 11.3-acre site. Penland argues that the language of former AS 34.35.050 and the "majority rule" in other jurisdictions support its assertion that a mechanic's lien will extend only to land upon which a building is constructed or other visible improvement effected. We find Penland's argument persuasive and affirm the superior court's judgment on this ground. AS 34.35.050 provided, in pertinent part, that an engineer furnishing design services preliminary to site preparation or the construction of a building has "a lien on it for work done." See supra n. 7. The parties join issue over the meaning of the word "it." Penland argues that "it" refers only to the visible product of such labor and that no lien may arise before "it" materializes. TKE contends that "it" refers to the raw land as well as any improvements made upon that land. TKE argues that since the statute permits liens to be filed for engineering services preliminary to land clearing, grading, excavating, landscaping or the installation of water and sewer lines, "it" must refer to the ground on which the activity takes place. Furthermore, Torkko contends that since buildings become realty by virtue of the doctrine of annexation of fixtures, Penland's attempt to argue that "improvements" rather than land are liena-ble is legally untenable. We find TKE's position unpersuasive. The plain meaning of the statute supports Penland's interpretation. The statute refers to construction of a building or structure or superstructure, and only then discusses the "clearing, grading, draining, excavating or landscaping of the ground upon which it is constructed." The word "it" clearly refers to a building, structure or superstructure. The statute then notes that the engineer "has a lien on it." "It" again refers to improvements that have been constructed upon the ground. All improvements contained in the statute are "visible" improvements. Since statutory liens are derived entirely from the legislative acts creating them, Goebel v. National Exchangors, Inc., 88 Wis.2d 596, 277 N.W.2d 755, 760 (1979), our interpretation of AS 34.35.050 must comport with the express language of that provision. Since TKE's efforts did not result in the visible improvements to the land contemplated un der AS 34.35.050, there cannot be a lien upon it. Authority from jurisdictions governed by lien statutes similar to former AS 34.35.050 supports our conclusion .that physical construction must begin on property before architects and engineers aiding in the design of improvements are permitted to file liens. One rationale for such an interpretation of lien statutes is apparent from our decision in Frontier Rock & Sand v. Heritage Ventures, 607 P.2d 364 (Alaska 1980): The philosophy [of lien statutes] is that a materialman or workman may reach the property which he has benefited to satisfy his claim for the benefit even when there is no direct contractual relationship between him and the owner of the property, and regardless of who the owner might be. Id. at 367 (footnotes omitted). Under this view a mechanic's lien may attach to a property only after the services giving rise to the right result in a tangible improvement. Thus, the addition of value to land is the precondition to an attachment of a lien. Secondly, as the Iowa Supreme Court observed in Gollehon, 268 N.W.2d at 202 n. 13, a requirement that the land be visibly improved protects the rights of third party purchasers who are thereby put on notice that lienable claims may exist. 268 N.W.2d at 202. It is likely that the legislature was aware of these interpretations of similar statutes when it amended former AS 34.35.-050 to allow explicitly for liens in this situation. An amendment to an unambiguous statute is generally presumed to indicate a substantive change in the law, City of Anchorage v. Thomas, 624 P.2d 271, 273 (Alaska 1981). We therefore conclude that the legislature intended to confer additional rights upon architects and engineers when it amended AS 34.35.050 to allow liens for work done in the preparation of plans "whether or not [they were] actually implemented." AS 34.35.050(5). Thus, we interpret the prior version of the statute to prohibit the creation of a valid lien prior to the commencement of work on the site and the effectuation of visible improvements to the property. The superior court's judgment is AFFIRMED. MOORE, J., not participating. . Penland is a limited partnership. One of the two general partners, Mike Barry, was Pen-land's sole witness at trial. . Torkko did not pay the $33,597.72 due KMLV and $4,000 due an electrical contractor. . In late April and early May 1975, Torkko corresponded and met with a Hawaiian developer interested in purchasing the project. Torkko stated that he was "still under obligation to Polar Bear Builders, Inc. and Bob So-wash for professional matters associated with [the] project," and indicated the developer was welcome to direct further inquiries to TKE. However, Torkko refused to waive TKE's lien rights on the project and by May 12, 1975 it was clear the developer was no longer interested in it, for various reasons. . Under AS 34.35.055(b) and (c) leasehold interests are lienable to the extent of the lessee's interest. . The superior court deleted a proposed conclusion of law which provided that TKE had failed to prove that Penland derived any benefit from the totality of TKE's efforts, and based its decision entirely on the ground of untimeliness. Thereafter, TKE moved for amendment of the trial court's findings on the ground that the court had failed to rule on TKE's claim that Penland should be held personally liable for the amount claimed on the lien. TKE's argument was based on former AS 34.35.070(d) (repealed 1978) and (f) (amended 1977, 1978 and 1979). The superior court never ruled on this motion. Apparently, the superior court file was transferred to this court after TKE filed its notice of appeal and the motion was thereafter not brought to the superior court's attention. .A preliminary question raised by TKE is whether this issue is properly before this court, since Penland did not file a notice of cross-appeal pursuant to Appellate Rule 204(a). TKE claims that the superior court ruled against Penland on this issue by crossing out a suggested finding stating in part that TKE has failed by a preponderance of the evidence to prove that tracts B2-B5 or that Penland Ventures as owner derived any benefit from the totality of the work performed by TKE and by finding in Conclusion No. 3 that "TKE could have filed its lien for the full amount of money billed for services rendered and due and owing on September 1, 1974." Penland claims that the superior court did not rule on the issue at all, although it was raised below in Penland's two trial briefs, and that this court may properly consider it as an alternative ground for affirmance. Carlson v. State, 598 P.2d 969, 973 (Alaska 1979); Stor-dahl v. Government Employees Insurance Co., 564 P.2d 63, 67 n. 16 (Alaska 1977). We are in agreement with Penland and hold that the issue is properly before us in this appeal since it is open to Penland to urge this point as an alternative ground for affirmance. . Former AS 34.35.050 (amended 1978 Alaska Sess.Laws, chap. 57, § 1) provided: Lien for work done or materials furnished. A person or firm, contractor, lumber mer chant, architect, engineer, designer, mechanic, artisan, machinist, tradesman, plumber, electrician, carpenter, painter, laborer, teamster, drayman, equipment rental operator, or other person performing design or supervision services or performing labor upon or preliminary to the construction of, or furnishing material, or renting, leasing, or otherwise supplying equipment to be used in the construction of, or furnishing material, or renting, leasing or otherwise supplying equipment for the construction of, or furnishing material for the construction, alteration, or repair, either in whole or in part of a building, wharf, bridge, flume, fence, machinery, aqueduct, well, or land clearing, or a structure or superstructure, including the clearing, grading, draining, excavating or landscaping of the ground upon which it is constructed, and the installation of sewer and water lines in it has a lien on it for the work done or material furnished at the instance of the owner of the building or other improvement, or his agent. It is undisputed that this appeal should be decided under the mechanic's lien statute in effect in 1975 when the lien in question was filed. As Penland points out, the legislature revised this statute (including AS 34.35.050) extensively in 1978 and 1979, but expressly provided that the amendments were inapplicable to liens arising from construction projects commenced prior to the effective date of the amendatory act, where the liens were for work completed or materials delivered within 120 days after the effective date of the Act. 1978 Alaska Sess.Laws, chap. 175, § 20(a). Unless otherwise stated, all references hereinafter to AS 34.35.050 will be to the version in effect prior to the effective date of the 1978 amendments. . We also note that AS 34.35.050 must be read with AS 34.35.055(a) which provides in part: (a) The land upon which a building or other improvement described in section 50 of this chapter is constructed, . is also subject to the lien created by [sections] 50-120 of this chapter if, at the time the work is started . the land belongs to the person who causes the building or other improvement to be constructed, altered, or repaired. Under AS 34.35.055(a), the land is only lienable under certain circumstances. This read together with section 50 necessarily implies that it is the improvements which are lienable under AS 34.35.050. . TKE contends that the record supports a finding that its services benefited Penland substantially, notwithstanding the fact that visible site preparation never commenced. TKE argues that its efforts enabled the PUD project to gain final approval from the GAAB Planning and Zoning Commission, a necessary precondition to construction, thus preventing Penland from defaulting on its lease with the state; the final approval also encompassed an increase in the density of dwelling units permitted per acre. However, these benefits did not inure to the land so as to increase the land's value. Rather, they benefited the lessor personally by increasing viability and profitability of its proposed construction project. Therefore, there was clearly no improvement to the land which would render it lienable under former AS 34.-35.050. . See, e.g., Haines, Jones, Farrell, White, Gima Architects, Ltd. v. Maalaea Land Corp., 62 Hawaii 13, 608 P.2d 405, 407-08 (1980). Under a statute similar to ours, the court held an architect could not file a lien for services performed in designing a condominium project because construction was never begun and no "improvement" existed within the meaning of Hawaii's mechanic's lien statute. The court held that: In the present case, the appellant's minor remodelling, marking of boundaries, and test borings did not result in any actual or visible improvement to the land. Thus, the appellant did not establish probable cause to enable a lien to attach to the Maalaea property. Id. 608 P.2d at 408. See also Gollehon, Schem-mer & Assoc, v. Fairway-Bettendorf Assoc., 268 N.W.2d 200, 202 (Iowa 1978) (architect's plans were never used because housing project was abandoned prior to bid submittal; court held that although architect surveyed and marked land in order to prepare maps and plans, produced such plans and procured municipal approval for platting, these services did not constitute sufficient "improvement" to warrant filing of lien). . AS 34.35.050 now provides: Lien for labor or materials furnished. A person has a lien, only to the extent provided under AS 34.35.005-34.35.530, to secure the payment of his contract price if he (1) performs labor upon real property at the request of the owner or his agent for the construction, alteration, or repair of a building or improvement; (2) is a trustee of an employee benefit trust for the benefit of individuals performing labor on the building or improvement and has a direct contract with the owner or his agent for direct payments into the trust; (3) furnishes materials that are delivered to real property under a contract with the owner or his agent which are incorporated in the construction, alteration or repair of a building or improvement; (4) furnishes equipment that is delivered to and used upon real property under a contract with the owner or his agent for the construction, alteration or repair of a building or improvement; (5) performs services under a contract with the owner or his agent in connection with the preparation of plans, surveys, or architectural or engineering plans or drawings for the construction, alteration or repair of a building or improvement, whether or not actually implemented on that property; or (6) is a general contractor. (Emphasis added.) . See supra the discussion of the plain meaning of former AS 34.35.050. . In light of our conclusion that TKE was not entitled to a lien under former AS 34.35.050, we do not address the question of whether the lien was timely filed. . We do not address TKE's argument that Penland should be held personally liable for TKE's claim under former AS 34.35.070(d) (repealed 1978) and AS 34.35.070© (amended 1977, 1978 and 1979). Penland argues that TKE first raised the guaranty issue during closing argument at trial. It was not raised in TKE's' pleadings. Although TKE did pray for a personal judgment against Penland, the request was predicated solely on an allegation that Polar Bear was Penland's agent. TKE did not discuss the guaranty issue in either its pre-trial brief, or its opening statement, but did raise it in its closing. After entry of final judgment, TKE moved for an amendment of the findings and judgment, alleging the superior court had failed to rule on the guaranty claim. The superior court never considered the motion because the case was transferred to this court before it was brought to its attention. Finally, TKE did not list the guaranty issue in its Points on Appeal. Thus, under App.Rule 210(e), it will not be considered by this court. Alaska Rule Civ.P. 15(b) permits issues not raised in pleadings to be treated as if they had been so raised if they are tried by "express or implied consent of the parties." The record supports Penland's contention that the guaranty argument was not explicitly made until TKE's closing argument. In Barrett v. Byrnes, 556 P.2d 1254, 1255 (Alaska 1977), this court held that when an affirmative defense was raised for the first time after the plaintiff had rested her case, it could not be said to have been tried by her "implied consent." Similarly, here we hold that the guaranty issue was not tried at all in this case. During trial, TKE did extract a stipulation from Penland that no notice of completion had been filed, but this cannot be deemed to have put Penland on notice regarding the use that would be made of the stipulation. TKE never moved to amend its cross-claim to raise the guaranty argument. Penland cites several decisions in which this court refused to consider legal theories, despite the availability of pertinent evidence in the record, when the opposing party had not been apprised of the importance of producing countervailing evidence and the court had not ruled on the issue. Hill v. Ames, 606 P.2d 388, 390 (Alaska 1980); Brown v. Wood, 575 P.2d 760, 766 (Alaska 1978), modified on other grounds, 592 P.2d 1250 (Alaska 1979). See also, Saxton v. Splettstoezer, 557 P.2d 1126, 1127 (Alaska 1976); Kupka v. Morey, 541 P.2d 740, 747 (Alaska 1975). We adhere to those decisions.

10469416

Lee Verlis JONES, Appellant, v. STATE of Alaska, Appellee

Jones v. State

1976-04-19

No. 2689

958

960

548 P.2d 958

548

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:08:46.626956+00:00

CAP

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

Lee Verlis JONES, Appellant, v. STATE of Alaska, Appellee.

Lee Verlis JONES, Appellant, v. STATE of Alaska, Appellee. No. 2689. Supreme Court of Alaska. April 19, 1976. Brian Shortell, Public Defender, Anchorage, for appellant. Joseph D. Balfe, Dist. Atty., Glen. C. Anderson, Anchorage and Avrum M. Gross, Atty. Gen., Juneau, for appellee. Before BOOCHEVER, Chief Justice, and RABINOWITZ, CONNOR, ERWIN and BURKE, Justices.

1114

6604

OPINION PER CURIAM. After pleading guilty to two counts of mayhem, Lee Verlis Jones was sentenced on January 7, 1975 to serve two consecutive fifteen-year terms in prison. In a letter from prison dated June 24, 1975, Jones asked the trial court to reconsider his sentence, specifically requesting that his two terms be altered to run concurrently. The letter was referred to the Public Defender Agency, which has represented him at trial. After obtaining new counsel within the agency, Jones filed a formal motion for an extension of time in which to file a motion for modification or reduction of his sentence. The motion was denied under Criminal Rule 35(a), which provides for a 60-day limit on the time in which a motion for sentence reduction or modification must be filed. "Correction or Reduction of Sentence. The court may correct an illegal sentence at any time. The court may reduce a sentence within 60 days after the sentence is imposed, or within 60 days after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of the appeal, or within 60 days after receipt of an order of the supreme court of the state or of the United States denying an application for relief." We recently held in Davenport v. State, Op.No. 1218, 543 P.2d 1204 at 1211 (1975): "that the superior court lacks jurisdiction to review its own sentence, after it has entered a judgment on the matter, more than 60 days after it has imposed sentence." See AS 12.55.080; Alaska R.Crim.P. 35(a). AS 12.55.080 only provides a 60-day limit for suspending the imposition, execution or balance of a sentence, or for placing the defendant on probation. See Rule 35(a). This does not mean, however, that in a clear case of injustice we would be unable to act. Rule 35(a) would be subject to Alaska R.Crim.P. 53, which allows relaxation of the rules if injustice will result. As for AS 12.55.080, we find Davenport distinguishable from the case at bar. The facts of this case, unlike Davenport, do not show that the trial court intentionally retained jurisdiction in order to modify defendant's sentence in the future. The court would lack power to so act. Rather, defendant Jones alleges that circumstances combined to produce injustice in his case. If true, such an allegation would not find the courts devoid of any ability to act under Alaska R.Crim.P. 53. We do not, however, find this a proper case in which to relax the rules under Alaska R.Crim.P. 53, despite Jones' argument that his counsel was solely re sponsible for the failure to file within 60 days. Appellant points to no infirmity in the sentence meted out such as would indicate manifest injustice in the sentence itself. \Ve must conclude, therefore, that this is not a case where there was such prejudice in the sentencing proceeding, or in the sentence itself, to warrant waiver of the time limitations of Criminal Rule 35(a). In addition, although Jones was informed by the court of his right to a sentence appeal, he did not file one. This lack of concern over his sentence for six months, coupled with the consideration that no non-frivolous purpose for reconsideration has been presented, indicates that Jones has suffered no injustice sufficient to invoke Rule 53. AFFIRMED. . Jones was employed to throw acid on two persons. This he did, permanently and hideously disfiguring both individuals. Because of the viciousness of this attack, done not in passion but for hire, we have no difficulty in understanding the length of the sentences imposed. . Alaska R.Crim.P. 35(a) provides: . Alaska R.Cim.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." Alaska R.Civ.P. 94 contains a similar provision. . Jones cites three federal cases: Fallen v. United States, 378 U.S. 139, 84 S.Ct. 1689, 12 L.Ed.2d 760 (1964); Warren v. United Slates, 123 U.S.App.D.C. 160, 358 F.2d 527 (1965); and Cade v. United States, 311 A.2d 265 (D.C.App.1973). It appears that the Fallen and Warren cases were actually interpretations of Rule 35 in the face of evidence of injustice not stemming from "excusable neglect" on the part of the defendants. See Alaska R.Crim.P. 40(b)(2). In Cade, the court remanded the case to determine whether defendant's lawyer had promised to file a motion to reduce sentence, but failed to do so — which failure would apparently warrant relaxation of Rule 35. No such promise was made by Jones' attorney. To the extent that the Cade case would support the power of the superior court to relax the requirements of Rule 35, such power would be subsumed in Alaska under Rule 53. . It appears that within the appropriate time limit there was no new evidence upon which to base a motion for reconsideration. In a letter to Jones dated July 28, 1975, the Pub-lice Defender explained that everything possible to mitigate the sentence had been presented at the time of sentencing, and that no attempt was made to reduce the sentence because there was no new material to be presented. Rule 35(b) provides the various grounds upon which a defendant may move for relief under Rule 35. Since there was no new evidence, and the defendant does not argue that the sentence was unconstitutional, subject to collateral attack, etc., we see no grounds upon which Jones could have legitimately moved for reconsideration under the rule. Under such circumstances, it might be improper for such a motion to be filed. See Alaska Code of Professional responsibility DR 7-102 ( A) (2). Jones appears to assert only that "my position would have been that I had everything to gain and nothing to loose (sic) by filing the motion to reduce . . . ." . Appellant in his reply brief suggests that filing a sentence appeal would "extend the time limitations for a motion to reduce under Rule 35 to more than one year's time." Absent some non-frivolous ground for such an appeal other than merely extending the time requirements of Rule 35, we cannot accept such an argument. We m,ust assume that if Jones had substantive grounds upon which to appeal his sentence, he would have appealed it.

10459055

Joseph R. MORROW and Nikki Morrow, Appellants, v. NEW MOON HOMES, INC., and Golden Heart Mobile Homes, Inc., Appellees

Morrow v. New Moon Homes, Inc.

1976-03-26

No. 2206

279

296

548 P.2d 279

548

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:08:46.626956+00:00

CAP

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

Joseph R. MORROW and Nikki Morrow, Appellants, v. NEW MOON HOMES, INC., and Golden Heart Mobile Homes, Inc., Appellees.

Joseph R. MORROW and Nikki Morrow, Appellants, v. NEW MOON HOMES, INC., and Golden Heart Mobile Homes, Inc., Appellees. No. 2206. Supreme Court of Alaska. March 26, 1976. Peter J. Aschenbrenner, Aschenbrenner & Saveli, Fairbanks, and D. Rebecca Snow, Johnson, Christenson, Shamberg and Link, Inc., Fairbanks, for appellants. Patrick T. Brown, Rice, Hoppner & Hed-land, Fairbanks, for appellees. Before RABINOWITZ, C. J., and CON-NOR, ERWIN, BOOCHEVER, and BURKE, JJ.

10511

64269

RABINOWITZ, Chief Justice. This appeal raises questions concerning personal jurisdiction over, and the liability of, a nonresident manufacturer of a defective mobile home that was purchased in Alaska from a resident seller. In October of 1969, Joseph R. and Nikki Morrow bought a mobile home from Golden Heart Mobile Homes, a Fairbanks retailer of mobile homes. A plaque on the side of the mobile home disclosed that the home had been manufactured in Oregon by New Moon Homes, Inc. The Morrows made a down payment of $1,800, taking out a loan for the balance of the purchase price from the First National Bank of Fairbanks. The loan amount of $10,546.-49, plus interest of 9 percent per year, was to be repaid by the Morrows in 72 monthly installments of $190.13 each. At the time of the purchase,, the Morrows inspected the mobile home and noticed that the carpeting had not been laid and that several windows were broken. Roy Miller, Golden Heart's salesman, assured them that these problems would be corrected and later made good his assurances. Miller also told the Morrows that the mobile home was a "good trailer", ". . . as warm as any other trailer." After the sale, Miller moved the Morrows' mobile home to Lakeview Terrace, set it up on the space the Morrows had rented, and made sure that the utilities were connected. Then the troubles started. On the first night that the mobile home's furnace was in use, the motor went out and had to be replaced. The electric furnace installed by the manufacturer had been removed by someone who had replaced the original with an oil furnace. The furnace vent did not fit, and consequently the "stove pipe" vibrated when the furnace was running. Subsequent events showed the furnace malfunction was not the primary problem with the mobile home. About four days after the mobile home had been set up, the Morrows noticed that the doors did not close all the way and that the windows were cracked. The bathtub leaked water into the middle bedroom. In March of 1970 when the snow on the roof began to melt, the roof leaked. Water came in through gaps between the ceiling and the wall panels, as well as along the bottom of the wallboard. A short circuit developed in the electrical system; the lights flickered at various times. When it rained, water came out of the light fixture in the hallway. Other problems with the mobile home included the following: the interior walls did not fit together at the corners; the paneling came off the walls; the windows and doors were out of square; the door frames on the bedroom doors fell off and the closet doors would not slide properly; the curtains had glue on them; and the finish came off the kitchen cabinet doors. Despite all these problems, the Morrows continued to live in the mobile home and make the loan payments. Golden Heart Mobile Homes was notified many times of the difficulties the Morrows were having with their mobile home. Roy Miller, the Golden Heart salesman with whom the Morrows had dealt, did put some caulking around the bathtub, but otherwise he was of little assistance. Finally, sometime before April 1, 1970, Nikki Morrow informed Miller that if Golden Heart did not fix the mobile home the Morrows wanted to return it. Miller said the Morrows would "[h]ave to take it up with the bank." Subsequently, Golden Heart went out of business. The First National Bank of Fairbanks was more sensitive to the Morrows' plight. Upon being informed by the Morrows that they intended to make no further payments on the mobile home, bank personnel went out and inspected the home several times. In addition, on May 27, 1970, the bank wrote to New Moon Homes, Inc. in Silver-ton, Oregon. Its letter informed New Moon of the problems the Morrows were having with their New Moon mobile home and asked whether New Moon expected to send a representative to Fairbanks since Golden Heart, the dealer, was no longer in business. Apparently, New Moon did not respond to the bank's letter. A short time later the Morrows' counsel wrote a letter to New Moon Homes notifying New Moon that the Morrows intended to hold the company liable for damages for breach of implied warranties. About a month later the Morrows separated, with Nikki Morrow continuing to live in the mobile home. She continued to make payments to First National because she "couldn't afford Alaskan rents." Nikki Morrow eventually moved out of the mobile home but made no effort to sell or rent it because she considered it "not fit to live in." In October of 1971 the Morrows filed this action against both New Moon Homes and Golden Heart Mobile Homes, alleging that defendants had breached implied warranties of merchantability and fitness for particular purpose in manufacturing and selling an improperly constructed mobile home. The complaint further alleged that New Moon "is a foreign corporation doing business in the State of Alaska." Although the record does not disclose the method by which New Moon was informed of the pending action, apparently the Morrows served a copy of the summons and complaint upon the Commissioner of Commerce, who forwarded the papers to New Moon in Oregon. In its answer New Moon inter alia raised the "affirmative defenses" of lack of personal jurisdiction and improper service of process. The case was tried in July of 1973. No attorney appeared on behalf of Golden Heart Mobile Homes, but the Morrows proceeded to present their evidence against New Moon because they were looking primarily to the manufacturer for recovery. The Morrows' offered the testimony of four witnesses which tended to identify the mobile home in question as a New Moon home. Neither side presented any evi dence concerning New Moon's business connections with Alaska or the circumstances under which the New Moon mobile home came into Golden Heart's possession. The superior court granted the Morrows a default judgment against Golden Heart, but dismissed their claim against New Moon "for both failure of jurisdiction and failure of privity of contract." The Morrows then appealed from that portion of the superior court's judgment which dismissed their claim against New Moon. The heart of this appeal concerns the remedies which are available to a remote purchaser against the manufacturer of defective goods for direct economic loss. The superior court held that the Morrows had no legal claim against New Moon because they were not in privity of contract with New Moon. The first argument advanced here by the Morrows amounts to an end run around the requirement of privity. The Morrows contend that their complaint asserted a theory of strict liability in tort. They further argue that they should have prevailed irrespective of any lack of privity of contract between New Moon and themselves, because lack of privity of contract is not a defense to a strict tort liability claim. It is true that in Bachner v. Pearson, 479 P.2d 319 (Alaska 1970), we held: that implied warranty and strict products liability are sufficiently similar to require that a complaint worded in terms of the former theory should be deemed to raise a claim under the latter theory. Thus, although the Morrows' complaint sounded in breach of implied warranties, it also raised a strict liability claim if such a claim is legally cognizable against New Moon. In Clary v. Fifth Avenue Chrysler Center, Inc., 454 P.2d 244 (Alaska 1969), Alaska adopted the Greenman v. Yuba Pozver Products, Inc., rule of strict products liability, which provides that [a] manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being. By its terms the Greenman formulation applies only when the defective product causes personal injury. Since the Morrows did not sustain any personal injuries which were caused by the defects in their mobile home, strict liability is seemingly unavailable to them in the instant case. However, the Morrows argue that strict liability should nonetheless apply in the situation where a consumer sues a manufacturer solely for economic loss attributable to the manufacturer's defective product. This precise contention presents a question of first impression in Alaska. The issue whether strict liability in tort should extend to economic loss has prompted no small amount of discussion in legal journals. The two leading judicial opin ions are probably Santor v. A. and M. Karagheusian, Inc., 44 N.J. 52, 207 A.2d 305 (1965), and Seely v. White Motor Co., 63 Cal.2d 9, 45 Cal.Rptr. 17, 403 P.2d 145 (1965). In the former case, Santor purchased from a retailer certain carpeting manufactured and advertised by Karagheu-sian. Almost immediately after the carpet was laid, Santor noticed an unusual line in it. As the pile wore down, the line became worse and two additional lines appeared. Since the retailer had gone out of business, Santor sued the manufacturer for damages for breach of the implied warranty of merchantability. In a unanimous decision, the Supreme Court of New Jersey held that the plaintiff, as the ultimate purchaser of defective carpeting, could maintain an action against the manufacturer on either of two theories, breach of implied warranty of reasonable fitness or strict liability in tort Privity of contract was not necessary in order to pursue either theory, although damages were limited to loss of value of the carpeting. Although the opinion emphasized the widespread advertising carried on by Karagheusian, the Santor court made clear that "strict liability in tort is not conditioned upon advertising to promote sales." [W]hen the manufacturer presents his goods to the public for sale he accompanies them with a representation that they are suitable and safe for the intended use. . . . [S]uch a representation must be regarded as implicit in their presence on the market. . . . The obligation of the manufacturer thus becomes what in justice it ought to be — an enterprise liability, and one which should not depend on the intricacies of the law of sales. The purpose of such liability is to insure that the cost of injuries or damage, either to the goods sold or to other property, resulting from defective products, is borne by the makers of the products who put them in the channels of trade, rather than by the injured or damaged persons who ordinarily are powerless to protect themselves. Barely four months after Santor came down, its strict liability holding was rejected by the Supreme Court of California in Seely v. White Motor Co., supra. Seely purchased a truck manufactured by White Motor Co. for use in his heavy duty hauling business. Upon taking possession of the truck, Seely found that it bounced violently. This "galloping" continued for 11 months until the truck's brakes failed and the truck overturned, sustaining in excess of $5,000 in damages. Seely was not injured in the incident. Seely sued White Motor Co. seeking damages for the cost of repairing the truck and for both the money paid on the purchase price and the profits lost in his business because he was unable to make normal use of the truck. The Supreme Court of California affirmed the trial court's award of damages in the amount of the payments made plus lost profits, on the grounds that White Motor . Co. had breached an express warranty to Seely, the ultimate purchaser. The majority opinion, written by Chief Justice Traynor, condemned in broad dicta SantoFs application of strict liability principles to a case involving only economic loss: The distinction that the law has drawn between tort recovery for physical injuries and warranty recovery for economic loss is not arbitrary and does not rest on the 'luck' of one plaintiff in having an accident causing physical injury. The distinction rests, rather, on an understanding of the nature of the responsibility a manufacturer must undertake in distributing his products. He can appropriately be held liable for physical injuries caused by defects by requiring his goods to match a standard of safety defined in terms of conditions that create unreasonable risks of harm. He cannot be held for the level of performance of his products in the consumer's business unless he agrees that the product was designed to meet the consumer's demands. A consumer should not be charged at the will of the manufacturer with bearing the risk of physical injury when he buys a product on the market. He can, however, be fairly charged with the risk that the product will not match his economic expectations unless the manufacturer agrees that it will. Seely appears to enjoy the support of the vast majority of the other courts which have considered the question whether strict liability in tort should extend to instances of economic loss. We also prefer the result in Seely, although our reasoning differs slightly in emphasis from that of the Seely court. Under the Uniform Commercial Code the manufacturer is given the right to avail himself of certain affirmative defenses which can minimize his liability for a purely economic loss. Specifically, the manufacturer has the opportunity, pursuant to AS 45.05.100, to disclaim liability and under AS 45.05.230 to limit the consumer's remedies, although the Code further provides that such disclaimers and limitations cannot be so oppressive as to be unconscionable and thus violate AS 45.05.-072. In addition, the manufacturer is entitled to reasonably prompt notice from the consumer of the claimed breach of warranties, pursuant to AS 45.05.174(c) (l). In our view, recognition of a doctrine of strict liability in tort for economic loss would seriously jeopardize the continued viability of these rights. The economically injured consumer would have a theory of redress not envisioned by our legislature when it enacted the U.C.C., since this strict liability remedy would be completely unrestrained by disclaimer, liability limitation and notice provisions. Further, manufacturers could no longer look to the Uniform Commercial Code provisions to provide a predictable definition of potential liability for direct economic loss. In short, adoption of the doctrine of strict liability for economic loss would be contrary to the legislature's intent when it authorized the aforementioned remedy limitations and risk allocation provisions of Article II of the Code. To extend strict tort liability, to reach the Morrows' case would in effect be an assumption of legisative prerogative on our part and would vitiate clearly articulated statutory rights. This we decline to do. Thus, we hold that the theory of strict liability in tort which we recognized in Clary does not extend to the consumer who suffers only economic loss because of defective goods. The principal theory of liability advocated by the Morrows at trial was that New Moon had breached statutory warranties which arose by operation of law with the manufacture and distribution of this mobile home. Specifically, the Morrows rely upon AS 45.05.096 and AS 45.05.098 of the Uniform Commercial Code as enacted in Alaska. The former section provides for an implied warranty of "merchantability" in the sale of goods governed by the Code; the latter establishes an implied warranty that the goods are fit for the particular purpose for which they were purchased. The superior court was of the view that these Code warranties- operated only for the benefit of those purchasing directly from a manufacturer or seller. Since the Morrows were not in privity of contract with New Moon, the superior court concluded that a warranty theory based on AS 45.05.096 and AS 45.05.098 could not serve as a basis for liability. There is little question that the Code applies to the distribution of mobile homes. New Moon qualifies as a ' merchant" within the meaning of the relevant section, AS 45.05.042, and mobile homes, being highly movable, are "goods" as defined in AS 45.05.044. Further, in George v. Willman, 379 P.2d 103 (Alaska 1963), we held that the implied warranty of merchantable quality established by the Code's predecessor, the Uniform Sales Act, was fully applicable to the sale of mobile homes. The result is no different under AS 45.05.096 and AS 45.05.098 of the Code. It is equally clear that in this j urisdiction the Morrows, as immediate purchasers, can recover against their seller for breach of the Code's implied warranties. Indeed, this was the theory upon which the default judgment against Golden Heart Mobile Homes was predicated. The critical question in this case is whether the Morrows, as remote purchasers, can invoke the warranties attributable to the manufacturer which arose when New Moon passed title of the mobile home to the next party in the chain of distribution. In other words, do the implied warranties of merchantability and fitness run from a manufacturer only to those with whom the manufacturer is in privity of contract ? Although sometimes criticized, the distinction between horizontal and vertical privity is significant in this case. The issue of horizontal privity raises the question whether persons other than the buyer of defective goods can recover from the buyer's immediate seller on a warranty theory. The question of vertical privity is whether parties in the distributive chain prior to the immediate seller can be held liable to the ultimate purchaser for loss caused by the defective product. The Code addresses the matter of horizontal privity in AS 45.05.104, extending the claim for relief in warranty to any ". . . person who is in the family or household of his buyer or who is a guest in his home if it is reasonable to expect that the person may use, consume, or be affected by the goods . . . ." With regard to vertical privity, the Code is totally silent and strictly neutral, as Official Comment 3 to AS 45.05.104 makes eminently clear. The Code leaves to the courts the question of the extent to which vertical privity of contract will or will not be required. This court has never previously confronted the question whether a requirement of privity of contract will preclude a purchaser from recovering against the original manufacturer on a theory of implied warranties. As mentioned previously, we expressly held in Clary v. Fifth Avenue Chrysler Center, Inc., 454 P.2d 244 (Alaska 1969), that a manufacturer is strictly liable in tort for personal injuries attributable to his defective goods. In approving a theory based on strict liability in tort, we stressed the efficacy, simplicity, and comprehensiveness of that theory. Appellees in Clary had urged this court to limit the consumer's source of redress to possible application of the statutory provisions governing sales warranties, particularly AS 45.05.096. This we declined to do. As we have noted, under the statutory scheme an injured consumer is required to give notice of the defect to the warrantor within a relatively short period of time, and potential liability may be circumscribed by express disclaimers from the manufacturer. The Clary court was concerned that such provisions might operate as a trap for the unwary, and it expressed a preference for a tort theory more solicitous of the needs of the consumer in the modern, prepackaged, mass merchandised market place. However, this preference was never intended to imply that reliance on the statutory warranty provisions was not available as an alternative vehicle for relief. There is nothing incompatible in affording parallel consumer remedies sounding in tort and in contract, and several jurisdictions which have adopted strict liability in tort also make available an implied warranty theory without regard to privity of contract. The dispute here is whether the requirement of vertical privity of contract should be abolished in Alaska. This battle has already been waged in many jurisdictions, and the results are well known; the citadel of privity has largely toppled. The course of this modern development is fa miliar history and we need not recount it at length here. Contrived "exceptions" which paid deference to the hoary doctrine of privity while obviating its unjust results have given way in more recent years to an open frontal assault. The initial attack came in Spence v. Three Rivers Builders & Masonry Supply, Inc., 353 Mich. 120, 90 N.W.2d 873 (1958), but the leading case probably remains Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 161 A.2d 69 (1960), in which the New Jersey Supreme Court held liable for personal injuries and property damages both the manufacturer of an automobile and the dealer who sold the vehicle. The rationale for the widespread abolition of the requirement of privity stems from the structure and operation of the free market economy in contemporary society; it was succinctly summed up not long ago by the Supreme Court of Pennsylvania: Courts and scholars alike have recognized that the typical consumer does not deal at arms length with the party whose product he buys. Rather, he buys from a retail merchant who is usually little more than an economic conduit. It is not the merchant who has defectively manufactured the product. Nor is it usually the merchant who advertises the product on such a large scale as to attract consumers. We have in our society literally scores of large, financially responsible manufacturers who place their wares in the stream of commerce not only with the realization, but with the avowed purpose, that these goods will find their way into the hands of the consumer. Only the consumer will use these products; and only the consumer will be injured by them should they prove defective. The policy considerations which dictate the abolition of privity are largely those which also warranted imposing strict tort liability on the manufacturer: the consumer's inability to protect himself adequately from defectively manufactured goods, the implied assurance of the maker when he puts his goods on the market that they are safe, and the superior risk bearing ability of the manufacturer. In addition, limiting a consumer under the Code to an implied warranty action against his immediate seller in those instances when the product defect is attributable to the manufacturer would effectively promote circularity of litigation and waste of judicial resources. Therefore, we decide that a manufacturer may be held liable for a breach of the implied warranties of AS 45.05.096 and AS 45.05.098 without regard to privity of contract between the manufacturer and the consumer. The more difficult question before this court is whether we should extend this abolition of privity to embrace not only warranty actions for personal injuries and property damage but also those for economic loss. Contemporary courts have been more reticent to discard the privity requirement and to permit recovery in warranty by a remote consumer for purely economic losses. In considering this issue we note that economic loss may be categorized into direct economic loss and consequential economic loss, a distinction maintained in the Code's structure of dam age remedies. One commentator has summarized the distinction: Direct economic loss may be said to encompass damage based on insufficient product value; thus, direct economic loss may be 'out of pocket' — the difference in value between what is given and received — or 'loss of bargain' — the difference between the value of what is received and its value as represented. Direct economic loss also may be measured by costs of replacement and repair. Consequential economic loss includes all indirect loss, such as loss of profits resulting from inability to make use of the defective product. The claim of the Morrows in this case is one for direct economic loss. A number of courts recently confronting this issue have declined to overturn the privity requirement in warranty actions for economic loss. One principal factor seems to be that these courts simply do not find the social and economic reasons which justify extending enterprise liability to the victims of personal injury or property damage equally compelling in the case of a disappointed buyer suffering "only" economic loss. There is an apparent fear that economic losses may be of a far greater magnitude in value than personal injuries, and being somehow less foreseeable these losses would be less insurable, undermining the risk spreading theory of enterprise liability. Several of the courts which have recently considered this aspect of the privity issue have found those arguments unpersuasive. We are in agreement and hold that there is no- satisfactory justification for a remedial scheme which extends the warranty action to a consumer suffering personal injury or property damage but denies similar relief to the consumer "fortunate" enough to suffer only direct economic loss. Justice Peter's separate opinion in Seely v. White Motor Co., 63 Cal.2d 9, 45 Cal.Rptr. 17, 24, 403 P.2d 145, 152 (1965), persuasively establishes that the cleavage between economic loss and other types of harm is a false one, that each species of harm can constitute the "overwhelming misfortune" in one's life which warrants judicial redress. The Supreme Court of New Jersey is also in complete agreement with this view: From the standpoint of principle, we perceive no sound reason why the implication of reasonable fitness should be attached to the transaction and be actionable against the manufacturer where the defectively made product has caused personal injury and not actionable when inadequate manufacture has put a worthless article in the hands of an innocent purchaser who has paid the required price for it. In such situations considerations of justice require a court to interest itself in originating causes and to apply the principle of implied warranty on that basis, rather than to test its application by whether personal injury or simply loss of bargain resulted in the breach of the warranty. True, the rule of implied warranty had its gestative stirrings because of the greater appeal of the personal injury claim. But, once in existence, the field of operation of the remedy should not be fenced in by such a factor. The fear that if the implied warranty action is extended to direct economic loss, manufacturers will be subjected to liability for damages of unknown and unlimited scope would seem unfounded. The manufacturer may possibly delimit the scope of his potential liability by use of a disclaimer in compliance with AS 45.05.100 or by resort to the limitations authorized in AS 45.05.230. These statutory rights not only preclude extending the theory of strict liability in tort, supra, but also make highly appropriate this extension of the theory of implied warranties. Further, by expanding warranty rights to redress this form of harm, we preserve ". . . the well developed notion that the law of contract should control actions for purely economic losses and that the law of tort should control actions for personal injuries." We therefore hold that a manufacturer can be held liable for direct economic loss attributable to a breach of his implied warranties, without regard to privity of contract between the manufacturer and the ultimate purchaser. It was therefore error for the trial court to dismiss the Morrows' action against New Moon for want of privity. Our decision today preserves the statutory rights of the manufacturer to define his potential liability to the ultimate consumer, by means of express disclaimers and limitations, while protecting the legitimate expectation of the consumer that goods distributed on a wide scale by the use of conduit retailers are fit for their intended use. The manufacturer's rights are not, of course, unfettered. Disclaimers and limitations must comport with the relevant statutory prerequisites and cannot be so oppressive as to be unconscionable within the meaning of AS 45.05.072. On the other hand, under the Code the consumer has a number of responsibilities if he is of enjoy the right of action we recognize today, not the least of which is that he must give notice of the breach of warranty to the manufacturer pursuant to AS 45.05.-174(c)(1). The warranty action brought under the Code must be brought within the statute of limitations period prescribed in AS 45.05.242. If the action is for breach of the implied warranty of fitness for particular purpose, created by AS 45.05.098, the consumer must establish that the war-rantor had reason to know the particular purpose for which the goods were required and that the consumer relied on the seller's skill or judgment to select or furnish suitable goods. In the case of litigation against a remote manufacturer, it would appear that often it will be quite difficult to establish this element of actual or constructive knowledge essential to this particular warranty. In the case at bar the trial judge failed to enter written findings of fact, as are required by Alaska Rule of Civil Procedure 52. We cannot determine from the record whether the Morrows would have prevailed on a theory of breach of implied warranties had the trial court not erred in raising the barrier of privity. Trial was had over two years ago. We are therefore of the opinion that, if the dismissal for want of jurisdiction was also erroneous, a new trial is warranted at which the Morrows will have the opportunity to assert their warranty theories free from the confines of privity. It is to the jurisdictional ruling that we now turn. The Morrows sought to establish personal jurisdiction over New Moon by invoking Alaska's long arm statute, particularly AS 09.05.015 (a) (4), which provides : A court of this state having jurisdiction over the subject matter has jurisdic tion over a person served in an action according to the rules of civil procedure (4) in an action claiming injury to person or property in this state arising out of an act or omission out of this state by the defendant, provided, in addition, that at the time of the injury either (A) solicitation or service activities were carried on in this state by or on behalf of the defendant; or (B) products, materials or things processed, served or manufactured by the defendant were used or consumed in this state in the ordinary course of trade. This statutory provision was interpreted in Jonz v. Garrett/Airesearch Corp., 490 P.2d 1197 (Alaska 1971), which involved an airplane manufactured in Arizona by Hamilton Aircraft Corporation and leased to an Alaskan resident. The aircraft crashed on Alaska's North Slope and the Alaskan lessee brought suit in Fairbanks against Hamilton for damages attributable to negligent manufacture and design of the aircraft. Personal jurisdiction was based on AS 09.05.015(a)(4) and service was by way of Alaska's Commissioner of Commerce. The superior court set aside the service and dismissed the suit for want of personal jurisdiction, but this court reversed, holding the exercise of personal jurisdiction proper under the statute and consistent with due process. Chief Justice Boney, writing for the court in Jons, employed a two-stage analysis. First, he focused upon whether the jurisdictional requisites of AS 09.05.-015(a)(4) were satisfied. The damage to the aircraft supplied the "injury to . property" required by the statute. This injury coupled with [t]he solicitation activities carried on by or on behalf of Hamilton Aircraft in Alaska and the known use in Alaska of two of the Hamilton manufactured Tur-boliners in the ordinary course of trade provided a sufficient basis for obtaining personal jurisdiction under the terms of Alaska's long arm statute. Second, the court turned to the question whether the application of Alaska's long arm statute to the nonresident manufacturer would violate the due process clause of the 14th Amendment to the federal constitution. In so doing, the Jons court restated the familiar test articulated by the United States Supreme Court in International Shoe Co. v. Washington and its progeny: [D]ue process is satisfied when a nonresident defendant has established minimum contacts with the forum state 'such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.' Having previously held that the Alaska long arm statute is an assertion of jurisdiction to the maximum extent permitted by due process, this court noted: The occurrence of an injury in Alaska allegedly caused by an act or omission by a defendant outside of Alaska is of itself a contact with Alaska. While such a contact is not sufficient, taken alone, to establish minimum contacts with Alaska, very little by way of additional contacts need be shown to satisfy due process. Evidence that Hamilton Aircraft knew that the airplane in question was being operated in Alaska, and that such use was entirely foreseeable, was held to be sufficient additional contact to establish minimum contacts with Alaska. In the case at bar the trial court was of the opinion that personal jurisdiction was not established by the evidence adduced. Precious little evidence was offered on the issue at all, in large measure because of a dispute between the parties concerning the burden of proving jurisdiction. Each side contended and continues to contend that the burden of proof in the first instance devolved upon the other. Although this court has not previously had the occasion to speak to this issue, the law seems rather clear. Alaska Rule of Civil Procedure 12(b) requires the defendant to plead the defense of lack of personal jurisdiction in its answer or by motion, at the peril of waiving the defense pursuant to Rule 12(h). Once the defendant has put into dispute the court's power over a nonresident defendant, however, the burden falls on the plaintiff to establish, perhaps by resort to the long arm statute, a prima facie case of personal jurisdiction. We note that when the challenge comes in the form of a motion to quash long arm service of process pursuant to AS 10.05.-642, the burden on the plaintiff is precisely the same: to establish that the Alaskan statute constitutionally conveys on the trial court jurisdiction over this nonresident defendant. In either instance, the burden is on the plaintiff to come forward with jurisdictional evidence. In its answer the defendant denied that New Moon was a foreign corporation doing business in Alaska and also alleged want of personal jurisdiction as an "affirmative defense." An affirmative defense is a new matter not set forth in the complaint which serves as a complete defense to it. The party raising the affirmative defense generally bears the burden of proof as to that issue. The Morrows argue that for this reason New Moon should bear the burden in this case of establishing lack of personal jurisdiction. Alaska Rule of Civil Procedure 8(c), modeled after the corresponding federal rule, requires a defendant to "set forth affirmatively" its affirmative defenses. Failure to do so may constitute a waiver of those defenses. Perhaps out of an excess of caution New Moon here reiterated its jurisdictional claim as an affirmative defense, which designation it now dismisses as a "semantic error." It is clear that absence of personal jurisdiction, properly viewed, is not an affirmative defense; such an allegation raises no new matter but simply denies the existence of one of the elements in plaintiff's case. What then is the effect of the erroneous designation of a specific denial of personal jurisdiction as an affirmative defense? We are of the opinion that it does not warrant shifting the burden of proof on the issue to the defendant. The purpose of the pleading requirements of Rules 8(c) and 12(b) is simply one of notice, to provide the plaintiff with a general summary of his opponent's defenses sufficient to fairly enable him to prepare for trial. We are convinced that such notice was provided in this case, particularly in light of the fact that the defendant denied jurisdiction as well as raised the defense affirmatively. The appropriate course of action is simply to consider the matter as if raised by a denial and to disregard the label "affirmative defense." It would be unwise to penalize the defendant by shifting the burden of proof to him in this case, since the list of affirmative defenses in Rule 8(c) does not purport to be exhaustive and a defendant should be encouraged to plead a defense affirmatively if he is in any doubt as to his ability to put the matter in issue under a denial. Such a penalty would impede quick identification of the disputed issues and would be contrary to the liberal spirit of Alaska's rules of pleading. We therefore hold that New Moon's erroneous designation of its challenge to personal jurisdiction as an "affirmative defense" did not alter the burden of proof in this issue, which in the first instance fell to the Morrows. The record demonstrates that in this particular case, however, New Moon did more than commit a "semantic error" in drafting its pleadings. The pre-trial memorandum of New Moon states that it intended to prove lack of personal jurisdiction. This evidently indicated to the Morrows that New Moon had assumed the burden of proof on the jurisdictional question, and New Moon said nothing to the contrary until closing arguments. We cannot know whether and to what extent the Morrows had prepared evidence to refute the purported proof of New Moon that it was not doing business in this jurisdiction, proof that was never forthcoming during the trial. The Morrows may well have chosen not to present jurisdictional evidence on their own initiative for fear of undermining their persistent (if mistaken) contention that the burden of proof was upon New Moon. Inasmuch as the superi- or court declined to rule on the burden question until after the close of the trial, the Morrows never had the opportunity to present jurisdictional evidence once their erroneous assumption was disabused. In these circumstances we think justice requires that the Morrows be given that opportunity. In light of the unusual procedural developments in this case, to affirm the superior court's dismissal for failure of jurisdiction would encourage deceptive strategems in the formative stages of litigation. Reliance on the opponent's pretrial memorandum would be undermined, and the pre-trial procedures specified in Civil Rule 16 could even become a trap for the unwary. In the interests of fairness and judicial efficiency, this must be prevented. Consequently, we order that this cause be remanded for a new trial in which Morrows will have the opportunity to establish every element of their case, including personal jurisdiction over New Moon. Reversed and remanded for a new trial in accordance with this opinion. . This procedure is authorized by AS 10.05.-642. . Nikki Morrow testified that the plaque on the side of the mobile home identified New Moon as its manufacturer. A friend of the Morrows who had been present at the time of the sale stated that she understood from the salesman that the home was a New Moon make. The trailer was also described as a New Moon home in the security agreement papers held by the bank and in a 1972 repair estimate drawn up by a mobile home repairman. . 479 P.2d at 326-27 n. 15; cf. Annot., Necessity and Propriety of Instructing on Alternative Theories of Negligence or Breach of Warranty, Where Instruction on Strict Liability in Tort is Given in Products Liability Case, 52 A.L.R.3d 101 (1973). . 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897 (1962). . 454 P.2d at 247, quoting Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 27 Cal.Rptr. 697, 700, 377 P.2d 897, 900 (1962). . Among the better articles are: Speidel, Products Liability, Economic Loss and the ÜGC, 40 Tenn.L.Rev. 309 (1973); Prosser, The Fall of the Citadel (Strict Liability to the Consumer), 50 Minn.L.Rev. 791 (1966); Comment, The Vexing Problem of Purely Economic Loss in Products Liability: An Injury in Search of a Remedy, 4 Seton Hall L.Rev. 145 (1972); Note, Economic Loss in Products Liability Jurisprudence, 66 Colum. L.Rev. 917 (1966); Comment, Manufacturers' Liability to Remote Purchasers for 'Economic Loss' Damages—Tort or Contract?, 114 U.Pa.L.Rev. 539 (1966). Other articles on the subject include: Note, Products Liability in Oregon: Present and Future, 8 Willamette L.J. 410 (1972); Comment, 7 Creighton L.Rev. 396 (1974) ; Note, Economic Loss from Defective Products, 4 Willamette L.J. 402 (1967); Note, The Demise of Vertical Privity: Economic Loss Under the Uniform Commercial Code, 2 Hofstra L.Rev. 749 (1974). See also W. Prosser, Law of Torts 664-67 (4th ed. 1971). . 207 A.2d at 312. . 207 A.2d at 311-12 (citation omitted). . 45 Cal.Rptr. at 23, 403 P.2d at 151. . See, e. g., Bright v. Goodyear Tire & Rubber Co., 463 F.2d 240 (9th Cir. 1972) (buyer of an automobile allegedly having defective tires could not sue under California law the tire manufacturer in strict liability because the buyer did not allege he had suffered physical injury); Eli Lilly & Co. v. Casey, 472 S.W.2d 598 (Tex.Civ.App.1971) (buyer of weed control chemical may not sue the manufacturer on a strict liability theory to recover damages for economic loss); Melody Home Mfg. Co. v. Morrison, 455 S.W.2d 825 (Tex.Civ.App.1970) (purchaser of house trailer cannot hold manufacturer strictly liable in tort where only injury was economic loss); Rhodes Pharmacol Co. v. Continental Cam Co., 72 Ill.App.2d 362, 219 N.E.2d 726 (3966) (damages for leaking aerosol cans could not be recovered from the manufacturer of the cans on the basis of strict liability, but held that case could proceed on theory of breach of implied warranty of fitness); Price v. Gatlin, 241 Or. 315, 405 P.2d 502 (1965) (wholesaler could not be held liable to the buyer on a strict liability theory for economic loss). The cases are collected in Annot., Privity of Contract as Essential in Action Against Remote Manufacturer or Distributor for Defects in Goods Not Causing Injury to Person or to Other Property, 16 A.D.R.3d 683 (1967). Only one case follows the Santor decision, Cova v. Harley Davidson Motor Co., 26 Mich.App. 602, 182 N.W.2d 800 (1970). Notwithstanding lack of privity, other courts have permitted suits against the manufacturer of a product, based on a misrepresentation theory, where the product has been widely advertised and the buyer relied on the advertising. See, e. g., Ford Motor Co. v. Lonon, 217 Tenn. 400, 398 S.W.2d 240 (1966); Randy Knitwear, Inc. v. American Cyanamid Co., 11 N.Y.2d 5, 226 N.Y.S.2d 363, 181 N.E.2d 399 (1962). The misrepresentation theory has no application here because the Morrows have made no showing that they were aware of, or relied on, advertising by New Moon. . These disclaimer, liability limitation and notice rights of the manufacturer are not abrogated by a relaxation of the privity requirement in the realm of warranty liability, and might, within the confines of the doctrine of unconscionability, be available to the manufacturer against the remote purchaser suing on a theory of implied warranties. We will treat this matter in more detail subsequently. See Comment, The Vexing Problem of the Purely Economic Loss In Products Liability: An Injury in Search of a Remedy, 4 Seton Hall L.Rev. 145, 173-74 (1972). . Our decision in Clary v. Fifth Avenue Chrysler Center, Inc., 454 P.2d 244 (Alaska 1969), in which we approved strict liability in tort for personal injuries, was not in derogation of these rights, for the reason that a manufacturer has no right to disclaim or limit the liability for personal injury. The Code provides that such restrictions are prima facie. unconscionable, AS 45.05.230(c), and they are rarely upheld by the courts. See generally, Braucher, The Unconscionable Contract or Terms, 31 U.Pitt.L.Rev. 337 (1970); Lauer, Sales Warranties Under the Uniform Commercial Code, 30 Mo.L.Rev. 236 (1965); Leff, Unconseiondbility and the Code—The Emperor's New Clause, 115 U.Pa. L.Rev. 485 (1967); Murray, Unconscionability, Unconscionability, 31 U.Pitt.L.Rev. 1 (1968); Spanogle, Analyzing Unconscionability Problems, 117 U.Pa.L.Rev. 931 (1969). . See also Hawkins Constr. Co. v. Matthews Co., Inc., 190 Neb. 546, 209 N.W.2d 643, 651-54 (1973). . AS 45.05.096 provides: (a)Unless excluded or modified (§ 100), a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind. Under this section the serving for value of food or drink to be consumed either on the premises or elsewhere is a sale. (b) Goods to be merchantable must at least (1) pass without objection to the trade under the contract description; (2) in the case of fungible goods, be of fair average quality within the description; (3) be fit for the ordinary purposes for which the goods are used; (4) run, within the variations permitted by the agreement, of even kind, quality, and quantity within each unit and among all units involved; (5) be adequately contained, packaged, and labeled as the agreement requires; and (6) conform to the promises or affirmations of fact made on the container or label. (c) Unless excluded or modified (§ 100), other implied warranties may arise from course of dealing or usage of trade. . AS 45.05.098 provides: If the seller at the time of contracting has reason to know a particular purpose for which the goods are required and that the buyer is relying on the seller's skill or judgment to select or furnish suitable goods, there is, unless excluded or modified under § 100 of this chapter, an implied warranty that the goods shall be fit for that purpose. . Apeco Corp. v. Bishop Mobile Homes, Inc., 506 S.W.2d 711 (Tex.Civ.App.1974). See Note, Mobilehomes: Present Regulation and Heeded Reforms, 27 Stan.L.Rev. 159, 163 (1974); Note, Products Liability—Mobile Homes a Neglected Product?, 3 Memphis State U.L.Rev. 92, 97-101 (1972). . The Uniform Sales Act (Sections 29-1-1 through 29-1-189 A.C.L.A.1949, as amended, S.L.A.1955, eh. 96 § 2) was effective until superseded by the Uniform Commercial Code on January 1, 1963. § 10.101 ch. 114 S.L.A. 1962. . See also Eggen v. M & K Trailers and Mobile Home Brokers, Inc., 29 Cal.App. 177, 482 P.2d 435 (1971); Beck v. Spindler, 256 Minn. 543, 99 N.W.2d 670 (1959); Wade v. Chariot Trailer Co., 331 Mich. 576, 50 N.W.2d 162 (1951). . Cf. Minsel v. El Rancho Mobile Home Center, Inc., 32 Mich.App. 10, 188 N.W.2d 9 (1971) (applying other provisions of the Code to a mobile home sales transaction). . See also Alaska Rent-A-Car, Inc. v. Ford Motor Co., 526 P.2d 1136 (Alaska 1974); Sinka v. Northern Commercial Co., 491 P.2d 116 (Alaska 1971). . The facts developed in this case do not disclose whether New Moon sold the mobile homo directly to Golden Heart or through an intermediate wholesaler. In either event, the parties do not dispute that at the time of the transaction in question title was lodged with Golden Heart. Necessarily, therefore, New Moon "sold" the home within the meaning of AS 45.05.046 to someone, consequently its sale generated the implied warranties of Article II of the Code. . Salvador v. J. H. English of Phila., Inc., 224 Pa.Super. 377, 307 A.2d 398 (1973), aff'd, 457 Pa. 24, 319 A.2d 903 (1974). . See Kassab v. Central Soya, 432 Pa. 217, 246 A.2d 848 (1968); J. White & R. Summers, Uniform Commercial Code, § 11-2, at 327 (1972). . Although Alaska's legislature did not enact the Official Comments as part of Title 45, and we do not find them necessarily controlling in all instances in interpreting the Code, they are of persuasive assistance in construction and application of the Code. See A & & Constr. Co. v. Reid Brothers Logging Co., 547 P.2d 1207 (Alaska 1976); Bachner v. Pearson, 479 P.2d 319, 327 n. 18 (Alaska 1970); National Car Rental v. Fox, 18 Ariz.App. 160, 500 P.2d 1148 (1972); First Nat'l Bank v. Smoker, 153 Ind.App. 71, 286 N.E.2d 203 (1972). . Suvada v. White Motor Co., 51 Ill.App.2d 318, 201 N.E.2d 313 (1964), aff'd, 32 Ill.2d 612, 210 N.E.2d 182 (1965); Kassab v. Central Soya, 432 Pa. 217, 246 A.2d 848 (1968). By this statement we do not mean to intimate that the matter of horizontal privity is exclusively controlled by AS 45.05.-104. The fact that a given plaintiff is not expressly authorized to sue for breach of warranty under that provision will not preclude this court from possibly holding at some future date, as a matter of case law, that plaintiff is not barred by a requirement of horizontal privity. See Haragan v. Union Oil Co., 312 F.Supp. 1392 (D.Alaska 1970); R. Anderson, Uniform Commercial Code, § 2-318:6 at 732 (1970); Franklin, When Worlds Collide: Liability Theories and Disclaimers in Defective-Product Cases, 18 Stan.L.Rev. 974, 999-1000 (1966); Eyer, The Impact of the Uniform Commercial Code as the California Law of Sales Warranties, 8 U.G.L.A.L.Rev. 281, 322-28 (1961). . W. Prosser, Law of Torts § 97 at 655 (4th ed. 1971). . For example, New Jersey revolutionized the law of implied warranties with its landmark decision in Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 161 A.2d 69 (1960), yet it has embraced strict tort liability as well. See Schipper v. Levitt & Sons, Inc., 44 N.J. 70, 207 A.2d 314 (1965); Santor v. A. & M. Karagheusian, Inc., 44 N.J. 52, 207 A.2d 305 (1965). Iowa is another example. Compare State Farm Hut. Auto. Ins. Co. v. Anderson-Weber, Inc., 252 Iowa 1289, 110 N.W.2d 449 (1961) (warranty theory, privity of contract abolished) with Kleve v. General Motors Corp., 210 N.W.2d 568 (strict liability in tort). But cf. Christofferson v. Kaiser Foundation Hospitals, 15 Cal.App.3d 75, 92 Cal.Rptr. 825 (1971). . W. Prosser, supra note 26, § 97, at 655 (". . . 'citadel of privity' has fallen"); Kassab v. Central Soya, 432 Pa. 217, 246 A.2d 848, 852 (1968) (". . . all but crumbled to dust"); Annot., 16 A.L.R.3d 683, 687 (1967) (". . . all but razed. . . ."). . See Franklin, When Worlds Collide: Liability Theories and Disclaimers in Defective-Product Cases, 18 Stan.L.Rev. 974, 975-79 (1966); Prosser, The Fall of the Citadel of Privity (Strict Liability to the Consumer), 50 Minn.L.Rev. 791 (1966); Jaeger, Privity of Warranty: Has the Tocsin Soundedf, 1 Duquesne L.Rev. 1 (1963); Prosser, The Assault Upon the Citadel, (Strict Liability to the Consumer), 69 Yale L.J. 1099 (1960). . At one time there were evidently at least 29 such exceptions. See Gillam, Products Liability in a Nutshell, 37 Ore.L.Rev. 119, 153-55 (1958). . Kassab v. Central Soya, 432 Pa. 217, 246 A.2d 848, 853 (1968) (footnote omitted). . Id. at 854 n. 6; Miller v. Preitz, 422 Pa. 383, 393, 221 A.2d 320, 325 (1966). . Comment, The Vexing Problem, of the Purely Economic Loss in Products Liability: An Injury in Search of a Remedy, 4 Seton Hall L.Rev. 145, 154 (1972); Annot., 16 A.L.R.3d 683, 687 (1967). . AS 45.05.220(b) provides: The measure of damages for breach of warranty is the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted, unless special circumstances show proximate damages of a different amount. This is the measure of damages ordinarily provided by the Code for the consumer who purchases and accepts goods and then sues because the goods are not as warranted. Frequently the measure is determined by reference to the cost of repairs. J. White and R. Summers, Uniform Commercial Code § 10-1 at 306, 308 (1972). AS 45.05.220(c) provides that in a "proper case" consequential damages may also be recovered. Consequential damages are defined by AS 45.05.222(b) as including (1) loss resulting from general or particular requirements and needs of which the seller at the time of contracting had reason to know and which could not reasonably be prevented by cover or otherwise; and (2) injury to person or property proximately resulting from a breach of warranty. The item of consequential damage most frequently sought is lost profits attributable to the warranty breach. J. White and R. Summers, supra, § 10-4 at 319. . Note, Economic Loss in Products Liability Jurisprudence, 66 Colum.L.Rev. 917, 918 (1966). . Koellmer v. Chrysler Motors Corp., 6 Conn.Cir. 478, 276 A.2d 807 (1970); General Motors Corp. v. Halco Instruments, Inc., 124 Ga.App. 630, 185 S.E.2d 619 (1971); Necktas v. General Motors Corp., 357 Mass. 546, 259 N.E.2d 234 (1970); Hupp Corp. v. Metered Washer Service, 256 Or. 245, 472 P.2d 816 (1970); State ex rel. Western Seed Prod. Corp. v. Campbell, 250 Or. 262, 442 P.2d 215 (1968); Price v. Gatlin, 241 Or. 315, 405 P.2d 502 (1965); Henry v. John W. Eshelman & Sons, 99 R.I. 518, 209 A.2d 46 (1965); Dimoff v. Ernie Majer, Inc., 55 Wash.2d 385, 347 P.2d 1056 (1960). . See, e. g., State ex rel. Western Seed Prod. Corp. v. Campbell, 250 Or. 262, 442 P.2d 215 (1968) and Price v. Gatlin, 241 Or. 315, 405 P.2d 502 (1965). In the latter ease Justice Holman tried to elucidate the distinction in a concurring opinion at 504: In establishing liability in personal injury cases courts have been motivated to overlook any necessity for privity because the hazard to life and health is usually a personal disaster of major proportions to the individual both physically and financially and something of minor importance to the manufacturer or wholesaler against which they can protect themselves by a distribution of risk through the price of the article sold. There has not been the same social necessity to motivate the recovery for strict economic losses where the damaged person's health, and therefore his basic earning capacity, has remained unimpaired. See also Seely v. White Motor Co., 63 Cal. 2d 9, 45 Cal.Rptr. 17, 23, 403 P.2d 145, 151 (1965). . J. White and R. Summers, Uniform Commercial Code, § 11-5 at 334 (1972); Note, Economic Loss in Products Liability Jurisprudence, 66 Colum.L.Rev. 917, 964-65 (1966) and cases discussed therein. . Lynne Carol Fashions, Inc. v. Cranston Print Works Co., 453 F.2d 1177 (3d Cir. 1972) (stating Pennsylvania law) ; Chema v. Ford Motor Co., 246 Cal.App.2d 639, 55 Cal.Rptr. 94 (1966); Manheim v. Ford Motor Co., 201 So.2d 440 (Fla.1967); Hoskins v. Jackson Crain Co., 63 So.2d 514 (Fla.1953); Smith v. Platt Motors, Inc., 137 So.2d 239 (Fla.App.1962); Continental Copper & Steel Industries, Inc. v. E. C. "Bed" Cornelius, Inc., 104 So.2d 40 (Fla.App.1958); Rhodes Pharmacol Co. v. Continental Can Co., 72 Ill.App.2d 362, 219 N.E.2d 726 (1966); State Farm Mut. Auto. Ins. Co. v. Anderson-Weber, Inc., 252 Iowa 1289, 110 N.W.2d 449 (1961); Spence v. Three Rivers Builders & Masonry Supply, Inc., 353 Mich. 120, 90 N.W.2d 873 (1958); Cova v. Harley Davidson Motor Co., 26 Mich.App. 602, 182 N.W.2d 800 (1970); Beck v. Spindler, 256 Minn. 543, 99 N.W.2d 670 (1959); Santor v. A. & M. Karagheusian, Inc., 44 N.J. 52, 207 A.2d 305 (1965); Lang v. General Motors Corp., 136 N.W.2d 805 (N.D.1965); Kassab v. Central Soya, 432 Pa. 217, 246 A.2d 848 (1968); Ford Motor Co. v. Grimes, 408 S.W.2d 313 (Tex.Civ.App.1966). . Santor v. A. & M. Karagheusian, Inc., 44 N.J. 52, 60, 207 A.2d 305, 309 (1965). See also Lang v. General Motors Corp., 136 N.W.2d 805 (N.D.1965); Note, Economic Loss in Products Liability Jurisprudence, 66 Colum.L.Rev. 917, 964 (1966). . Comment, The Vexing Problem of Purely Economic Loss in Products Liability: An Injury in Search of a Remedy, 4 Seton Hall L.Rev. 145, 175 (1972). . We recognize that the arguments against the abolition of privity are more compelling when the injury alleged is damages of a consequential nature many times the value of the manufacturer's product. See, e. g., Note, Economic Lose in Products Liability Jurisprudence, 66 Colum.L.Itev. 917, 965-66 (1965). We do not speak today to the issue of consequential economic loss, other than to note that AS 45.05.222 governs the recovery of such damages and requires, among other things, that said damages must have been foreseeable by the manufacturer. Adams v. J. I. Case Co., 125 Ill.App.2d 388, 261 N.E. 2d 1 (1970). . It is incumbent on the courts of Alaska to enforce the provisions of the Uniform Commercial Code when applicable, including the doctrine of unconscionability embodied in AS 45.05.072. Particularly close judicial scrutiny is warranted when a manufacturer exacts a liability disclaimer or remedy limitation from a consumer who enjoys little or no bargaining power in the market place. As one court has observed: Unconscionability has generally been recognized to include an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party. Williams v. Walker-Thomas Furniture Co., 121 U.S.App.D.C. 315, 350 F.2d 445, 449 (1965) (Wright, J.). See also Unico v. Owen, 50 N.J. 101, 232 A.2d 405 (1967); Electronics Corp. of America v. Lear Jet Corp., 55 Misc.2d 1066, 286 N.Y.S.2d 711 (Sup.Ct.1967); Comment, The Vexing Problem of the Purely Economic Loss in Products Liability: An Injury in Search of a Remedy, 4 Seton Hall L.Rev. 145, 181-83 (1967). .Prince v. LeVan, 486 P.2d 959 (Alaska 1971). . 490 P.2d at 1199. . 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). . Travelers Health Ass'n v. Virginia, 339 U.S. 643, 70 S.Ct. 927, 94 L.Ed. 1154 (1950); McGee v. International Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957); Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958); See also Note, In Personam Jurisdiction Over Nonresident Manufacturers in Product Liability Actions, 63 Mich.L.Rev. 1028 (1965). . 490 P.2d at 1199, quoting International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95, 102 (1945). . Stephenson v. Duriron Co., 401 P.2d 423, 424 (Alaska 1965); Northern Supply, Inc. v. Curtiss-Wright Corp., 397 P.2d 1013, 1016-17 (Alaska 1965) (holding that AS 10.05.642, the service of process statute, extends jurisdiction of Alaska courts to "the outer limits of the due process clause of the federal constitution"). Accord Jones Enterprises, Inc. v. Atlas Serv. Corp., 442 F.2d 1136 (9th Cir. 1971). In Jones Enterprises, AS 09.05.015 was construed to confer long arm jurisdiction over a subcontractor who prepared engineering designs and drawings outside Alaska for an Anchorage apartment house that collapsed during the 1964 earthquake. Although the designs and drawings were supplied to another contractor outside Alaska, the fact that the design subcontractor knew that the ultimate destination of its work product was Alaska was a sufficient contact to render the subcontractor subject to Alaska's long arm jurisdiction. In Jones Enterprises, Judge Hufstedler relied heavily on Duple Motor Bodies, Ltd. v. Hollingsworth, 417 F.2d 231 (9th Cir. 1969), in which the due process clause was held satisfied when the Hawaii long arm statute was used to obtain personal jurisdiction over an English manufacturer of a coach body that collapsed when a tour bus overturned. In Duple, commission of a tortious act in Hawaii coupled with the manufacturer's sale of the coach to Vauxhall, the chassis manufacturer, with knowledge that the coach was destined for Hawaii, met the requirements of due process. . 490 P.2d at 1199 (footnotes omitted). . Lycoming Div. of Avco Corp. v. Superior Court, 22 Ariz.App. 150, 524 P.2d 1323 (1974); O'Hare Int'l Bank v. Hampton, 437 F.2d 1173 (7th Cir. 1971) (Illinois law); Midwest Packaging Corp. v. Oerlikon Plastics, Ltd., 279 F.Supp. 816 (S.D.Iowa 1968); Tice v. Wilmington Chemical Corp., 259 Iowa 27, 141 N.W.2d 616 (1966); Victory Carriers, Inc. v. Hawkins, 44 Haw. 250, 352 P.2d 314 (1960). . White v. Goldthwaite, 204 Kan. 83, 460 P.2d 578 (1969); Young Spring & Wire Corp. v. Smith, 176 So.2d 903 (Fla.1965); Detsch & Co. v. Callar, Inc., 228 Cal.App.2d 556, 39 Cal.Rptr. 626 (1964); Proctor & Schwarts, Inc. v. Superior Court, 99 Cal.App.2d 376, 221 P.2d 972 (1950). See generally C. Wright and A. Miller, Federal Practice and Procedure: Civil § 1351, at 561-62 (1969). . Rollins v. Leibold, 512 P.2d 937, 940-41 (Alaska 1973). . Evans v. Buchner, 386 P.2d 836 (Alaska 1963); Ridgeway v. North Star Terminal & Stevedoring Co., 378 P.2d 647 (Alaska 1963); Rees v. Archibald, 6 Utah 2d 264, 311 P.2d 788 (1957); Wilson v. California R. R. Co., 94 Cal. 166, 29 P. 861 (1892). . Fed.R.Civ.Pro. 8(c). . Merrill v. Fait in, 430 P.2d 913 (Alaska 1967); Trio Process Corp. v. L. Goldstein's Sons, Inc,., 461 F.2d 66 (3d Cir.), cert. denied, 409 U.S. 997, 93 S.Ct. 319, 34 L.Ed.2d 262 (1972); Texas Gulf Sulphur Co. v. Robles, 513 P.2d 963 (Wyo.1973). See generally, C. Wright & A. Miller, supra note 52, § 1278. . Blonder-Tongue Labs, Inc. v. University of Illinois Foundation, 402 U.S. 313, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971); Sly v. United States, 325 F.Supp. 89 (D.Ill.1954), reversed on other grounds, 220 F.2d 212 (7th Cir. 1955); Mueller v. Rayon Consulmts, Inc., 170 F.Supp. 555 (S.E.N.Y.1959); Cf. Schaible v. Fairbanks Medical & Surgical Clinic, Inc., 531 P.2d 1252 (Alaska 1975). . C. Wright and A. Miller, supra note 52, § 1278 at 352. . Cf. Schaible v. Fairbanks Medical & Surgical Clinic, Inc., 531 P.2d 1252 (Alaska 1975).

10465459

Duncan Campbell WEBB, Petitioner, v. STATE of Alaska, Respondent

Webb v. State

1974-10-14

No. 2305

35

36

527 P.2d 35

527

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:28:42.330390+00:00

CAP

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

Duncan Campbell WEBB, Petitioner, v. STATE of Alaska, Respondent.

Duncan Campbell WEBB, Petitioner, v. STATE of Alaska, Respondent. No. 2305. Supreme Court of Alaska. Oct. 14, 1974. Wendell P. Kay, Kay, Miller, Libbey, Kelly, Christie & Fuld, Anchorage, for petitioner. Stephen G. Dunning, Asst. Dist. Atty., Anchorage, Norman C. Gorsuch, Atty. Gen., Juneau, Joseph D. Balfe, Dist. Atty., Anchorage, for respondent.

835

5127

OPINION Before RABINOWITZ, C. J., and CONNOR, ERWIN, BOOCHEVER and FITZGERALD, JJ. PER CURIAM. In this petition Webb seeks to review an order of the trial court denying his motion to dismiss the indictment. An original motion to dismiss was denied by the superior court prior to trial. Webb obtained a limited stay of trial from July 15 to July 18, 1974 so that he might seek a review of the denial of his motion. An application to this court for a further stay of the trial pending the filing of a petition for review and its disposition was denied by Justice Connor. Thereafter, trial commenced on July 18, 1974, mooting the petition for review. The jury failed to reach a verdict and on August 2, 1974 a mistrial was ordered. On August 1, 1974, immediately following submission of the case to the jury, Webb renewed his motion to dismiss alleging that the indictment was based on improperly admitted hearsay testimony in violation of Criminal Rule 6(r), The motion was denied. Upon being informed that the state intended to proceed with retrial, Webb filed a petition for review of the superior court's ruling of August 1, 1974 denying Webb's renewed motion to dismiss the indictment. In view of the facts that an extensive trial has taken place and the overruling of the order denying the motion to dismiss might prevent Webb and the state from having to undergo a second lengthy trial, we grant review. Under these circumstances, if petitioner's contentions are correct, postponement of review until normal appeal may be taken from a final judgment will result in injustice because of unnecessary delay, expense and hardship. The sound policy behind the requirement that appeals be taken only from final judgments is outweighed by the claim of the individual case that justice demands a present and immediate review of the particular non-appealable order. The indictment charged Webb by Count I with concealing or aiding offenders with knowledge that they had committed the felony of murder and with intent that they may avoid or escape future arrest, trial, conviction or punishment; and by Count II with compounding or concealing the crime of murder and withholding evidence of the crime. A third count was dismissed prior to trial. It is Webb's contention that the grand jury based its indictment on improperly admitted hearsay evidence. We have carefully reviewed the transcript of the hearing and hold that there was adequate direct testimony to justify the indictment. Moreover, the hearsay testimony was either peripheral or cumulative to direct testimony. We, therefore, do not reach the issue as to whether the hearsay testimony was improperly admitted. Petition granted and order denying motion to dismiss affirmed. . Alaska R.Crim.P. 6(r) specifies: (r) Evidence which would be legally admissible at trial shall be admissible before the grand jury. In appropriate cases, however, witnesses may be presented to summarize admissible evidence if the admissible evidence will be available at trial. Hearsay evidence shall not be presented to the grand jury absent compelling justification for its introduction. If hearsay evidence is presented to the grand jury, the reasons for its use shall be stated on the record. . The petition was filed on August 21, 1974, an extension of time having been granted. . Alaska R.App.P. 23(e) authorizes petitions for review: (e) Where postponement of review until normal appeal may be taken from a final judgment or where it will result in injustice because of impairment of a legal right, or because of unnecessary delay, expenses, hardship or other related factors. Relief heretofore available by writs of review, certiorari, mandamus, prohibition, and other writs necessary or appropriate to the complete exei'cise of this court's jurisdiction, may be obtained by petition for review and the procedure for obtaining such relief shall be as prescribed in Part VI of these rules. . Alaska R.App.P. 24(a)(2) specifies: (a) A review is not a matter of right, but will be granted only: . . . (2) where tlie sound policy behind the general rule of requiring appeals to be taken only from final judgments is outweighed by the claim of the individual case that justice demands a present and immediate review of a particular non-appealable order or decision ; . . . . Due to Webb's pending retrial, we do not consider it appropriate to detail in this opinion the evidence submitted to the grand jury. . McKinnon v. State, 526 P.2d 18, Opn. No. 1075 (Alaska, August 30, 1974); State v. Johnson, 525 P.2d 532, Opn. No. 1069 (Alaska, August 16, 1974); State v. Skan, 511 P.2d 1296 (Alaska 1973); State v. George, 511 P.2d 1293 (Alaska 1973); Taggard v. State, 500 P.2d 238 (Alaska 1972); Burkholder v. State, 491 P.2d 754 (Alaska 1971).

10465395

STATE of Alaska, Petitioner, v. June BECKLEY, Respondent

State v. Beckley

1974-10-14

No. 2277

33

35

527 P.2d 33

527

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:28:42.330390+00:00

CAP

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

STATE of Alaska, Petitioner, v. June BECKLEY, Respondent.

STATE of Alaska, Petitioner, v. June BECKLEY, Respondent. No. 2277. Supreme Court of Alaska. Oct. 14, 1974. Stephen G. Dunning, Asst. Dist. Atty., Joseph D. Balfe, Dist. Atty., Anchorage, Norman C. Gorsuch, Atty. Gen., Juneau, for petitioner. Duncan C. Webb, Anchorage, for respondent. Before RABINOWITZ, Chief Justice, and CONNOR, ERWIN, BOOCHEVER and FITZGERALD, Justices.

914

5506

OPINION PER CURIAM. In this case, the State of Alaska petitions for review of an order of the trial court granting Beckley's motion to suppress the admission into evidence of narcotic drugs on the grounds that the drugs had been illegally seized under an invalid search warrant. Her motion to dismiss the indictment based on the presentation of the allegedly illegally seized evidence before the grand jury was also granted. Because the orders from which the petition was taken affected a substantial right in the action which, in effect, terminates the proceeding and discontinues the action, and for the reason that the sound policy behind the general rule of requiring appeals to be taken only from final judgments is outweighed by the claim of the individual case that justice demands a present and immediate review of the orders, we grant review. The search warrant here in question was issued upon the sworn testimony of Officer McCoy. He stated that on three separate occasions, October 31, November 3 and November 28, 1973, he and another officer strip-searched Bernard Lono prior to transporting him to a place close to the Beckley residence located at 1412 Kinnick-innick Street. On each occasion, he observed Lono enter and shortly thereafter emerge from the Beckley residence which McCoy had had under constant surveillance. On two occasions, after leaving the Beckley residence, Lono surrendered heroin to McCoy. On the third occasion, Lono handed over a mixture of amphetamines and cocaine. McCoy's testimony was given before the district court on November 30, 1973, and a- search warrant was issued to search the residence known as 1412 Kinnickinnick Street. McCoy also testified that Lono told him that he purchased the drugs at that residence, making the purchase on one occasion from Dean Beckley, the second time from Dean Beckley and Davis Stone and a third time from June Beckley. The trial judge found there was probable cause to search the persons of the Beckleys but not to search the residence. He based his decision on dicta in the case of United States v. Di Re. In that case, the police had information that the owner of an automobile was selling counterfeit gasoline ration coupons. On going to the automobile, the police found the owner and a passenger in the automobile. The passenger was arrested without a warrant and taken to the police station where a search of his person disclosed counterfeit gasoline coupons. The Supreme Court held that whether or not there was a right to search the automobile under authority of the decision in Carroll v. United States, it did not justify a search of the person of the passenger. Reasoning that since the right to search an automobile did not give a right to search the passenger, the trial judge in the case before us concluded that the testimony of Officer McCoy was grounds for search of the persons of the Beckleys but not of the premises. We find, however, that the sworn testimony of Officer McCoy based upon McCoy's personal observations and without reliance upon the hearsay testimony as to Lono's statements gave probable cause to believe that contraband would be found on the premises from which Bernard Lono had apparently secured illegal drugs on three separate occasions. Consequently, the search warrant was properly issued for a search of the premises. The trial judge dismissed the indictment on the basis of the presentation to the grand jury of the evidence secured as, a result of the search. Since we find that the search warrant was properly issued, it follows that the order dismissing the indictment must he overruled. We accordingly overrule the orders from which this petition has been taken and remand the case for further proceedings under the indictment. .Appellate Rule 23 provides in part: An aggrieved party, including the State of Alaska, may petition this court as set forth in Rule 24 to be permitted to review any order or decision of the superior court, not otherwise appealable under Rule 5, in any action or proceeding, civil or criminal as follows: (c) Prom any order affecting a substantial right in an action or proceeding which either (1) in effect terminates the proceeding or action and prevents a final judgment therein; or (2) discontinues the action ; . . . Appellate Rule 24(a) (2) provides: (a) A review is not a matter of right, but will be granted only: . . . (2) where the sound policy behind the general rule of requiring appeals to be taken only from final judgments is outweighed by the claim of the individual case that justice demands a present and immediate review of a particular non-appealable order or decision; . . . . 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210 (1948). . 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). . We accordingly need not consider the question of the use of hearsay in securing a search warrant which we dealt with in Harrelson v. State, 516 P.2d 390 (Alaska 1973) and Davis v. State, 499 P.2d 1025 (Alaska 1972). . Harrelson v. State, 516 P.2d 390, 396 (Alaska 1973); see also Martel v. State, 511 P.2d 1055 (Alaska 1973); State v. Davenport, 510 P.2d 78 (Alaska 1973).

10465571

Will Key JEFFERSON, Appellant, v. STATE of Alaska et al., Appellees

Jefferson v. State

1974-09-27

No. 2000

37

46

527 P.2d 37

527

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:28:42.330390+00:00

CAP

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

Will Key JEFFERSON, Appellant, v. STATE of Alaska et al., Appellees.

Will Key JEFFERSON, Appellant, v. STATE of Alaska et al., Appellees. No. 2000. Supreme Court of Alaska. Sept. 27, 1974. Will Key Jefferson, in pro. per. John R. Spencer, City Atty., and Vincent P. Vitale, Asst. City Atty., Anchorage, for appellee, City of Anchorage. Gary Thurlow, Borough Atty., and Deni-son Lane, Asst. Borough Atty., Anchorage, for appellee, Greater Anchorage Area Borough. Before RABINOWITZ, Chief Justice, and CONNOR, ERWIN, BOOCHEVER and FITZGERALD, Justices.

5387

33712

OPINION FITZGERALD, Justice. Will Key Jefferson brought suit for in-junctive and declaratory relief against the State of Alaska, the Greater Anchorage Area Borough, and the City of Anchorage. His complaint consisted of a welter of allegations which makes a logical analysis and treatment difficult. The essence of the matter appears to be that the Borough had illegally taken over operation and control of the sewer system of the City of Anchorage, thereby harming Jefferson, a resident and taxpayer in the city. Some discussion of the factual background of this suit is necessary. In 1966 the Borough held an election in which the following proposition was voted upon by Borough voters: "Shall the [Borough] exercise on an areawide basis the powers and functions concerning sewers, including the operation and maintenance of sanitary sewers and sewage treatment facilities, given to cities of the first class under the laws of the State of Alaska?" The proposition was approved by the voters. Following the election, the Borough and City entered into negotiations to transfer the City's sewer system and related assets to the Borough. Extended discussions produced a final agreement as to the terms of the transfer in February of 1970. The agreement was approved by the city council of the City and the assembly of the Borough. Pursuant to that agreement, the Borough has taken control and operation of the City's sewer system as well as its own. In December of 1970 Jefferson brought this suit to enjoin transfer of control to the Borough. The Borough moved for summary judgment, urging that the suit could be resolved as a matter of law because there were no genuine issues of material fact to be determined at a trial. The trial court entered summary judgment in favor of the Borough, City and State, and Jefferson has appealed. Jefferson's allegations may fairly be summarized to include two principal contentions. He urges that the Borough's assumption of the City sewer system was illegal because the Borough is not a legal municipal corporation, and because the City's charter prohibits transfer of municipally owned utilities without an election in which such a transfer is approved by a three-fifths vote. BOROUGH AS LEGAL ENTITY Jefferson argues that the Borough is not a legal entity, and thus lacks the capacity to exercise powers under the state's municipal code, because the statutes under which it was incorporated are unconstitutional. The Borough responds that Jefferson, as a private person, cannot litigate the issue of the Borough's de jure existence, i. e. that he can only inquire into the Borough's de facto existence. While we are in general agreement with this contention, we believe it misses the criti cal point of Jefferson's argument, that the defect alleged here is so serious that the Borough could not attain even de facto corporate existence. In Port Valdez Co., Inc. v. City of Valdez, Op. No. 1044, 522 P.2d 1147 (Alaska 1974), this court enumerated the elements of an effective defense of de facto incorporation : 1) a constitutional or statutory provision under which the incorporation might lawfully have been accomplished; 2) an attempted compliance in good faith with the provision(s); 3) a colorable compliance with the provision (s) ; 4) An assumption in good faith of municipal powers by the corporation. Jefferson's challenge arises under the first of these elements. He asserts there was no valid constitutional or statutory provision under which the incorporation could have been accomplished. The trial court ruled that the Borough had obtained de facto status, thereby ruling implicitly that the statutes under which the Borough was incorporated were constitutional. The Borough was incorporated pursuant to Chapter 52 S.L.A.1963. That act provided in part that should the Anchorage Election District #8 fail to incorporate under the local option provisions of A.S. 7.10.010-.140 by January 1, 1964, the area would nevertheless become a borough under the mandate of Ch. 52. Jefferson asserts that the statute under which the Borough assembly was established and which controls the composition and apportionment of the assembly was unconstitutional, thereby vitiating the Borough's legal existence. Assuming that Jefferson is correct in asserting that the proportional representation scheme of former AS 7.10.040 was unconstitutional, we do not agree that this defect would necessarily foreclose creation of the Bor- ought assembly. The statute had four sections. The first section dictated only the number of seats on the assembly; the remaining sections stated how those seats were to be apportioned among the voters. If those apportionment standards were unconstitutional, they could have been declared void without affecting the first section, since the first section was clearly separable from the latter sections. The test for separability of a statute (where one part of it is invalid) is whether the remaining parts are so independent and complete that it may be presumed that the legislature would have enacted the valid parts without regard to the invalid part. In this case the test is satisfied; we presume that the legislature undertook to establish the number of assemblymen for each class of borough and would have done so whether or not any particular apportionment formula be provided. Moreover, even were these provisions — the structure of the assembly and the apportionment of assembly seats — completely inseparable, we do not conclude that the lack of a valid legislative body would prevent the valid incorporation of the municipality. This conclusion is bolstered by noting that Alaska's newly-enacted Municipal Government Code has completely separated the statutes relating to the incorporation procedure from those relating to the borough's legislative body. We agree with the legislature that the incorporation of a municipality is a process both conceptually and functionally distinct from that of establishing a legislative body for that corporation. We are satisfied that there was a valid statute under which the Borough could and did incorporate. Since Jefferson made no claim concerning the other three elements necessary to establish de facto municipal existence, the superior court properly ruled that the Borough was a valid entity as against a collateral attack. THE CITY'S CHARTER Jefferson argues also that the sewer transfer was and is invalid, because the City's home rule charter prohibits the sale or disposition of the City's utility assets unless three-fifths of the City's voters approve the disposition. No election was held. The Borough contends that the City's charter is over-ridden by state law in this area. In particular, the Borough relies on former AS 7.15.310, which provides in part: "No city of any class, whether home rule or not, within an organized borough, may exercise any areawide power provided in this section . . . once that power is being exercised by an organized borough." This court has dealt with conflicts between state law and a municipal home rule charter or ordinance in several cases. The starting point for an analysis of this issue must be found in the Alaska constitution, Art. X, § 11: "A home rule borough or city may exercise all legislative powers not prohibited by law or charter." The authors of this provision hoped that its simple language and sweeping grant of power would enable home rule municipalities to meet a multitude of legislative needs without depending on specific grants of power from a state legislature. They were aware of the difficulties encountered in other jurisdictions where delegations of power to local government units were conferred in terms, such as "matters of local concern" or "of local affairs," which were intended to create an exclusive sphere of municipal action free from any intrusion by the state legislature. Attempts by the courts in those jurisdictions to resolve conflicts between local enactments under such limited delegations of authority and state statutes relating generally to the same subject have often led to confusion and inconsistencies. Then too, some commentators have suggested that constitutional or statutory home rule provisions had been rendered ineffective in other states because of restrictive court decisions. With this all before them the constitutional delegates undertook to give Alaska home rule municipalities a wide range of powers to meet the differing needs of the varied and scattered communities of this state. It was hoped that the constitutional delegation of authority to local government units under the terms of Art. X, § 11 would lead the courts of this jurisdiction to take a new and independent approach when con flicts inevitably arose between the municipalities and the state. The foundation for this new approach has been laid in the past decisions of this court which have favored the exercise of legislative powers by local government units. However, to say that home rule powers are intended to be broadly applied in Alaska is not to say that they are intended to be pre-eminent. The constitution's authors did not intend to create "city states with mini-legislature." They wrote into Art. X, § 11 the limitation of municipal authority "not prohibited by law or charter." The test we derive from Alaska's constitutional provisions is one of prohibition, rather than traditional tests such as statewide versus local concern. A municipal ordinance is not necessarily invalid in Alaska because it is inconsistent or in conflict with a state statute. The question rests on whether the exercise of authority has been prohibited to municipalities. The prohibition must be either by express terms or by implication such as Where the statute and ordinance are so substantially irreconcilable that one cannot be given its substantive effect if the other is to be accorded the weight of law. In this case we find the prohibition to be express. The statutes established a procedure by which certain city powers could be transferred to a second class borough and precluded a city from exercising a power once that power was being exercised areawide. This then presents a clear case in which statutory authority overrides a provision in a home rule charter. Our conclusion is consistent with the new municipal code, which retains in large measure the relevant statutory provisions we have found controlling in this case. Our decision in the case at bar is in accord with this court's opinions relating to cases of conflict between local ordinances and state enactments. In Lien v. City of Ketchikan, we held that the home rule provisions of the state constitution validated a lease of a hospital to a charitable non-profit corporation despite non-compliance with a state statute governing leases by municipalities. The statute was held inapplicable and not a limitation upon the city's home rule authority, the source of which is found in Article X, section 7 of Alaska's constitution. In Chugach Electric Association v. The City of Anchorage the issue was whether the City of Anchorage could block the electric association from providing electrical service to a customer within the association's service area. The Alaska Public Service Commission had previously granted the association a certificate of convenience and necessity to provide electrical service within certain areas of the city. The City refused to issue to the Association a building permit on the grounds that the City's own electrical utility could better serve the customer. We resolved the conflict by application of a rule requiring the local enactment to yield where it directly or indirectly impeded implementation of statutes which sought to further a specific statewide policy. This court discerned in the statute a strong policy in favor of treating regulation of public utility service areas as a matter of statewide concern. The situation was one in which locally created variations from state regulation could have affected public utilities beyond the local area. In these circumstances we found a legislative intent that regulated utilities were to be within the exclusive jurisdiction of the Public Service Commission to the extent that such jurisdiction was conferred upon the Commission. Accordingly, municipalities were prohibited from regulating the same utilities to the extent of the Commission's proper jurisdiction. In Macauley v. Hildebrand a state statute permitted borough assemblies to centralize by ordinance their school district accounting systems with other borough operations with school board consent. An ordinance of the City and Borough of Juneau required the Juneau School District to centralize the district's accounting system without the school board's consent. Although the statutory prohibition in Ma-cauley was direct, this court offered another reason for striking down the questioned ordinance. The statute involved in Macau-ley was an express delegation by the state legislature to municipal corporations of a constitutionally mandated legislative power. We reasoned that the language of the state constitution mandating maintenance of a school system by the state vested the legislature with pervasive control over public education. Thus, home rule municipalities were precluded from exercising power over education unless, and to the extent, delegated by the state legislature ; and the local ordinance was therefore overriden by the statute. Affirmed. CONNOR, J., concurs separately. . Alaska R.Civ.Pro. 8 provides that a complaint shall contain "a short and plain statement of the claim" showing that the complainant is entitled to relief. Professor Wright notes, in regard to the similar federal rule, that the requirement "of a short and plain statement of claim [has] been held to be violated by needlessly long, repetitious, or confused complaints." 5 C. Wright & A. Miller, Federal Practice & Procedure (Civil) § 1217, at 128 (1969) (footnotes omitted). . Passage of the proposition was attested to by the Borough Clerk in an affidavit, and Jefferson has introduced no evidence to the contrary. . The City and State joined in the motion. . Jefferson also assigned error to the entry of summary judgment at a time when, he alleges, genuine issues of material fact exist. Such an assignment of error is, of course, too general to be considered by this court. It is in fact not a specification of' error but rather a conclusory claim that the judgment is incorrect. Appellant has the burden of directing our attention to specific errors in the proceedings below; this court will not comb the record to seek out errors on behalf of the appellant. Jefferson discusses some points in his brief which are not covered by his statement of points on appeal. Because they were not specified and because they have no merit, we will not deal with them in this opinion. Jefferson also attacks an award of attorneys' fees to the Borough, but we find no record of any order having been entered awarding fees. . The governing code at the time this suit was initiated was Title 7 of the Alaska Statutes, entitled "Boroughs", and Title 29, entitled "Municipal Corporations." These titles have been repealed and replaced by Title 29, entitled "Municipal Government." Chapter 118, S.L.A.1972. . The general rule is that a municipal corporation may have a de facto existence which is sufficient to enable it to exercise municipal powers even though it has not complied with all of the technical requirements for incorporation. Where, however, there is not a valid law on which to base an incorporation, there can be no de facto existence and no valid exercise of municipal powers. 1 G. Antieau, Municipal Corporation Law § 1.03, 1.08 (1973). . A de jure corporation is simply one which has complied with all of the legal requirements necessary to incorporate. A de facto corporation, municipal or otherwise, is one which has been defectively incorporated through oversight or mistake, but which has been operating as a corporation in good faith. See 1 E. McQuillin, Municipal Corporations § 3.45 (3rd rev. ed. 1971); C. Rhyne, Municipal Law § 2-21 (1957). . We note the possibility that a private party ' can attack the de jure existence of a municipal corporation in a "quo warranto" proceeding brought in the name of the state upon a showing that the interest of the private party in the action is substantially greater than that of the public generally and that the attorney general of this state will not bring such an action. Port Valdez Co., Inc. v. City of Valdez, Op. No. 1044, 522 P.2d 1147 (Alaska, 1974), interpreting AS 9.50.310. Cf., People ex rel. Bowman v. Alaska Airlines, Inc., 108 F.Supp. 274, 14 Alaska 85 (D. Alaska 1952), rev'd on other grounds, 206 F.2d 203, 14 Alaska 363 (9th Cir. 1953). . Port Valdez dealt with an annexation of territory to an existing municipality. The court concluded, however, that annexations are so similar to incorporations that the de faoto doctrine is applicable. . "Where the statute under which the municipality professed to incorporate was unconstitutional, some cases have permitted private collateral attack, although there are contra cases. The former cases permitting attack seem to represent the better view since there is no possibility of even a de facto municipal corporation where the authorizing statute is unconstitutional." 1 C. Antieau, Municipal Corporation Law § 1.08, at 28 (1973) (footnotes omitted). . Other areas were likewise required to incorporate under Ch. 52 S.L.A.1963. . Sec. 07.10.040. Standards for composition and apportionment. The borough assembly shall be composed and apportioned according to the following standards. (1)If there is no first class city within the organized borough, the assembly is composed of the number of seats shown on the following table: Population Assembly Seats under 6,000 5 6,000 — 12,000 7 12,001 — 30,000 9 over 30,000 11 (2) If there is but one first class city in the organized borough, the assembly is composed of at least two assemblymen from the first class city and at least three assemblymen from the area outside the first class city. (3) If there is more than one first class city in the organized borough, the assembly is composed of at least one assemblyman from each first class city and at least three assemblymen from the area outside first class cities. (4) The assembly seats shall be apportioned as follows: (a) Except as provided in (2) of this section, each first class city shall have the number of seats designated in the following table, unless a lesser number is approved by a resolution of the city council of the city concerned: Population Assembly Seats under 2,000 1 2,000 — 6,000 2 6,001 — 12,000 3 12,001 — 30,000 4 over 30,000 5 (b) The area outside first class cities shall have a number of assemblymen which shall equal one more than the total number of all assemblymen who represent first class cities. . Judge Stewart ruled that this representational scheme was unconstitutional in City of Juneau v. Borough First Judicial District Cause No. 65-317 (1968), 6 Alaska L.J. 197-9 (1968). . See 2 J. Sutherland, Statutory Construction § 2404 (3rd ed. F. Horack 1943). . Chapter 118, S.L.A.1972 repealed and replaced the statutes under which the Borough was incorporated. . Chapter 18, of Title 29, entitled "Incorporation." . Chapter 23, Art. 1 of Title 29, entitled "Borough Assembly." . Our disposition of this issue makes it unnecessary to rule on the Borough's contention that Jefferson's complaint was never properly amended to include this attack on the Borough's existence. . The City of Anchorage has adopted a home rule charter which provides in § 13.4: "The counsel may sell, lease or otherwise dispose of a municipal utility or of property and interest in property used or useful in the operation of a utility only after a proposition to do so is approved by three-fifths of the electors of the city voting on the proposition." . The Borough makes no claim that the areawide sewer election of 1966 satisfied the city charter requirement. . The City joins the Borough in making this contention. . This controversy must be decided with reference to the former statutes, see n. 5, supra, governing transfer of powers because Ch. 118, S.L.A.1972 had a savings clause: "A right or liability of a home rule or general law city or borough existing on September 10, 1972 is not affected by the enactment of this Act." . Among the powers "provided in this section." are those transferred from city to borough pursuant to AS 7.15.350, which provides in part: "Second class boroughs acquire additional areawide powers in the same manner provided by § 710-800 of this chapter . except that the vote on the question is area-wide." . It has been claimed our approach has not always been entirely consistent. See Sharp, Home Rule in Alaska: A Clash Between the Constitution and the Court, 3 U.S.L.A.—Alaska L.R. 1 (1973). . Art. X, section 1, the introductory section on home rule in the Alaska constitution reads : "The purpose of this article is to provide for maximum local self-government with a minimum of local government units, and to prevent duplication of tax-levying jurisdiction. A liberal construction shall be given to the powers of local government units." . See Sharp, supra, note 25 at 3. Most courts fail to distinguish between the types of home rule provisions. The provisions of other jurisdictions described in the text are sometimes designated as "shield" or "protection" provisions and usually require a court's determination of whether an exercise of municipal power is statewide or local in nature, when such exercise of power conflicts with a state statute. Alaska's home rule provision is a "grant" or "sword" of legislative power given to the municipality to be exercised as long as it is not prohibited by law. Art. X, § 11. This difference between "shield" and "sword" provisions was implicitly recognized in Rubey v. City of Fairbanks, 456 P.2d 470, 475 (Alaska 1969) where the court declined to follow California's pre-emption-by-state-occupation-of-the-field doctrine because of the difference between California's and Alaska's home rule provisions. California's provision is a combination "shield" and "sword", while Alaska's is solely a "sword". See Duvall, Delineation of the Powers of the Alaska Home Rule City: The Need for a Beginning, 8 Alaska L.J. 232, 233-35 (Oct. 1970) ; Sato & Van Alstyne, State and Bocal Government Law 216-218 (1970). . Alaska Legislative Council and Local Affairs Agency, Final Report on Borough Government, 36 (1961). . See Fordham & Asher, Home Rule Powers in Theory and Practice, 9 Ohio St.L.J. 18 (1948): Richland, Courts Nullify Home Rule, 44 Nat'l Mun.Rev. 565-70 (1955) ; Sato, "Municipal Affairs" in California, 60 Cal. L.Rev. 1055 (1972). But see also Sandalow, The Limits of Municipal Powers Under Home Rule; A Role for the Courts, 48 Minn.L.R. 643 (1963-64). . See Sharp, Home Rule in Alaska, supra, note 25, at 22-27. . See Lien v. City of Ketchikan, 383 P.2d 721-723 (Alaska 1963); City of Juneau v. Hixson, 373 P.2d 743 (Alaska 1962); Rubey v. City of Fairbanks, 456 P.2d 470-475 (Alaska 1969). . Duvall, Delineation of the Powers of the Alaska Home Rule City: The Need for a Beginning, 8 Alaska L.J. 232, 240 (Oct. 1970). . See Sharp, supra note 25, at 30-31; Duvall, supra note 27 at 235, 237-239. In Rubey v. City of Fairbanks, 456 P.2d 470, 475 (Alaska 1969) this court recognized a l>rohibition test for conflict resolution between state and local legislation : "Article X, section 11 of the Alaska constitution provides that a home rule city, such as Fairbanks, 'may exercise all legislative powers not prohibited by law or by charter.' There is no legislative enactment in Alaska that expressly prohibits a home rule city from making assignation a criminal offense. We do not find such prohibition from the fact that the Alaska legislature has extensively covered the field of sexual offenses. We believe there would have to be some additional factor from which the intent of the legislature to prohibit local regulation in this area could be reasonably inferred. We are not aware of any such factor in this case." . We reaffirm our rejection of the doctrine of state pre-emption by "occupying the field." We will not read into a scheme of statutory provisions any intention to prohibit the exercise of home rule authority in that area of the law. If the legislature wishes to "preempt" an entire field, they must so state. See Rubey v. City of Fairbanks, 456 P.2d 470 (Alaska 1969). We note that the legislature has done this in its new Title 29, Municipal Code. AS 29.-13.100 provides in part: "Only the following provisions of this title apply to home rule municipalities as prohibitions on acting otherwise than as provided." . Formerly AS 7.15.350; AS 7.15.310. The statutes further provided that such boroughs (of which the Anchorage borough is one) shall acquire city powers in the manner provided in AS 7.15.710-7.15.800, except that the vote on the question is areawide. AS 7.15.710-7.15.800 provided for the filing of a petition by the borough with the Local Affairs Agency (now the' Dept, of Community and Regional Affairs), review of the approved (as to form) petition by the Local Boundary Commission, a hearing on the petition held by the Local Boundary Commission, and finally an election on the proposal. . AS 29.33.010(b) (exercise of areawide borough powers) ; AS 29.33.290(c) (acquisi tion of additional areawide powers). These are enumerated as specific prohibitions to municipalities in AS 29.13.100. See note 34 supra. . 383 P.2d 721 (Alaska 1963). . 476 P.2d 115 (Alaska 1970). . 491 P.2d 120 (Alaska 1971). . Alaska Const., Art. VII, § 1: The legislature shall by general law establish and maintain a system of public schools open to all children of the State.

10480109

SPRUCE EQUIPMENT CO., Appellant, v. John M. MALONEY, Appellee; John M. MALONEY, Cross-Appellant, v. SPRUCE EQUIPMENT CO., Cross-Appellee

Spruce Equipment Co. v. Maloney

1974-11-08

Nos. 2037, 2044

1295

1302

527 P.2d 1295

527

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:28:42.330390+00:00

CAP

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

SPRUCE EQUIPMENT CO., Appellant, v. John M. MALONEY, Appellee. John M. MALONEY, Cross-Appellant, v. SPRUCE EQUIPMENT CO., Cross-Appellee.

SPRUCE EQUIPMENT CO., Appellant, v. John M. MALONEY, Appellee. John M. MALONEY, Cross-Appellant, v. SPRUCE EQUIPMENT CO., Cross-Appellee. Nos. 2037, 2044. Supreme Court of Alaska. Nov. 8, 1974. Charles E. Cole, Richard D. Saveli, Fairbanks, for appellant and cross appellee. Lloyd I. Hoppner, James R. Blair, Rice, Hoppner, Blair & Associates, Fairbanks, for appellee and cross-appellant. Before RABINO WITZ, C. J., and CON-NOR, ERWIN, BOOCHEVER and FITZGERALD, JJ.

3708

22440

OPINION BOOCHEVER, Justice. Spruce Equipment Co. (hereinafter "Spruce") appeals from a judgment entered on a jury verdict awarding the appel-lee, John Maloney, $150,000 for injuries sustained in an accident on the North Slope. The facts are not in serious dispute. While driving a truck on the North Slope on the evening of April 19, 1969, John Ma-loney struck a pile of gravel which had heen placed on the roadway by Spruce. The gravel had been placed on the right side of the road for use in raising the elevation of the roadway. Maloney testified that immediately prior to the collision, he remembered the headlights of an approaching truck, and he stated that the truck had drawn aside his own at the precise moment he noticed the gravel pile, so that he could not turn to the left to avoid running into it. Maloney was hauling sacks of drilling mud on pallets on the evening of the accident. Upon impact, the load crashed into the cab of the truck and pinned Maloney inside. Maloney sustained extensive injuries. Spruce raises two questions on appeal : (1) whether it was error to refuse to instruct the jury that, if plaintiff violated provisions of the Construction Safety Code of the State of Alaska, a prima facie case of contributory negligence had been established ; and (2) whether it was error to instruct the jury that plaintiff's damages from the date of the injury to the time of trial would include the reasonable value of the time lost, if any, wherein he was unable to pursue his occupation. I On the date of the accident, Section 309-82 of the Department of Labor's Construction Safety Code provided that: The load on every vehicle shall be properly distributed, chocked, tied down or otherwise secured in order to prevent shifting. Spruce requested the trial judge to instruct the jury that the failure to adhere to the Code constituted prima facie evidence of contributory negligence and assigns the failure to give such an instruction as error. Maloney testified that on the night of the accident, there were chains in the cab which had previously been used to secure steel and folding buildings to the flatbed of the truck. Although the heavy load was placed on the trailer directly behind the cab, and although there was no restraint of any kind to protect the driver from a shifting load, Maloney did not use the chains to secure the sacks of mud. Maloney testified, however, that it was not the general practice to tie down the type of load he was carrying, and his testimony was concurred in by other witnesses although there is conflicting testimony on this point. The trial judge gave general instructions to the effect that if Maloney were contrib-utorily negligent and such negligence was one of the proximate causes of his injury, he would not be entitled to recover. In addition, he specifically instructed the jury that violation of two other sections of the Construction Safety Code of the State of Alaska dealing with brakes and operation at a safe speed for roadway conditions would establish a prima facie case of negligence, if a proximate cause of the collision. But the court refused to give an instruction pertaining to the alleged violation of Section 309-82 which required the proper securing of the load, stating that while the issue might be important in determining damages, the accident would have occurred regardless of any such alleged negligence. The trial court correctly distinguished between alleged negligence of Ma-loney, which may have been a substantial cause of the accident and thus a bar to recovery, and his alleged antecedent negligence which may have contributed to the severity of his injuries but not to the collision. It is unquestioned that the alleged violation of Section 309-82 did not proximately contribute to the collision itself. Therefore, with relation to the collision it self, the trial court properly refused to give any instruction regarding Section 309-82. Nevertheless, it might be contended that the failure to secure the load contributed to Maloney's injuries. If such a contention were substantiated at trial, then some reference in the jury instructions to Section 309-82 and the import to be given its violation would be appropriate. The Restatement of Torts treats this problem as follows: . Where the harm is single and indivisible, it is not apportioned between the plaintiff and the defendant, in the absence of a statute providing for such division of the damages upon an arbitrary basis. Where, however, there are distinct harms, or a reasonable basis is found for the division of a single harm, the damages may be apportioned, and the plaintiff may be barred only from recovery for so much of the harm as is attributed to his own negligence. Such apportionment is commonly made, under the damages rule as to avoidable consequences, where the plaintiff suffers an original injury, and his negligence consists in failure to exercise reasonable care to prevent further harm to himself. Such apportionment may also be made where the antecedent negligence of the plaintiff is found not to contribute in any way to the original accident or injury, but to be a substantial contributing factor in increasing the harm which ensues. There must of course be satisfactory evidence to support such a finding, and the court may properly refuse to permit the apportionment on the basis of mere speculation. Dean Prosser also adopts this position as the better view stating: A more difficult problem is presented when the plaintiff's prior conduct is found to have played no part in bringing about an impact or accident, but to have aggravated the ensuing damages. [Some courts] have apportioned the damages, holding that the plaintiff's recovery will be reduced to the extent that they have been aggravated by his own antecedent negligence. This would seem to be the better view, unless we are to place an entirely artificial emphásis upon the moment of impact and the pure mechanics of causation. Similarly, apportionment of damages has been employed in some cases involving the use of seat belts by passengers in automobiles. Thus the question of whether Spruce was entitled to an instruction pertaining to Section 309-82 on the issue of damages still remains. The preliminary issue to be considered is whether the failure to secure the load could have altered the harm sustained by Maloney, as otherwise the instruction would be irrelevant. We have carefully reviewed the testimony and have been unable to find evidence indicating that "proper" securing of the load could have altered the harm sustained by Malo-ney. A Spruce employee testified that chaining the mud down would not have prevented it from crashing forward into the cab. A partner for J & J Construction Co., a supplier of trucks for use on the North Slope, testified that it would have done no good to chain the load down prior to the accident, either because the chain would have been jarred loose by the vibrations over the rough roadway, or because the pallet of bags would have crashed into the cab, or because the chain would have broken. George Haskins, an engineer who had had considerable experience driving a truck himself, explained that it would have taken very little pressure to break the standard ⅜ inch chain that is normally used to tie down loads, even if the drilling mud had been secured. He also explained that it would have required an abnormally extensive web of chains, not employed in the industry, to fasten the load securely to the trailer. Since upon impact the trailer had been thrust forward with enough force to break the pin attaching the cab to the trailer, he added that the trailer (with cargo attached) would have crumpled the cab anyway. Haskins estimated that the force on impact had been 1,700,000 foot-pounds, while the breaking point of the pin was 600,000 foot-pounds. Additional testimony substantiated Haskins', and there was no evidence that chaining the load would have prevented it from crushing the cab. The injuries, in short, would have been suffered whether or not the load was chained. The trial court properly refused to give an instruction pertaining to plaintiff's alleged negligence in failing to tie down the load. II Spruce also contends that the trial court erred in instructing the jury as to the proper measure of damages. The evidence adduced at trial demonstrated that, prior to the accident, Maloney had been employed in various capacities as a driver in the construction trade. He did not work or seek employment of any sort between the date of the accident, April 19, 1969, and the date of trial which concluded on April 26, 1973. In July of 1970, Malo-ney enrolled in a vocational school in Oregon, which he attended until May 1971. He attended the business school again the next year and withdrew in May 1972. During the summer, he drove unaccompanied from Eugene, Oregon to Prince Rupert, British Columbia. After cleaning and repairing his trailer, he sold it. He also periodically supervised some work that was being done on his property. The following year he enrolled in a different school and drove a U-Haul trailer, which he had loaded himself, back to Oregon. He returned to Alaska in March 1973. At no time did Maloney engage in part-time employment while in school, nor did he seek employment. After instructing the jury as to the compensation to be allowed for future loss of earning capacity in the event of a finding of permanent disability, the trial judge instructed the jury as to damages for time lost from work from the date of the collision to date of trial as follows: Similarly, if upon a consideration of all the evidence and under the Court's instructions, you should find that the Plaintiff John R. Maloney is entitled to recover from the Defendant Spruce Equipment Company, in arriving at the amount of the award you should determine the reasonable value of the time lost, if any, by Plaintiff John R. Malo-ney, from the date of the injury to the time of this trial wherein he has been unable to pursue his occupation. In determining this amount, you should consider the evidence pertaining to Plaintiff Maloney's earning capacity, his earnings, and the manner in which he ordinarily occupied his time before the injury, and find what he was reasonably certain to have earned in the time lost had he not been disabled. Spruce objected to the instruction, characterizing it as "to restrictive" and noting that Maloney "has a duty to pursue gainful employment, not necessarily that of a truck driver". To rectify the instruction in the eyes of Spruce, then, required either a modification in the emphasis of the instruction or an accompanying instruction pertaining to mitigation of damages. The instruction as given required the jury to compensate Maloney for his time lost "from the date of injury to the time of this trial wherein he had been unable to pursue his occupation." The instruction concluded by requesting the jury to consider the evidence pertaining to Maloney's "earning capacity, his earnings, and the manner in which he ordinarily occupied his time before the injury, and find what he was reasonably certain to have earned in the time lost had he not been disabled." The jury was, in effect, instructed to award Maloney the amount he was receiving as a truck driver for the entire four-year period without regard to whether or not he endeavored to secure alternate employment or could have secured such employment. In Long v. Newby, we set forth the standard to be applied in claims for time lost between the date of injury to the date of trial stating: The measure of damages is the difference between what would have been earned if the employment had not been wrongfully terminated and the amount which actually was or reasonably shoitld have been, earned. . . . The jury was instructed that a person whose employment is terminated must exercise reasonable care to minimize the loss and that losses resulting from a failure of such care cannot be compensated (emphasis added). As given, the instruction erroneously failed to include language similar to that emphasized in the above quotation. As a result, the jury could have believed that they were required to award Maloney the full damages of the amount he would have earned by following his usual occupation as a truck driver during the four-year period, even though the evidence clearly indicated that during portions of this period he chose not to seek employment but engaged in personal activities such as vacationing, tending to his private properties, supervising work on those properties and taking extensive trips. In fact, Maloney conceded in his testimony that he was not claiming compensation for those periods of time although his attorney argued for the full amount of compensation without deductions. In University of Alaska v. Chauvin, we acknowledged that there is in Alaska a "duty" on the part of an injured party to "use reasonable efforts" to "avoid the consequences of injury done by another". Similarly, in Redman v. Department of Education, we quoted from Anchorage Independent School District v. Stephens; It is a cardinal rule in the law of damages that a plaintiff, with an otherwise valid right of action, is denied recovery for so much of the losses as are shown to have resulted from failure on his part to use reasonable efforts to avoid or prevent them. This rule applies whether the action is in tort or breach of contract and is known as the avoidable consequences rule. In Chauvin there was no evidence of whether suitable employment was available although an offer was made by the University which would have required a compromise of his claim. Redman had secured employment during a portion of the period between her contract termination and trial, and appropriate deductions were allowed from the amount that she otherwise would have earned. While Spruce did not show specific evidence as to work that was available to Maloney during the four-year period, it is not contended that he could not have secured some suitable employment although arguably he could not perform his prior work as a truck driver. The undisputed testimony suggested that he made no effort to secure employment and, at the least, for considerable periods of time engaged in recreation or gainful personal activities. Under these circumstances, we find that the instruction without modification in accordance with the standard set forth in Long was erroneous. While counsel for Spruce did not submit a requested instruction for mitigation of damages, the trial judge was alerted to the problem by the specific objection made to the instruction. Nor do we find that the instruction was corrected by the general instruction requiring the plaintiff to prove "the nature and extent of the injuries and damages sustained by the plaintiff which were proximately caused by the negligence of the defendant". While the instructions must be regarded in their entirety, the general instruction regarding the plaintiff's burden of proof cannot cure the specific instruction which, in effect, directed the jury to award damages for the time lost to date of trial based on Maloney's usual wages as a truck driver. The instruction was erroneous as it neither referred to a deduction for the amounts that Maloney reasonably should have earned nor made any reference to his duty to exercise reasonable care to minimize the loss. Nor was the error trivial. Maloney's prospective wages during the four-year period amount to some $40,000-50,000. We accordingly must remand the case for a new trial on the issue of damages. Reversed and remanded. . It was further noted that there were no traffic controls (stop and yield signs) in the area, and the road was rough. . An additional instruction was given as to possible excuse or justification for the violation in accordance with Ferrell v. Baxter, 484 P.2d 250 (Alaska 1971). . Restatement (Second) of Torts § 465, comment c at 510-11 (1966). See also Anchorage Independent School Dist. v. Stephens, 370 P.2d 531, 533 (Alaska 1962). . Prosser, Torts § 65 at 423-24 (4th ed. 1971). . Uresky v. Fedora, 27 Conn.Sup. 498, 245 A.2d 393 (1968) ; Hale v. Cravens, 263 N.E.2d 593, 129 Ill.App.2d 466 (1970) ; Mount v. McClellan, 234 N.E.2d 329, 91 Ill.App.2d 1 (1968) ; Barry v. Coca Cola Co., 99 N.J.Super. 270, 239 A.2d 273 (1967) ; Sonnier v. Ramsey, 424 S.W.2d 684, reh. denied (Tex.Civ.App.1968). See generally Bowman, Proving the Seat Belt Defense, 37 Ins.Couns.J. 385, 390 (1970) ; Walker & Beck, Seat Belts and the Second Accident, 34 Ins.Couns.J. 352 (1967) ; Note, Seat Belt Negligence in Automobile Accidents, 1967 AVis.L.Rev. 288, 297-98. .Counsel requested an instruction pertaining to the alleged violation of the regulations as constituting contributory negligence per se, citing Ferrell v. Baxter, 484 P.2d 250 (Alaska 1971). Upon the court's refusal to give such an instruction, discussion ensued as to whether an instruction pertaining to the regulation should have been given with reference to the issue of damages. The judge decided not to give such an instruction. Our resolution of the issue as to whether the instruction should have been given does not require us to rule on the adequacy of the request for the instruction. . See text accompanying note 1, supra. . Michael Dryer, a driver on the Slope at the time of the accident, concurred with Haskins' opinion that the chains would have been broken, and stated emphatically that at any rate the individual bags would have broken free. Roy Tribble, another driver, testified that if each pallet had been chained down, the forward momentum of the load at the moment of impact would probably have ripped the nails right out of the pallets, leaving the sacks free to crash into the cab. Other testimony tended to corroborate the aforementioned opinion evidence. . With respect to an apportionment of damages, an additional problem would arise were the requested instruction to be given. There must be an adequate evidentiary basis established for the jury to apportion any damages between injuries sustained due to the collision itself and injuries attributable to Ma-loney's alleged antecedent negligence. The only testimony on this issue was elicited from Dr. Rindig, who stated: A . The mechanism of injury in this type of case is a rather complex thing. It's over in a split second and I suppose that studies have been done in regards [sic] to vehicular accidents that are simulated where a speeding vehicle is decelerated say from 60 miles an hour to zero in just a fraction of a second. And these things have been studied at length. But it's difficult to separate precisely the components of a complex accident like this. I'm not evading your question. It's quite apparent that the fractures of the lower dorsal and the' lumbar spine were produced by what we call a hyperflexion injury. In other words, his spine had to be bent forward in order to produce that fracture. Q All I'm saying, Doctor, is couldn't his spine have been bent forward from being pushed from behind as opposed. . A Yes, that's possible. This testimony underscores the inability to arrive at any fine apportionment of damages. There is thus no adequate evidentiary basis for any apportionment consideration by the jury. In a non-comparative negligence jurisdiction such as Alaska, an analogy, though imperfect, can be made between the apportionment of damages attributable to the antecedent negligence of the plaintiff as opposed to the negligence of the defendant and an application of the principle of mitigation of damages. As an application of that principle, it would appear to be part of the defendant's burden of proof in showing failure to mitigate to adduce an evidentiary basis sufficient to present an apportionment question to the jury. See Walker & Beck, Seat Belts and the Second Accident, 34 Ins.Couns.J. at 355. .The avoidable consequences rule requiring the plaintiff to prevent or minimize damages, " . . . does not apply unless one injured by the wrongful or negligent acts of another may protect himself with reasonable effort. . " Danzas, Ltd. v. National Bank of Alaska, 222 F.Supp. 671, 677 (D.Alaska 1963). See also Redman v. Department of Education, 519 P.2d 760, 769 (Alaska 1974) ; Anchorage Independent School Dist. v. Stephens, 370 P.2d 531, 533 (Alaska 1962). . The objection specified: Want to object to that. It says down in the middle, ". . . value of any time lost, if any, by plaintiff John R. Maloney, from the date of his injury to the time of this trial, wherein he has been unable to pursue his occupation." And that seems to limit — you know, that's he's been unable to pursue his occupation as a truck driver or heavy-duty truck driver. We feel that's too restrictive. He has a duty to pursue gainful employment, not necessarily that of a truck driver. . 488 P.2d 719, 724 (Alaska 1971) (footnote omitted). . 521 P.2d 1234, 1239 (Alaska 1974). . 519 P.2d 760, 769 (Alaska 1974). . 370 P.2d 531, 533 (Alaska 1962) (footnote omitted). . In Reader v. Ghemm Co., 490 P.2d 1200, 1202 n. 1 (Alaska 1971), we stated: Reader has adequately preserved his right to urge error in the instruction. Reader objected to the instruction as given: . . . Reader also proposed an instruction on the loaned servant doctrine. His requested instruction was no better than the instruction given in terms of the concept of control, but we feel that Ms failure to request a correct instruction does not preclude his raising the issue on appeal. His objection is all that is required in order to comply with Rule 51(a), Alaska Rules of Civil Procedure. Reader's oral objection was sufficient to put the court and opposing counsel on notice as to the defect of the instruction given (emphasis added). See also Pepsi Cola Bottling Co. v. Superior Burner Service Co., 427 P.2d 833, 837 (Alaska 1967). . City of Fairbanks v. Nesbett, 432 P.2d 607, 618 (Alaska 1967).

10471696

CONCERNED CITIZENS OF SOUTH KENAI PENINSULA and Mary Ann McBride, Appellants, v. KENAI PENINSULA BOROUGH et al., Appellees

Concerned Citizens of South Kenai Peninsula v. Kenai Peninsula Borough

1974-10-21

No. 2239

447

458

527 P.2d 447

527

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:28:42.330390+00:00

CAP

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

CONCERNED CITIZENS OF SOUTH KENAI PENINSULA and Mary Ann McBride, Appellants, v. KENAI PENINSULA BOROUGH et al., Appellees.

CONCERNED CITIZENS OF SOUTH KENAI PENINSULA and Mary Ann McBride, Appellants, v. KENAI PENINSULA BOROUGH et al., Appellees. No. 2239. Supreme Court of Alaska. Oct. 21, 1974. Karl L. Walter, Jr., Groh, Benkert & Walter, Anchorage, for appellants. John R. Strachan, Robison, McCaskey, Strachan & Hoge, and A. Robert Hahn, Jr., Hahn, Jewell & Stanfill, Anchorage, and Ben T. Delahay, Borough Atty., Kenai Peninsula Borough, Kenai, for appellees. John R. Spencer, City Atty., City of Anchorage, Anchorage, for amicus curiae. Before RABINOWITZ, Chief Justice, and CONNOR, ERWIN, BOOCHEVER and FITZGERALD, Justices.

6473

39468

OPINION ERWIN, Justice. Appellants are taxpayers who seek a dissolution of the South Kenai Peninsula Hospital Service Area. The service area was created in 1969 by Ordinance No. 69-4 of the Kenai Peninsula Borough Assembly to operate a hospital in the southwestern portion of the Borough. Delegation of assembly powers to the service area was approved by voters of the area on April 8, 1969. A hospital board was organized, and a fifty-five year lease was negotiated for operation of the former City of Homer hospital. Plans were laid for enlarging the facility, and on June 5, 1973, service area voters authorized issuance of $1,500,000 in bonds for construction of a new hospital. Thereafter, a federal grant and loan in the amount of $1,439,900 and a state grant of $1,723,100 were secured and an architectural design contract for the new structure was awarded. On February 13, 1974, the complaint in this action was filed. Defendants then moved for summary judgment. In an oral ruling granting the motion, the superior court held that creation of the service area was not an arbitrary act denying due process of law; that the description set out in Ordinance No. 69-4 adequately designated the hospital district boundaries; and that laches barred plaintiffs' other claims that organization of the service area violated state statutes and constitutional provisions. Findings of fact prepared by defendants were then adopted. These omitted mention of laches and ruled on the merits against the plaintiffs on all issues. On appeal appellants have again raised the questions of due process and definiteness in the boundary description and have also asked us to consider whether a service area can be formed which encompasses cities capable of providing the same service. This last issue was found by the superior court to be barred by laches. In addition, appellants have contended that the superior court did not require appellees to carry the burden of proving they were entitled to summary judgment. In response, appellees have resisted these claims and have reasserted the defense of laches. Because circumstances required an immediate announcement of our decision, the judgment of the superior court was affirmed by order on July 2, 1974. This opinion sets forth our reasons for the af-firmance. I.SUMMARY JUDGMENT PRACTICE Appellants argue that the superior court had before it no evidence which could have supported a decree of summary judgment. We do not agree. Appended to appellees' memorandum in support of their motion for summary judgment were photocopies of Borough resolutions and ordinances, sample ballots, election canvass reports, and constitutional and statutory provisions. In addition, at the time the court ruled on the motion, the record included amended pleadings and sworn answers to interrogatories propounded by both sides. A party seeking summary judgment under Civil Rule 56 has the burden of showing both that the case presents no material issue of fact requiring the taking of testimony and that applicable law requires judgment in its favor. This burden must be discharged by submission of material admissible as evidence. Assertions of fact in pleadings and memoranda, itnau-thenticated and unsworn documents, and un-certified copies of public records are not admissible in evidence and cannot be relied upon for the purposes of summary judgment. None of the exhibits appended to appellees' memorandum were sworn, certified or authenticated documents. However, both Ordinance No. 69-4 and Supreme Court Order No. 12 — the only documents essential to the court's decree'— were judicially noticeable under Civil Rule 43(a) (3). While judicial notice permitted taking the essential facts as true without formal proof, the superior court ignored important procedural requirements of Rule 43. Preliminary to judicial notice, the court must announce its intentions to the parties and indicate for the record the particular facts to be taken as true. This allows the parties to test both the propriety of noticing any fact and the truth of the matter to be established. The superior court neither notified the parties nor identified for the record the documents to be relied upon. This was a violation of Civil Rule 43(a)(5). Nevertheless, we are convinced that in this case the error was harmless. On no occasion did appellants argue that the photocopies were inaccurate or that the original public records had been altered. Even though the superior court did not observe proper procedure in taking judicial notice, its omission did not cause a failure of proof. In this setting, Civil Rule 61 requires that we treat the error as harmless. Accordingly, we reject appellants' claim that no cognizable documents at all were before the superior court. Not only were the essential public records subject to judicial notice, there was also a variety of sworn facts in the record. This brings us to the central question of whether these facts establish the absence of any material issue of fact and show that the appellees are entitled to judgment as a matter of law. II. DUE PROCESS Appellants' due process claim arises from their assertion that as many as thirty-five per cent of patients at the service area hospital have been residents of communities outside the hospital service area. They argue that this shows an arbitrary and capricious exclusion of a substantial percentage of consumers from the service area denying them due process of law. Substantive due process is denied when a legislative enactment has no reasonable relationship to a legitimate governmental purpose. It is not a court's role to decide whether a particular statute or ordinance is a wise one; the choice between competing notions of public policy is to be made by elected representatives of the people. The constitutional guarantee of substantive due process assures only that a legislative body's decision is not arbitrary but instead based upon some rational policy. A court's inquiry into arbitrariness begins with the presumption that the action of the legislature is proper. The party claiming a denial of substantive due process has the burden of demonstrating that no- rational basis for the challenged legislation exists. This burden is a heavy one, for if any conceivable legitimate public policy for the enactment is apparent on its face or is offered by those defending the enactment, the opponents of the measure must disprove the factual basis for such a justification. When a due process claim is tested by a motion for summary judgment, the existence of facts known to the court which provide such a rational basis is sufficient by itself to establish that the statute or ordinance is not arbitrary, so long as the opponents of the legislation do not assert the contrary of those facts. In the instant case, the borough assembly was aware that hospital facilities already existed in Seldovia. The superior court could reasonably have concluded that this fact provided a rational basis for the assembly's decision to exclude the Seldovia region from the service area. The burden then fell on appellants to demonstrate the lack of any rational basis in these facts. Yet, in response to the motion for summary judgment, no evidence tending to show that the drawing of boundaries was capricious was offered; appellants urged instead the erroneous proposition that appellees were required to prove that the ordinance was not arbitrary. A bare assertion that due process has been denied is not enough to withstand summary judgment. Appellants failed to show how the ordinance denied them substantive due process, and the superior court correctly granted summary judgment on the issue for appellees. III. BOUNDARY DESCRIPTION Ordinance No. 69-4 attempted to set out the boundaries of the service area by describing the southwestern portion of the Borough and then purporting to exclude from its area a section of the Kenai Peninsula lying south of Kachemak Bay. Appellants contend that the description of the excluded area is so ambiguous and indefinite that the ordinance must be declared invalid and the hospital service area dissolved. There is no doubt that the boundary description in Ordinance No. 69-4 is incom- píete. The final three paragraphs purport to exclude an area south of a line following the southern shore of Kachemak Bay, but the description does not set out the point at which the line begins. The question which we address is whether the superior court correctly concluded that this description could be made definite by reference to other documents. An ordinance expresses the legislative will of a borough. If its language is ambiguous or incomplete, an ordinance is to be construed on the same principles as a statute, the primary rule being that a court should endeavor to ascertain and give effect to the intention of the legislative body. The record in this litigation demonstrates a clear intent to exclude the Seldovia Recording District from the hospital service area. The minutes of the borough assembly meeting on February 4, 1969, state : There was consideration of two ordinances. One to include Seldovia, English Bay, and Port Graham, and one to exclude this area. Assemblyman Pace reported that he had been directed by the City Council to object to introduction of an ordinance to include the Seldovia Recording District. The City Council voted unanimously last Tuesday to object to inclusion in the southern hospital service district. Sel-dovia owns their own hospital and the people cannot see where the service area will help them overcome their problems and the residents believe that being included in the service area would only add additional tax burdens. We see no impediment to examining these minutes to determine the assembly's intent because they appear in the record as part of the sworn Answers to Plaintiffs' Interrogatories. While Civil Rule 56(c) does not expressly provide for a trial court's consideration of answers to interrogatories in deciding a motion for summary judgment, a central policy of Civil Rule 56(c) — assuring that a summary judgment is based upon facts admissible in evidence — is consistent with relying upon sworn answers to interrogatories along with any other materials otherwise admissible in evidence. These minutes were not appended to appellees' motion for summary judgment, but it is unnecessary that the superior court's attention b.e directed to particular answers to interrogatories in the record. Generally, however, where a party intends to rely upon answers to interrogatories as a basis for summary judgment, he should notify the court and opposing counsel to permit an opportunity to challenge the factual basis for the answers. In this case there was no error in appellees' failure to specify the answers to interrogatories to be relied upon because of the circumstances pointed out in note 10 supra and because the material relied upon was supported by documents, the veracity of which depended upon public records which appellants were invited to inspect some 45 days prior to the granting of summary judgment. Appellees also requested the superior court to read Ordinance No. 69-4 together with boundary descriptions in other public documents, including Supreme Court Order No. 12, establishing recording districts for the state and defining their geographical boundaries. The disputed portion of Ordinance No. 69-4 describes a portion of the boundaries of the Seldovia Recording District in language nearly identical to Order No. I2. Undoubtedly, the draftsman of the ordinance relied upon the order for the geographical description of the excluded area. Had the first three clauses of that description been included as well, the ordinance description would have been complete. We believe that the boundary designation in Ordinance No. 69-4 sufficiently describes the limits of the hospital service area when read in light of the borough assembly minutes. The defect in the description is not an inaccuracy but an omission of a series of calls necessary to exclude the area intended. We are not faced with the difficult question of which of two monuments or distances is contemplated by ambiguous language. Here there are no competing alternatives; there is only evidence that the description was incomplete, that a portion of Order No. 12 was the language omitted, and that the borough assembly intended that language to be a part of the ordinance. Where there is such clear indication of the assembly's intent as the minutes provide, ambiguity caused by incompleteness rather than inaccuracy can be readily resolved. We are able to ascertain the assembly's intent and give effect to it from the facts in the record. Accordingly, we affirm the superior court's decree of summary judgment for appellees on this issue. IV. LACHES The remainder of appellants' claims were held by the superior court to be barred by their delay in bringing this action. This ruling is questioned on appeal by appellants' assertion that including cities with hospital powers within the service area was unlawful. Appellants have not addressed themselves to whether delay in filing suit should foreclose consideration of their claim because they believe the superior court did not reach such a conclusion. The transcript of the court's ruling shows the contrary. After deciding the due process and boundary description issues adversely to appellants, the court ruled that all issues surrounding dissolution of a prior public utility district and organization of the service area were barred by plaintiffs' long delay in instituting suit. Following this oral ruling, the court was pressed by appel-lees to limit the time allowed to file a notice of appeal, because the litigation had to be resolved promptly lest appellees' federal grant and loan be lost. The court was powerless to expedite the appeal, but it did assist appellees by immediately adopting their proposed findings of fact. These findings recited the passage of Ordinance No. 69-4 and dissolution of the prior public utility district. The conclusions of law held the ordinance lawful and its boundary description sufficiently definite. There was no mention of other issues appellants had raised with respect to organization of the service area, and nowhere was the defense of laches mentioned. Where there is a variance between a court's oral ruling on a motion for summary judgment and written findings prepared by the prevailing party, the oral ruling controls. Civil Rule 52(a) does not generally require findings of fact or conclusions of law following decision on a mo tion for summary judgment. Findings are helpful but not binding on review, and where they vary from the court's actual ruling, they must be disregarded. The question before us then is whether the trial court erred when it applied the defense of laches. The doctrine creates an equitable defense when a party delays asserting a claim for an unconscionable period. A court must find both an unreasonable delay in seeking relief and resulting prejudice to the defendant. Sustaining this defense requires a decision by the trial court that the equities of the case justify refusal to hear and decide a party's claim. It is an act of discretion which will not be interfered with unless we feel a definite and firm conviction that a mistake has been committed. No specific time must elapse before the defense of laches can be raised because the propriety of refusing to hear a claim turns as much upon the gravity of the prejudice suffered by the defendant as the length of a plaintiff's delay. Where harm to the defendants would be great, as in a belated attack upon local government, a plaintiff's delay in asserting his claim need not be extreme. In a different context, we emphasized the harm which may follow from disestablishing a unit of local government: Disincorporation of a municipality substantially disrupts the life and livelihood of anyone associated with the municipality. Among the deleterious consequences of a disincorporation are the dis-election of public officials, invalidation of corporate actions (possibly creating individual liability on the part of public officials or unjustly depriving employees, contractors and other creditors of claims against the corporate body), and voiding of actions taken under the police, taxation and eminent domain powers. Disannexation or disincorporation of a municipality is not at issue here. Nevertheless, disestablishment of a hospital service area after it has been in active existence for five years would cause disruption and injury of the same order. Appellants' claims arose in April, 1969, when voters of the area approved the Borough's delegation of hospital powers. Since July 1, 1969, the service area has maintained a hospital operating on an average annual budget, derived in part from property taxes, of $205,000. The hospital serves the entire southwestern portion of the Kenai Peninsula Borough. A new hospital is now contemplated, bonds have been authorized for its construction and more than $60,000 has been expended for architectural design and other services. All the claims which appellants attempted to argue before the superior court could have been asserted in April, 1969. Yet a complaint was not filed until February, 1974, four years and ten months later. On these facts, we do not believe the superior court abused its discretion in finding appellants' claim barred by laches. The judgment of the superior court is affirmed. BOOCHEVER, J., concurring, with whom RABINO WITZ, C. J., joins. . Appellees demonstrated that the availability of their federal hospital construction loan and grant could not be assured if this litigation were not terminated before July 15, 1974. .Alaska R.Civ.P. 56 provides in pertinent part: (b) For Defending Party. A party against whom a claim, counterclaim or cross-claim is asserted or a declaratory judgment is sought may, at any time, move for a summary judgment in his favor as to all or any part thereof. (c) Motion and Proceedings Thereon. The motion shall be served at least 10 days before the time fixed for the hearing, and may be supported by affidavits setting forth concise statements of material facts made upon personal knowledge. There must also be served and filed with each motion a memorandum showing that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The adverse party not later than two days prior to the hearing 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. Judgment shall be rendered forthwith if the pleadings, depositions and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages. Summary judgment, when appropriate, may be rendered against the moving party. (e) Form of Affidavits — Further Testimony — Defense Required. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions or by further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him. . Braund, Inc. v. White, 486 P.2d 50, 53-54 (Alaska 1971). See Whaley v. State, 488 P.2d 718, 720 (Alaska 1968). . Miller v. City of Fairbanks, 509 P.2d 826, 829 (Alaska 1973) ; Braund, Inc. v. White, 480 P.2d 50, 54 N. 5 (Alaska 1971). . Note 15 infra. . Note 23 infra. . In their supporting memorandum, the ap-pellees requested judicial notice. Alaska R.Civ.P. 43 provides in part: (a) Judicial Notice. (2) Without Request — Optional. Without request by a party, the court may take judicial notice of: [a] Private acts and resolutions of the Congress of the United States and of the legislature of this state, and duly enacted ordinances and duly published regulations of governmental subdivisions or agencies of this state. (3) On Request. Upon the request of a party, the court shall take judicial notice of each matter specified in (2) of this subdivision if the requesting party furnishes the judge sufficient information to enable him properly to comply with the request and lias given each adverse party such notice as the judge may require to enable the adverse party to prepare to meet the request. (4) Determination of Propriety. [a] The judge shall afford each party reasonable opportunity to present to him information relevant to the propriety of taking judicial notice of a matter or to the tenor of the matter to be noticed. [b] In determining the propriety of taking judicial notice of a matter or the tenor thereof, the judge may consult and use any source of pertinent information, whether or not furnished by a party, and no exclusionary rule except a valid claim of privilege shall apply. (5) Instructing the Trier of Fact. If a matter judicially noticed is other than the common law or constitution or public statutes of this state, the judge shall indicate for the record the matter which is judicially noticed and if the matter would otherwise have been for determination by a trier of fact other than the judge, he shall instruct the trier of the fact to accept as a fact the matter so noticed. . Lemon v. State, 522 P.2d 160, 162 (Alaska 1974) ; Alaska R.Civ.P. 43(a) (5) at note 7 supra. . Alaska R.Civ.P. 43(a)(4) at note 7 supra; 0. McCormick, Law of Evidence § 330, at 708 (1954). . In opposing the motion for summary judgment, appellants made a broad objection on the ground that the photocopies appended to appellees' memorandum had not been authenticated. Plaintiffs have not had the opportunity to verify all the documents sought, and the propriety of such exhibits should be determined by this court only after the Plaintiffs have had full opportunity to verify the admissibility of the exhibits. In the two months which transpired between filing of the motion and its disposition, a period of active discovery by both parties, appellants made no further indication to the court or the appellees that they believed any particular photocopy to be inaccurate. . Alaska R.Oiv.P. 61 states: So error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties. . See United States v. 1,078.27 Acres of Land, 446 F.2d 1030, 1034 (5th Cir. 1971). . Mobile Oil Corp. v. Local Boundary Comm'n, 518 P.2d 92, 101 (Alaska 1974). . See Leege v. Martin, 379 P.2d 447, 452 (Alaska 1963) ; DeArmond v. Alaska State Dev. Corp., 376 P.2d 717, 721 (Alaska 1962). .The ordinance states in pertinent part: AN ORDINANCE ESTABLISHING THE SOUTH KENAI PENINSULA HOSPITAL SERVICE AREA AND PROVIDING FOR AN APPOINTED HOSPITAL BOARD. WHEREAS, the Assembly finds that hospital services are needed within the South Peninsula area and that such services can best be provided by the establishment of a service area or city or by the incorporation better provided by annexation to another service area or city or by the incorporation of a city. BE IT ORDAINED BY THE ASSEMBLY OF THE KENAI BENIN SOLA BOROUGH: Section 1. Title 27 of the Kenai Peninsula Borough Code of Ordinances is amended to add this new chapter to read r CHAPTER 20. SOUTH KENAI PENINSULA HOSPITAL SERVICE AREA Section 27.20.010. Boundaries. There is hereby established pursuant to AS 07.15.050 a service area within the borough designated the "South Kenai Peninsula Hospital Service Area", including that portion of the borough described as follows : As a point of beginning, begin at the N.W. corner of T1S, R25W (projected), Seward Meridian, State of Alaska; THENCE East along Seward baseline to a point in Cook Inlet and 3 miles offshore on the west side of Cook Inlet; TIIENCE northeasterly to a point of intersection with Township line between TIN, T2N and 3 miles offshore in Cook Inlet on the east side of Cook Inlet; THENCE East along Township line between TIN and T2N to an intersection with the boundary line between election district numbers 9 and 10 : [sic] THENCE in a southerly direction along the boundary between election district numbers 9 and 10, to the S.E. corner of the N.E. ⅛ of Sec. 28, Tils, [sic] R10W (projected), said corner being at or approximately at Gore Point; THENCE southwesterly to the S.E. corner of the N.E. ¼ of Sec. 27, T12S, R13W (porjected), [sic] said corner being on or approximately on the southerly point of East Chugach Islands; THENCE southwesterly to the S.E. corner of Sec. 31, T12S, R14W (projected), said corner being at or approximately at Perl Rock; THENCE southwesterly to longgitude [.sic] 153°00'00"W. latitude 59°02'00"N., in Cook Inlet; TIIENCE southwesterly to the N.E. corner of Sec. 27, T15S, R24AV (projected), at Cape Douglas on the West Side of Cook Inlet; THENCE West to the N.E. corner of Sec. 29, T15S, R26W (projected) ; THENCE South to the S.E. corner of Sec. 32, T16S, R26W (projected) ; TIIENCE West to the N.E. corner of TI7S, R28W (projected) ; TIIENCE South to the S.E. corner of T17S, R2SW (projected) ; TIIENCE AVest to the S.W. corner of T17S, R32W (projected) ; THENCE North to the N.AAh corner of T17S, R32W (Projected ( [sic] ; THENCE West to the S.AV. corner of T16S, R32AV (projected) ; THENCE North to the N.AAI corner of T13S, R32AV (projected) ; THENCE West to the S.AV. corner of T12S, R32AV (projected) ; THENCE North to the N.AAr. corner of TUS, R32AV (projected) ; THENCE East to the S.AV. corner of TIOS, R30W (projected) ; THENCE North to the N.AV. corner of T9S, R30AV (projected) ; THENCE East to the S.E. corner of T8S, R29AAr (projected) ; THENCE North to the N.E. corner of T8S, R29 AV [sic] ; THENCE East to the N.E. corner of T8S, R28W (projected) ; THENCE North to the N.W. corner of T6S, R27AV (projected) ; THENCE East to the S.AV. corner of T5S, R26AAr (projected) ; THENCE North to the N.W. corner of T5S, R26W (projected) ; THENCE East to the S-AA! corner of T4S, R25AV (projected) ; THENCE North to the N.AV. corner of of T1S, R25W (projected) ; THENCE East to the point of beginning, EXCEPTING therefrom that portion of Seldovia recording district lying south of a line which follows easterly along the mainland and the shore of China Poot Bay; THENCE along the left and west bank of the Doroshin River to its source; THENCE east [sic] to the summit of the watershed dividing the waters flowing in [sic] the Gulf of Alaska from the wafers flowing into Kacliemak Bay. The final three paragraphs, beginning with "EXCEPTING", comprise the portion of the description which appellant contend is defective. . Their claim is illustrated by argument that indefiniteness has made it impossible to determine who was entitled to vote in past service area elections as well as who is subject to service area tax levies. Appellants do not, however, directly allege that any of their number has been denied the right to vote or taxed without authority. We have concluded that their intention is not to urge the rights of unrepresented third parties hut to assert their own right to be free from arbitrary legislation. The contrary conclusion would raise serious questions of their standing to sue. . Lane County v. R. A. Heintz Const. Co., 228 Or. 152, 364 P.2d 627, 629-630 (1961) ; Sandona v. City of Cle Elum, 37 Wash.2d 831, 226 P.2d 889, 892 (1951) ; 2 J. Sutherland, Statutory Construction § 3905, at 273 (3d ed. 1943). See Guidoni v. Wheeler, 5 Alaska 229 (1915), aff'd, 230 P. 93, 4 Alaska Fed. 369 (9th Cir. 1916). . Femmer v. City of Juneau, 97 F.2d 649, 656, 9 Alaska 315, 332, (9th Cir. 1938) ; United States v. R & J Enterprises, 178 F. Supp. 1, 4 (D. Alaska 1959) ; United States v. Hardcastle, 10 Alaska 254, 266 (1942). See State v. American Can Co., 362 P.2d 291, 296 (Alaska 1961). . See note 2 supra. . This is in conformity with the féderal practice: The materials which the court is entitled to consider at the hearing on the motion for summary judgment are : the jdeadings ; affidavits which meet the testimonial requirements of Rule 56(e); depositions; msivers to interrogatories; admissions ; oral testimony; documentary and other eviden-tiary materials, (footnotes omitted; emphasis added) 6 Moore's Federal Practice § 56.15 [8], at 2438 (1974). Miller v. City of Fairbanks, 509 P.2d 826, 829 (Alaska 1973) ; Braund, Inc. v. White, 486 P.2d 50, 54 n. 5 (Alaska 1971). .6 Moore's Federal Practice § 56.11 [5], at 2195-97 (1974). Alaska's Civil Rule 56 was modeled upon the corresponding federal rule of civil procedure in effect in 1960. The federal rule enumerated depositions, admissions on file, and affidavits as among the sources a trial court could draw from to decree summary judgment, but failed to list answers to interrogatories. Notwithstanding the omission, federal courts and other jurisdictions using similar rules of procedure were nearly unanimous in holding that answers to interrogatories could be utilized in summary judgment practice. See American Airlines v. Ulen, 87 U.S.App.D.C. 307, 186 F.2d 529, 531-532 (1949), and the cases cited in Annot., 74 A.L.R.2d 984 (1960) ; contra Town of River Junction v. Maryland Cas. Co., 110 F.2d 278, 283 (5th Cir. 1940). "[AJnswers to interrogatories" was added to Federal Rule 56(c) by amendment in 1963. The accompanying note by the Advisory Committee observed that omission of the phrase had been inadvertent. 28 U.S.C.A. Rule 56, at 416 (1971). Cf. E. H. Marhoefer, Jr., Co. v. Mount Sinai, Inc., 190 F.Supp. 355, 359 (E.D.Wis.1961). . Supreme Court Order No. 12, at 50-51 (rev.1964) states: SELDOVIA DISTRICT Said district shall encompass all the territory within the following described boundaries : Beginning at Cape Douglas on the north shore of Shelikof Strait, running thence northeasterly to a point in the center of Cook Inlet at 152°20' west longitude and 59°40' north latitude; thenqe in a southeasterly direction to a point ⅛ the center of Kaehemak Bay directly south of the point of land of the Homer Spit; thence south to the mainland; thence easterly along the mainland and the shores of China Foot Bay to the left and west hank at the mouth of the Doroshin River where it empties into China Boot Bay; thence along the left a/nd west hank of the Doroshin River to its source; thence east to the summit of the watershed dividing the waters flowing into the Gulf of Alaska from the waters flowing into Kaehemak Bay, thence southerly along said summit to a point three miles south of Point Gore; thence south and westerly in a circuitous line midway between the Barren Island and the southern extremity of the Chugach Islands to a point south of Cape Elizabeth; thence southwesterly to Cape Douglas the point of beginning, (emphasis added) Compare the emphasized language with the last three paragraphs in note 15 supra. .A transcription of the pertinent part of tile superior court's ruling reads : [G]oing now to the question of the PUD, whether it was dissolved, and the matter of the establishment of this service area, it's been since 1969; now it's 1974. And this issue is now being raised collaterally in this proceeding. I hold that the parties are estopped because of the fact that it's been operating as a de facto governmental area. The parties are estopped . from [contesting] the dissolution of the PUD and . . . the establishing of this area . . . since it's an unreasonable time . . . which they have waited . to raise this matter. Although the judge referred to the de facto existence of the service area, we believe he did not intend to apply a variation of the doctrine of de facto municipal incorporation. Compare Port Valdez Co., Inc. v. City of Valdez, Op. No. 1044, 522 P.2d 1147, at 1152-1156 (Alaska 1974) ; United States Smelting, Refining & Mining Co. v. Local Boundary Comm'n, 489 P.2d 140, 144 n. 15 (Alaska 1971). The doctrine of de facto municipal incorporation does not address a plaintiff's delay in filing suit. It requires only that there be il) a constitutional or statutory i>rovision under which the annexation might lawfully have been accomplished; (2) an attempted compliance in good faith with the provision (s) ; (3) a colorable compliance with the provision (s) ; and (4) an assumption in good faith of municipal powers over the annexed territory. Port Valdez Co., Inc. v. City of Valdez, Op.No.1044, 522 P.2d 1147 at 1154 (Alaska 1974). None of the elements of de facto municipal incorporation were argued by the parties in this suit. The appellees emphasized appellants' delay in filing suit, and it was this fact which became the basis for the court's ruling that laches applied. . The court stated : [F]or the purpose of expediting this I will adopt . . . the proposed findings of fact and conclusions of law submitted by the defendants . I did want to give my oral opinion on the matter to supplement this, but I think that I can adopt your proposed findings. . See City of Anchorage v. Steward, 374 P. 2d 737, 739 (Alaska 1962), for discussion of conflicts between oral decision and findings after trial. . Alaska B.Oiv.P. 52(a) provides in part: Findings of fact and conclusions of law are unnecessary on decisions of motions under Bules 12 or 56 or any other motion except as provided in Buie 41(b). This sentence emphasizes that Buie 52(a) is addressed to "all actions tried upon the facts without a jury or with an advisory jury . " Summary judgment rests in part upon the conclusion that there are no facts to be tried. Although findings are unnecessary, we welcome a judge's statement of the reasons for his decision. . E. g., Pioneer Mining Co. v. Pacific Coal Co., 4 Alaska 403, 473-474 (1912), aff'd, Pacific Coal and Transp. Co. v. Pioneer Mining Co., 205 F. 577, 4 Alaska Fed. 115 (9 Cir., 1913). . See Alaska Placer Co. v. Lee, 502 P.2d 128, 132 (Alaska 1972) ; Gravel v. Alaskan Village, Inc., 423 P.2d 273, 277 (Alaska 1967). . See, e. g., People ex rel. Cherry Valley Fire Protection Dist. v. City of Bockfortl, 122 Ill. App.2d 272, 258 N.E.2d 577. 580 (1970). Compare AS 29.18.150 which provides: Challenge of legality: No person may challenge the formation of a municipality except within six months of the date of its incorporation. . Port Valdez Co., Inc. v. City of Valdez, Op.No.1044, 522 P.2d 1147, at 1153 (Alaska 1974) (holding that annexations may be immune to private suit under the defacto municipal incorporation doctrine). . These facts are to be found in sworn answers to appellants' interrogatories. . We recognize that appellants' claim has its basis in the Alaska Constitution. Article X, section 5, prohibits service areas within organized boroughs if "the new service can be provided by an existing service area, by incorporation as a city, or by annexation to a city." Nevertheless, we believe that in a contest over the validity of a unit of municipal government, laches can be raised as a defense to such a claim. The legislature has expressed an analogous policy in enacting AS 29.1S.150, note 30 swpra, which prohibits any challenge to the formation of a municipality except within six months of the date of its incorporation.

11441752

Kevin W. PEASE, Appellant, v. STATE of Alaska, Appellee; Marvin L. Roberts, Appellant, v. State of Alaska, Appellee

Pease v. State

2002-09-27

Nos. A-7635, A-7638

316

332

54 P.3d 316

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.

Kevin W. PEASE, Appellant, v. STATE of Alaska, Appellee. Marvin L. Roberts, Appellant, v. State of Alaska, Appellee.

Kevin W. PEASE, Appellant, v. STATE of Alaska, Appellee. Marvin L. Roberts, Appellant, v. State of Alaska, Appellee. Nos. A-7635, A-7638. Court of Appeals of Alaska. Sept. 27, 2002. Lori M. Bodwell, Law Office of Lori M. Bodwell, and Dick L. Madson, Law Office of Dick L. Madson, Fairbanks, for Appellant. WH. Hawley, Jr., 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.

8686

52752

OPINION COATS, Chief Judge. The state charged Marvin L. Roberts, Kevin W. Pease, Eugene G. Vent, and George C. Frese with the assault and robbery of Franklin Dayton and the robbery, sexual assault, and murder of a fifteen-year-old juvenile, J.H. These erimes occurred during the early morning hours of October 11, 1997. Pease and Roberts were tried together. A jury convicted both defendants of second-degree assault of Dayton and of first-degree robbery and second-degree murder of J.H. Frese and Vent were convicted in separate trials and their appeals are pending before this court. Superior Court Judge Ben J. Esch sentenced Pease to a total term of seventy-five years with fifteen years suspended. He sentenced Roberts to a total term of forty-two years with ten years suspended. Pease and Roberts raise several issues in their appeal to this court. We affirm their convictions but remand a portion of their sentences for reconsideration. Factual Background a. The assault and robbery of Franklin Dayton Arlo Olson testified that he witnessed the assault of Franklin Dayton. Olson attended a wedding reception, which began on the night of October 10, 1997, at the Eagles Hall in Fairbanks. According to Olson's testimony, he was standing on the front steps of the Eagles Hall between 12:30 and 1:00 a.m. on October 11, 1997, when Roberts, Pease, Vent, and Frese drove up in Roberts's blue, two-door car. Frese asked Olson if he wanted to get high. Olson declined, and the four drove away. Dayton also attended the wedding celebration. According to Dayton's testimony, at about 1 am. on October 11, after having several drinks, he left the reception and walked toward Tommy's Elbow Room. As Dayton was walking, a car stopped behind him. Someone from the ear tripped Dayton, pushed him down, stepped on his hand, kicked him in the ribs, and took his money. Someone told Dayton not to "look back"; Dayton did not recognize the voice. Dayton thought the robbers said something about having a gun but was not sure. He heard two doors slam after the attackers took his money and left. He thought about four people robbed him and they drove a tan car. He did not recognize any of them. Dayton returned to the Eagles Hall He told his sisters, Katherine Quirk and Vaughn Reitan, that the four robbers had put a gun to his head and "threatened that he wasn't going to be the only one." He told them he was thrown face-down and could not identify any of the four assailants. Dayton's sister-inlaw, Susan Paskvan, called 911 at 1:85 am., and his two sisters took him to the hospital. Olson testified that about half an hour after he talked with Vent, Frese, Roberts, and Pease, he watched the four assault Dayton down the street from the front steps of the Eagles Hall. He saw Pease push Dayton to the ground. Frese, Pease, Vent, and Roberts then all kicked Dayton. One of the four men yelled, "Give me your fucking money, bitch," and Dayton handed something to one of the four. Olson watched the four men run to and enter Roberts's car. The accuracy of Olson's testimony was seriously disputed at trial. Olson admitted that he had drunk a considerable amount on the evening in question and had smoked marijuana earlier in the day. He testified that the fight only lasted about thirty seconds, that the assailants had their backs to him half the time, and that he really only got a look at them while they were running back to their car. He estimated that the assault occurred about 400 feet away from him. The defense presented evidence that the distance was greater than that. But the state presented evidence that OL-son was able to identify the defendants. Not only had he seen them earlier in the evening, but Olson and Vent had been friends since Olson's junior year in high school. Olson met Frese in the summer of 1997, had been to his house, had talked to him frequently, and considered him a friend. Olson also identified Roberts, Pease, and Roberts's car at trial. b. The murder and robbery of J.H. J.H., age fifteen, met his mother at her job during the afternoon of October 10, borrowed some money, and put it in his wallet. He spent the evening of October 10 with Chris Stone at a Fairbanks residence where a third friend was babysitting. The boys took some prescription drugs during the evening to get high. After consuming some of the pills, J.H. fell out of a chair and had a seizure. J.H. and Stone left the babysitting residence after midnight. At about 1:15 a.m., J.H. and Stone parted company near downtown Fairbanks, and J.H. started walking home alone. At 1:28 am. on October 11, Melanie Durham, a resident of the Fairbanks WICCA shelter, who had been watching TV, stepped outside to have a cigarette. Minutes later, Durham heard a "really horrendous [loud] smack, smack." The "smacks" were followed by someone calling, "Help me, help me," who then was quieted by more "smacks." She heard a highly intoxicated, slurred, deep voice with a Native accent growl something indistinguishable. Durham then heard more smacks, really just it was horrendous.... [The way it sounded was like whatever was hitting this kid, . it was wrapping around, that's how bad it sounded. And then, I heard some more, then a[n] angry voice, and I realized it was really bad, and that whoever was getting hit wasn't saying anything. The sounds were coming from the intersection of Ninth and Barnett, half a block from the shelter, but Durham's view of the intersection was obstructed. Sometime before 2:00 am., Stone used a phone at Carrs Foodland. While Stone was using the phone, Pease, standing nearby, stared at him to the point that Stone felt uncomfortable. Stone saw a car parked nearby that looked like Roberts's car. No one was sitting in the driver's seat, but the car was otherwise full. At about 2:45 a.m., citizens driving on Bar-nette Street spotted J.H. lying partly on the street and partly on the sidewalk at Ninth and Barnette. J.H. was badly beaten, his pants were down around his knees, and his personal effects were scattered in the street. One of the citizens called 911, and paramed-ies responded and took J.H. to the hospital. The width and distance between tire marks observed at the scene were similar to the width and distance between the tires on Roberts's car. A sexual-assault nurse-examiner, Diane Hill, examined J.H. at the hospital Hill observed that J.H.'s anal verge was swollen and red, and she saw minute tears all around his anal verge. Hill also observed a large, deep, long tear on J.H.'s anus. Using an anoscope, she found two abrasions on the wall of the rectum three or four inches inside the anal verge. About noon, that day, October 11, Frese sought treatment for an injured foot at the Fairbanks Memorial Hospital emergency room. Frese said that he had injured his foot by kicking someone during a fight downtown the night before. The police obtained the hiking boots Frese was wearing during the fight. Fairbanks Police Lieutenant David Kendrick and Julie Klaker, a nurse, compared the tread of Frese's shoe with the injury on the left side of J.H.'s head. Kendrick found the similarity between the lug pattern on the shoe and the lug imprints on J.H.'s face striking. Klaker said the print on the bottom of the shoe "matched up" to the print on J.H.'s face. JH. died on October 12. Dr. Frane Falli-co performed the autopsy. During the external examination, Dr. Fallico observed multiple separate injuries on J.H.'s head and body. During the internal examination, Dr. Fallico found blood and blood clots on the surface of the brain and hemorrhages in the mid-brain; he attributed J.H.'s death to blunt-force trauma to his head. He found two scratches inside J.H.'s colon about four inches from his anus. Dr. Fallico found similarities between the tread pattern on Frese's shoes and the pattern on J.H.'s head. At trial, however, the defense presented an expert, Dr. John Thornton, who concluded that the shoes the police seized from Frese did not make the prints on J.H.'s face. Pease told the police that he had not seen Roberts, Frese, or Vent on the night of October 10-11, claiming he had been with his girlfriend, Jessica Lundeen. But Lundeen denied having seen Pease at any time during the evening and night of October 10-11. Pease presented an alibi defense based on several witnesses who testified he had been at two parties on the evening in question. The state also presented evidence from two people who were in jail with Pease prior to trial. According to Angela Harman, she asked Pease why he had murdered J.H. In response, Pease stated that, "[I] did it for the punk's money." A second inmate, John Hef-fle, asked Pease if he had committed the murder. Pease responded, "I was fucked up, and it was bad." Roberts also presented an alibi defense at trial. Several witnesses testified that he was at the Eagles Hall at the time the assaults occurred. The jury convicted Pease and Roberts of second-degree assault of Dayton and first-degree robbery and second-degree murder of J.H. This appeal followed. Whether Judge Steimnkruger erred in failing to sever for trial the charges relating to the assault of Dayton from the charges relating to the robbery and murder of J H. Frese filed a motion to sever the charges relating to the assault on Dayton from the charges relating to the robbery and murder of J.H. He argued that the jury might improperly use the evidence of the Dayton assault to convict him of the robbery and murder of J.H. The state opposed the motion, and Superior Court Judge Niesje J. Stein-kruger denied the motion to sever without discussion. After Judge Steinkruger denied the motion, Pease moved without opposition to join Frese's motion. The record does not reflect that Judge Steinkruger took any action on Pease's application to join the severance motion. Pease and Roberts concede that it was permissible under the Alaska Criminal Rules to join the Dayton and J.H. charges, but they argue that the evidence against them in the Dayton case was much stronger than in the J.H. case. They claim that the evidence in the Dayton case improperly bolstered the J.H. case. The state argues that Roberts waived the severance issue by not moving to sever before trial. Roberts contends that an objection made by one codefendant is deemed to have been made by all codefendants absent an objection. But generally, a defendant may not rely on a codefendant's motion or objection absent a special agreement with the trial court. And we have not found an agreement on the record that would allow Roberts to rely on Pease's motion. But we need not resolve this issue because, as we explain below, we conclude that Judge Stein-kruger did not err in denying the motion for severance. The state argues that Pease waived his severance claim because he did not renew it at trial. But we stated in Mathis v. State that a defendant does not need to renew a motion for severance at trial if the trial court clearly and unequivocally rules on the claim before trial Of course, if circumstances arise during trial that undermine the judge's earlier decision denying severance, the defendant has a duty to renew the motion for severance during trial to allow the trial judge to consider the actual cireumstances as they arise at trial Because Judge Steinkruger decided the motion before trial and the motion was not renewed, we conclude that we should review the defendants' claim of prejudice based on the information presented to Judge Steinkruger before trial. Onee joined, a motion to sever offenses encompasses two separate inquiries. First, the trial court must determine whether the charged offenses are so related as to make joinder proper. Second, the court must determine whether joinder of the offenses for trial would unduly prefudice the defendants Because the defendants have conceded proper joinder, the only issue before us is whether Judge Steinkruger's decision unduly prejudiced the defendants. This court will only overturn a trial court's denial of a motion to sever if the defendant can show both an abuse of discretion and actual prejudice. The first step in deciding whether Judge Steinkruger erred in denying the motion to sever is to determine whether Judge Steinkruger could conclude that the evidence of the crimes would be cross-admissible if tried separately. If the evidence would be cross-admissible if tried separately, the defendant is hard-pressed to show actual prejudice from the failure to sever, since the evidence would have been admitted even if the judge had granted separate trials. If the trial court determines the evidence is not cross-admissible, the second step is to decide whether Judge Steinkruger abused her discretion when she found the defendants would not suffer actual prejudice from having this otherwise inadmissible evidence admitted at the joint trial. In the present case, the pretrial motion claimed that the evidence of the assault on Dayton would prejudice the defendants by influencing the jury in deciding whether the defendants robbed and murdered J.H. But if evidence of the assault on Dayton would have been admitted in a separate trial involving whether the defendants robbed and murdered J.H., then the defendants did not suffer any prejudice by its admission at the joint trial. As we explain below, we conclude that Judge Steinkruger did not err in determining that the evidence of the earlier assault on Dayton would have been admissible in a separate trial on the charges that the defendants robbed and murdered J.H. The facts alleged in the severance pleadings established that the assault on Dayton and the robbery and murder of J.H. occurred within forty-five minutes of each other. OIl-son saw Roberts, Pease, Vent, and Frese assault Dayton. Dayton was attacked by several people who beat and robbed him while he was walking alone in downtown Fairbanks. The evidence suggested that J.H. had undergone a similar, but more vicious, attack. We have previously approved the admission of evidence that a defendant committed a related offense within a short period of time of another offense. In Hoffman v. State, in defense of a sexual assault charge, Hoffman argued consent. This court approved admission of evidence that Hoffman had violently sexually assaulted a different woman just prior to his charged assault. We reasoned that the prior assault was relevant to the charged offense because it could be "inferred that Hoffman was in the same emotional state during both encounters. In Hoffman, we relied on Lerchenstein v. State, where we held "that Evidence Rule 404(b) allowed the introduction of evidence that a murder defendant had been 'angry and combative . immediately prior to the [homicide] In Miller v. State, we held that Miller's robbery and burglary at a near-by trailer less than an hour before the charged murder were "directly relevant to establish Miller's state of mind at the time of the murder, to show that he was acting in concert with [his codefendant], and to prove his capacity to form the specific intent required for murder. Likewise, in Cliervo v. State, we approved the state's evidence of a confrontation between Ciervo and another individual five hours prior to the charged shooting. Hoffman, Ciervo, and Miller support the admissibility of the evidence of the Dayton incident at a separate trial on the J.H. charges. Because the crimes were committed within a close temporal and physical proximity to each other, apparently involved the same perpetrators, and consisted of similar attacks on the victims, the evidence of each crime would have been cross-admissible under Rule 404(b)(1) to prove state of mind and sequence of events. The defendants argue that even though the evidence of the Dayton offense would have been admissible under Evidence Rule 404(b), Rule 403 would have prevented it from being introduced at a separate trial because the case against the defendants on the robbery and murder of J.H. was weak. They argue that they were prejudiced by admission of the stronger Dayton assault evidence, and the jury might have improperly used that evidence to convict them of the robbery and murder of J.H. In our view, Judge Stein-kruger properly could determine that the evidence that the defendants were together during the assault and robbery of Dayton was substantial evidence that the defendants had, only a short time later, committed a similar assault on J.H. that ultimately led to his death. The superior court properly could determine that admission of this evidence was not unduly prejudicial. Because the evidence of the Dayton incident would have been admissible at a separate trial on the J.H. incident, Judge Stein-kruger did not err under Criminal Rule 14 in denying the motion to sever the charges. Whether Pease and Roberts should be granted a new trial based upon Judge Esch's ex parte imterview of a juror During trial, Judge Esch informed the parties that a juror had approached him, wanting to talk privately. He told the parties he would meet with the juror on the record to see what he wanted and then talk to the parties. He met with the juror, Rhett Buchanan, who said he was concerned about the defense attorneys' conduct. Buchanan mentioned Pease's attorney, Lori Bodwell, but primarily cited two incidents involving Roberts's attorney, Dick Madson, where the juror thought Madson's conduct had been inappropriate. Judge Esch told Buchanan he would talk to the attorneys and ask them to act more professionally. Buchanan said that would be fine, and the conversation ended. When the court reconvened after the weekend, Judge Esch informed the parties that his conversation with Buchanan had not been picked up by the tape and therefore there was no record of the conversation. He told the attorneys that Buchanan was concerned with Madson's conduct and gave the specific examples. Judge Esch told the parties that Buchanan had indicated he would not hold his concerns against Roberts. The parties did not raise any objections about Judge Esch's meeting with Buchanan or ask Judge Esch to take any additional action. Contrary to Judge Esch's understanding, his conversation with Buchanan was successfully recorded. Roberts and Pease first contend that Judge Esch violated their right to be present by resolving Buchanan's concerns without consulting them. They also assert that before talking to Buchanan, Judge Esch told them only that he was going to listen to Buchanan's concerns. They argue that they were misled because Judge Esch actually had a conversation with Buchanan. Furthermore, having reviewed the tape recording, they contend that Judge Esch made significant omissions in what Buchanan said. In the first place, Judge Esch never mentioned that Buchanan indicated he had some concerns about Bodwell, Pease's attorney. Second, Buchanan never said that he would not hold Madson's behavior against Roberts. They point out that, because Judge Esch informed them that the conversation with Buchanan had not been recorded successfully, they had no opportunity to review the court's actions or object until after the tran-seript revealed the full conversation. In general, eriminal defendants have the right to be present at every stage of the proceedings following their indictment. The right to be present is rooted in the defendant's constitutional right to confront the witnesses against him. And, it is protected by the guarantee of due process "in some situations where the defendant is not actually confronting witnesses or evidence against him." The defendant's right to be present extends not only to those proceedings in which the defendant confronts adverse witnesses or evidence but also to "any trial-related proceeding at which defendant's presence has a 'reasonably substantial relation to defendant's ability to defend against the criminal charge"-that is, to "any stage of the eriminal proceeding that is critical to its outcome if [the defendant's] presence would contribute to the fairness of the procedure." If a defendant has a constitutional right to be present at a proceeding, the defendant must personally waive his right to be present or expressly consent to allow the proceeding to occur outside his presence. While a defendant has the right to be present at every stage of the trial where his presence could have an impact on the decision process, at least under federal law, he does not have an absolute right to be present at every communication between a judge and juror. "[The mere occurrence of an ex parte conversation between a trial judge and a juror does not constitute a deprivation of any constitutional right." For instance, in United States v. Olano, the Ninth Circuit held the trial court did not violate the United States Constitution by meeting with a juror outside of the presence of the defendants. There, midtrial, a juror informed the trial judge of a possible conflict that might reflect on the juror's ability to be impartial. The judge consulted the parties about whether they wanted her to speak with the juror alone in chambers. Counsel for one codefendant and the prosecutor consented; the other attorneys did not object. The cireuit court held the right to be present had been waived. Alaska case law prohibits ex parte communication between the judge and jury about evidence once deliberations have begun. Additionally, it is error for a judge to receive the verdict outside the presence of the defendant (even if counsel is present). However, this court has held it was not error for a trial judge who received a note from a juror during trial regarding evidence to inform the parties of its existence and refuse to disclose the contents of the note when he did not respond to the juror's question but generally instructed the jury he would not answer questions. In Peckham v. State, without reaching the issue of waiver, this court held any error the trial judge committed by questioning two jurors outside Peckham's presence regarding possible juror misconduct was harmless beyond a reasonable doubt. A juror brought to the court's attention information regarding the possible inappropriate conduct of another juror. The trial judge informed the parties of the juror's information and gave them the opportunity to voir dire the relevant jurors. Fearing the jurors might feel threatened by the interview and become prejudiced against one side or the other, the parties asked the judge to question the juror in camera. In finding that any error was harmless beyond a reasonable doubt, this court relied on the fact that Peckham did not demonstrate his personal presence would have added anything to the voir dire of the jurors or protected him from any prejudice and that the trial judge was unlikely to have granted a motion for mistrial had the defendant requested it. This court also noted that Peckham's counsel was informed of and approved the court's ex parte voir dire of the jurors and the communication did not involve a deliberating juror (both questioned jurors were exeused as alternates). Frankly, the issue Pease and Roberts raise is a difficult one. The state's argument would be considerably stronger if Judge Esch had addressed the parties and obtained a specific waiver of their right to be present before he questioned the juror. Once Judge Esch informed the parties that the proceedings had not been recorded successfully, it is understandable that the parties would take him at his word and would not attempt to review the record during trial. And, once the record surfaced following the trial, it is perhaps not surprising that Judge Eseh's summary of what the juror told him was not entirely accurate. Judge Esch did not relay to counsel that the juror had mentioned Ms. Bodwell's behavior in addition to Mr. Mad-son's. Moreover, the juror never specifically said that he would not hold Madson's behavior against his client. Instead, this apparently was an impression that Judge Esch received from the juror. After carefully reviewing the record, we conclude that the defendants waived any objection to the procedure Judge Esch followed. The juror indicated that he wanted to talk to Judge Esch in private. It appears that the attorneys, with their clients present, made a tactical decision to allow the juror to have a private meeting with the judge. There was certainly a risk that the juror might feel alienated if he was not allowed to have a private meeting. Also, the juror might be less candid about his concerns in a more formal proceeding rather than in a private meeting with the judge. After Judge Esch met with the juror, he explained the juror's general concern: that he had been bothered by Madson's behavior. The judge gave two specific examples. He told the attorneys that his attempt to record the proceeding had been unsuccessful, In spite of this information, the attorneys did not ask Judge Esch to take any further action. They had numerous possibilities. They could have asked the judge to conduct a proceeding where they could have been present. Or, the attorneys could have asked Judge Esch to reinterview the juror outside their presence to reconstruct the record for subsequent review. Another possibility was to ask him to either disqualify the juror immediately or wait until the end of the case and, if there were sufficient alternate jurors, excuse the juror at that time. They also could have moved for a mistrial. But instead of taking these actions, the parties went forward with the trial and obtained a verdict. Having obtained an unfavorable verdict, they now argue that they were prejudiced. The fact remains that it appears the trial court had many options to obviate any prejudice had the parties asked for relief during the trial. Where a defendant chooses not to move to cure possible prejudice when the judge has the opportunity to cure the prejudice, gambling on a favorable verdict, this court and the Alaska Supreme Court have held that the claim is waived. We conclude that Pease and Roberts waived any objection to the procedure Judge Esch followed in questioning the juror. Whether Roberts's case should be reversed because Judge Esch permitted John Heffle to testify to an admission made by Pease The United States and Alaska Constitutions guarantee defendants the right to confrontation, including the right to cross-examine witnesses against them, in all criminal matters. In Bruton v. United States, the Supreme Court held that a defendant is deprived of his Sixth Amendment right of confrontation when the facially incriminating confession of a nontestifying codefendant is introduced at their joint trial, even if the jury is instructed to consider that confession only against the codefendant. In Richardson v. Marsh, the Supreme Court limited its Bruton holding to situations where the nontestifying codefendant's confession directly implicates the defendant. The Court noted: In Bruton, the codefendant's confession "expressly implicat[ed]" the defendant as his accomplice. Thus, at the time that confession was introduced there was not the slightest doubt that it would prove "powerfully incriminating." By contrast, in this case the confession was not incriminating on its face, and became so only when linked with evidence introduced later at trial (the defendant's own testimony). Where the necessity of such linkage is involved, it is a less valid generalization that the jury will not likely obey the instruction to disregard the evidence. The Marsh dissent disagreed with the majority's assertion that the jury's ability to abide by an instruction depends on whether the defendant is named in the confession. The dissent relied on the premise that "certain kinds of hearsay 'are at once so damaging, so suspect, and yet so difficult to discount, that jurors cannot be trusted to give such evidence the minimal weight it logically deserves, whatever instructions the trial judge might give'" The dissent urged continued application of Bruton's "powerfully incriminating" analysis whenever the state presents codefendant hearsay confessions in a joint trial where the codefendant does not testify. Marsh set forth three alternatives for dealing with a codefendant's confession that implicates a defendant and is otherwise inadmissible against the defendant. First, the state can choose to try the two defendants separately. Second, the state can choose not to introduce the confession. Or, third, the state can alter the confession so it only implicates the codefendant and does not directly implicate the defendant and ask the court to give a limiting instruction. This court reviewed Marsh in State v. McDonald. Because it found McDonald's confrontation clause argument unpersuasive under both views, this court declined to determine if the Marsh majority or dissent applies as a matter of constitutional law in Alaska. In the present case, Roberts asks this court to adopt the view set forth in the Marsh dissent. During trial, the state moved to admit a statement Pease made to John Heffle. According to Heffle's testimony, Heffle and Pease became friends while they were housed in the same dorm (along with the other codefendants) at the Fairbanks Corree-tional Center. Heffle contacted Fairbanks Police Detective Jim Geier to tell him Pease had made an incriminating statement about the murder of J.H. According to the state, Heffle . felt Pease trusted him because he always gave Pease cigarettes. [Heffle] . stated that one day they were smoking some marijuana that had been brought into the jail and were talking about what it would be like to serve a 99 year sentence. Heffle asked Pease if he really did it. Pease responded, "we were fucked up. It was bad." Detective Geiler asked Heffle if they were talking about the murder that Pease was in jail for and Pease [sic] said "yes." Heffle said that he knew . [the murder] was what they were referring to and that Pease did too. After Pease made the statement, Heffle said Pease walked away and became very quiet. The state argued Pease's statement was admissible against Pease but recognized that this testimony was not admissible against Roberts because it would violate Roberts's Sixth Amendment right to confront the witness who testified against him. The state suggested several options for admitting the statement without violating Roberts's Sixth Amendment rights. The state argued Roberts's rights would not be violated if the defendants' trials were severed or if the statement "we were fucked up" was paraphrased to "I (Pease) was fucked up" or "he (Pease) was fucked up." The state suggested that the better option was to paraphrase the statement and give a limiting instruction to assure the jury would not improperly use Pease's statement to implicate Roberts. The state argued that with the statement modified and the jury so instructed, the statement would not be "powerfully incriminating" of Roberts and the court would not have to sever the defendants' cases for trial. The state pointed out that Roberts had waived his Sixth Amendment rights to another incriminating statement made by Pease (Angela Harman's statement that Pease admitted that he attacked J.H. "for the punk's money") and that this statement to Heffle was less incriminating than that one. Roberts argued the Heffle statement was inadmissible under the reasoning of the Marsh dissent. Roberts did not move for severance. Judge Esch followed the reasoning of the majority decision in Marsh. He allowed the state to introduce Heffle's redacted statement and instructed the jury not to use the statement against Roberts. At trial, Heffle testified for the state. After establishing that Heffle and Pease were friends in jail, the state questioned Heffle as follows: State: Do you remember one day having a pretty heavy conversation with [Pease]? Heffle: Well, I don't-yeah. Yes. State: And did you know what Mr. Pease was in custody for? Heffle: Yes. State: And you knew . Heffle: Accused of . State: . that was murder charges, right? Heffle: Yes. State: And during this kind of heavy conversation, did you ask him if he did it? Heffle: Yes. State: Do you recall what he said? Heffle: He didn't say yes, but he-he said, "I was fucked up and it was bad," and he walked away. State: Okay. Heffle: So I don't know how you take that. State: When he walked away, how did he walk away, what did he do? Heffle: Just walked away quietly, sat down, and watched TV or something. I can't remember exactly. I think he went and looked at TV. State: Did that end the conversation? Heffle: Yes. After Heffle testified, Judge Esch instructed the jury: Ladies and gentlemen, I'd like to instruct you that you heard . a statement allegedly made by one of the defendants. You need to understand that you may consider that evidence against that defendant only and not as . evidence against Mr. Roberts. So you're entitled to consider that as evidence against . the defendant who allegedly made the statement. Roberts argues this court should adopt the position of the Richardson v. Marsh dissent, which calls for a case-by-case analysis to determine whether a particular codefendant confession is "powerfully incriminating" regardless of whether the defendant is actually named by his codefendant in the out-of-court confession. Roberts argues that Heffle's testimony was "powerfully incriminating" be cause even though in its redacted form it only directly implicated Pease, the state's theory was (and other evidence at trial indicated) the four codefendants assaulted J.H. together. Therefore, if the jury concluded Pease murdered J.H., it would require the jury to also conclude that Roberts was involved. An appellant who contends that this court should construe the Alaska Constitution to grant defendants more rights than they have under analogous provisions of the United States Constitution bears a substantial burden. Roberts has not met that burden. We recognize the force of the dissenting position in Richardson v. Marsh: In some cases a codefendant's confession could be so "powerfully incriminating" that even if the statement were redacted to exclude any reference to the defendant, it would be unreasonable to conclude that the jury would be able to follow the court's instruction to disregard the statement as to the defendant. But the facts of Roberts's case are not particularly compelling. In the first place, Roberts never moved to sever his trial from Pease's. Furthermore, pursuant to a Bruton waiver by Roberts, the state introduced another in-culpatory statement by Pease. Angela Har-man testified that while in jail she asked Pease why he had done it, referring to J.H.'s murder, and Pease told her he did it for the punk's money. Therefore, it does not appear that Roberts was particularly concerned about witnesses from the jail testifying that Pease made inculpatory statements. The in-culpatory statement, as redacted by the court, referred only to Pease, and the court gave the jury a cautionary instruction. Although there was substantial evidence that Pease and Roberts were together during the incident, Roberts's defense was that at the time in question, he was not with Pease but was at the wedding reception at the Eagles Hall. If the jury believed Roberts's defense, Pease's statement only implicated Pease and not Roberts. We conclude that Roberts has not established a substantial basis for departing from the majority decision in Richardson v. Marsh. We conclude that Judge Esch did not err in admitting Pease's hearsay statement. Whether Judge Esch erred in allowing the prosecutor to argue that codefendants Vent and Frese stated Roberts was not at the Eagles Hall but in the car Roberts's attorney eross-examined Fairbanks Police Detective Aaron Ring about Ring's investigation of Roberts's location at 1:30 am. Roberts's attorney asked Detective Ring whether he was concerned that witnesses reported Roberts dancing at the Eagles Hall at around 1:80 a.m. when the state's theory was that Roberts was with his code-fendants at that time. Detective Ring replied that, although some people had stated that Roberts was at the Eagles Hall at 1:30, "other people have him doing other things." Roberts's attorney asked Ring who had Roberts "doing other things." Roberts: Like Mr. Arlo Olson? Det. Ring: And-and others. Roberts: Right? Huh? Det. Ring: And others. Roberts: Who others? Just give me a name. Det. Ring: Mr. Vent. Roberts: Uh-huh. Det. Ring: Mr. Frese. Roberts: Uh-huh. Det. Ring: I can't recall with specificity the other witnesses. Edgar Henry. The parties presented no more evidence regarding statements by Vent or Frese. Prior to closing arguments, Pease and Roberts applied for a protective order to prevent the state from implying that Vent or Frese had made admissions or confessions. The state argued that Roberts had "opened the door" by asking Detective Ring about the identity of the other witnesses who stated Roberts was in the car and not at the Eagles Hall. Based on Roberts's questioning of Detective Ring, the court allowed the state to argue that Vent and Frese had given information that Roberts was in the car. During final arguments, the state argued: Then, Mr. Madson asked Detective Ring whether he's concerned about the time factor where Melanie Durbham says, you know, it's after the Bowie show, and it's 1:30 or so, and you got all these other witnesses saying well, [Roberts's] someplace else dancing. And he asks Detective Ring about well, who else could put him anywhere. The state then played a recording of the trial cross-examination of Detective Ring. During its rebuttal closing, the state said, "Again, Mr. Madson asked Mr. Ring, 'well, who puts [Roberts] in the car': 'Arlo, Edgar [Henry], Vent, and Frese!" Without citing legal authority, Pease and Roberts contend that the state argued an impermissible inference when the state argued that Vent and Frese stated Roberts was in the car. The defendants argue it is pure speculation to conclude from Detective Ring's testimony that all of the defendants were in the car together at the time of the assaults. They contend the jury could make this speculative conclusion based on the state's argument; that this conclusion is factually and legally incorrect; and, therefore, the state's argument was erroneous. The evidence at trial tended to show that Roberts was either at the Eagles Hall at the time of the assaults or that he was in the car with his codefendants. A reasonable inference from Detective Ring's remarks was that Frese and Vent placed Roberts in the car at 1:30 am. Assuming Vent and Frese told Detective Ring that Roberts was in the car at 1:30 a.m., the state's comment was not fundamentally misleading. Pease and Roberts claim that this inference was "factually and legally incorrect." But they have not provided us with Detective Ring's interviews of Frese and Vent or provided any other basis suggesting that the inference the prosecution made from Detective Ring's testimony was misleading. Under these circumstances, we conclude that Judge Esch did not err in refusing to curtail the state's argument. Whether Judge Esch erred in admitting Exhibit D Exhibit D consists of a photo of the injuries on one side of J.H.'s face overlaid with inked impressions of Frese's shoe print on see-through plastic. Fairbanks Police Lieutenant David Kendrick, Detectives Brown and Ring, and the prosecutor, Jeffrey O'Bryant, prepared the exhibit. Dr. Fallico, the pathologist who performed the autopsy on J.H., testified that the injuries on J.H.'s face were consistent with the tread pattern on Frese's shoe. He based his opinion on his notes-notes he had made from the exhibit while using it in a prior proceeding, autopsy information, other photos, and investigative information. Pease introduced Exhibit D during his cross-examination of Dr. Fallico. Both defendants cross-examined Dr. Fallico extensively on his qualifications to make footwear impression identification. Pease's expert witness, Dr. John Thornton, disagreed with Dr. Fallico's opinion that the marks on J.H. matched the footwear pattern. He commented it was misleading to merely compare the tread design from the shoe to the injuries on J.H.'s face without considering the depth of the tread. Dr. Thornton testified that he and others in his laboratory had compared the marks on J.H.'s face with the shoes police seized, and no one concluded that the marks on J.H.'s face were consistent with the tread design on the shoes. At the close of trial, the state moved to admit Exhibit D. Pease objected to its admission. Pease argued that Dr. Fallico did not create the overlay; the state did. He complained that he could not call the state's attorney to question him about the construction of the exhibit. Pease argued that although the overlay was the basis of Dr. Fallico's opinion, Dr. Fallico did not testify from it. Therefore, he concluded, it should not be admissible. Judge Esch admitted the overlay. He stated that Dr. Fallico had used the exhibit to form his opinion and that there had been extensive testimony about it during the trial. Pease and Roberts raise numerous arguments about why Judge Esch erred in admitting Exhibit D. But Pease used Exhibit D during his cross-examination of Dr. Falli-co. And Pease presented an expert witness, Dr. John Thornton, who testified extensively about why Exhibit D gave an inaccurate impression. Given the extensive testimony about Exhibit D and the jury's exposure to it, we fail to see how admission of this evidence would have mislead the jury or would have had an appreciable impact on the jury's verdict. Therefore, we conclude that Judge Esch did not err in admitting Exhibit D. Furthermore, to the extent that there was any error in admitting Exhibit D, that error was harmless. Defendants' motions for judgment of acquittal and motions for a new trial Pease and Roberts contend that Judge Esch erred in denying their motions for judgment of acquittal. In reviewing a judge's denial of a motion for judgment of acquittal, this court considers only those facts in the record most favorable to the state and such reasonable inferences as the jury could have drawn from them. "The question on review is . 'whether the finding of guilt is supported by substantial evidence[;]' " that is, "whether reasonable jurors could differ on the issue of guilt." Our review of the record convinces us that reasonable jurors could have convicted Pease and Roberts of the charges in question. The standard for a motion for a new trial is different. On this issue, the trial court was authorized to weigh the evidence and determine the credibility of the witnesses. The decision of whether to grant a motion for a new trial under Alaska Criminal Rule 33 is committed to the discretion of the trial court. This court is to reverse the trial judge's decision on this issue "only if it is unsupported by evidence or was based on an incorrect application of the law." Especially when the credibility of witnesses is at issue, this court "must give broad deference to the trial judge's ability to observe the demeanor of witnesses, to form firsthand impressions of their credibility, and to decide the weight that should be given to their testimony." We have reviewed Judge Eseh's findings denying the motion for a new trial We conclude that Judge Esch did not abuse his discretion. Restitution The state requested $18,696.66 in restitution to be paid to Evelyn Thomas, J.H.'s mother. The state submitted copies of seven bills and statements from Thomas in support of its request and an explanation of those charges. On May 30, 2000, Judge Esch held a restitution hearing. The state itemized its $18,696.66 reimbursement request. And, Thomas testified regarding the itemized requests for reimbursement. At the conclusion of the hearing, Judge Esch ordered $1,774 to be paid for J.H.'s funeral and miscellaneous expenses. He also ordered $16,842.66 to be paid to the Violent Crimes Compensation Commission (Commission). Roberts and Pease argue Thomas's testimony that the Commission paid particular bills is insufficient to establish what medical bills the Commission paid. Based on this argument, they contend this court should find Judge Esch erred in ordering restitution to be paid to the Commission. The state argues the evidence on the ree-ord viewed in the light most favorable to the state shows the Commission paid $16,442.66. The state concedes that the order of $16,842.66 is incorrect. The state's concession of unexplained error appears to be well-founded. The testimony indicated that the Commission paid the following expenses: 1) $2237 to the Fairbanks Clinic 2) $850 ($600 & $250) to the Fairbanks Psychiatric and Neurological Clinic 3) $62 to ANHC 4) $2643.79 to FMH for the neurologic brain surgeon 5) $10,206.87 to FMH 6) $448 to Radiology Consultants Total: $16,442.66 The state therefore asks us to remand the restitution issue to Judge Esch for redetermination. We conclude that this matter should be remanded to the superior court to reconsider restitution in light of the state's concession. Because the restitution issue is being remanded, on remand, the parties will have the opportunity to reexamine the evidence in support of restitution. Conclusion Having reviewed the defendants' claims of error, we AFFIRM the convictions. We REMAND the restitution issue to the trial court for reconsideration. . See Frese v. State, Court of Appeals File No. A-7640; Vent v. State, Court of Appeals File No. A-7647. . See, e.g., State v. Carriker, 269 S.C. 553, 238 S.E.2d 678 (1977); People v. Lopez, 158 A.D.2d 623, 623, 551 N.Y.S.2d 606 (N.Y.App.Div.1990) ("The objections made by the codefendants did not preserve the allegations of error for this defendant."); Martinez v. State, 833 S.W.2d 188, 191 (Tex.App.1992) (defendant may not rely on the objection of his codefendant to preserve error unless defendant has adopted the objection on the record); see also Owens-Corning Fiberglas Corp. v. Malone, 916 S.W.2d 551, 556 (Tex.App.1996) (defendant in multi-defendant products liability action could rely on evidentiary objections made by codefendants' counsel where trial court apparently required and defendants agreed that objection made by one defendant would be considered as having been made on behalf of all defendants and plaintiffs did not object to such arrangement). . 778 P.2d 1161 (Alaska App.1989). . Id. at 1167 n. 2. . See Petersen v. State, 838 P.2d 812, 816 (Alaska App.1992). . See Ashley v. State, 6 P.3d 738, 741 (Alaska App.2000); Alaska R.Crim. P. 8; Alaska R.Crim. P. 14. . See Ashley, 6 P.3d at 741; Alaska R.Crim. P. 8. . See Ashley, 6 P.3d at 741; Alaska R.Crim. P. 14. . See Catlett v. State, 585 P.2d 553, 556 (Alaska 1978); Cleveland v. State, 538 P.2d 1006, 1008-09 (Alaska 1975). . See Mathis v. State, 778 P.2d 1161, 1167 (Alaska App.1989). . 950 P.2d 141 (Alaska App.1997). . Id. at 147. . Id. . 697 P.2d 312 (Alaska App.1985), affirmed on appeal, 726 P.2d 546 (Alaska 1986). . Hoffman, 950 P.2d at 147 (quoting Lerchenstein, 697 P.2d at 319). . 778 P.2d 593 (Alaska App.1989). . Id. at 596-97. . 756 P.2d 907 (Alaska App.1988), overruled on other grounds by Swain v. State, 817 P.2d 927, 931-34 (Alaska App.1991). . Id. at 911. . See also Vessell v. State, 624 P.2d 275, 278 (Alaska 1981) (defendant's conduct at a store minutes after the armed robbery of another store for which he was accused was admissible to show that he was the same man who robbed the first store); Kelly v. State, 663 P.2d 967, 972 (Alaska App.1983) (bad checks written by defendant near time he wrote the bad check for which he was prosecuted were admissible to prove intent and absence of mistake); Davidson v. State, 642 P.2d 1383, 1390 n. 8 (Alaska App.1982) (upholding trial court's refusal to sever charge based on an assault occurring six days before other charged murder because defendant's actions could be viewed as a continuing course of conduct and since the assault charge would have been admissible in the murder trial to prove criminal intent or motive or to show a common scheme or plan even if the charges had been severed). . ARE. 403. . See Alaska R.Crim. P. 38(a); Faretta v. California, 422 U.S. 806, 820 n. 15, 95 S.Ct. 2525, 2533 n. 15, 45 L.Ed.2d 562 (1975) (A defendant has a constitutional "right to be present at all stages of the trial where his absence might frustrate the fairness of the proceedings."). . See U.S. Const. amends. VI, XIV; Alaska Const. art. 1, § 1, 7; Dixon v. State, 605 P.2d 882, 884 n. 3 (Alaska 1980); Henry v. State, 861 P.2d 582, 592 (Alaska App.1993). . United States v. Gagnon, 470 U.S. 522, 526, 105 S.Ct. 1482, 1484, 84 L.Ed.2d 486 (1985). . Malloy v. State, 1 P.3d 1266, 1271 (Alaska App.2000), overruled on other grounds, 46 P.3d 949 (Alaska 2002) (citations omitted). . See Dixon, 605 P.2d at 885 n. 8 ("[The constitution[ ] mandate{s] that the right [to be present] be personally exercised by the defendant or with his express consent."). . See Gagnon, 470 U.S. at 526, 105 S.Ct. at 1484; Alaska R.Crim. P. 38. . Gagnon, 470 U.S. at 526, 105 S.Ct. at 1484 (quoting Rushen v. Spain, 464 U.S. 114, 125-26, 104 S.Ct. 453, 459, 78 L.Ed.2d 267 (1983) (Stevens, J., concurring)). . 62 F.3d 1180 (9th Cir.1995). . Id. at 1190-91. . Id. . Id. at 1190. . See Cox v. State, 575 P.2d 297, 300 (Alaska 1978) (holding judge's ex parte communication through bailiff regarding jury's playback request was constitutional error); Richardson v. State, 579 P.2d at 1372, 1374 (Alaska 1978) (playback of testimony without presence of parties or judge and without notifying parties was error); State v. Hannagan, 559 P.2d 1059, 1065 (Alaska 1977) (error to permit playback of testimony in defendant's absence without express waiver by defendant). . See Lee v. State, 509 P.2d 1088, 1090-91 (Alaska 1973) (decided under Alaska R.Crim. P. 38). . See Brodine v. State, 936 P.2d 545, 552-53 (Alaska App.1997). . 723 P.2d 638 (Alaska App.1986). . Id. at 640. . Id. at 638. . Id. at 638-39. . Id. at 640. . Id. at 641. . See Owens v. State, 613 P.2d 259, 263 (Alaska 1980); Davidson v. State, 642 P.2d 1383, 1386-89 (Alaska App.1982). . See U.S. Const. amends. VI & XIV; Alaska Const. art. I, § 11; Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 1623, 20 L.Ed.2d 476 (1968); Richardson v. Marsh, 481 U.S. 200, 206, 107 S.Ct. 1702, 1707, 95 L.Ed.2d 176 (1987); Hawley v. State, 614 P.2d 1349, 1358 (Alaska 1980). . 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). . Marsh, 481 U.S. at 207, 107 S.Ct. at 1707 (citing Bruton, 391 U.S. at 126, 88 S.Ct. at 1622). . 481 U.S. 200, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987). . Marsh, 481 U.S. at 211, 107 S.Ct. at 1709. . Id. at 208, 107 S.Ct. at 1707-08 (citations and footnotes omitted). . Id. at 212, 107 S.Ct. at 1710 (Stevens, J., dissenting) (citations and footnotes omitted). . Id. at 214, 107 S.Ct. at 1711 (Stevens, J., dissenting) ("Bruton has always required trial judges to answer the question whether a particular confession is or is not 'powerfully incriminating' on a case-by-case basis; they should follow the same analysis whether or not the defendant is actually named by his or her codefendant."). . Id. at 209, 107 S.Ct. at 1708. . Id. at 210, 107 S.Ct. at 1709. . Id. at 211, 107 S.Ct. at 1709. . 872 P.2d 627 (Alaska App.1994). . Id. at 647. . See Bruton, 391 U.S. at 126, 88 S.Ct. at 1623. . See Hosier v. State, 976 P.2d 869, 870 (Alaska App.1999). . See Patterson v. State, 747 P.2d 535, 538-41 (Alaska App.1987). . See Dorman v. State, 622 P.2d 448, 453 (Alaska 1981). . Id. . New v. State, 714 P.2d 378, 381 (Alaska App.1986). . Id. at 381-82. . Maloney v. State, 667 P.2d 1258, 1267 (Alaska App.1983). . New, 714 P.2d at 381-82. . Maloney, 667 P.2d at 1267. . See Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972). A concession of error by the state is not determinative of the issue because "[the public interest in criminal appeals does not permit their disposition by party stipulation." Id. When the state concedes error, this court must independently review the record to ensure that the alleged error exists and that it has a legal foundation.

10356592

NORTH KENAI PENINSULA ROAD MAINTENANCE SERVICE AREA and Bill McGahan, Appellants, v. KENAI PENINSULA BOROUGH, Appellee

North Kenai Peninsula Road Maintenance Service Area v. Kenai Peninsula Borough

1993-04-16

No. S-4754

636

641

850 P.2d 636

850

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:23:50.545071+00:00

CAP

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

NORTH KENAI PENINSULA ROAD MAINTENANCE SERVICE AREA and Bill McGahan, Appellants, v. KENAI PENINSULA BOROUGH, Appellee.

NORTH KENAI PENINSULA ROAD MAINTENANCE SERVICE AREA and Bill McGahan, Appellants, v. KENAI PENINSULA BOROUGH, Appellee. No. S-4754. Supreme Court of Alaska. April 16, 1993. John R. Strachan, Anchorage, for appellants. Kristine A. Schmidt, Deputy Borough Atty., Kenai Peninsula Borough, for appel-lee. Before MOORE, C.J., and RABINO WITZ, BURKE, MATTHEWS and COMPTON, JJ.

2548

15964

OPINION COMPTON, Justice. Kenai Peninsula Borough Ordinance 91-18 abolished the North Kenai Peninsula Road Maintenance Service Area (North Service Area) and consolidated it with three other service areas in the Kenai Peninsula Borough (Borough). North Service Area and Bill McGahan sought a judgment declaring the ordinance null and void and enjoining its enforcement. They also filed a Motion for Preliminary Injunction. The superior court denied their motion and dismissed their suit. We affirm. I. FACTUAL AND PROCEDURAL BACKGROUND In 1981 the Borough Assembly enacted Ordinance 81-63, which proposed the establishment of the North Service Area. The proposition was subject to approval by a majority of the people voting within the area. The proposition would allow road maintenance services to be provided within the North Service Area. A five member board elected from residents of the service area was to advise the mayor and the Assembly regarding the management of the North Service Area. No mill levy could be established without further voter approval. Three virtually identical ordinances proposing companion maintenance service areas were enacted at the same time. All four service areas were approved by the voters in their areas. The Assembly then passed ordinances providing for the operation and organization of the service areas. In 1985 the Assembly placed on the ballot in each service area a proposition which would give the service area power to provide for road improvement and to levy up to one-half mill for road improvements. A majority of the voters in each service area approved the proposition for its respective service area. On August 6, 1991, the Assembly enacted Ordinance 91-18, which repealed the ordinances establishing the four service areas and created the Kenai Peninsula Borough Road Service Area in their stead. The ordinance did not add to or modify any of the powers previously vested in the four service areas. Under Ordinance 91-18, the mayor appoints the new service area board. Bill McGahan was a resident of the North Service Area and a member of its board at the time of its disestablishment. He filed a Complaint and Motion for Preliminary Injunction on behalf of himself and the North Service Area. The complaint requested: 1) an injunction restraining the implementation of Ordinance 91-18, and 2) a declaratory judgment finding Ordinance 91-18 null and void. After two hearings, the superior court orally denied the' motion for preliminary injunction. The court later issued a written decision concluding that: 1) North Service Area is not an independent political entity capable of suing or being sued, 2) whether Ordinance 91-18 violated the will of the people is a nonjusticiable political question, and 3) Ordinance 91-18 is valid without voter approval. Since the court concluded that North Service Area's claims were without merit, it denied the motion for preliminary injunction. The court then dismissed the suit because it concluded that the "basic issue" was nonjusticiable. II. DISCUSSION A. Standard of Review This court applies an abuse of discretion standard when reviewing an order granting a temporary injunction. State v. Kluti Kaah Native Village, 831 P.2d 1270, 1272 n. 4 (Alaska 1992). The same standard applies when reviewing an order denying a preliminary injunction. We apply to preliminary injunctions a "balance of hardships" approach which entails a three part test: 1) the plaintiff must be faced with irreparable harm; 2) the opposing party must be adequately protected; and 3) the plaintiff must raise serious and substantial questions going to the merits of the case; that is, the issues raised cannot be "frivolous or obviously without merit." Kluti Kaah, 831 P.2d at 1273; Alaska Pub. Utils. Comm'n v. Greater Anchorage Area Borough, 534 P.2d 549, 554 (Alaska 1975). The "serious and substantial question" standard applies only where the injury which will result from the preliminary injunction is relatively slight in comparison to the injury which the person seeking the injunction will suffer if the injunction is not granted. State v. United Cook Inlet Drift Ass'n, 815 P.2d 378, 378-79 (Alaska 1991). Where the injury from the preliminary injunction is "not inconsiderable and may not be adequately indemnified by a bond, a showing of probable success on the merits is required before a temporary restraining order or a preliminary injunction can be issued." Id. at 379. The decision to dismiss a suit because it involves a nonjusticiable political question is a question of law, subject to independent review. "On questions of law, this court is not bound by the lower court's decision; . Our duty is to adopt the rule of law that is most persuasive in light of precedent, reason, and policy." Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979). Questions of standing to sue and the validity of an ordinance adopted without voter approval are also questions of law, subject to independent review. B. Standing 1. North Service Area The superior court concluded that the North Service Area did not have standing to sue, since it was not an independent legal entity. Using our independent judgment, we conclude that the superior court was correct. As a general rule, only independent legal entities may sue or be sued. See Waller v. Butkovich, 584 F.Supp. 909, 925 (M.D.N.C.1984); Meyer v. City and County of Honolulu, 729 P.2d 388, 390 n. 1 (Hawaii App.1986) aff'd in part, reversed in part, 69 Haw. 8, 731 P.2d 149 (1986). Alaska law specifically gives cities and boroughs corporate status, and the right to sue and be sued. AS 09.65.070-.080, AS 29.04.010-020, AS 29.35.010(14). There are no similar provisions for service areas. A service area is a specific geographical area within which a municipal service is furnished by a borough. Its powers derive from statute, charter and ordinance. Service areas have no corporate status or right to sue under any Alaska statute. Neither the Kenai Borough charter nor Borough ordinances confer such status or right. Therefore, the North Service Area does not have standing to sue the Borough. 2. Bill McGahan The superior court did not decide whether Bill McGahan had standing to sue, since it concluded that his claims had no merit and ultimately dismissed the suit on the ground that the "basic issue" presented was nonjusticiable. In order to reach the issues of the validity of Ordinance 91-18 and justiciability, we must first determine whether McGahan has standing to sue. "[T]he concept of standing has been interpreted broadly in Alaska." Moore v. State, 553 P.2d 8, 23 (Alaska 1976). "The basic requirement for standing in Alaska is adversity." Trustees for Alaska v. State, 736 P.2d 324, 327 (Alaska 1987), cert. de nied, 486 U.S. 1032, 108 S.Ct. 2013, 100 L.Ed.2d 601 (1988). This court recognizes interest-injury standing and taxpayer-citizen standing. Id. Arguably McGahan has standing under either of these doctrines. However, taxpayer-citizen standing is more appropriate to his circumstances. Taxpayer-citizen standing will be granted if certain criteria are satisfied. First, the case must be one of public significance. Second, the plaintiff must be "appropriate." This means that the plaintiff must have an adverse interest. If another party is more directly affected by the outcome, the plaintiff may be denied standing. Finally, the plaintiff must capably and competently represent the position asserted. Trustees, 736 P.2d at 329-30. Whether Ordinance 91-18 is valid without voter approval is a matter of public significance. Consolidation of the service areas directly affects the manner in which road maintenance and improvement services are provided in and by the Borough. As a resident of the North Service Area, McGahan is an appropriate plaintiff. No plaintiff or class of plaintiffs would be more directly affected by the outcome. It is not argued that he has not or cannot capably and competently advocate his adversarial position. We conclude that McGahan has standing to challenge the ordinance which altered the service area by consolidating it with three other service areas. C. Justiciability of Ordinance 91-18 The superior court ultimately dismissed the suit because it concluded that the question whether Ordinance 91-18 violated the will of the people is a political question upon which the court should withhold judgment. To the superior court, the "basic issue" was whether the ordinance was "right or wrong." This court has recognized that political questions are best left to legislative bodies. "It is not a court's role to decide whether a particular statute or ordinance is a wise one: the choice between competing notions of public policy is to be made by elected representatives of the people." Concerned Citizens of So. Kenai Peninsula v. Kenai Peninsula Borough, 527 P.2d 447, 452 (Alaska 1974). McGahan does not argue that the Borough's perceived violation of the will of the people is a separate basis for invalidating Ordinance 91-18. Rather, he argues that the ordinance was adopted illegally, i.e. without voter approval. Hence, the will of the people, as expressed in 1981 and 1985, was frustrated. Construed in context, this statement is nothing more than a political comment. On the other hand, the Borough argues that the court correctly held that the ordinance was valid without voter approval. Since the suitability of the ordinance was the only issue remaining, suit was properly dismissed as presenting a nonjusticiable political question. The superior court erred in dismissing this suit as presenting solely a nonjusticiable issue. The validity of Ordinance 91-18 without voter approval presents a justiciable issue. We will therefore decide whether Ordinance 91-18 required voter approval. D. Validity of Ordinance 91-18 Without Voter Approval McGahan argues that when the voters approved the exercise of power by the North Service Area to maintain roads, a compact arose between the people and the Borough. The voters approved a service area which provided for local control by an elected board. On the other hand, the new service area has an appointed board, does not provide for local control, and in fact encompasses three other service areas. The terms of the compact approved in 1981, and altered in 1985 after another vote, can only be changed if the voters approve it. The Alaska Constitution provides that service areas "may be established, altered, or abolished by the assembly, subject to the provisions of law or charter." Alaska Const. Art. X, § 5. Alaska Statute 29.35.-450(a) codifies this provision, restating that service areas may be established, operated, altered, or abolished by ordinance. Alaska Statutes and Borough ordinances require the Borough to seek voter approval to exercise a power for which the service area has been established. AS 29.-35.490(a)(1); Kenai Peninsula Borough Ordinance (KPBO) 16.04.060 (1981). However, no voter approval is necessary to operate, alter or abolish a service area. Thus, Ordinance 91-18 is valid without voter approval if it is merely an "alteration" of existing service areas. The change from an elected to an appointed board is an alteration in the administration of the service area. The Assembly may provide for an elected or an appointed board, or no board at all. AS 29.-35.460. Changing the method of the selection of the board is an alteration of the service area which does not require voter approval. Although consolidating four service areas into one is a more fundamental change, the same powers are being exercised within the same areas. The mayor and the Assembly still have final authority. KPBO 16.56.080, which provided for the powers and duties of the North Service Area board, is virtually identical to KPBO 16.41.070, which provides for the powers and duties of the new board. In each, the board's power to provide for improvement and maintenance of roads is subject to Assembly approval and appropriation of funds. Since the mayor and Assembly are exercising the same powers within the same geographical area and are subject to the same constraints with respect to approval and appropriation that existed before the alteration, voter approval is not required. Ordinance 91-18 is valid. III. CONCLUSION In view of the trial court's correct determination that Ordinance 91-18 is valid without voter approval, the trial court did not abuse its discretion in denying McGa-han's motion for preliminary injunction. The decision to deny the preliminary injunction is AFFIRMED. The superior court improperly dismissed the suit on the ground that it presented a nonjusticiable political question. However, McGahan would not succeed on his justicia-ble claim that Ordinance 91-18 is invalid because it was adopted without voter approval. On the alternative ground that the complaint failed to state a claim on which relief can be granted, the dismissal is AFFIRMED. . Ordinances 81-55, 81-60, and 81-53, proposing the South, Central, and East Kenai Peninsula Service Maintenance Areas respectively. . Ordinance 82-29, codified as KPB 16.56, provided for the North Service Area. . Ordinance 91-18 provides an effective date of July 1, 1991, although it was not enacted until August 6, 1991. The superior court concluded as a matter of law that the effective date of the ordinance was August 7, 1991, the day after it was passed by the Assembly. No party argues that this conclusion is incorrect. .The superior court concluded that a decision regarding McGahan's standing to sue was unnecessary, since it ultimately decided that his claims had no merit. Unless McGahan had standing, however, the court should not have reached the merits of his claims. . For interest-injury standing, "a plaintiff must have an interest adversely affected by the conduct complained of." Trustees for Alaska, 736 P.2d at 327. . The superior court dismissed the case on its own motion after two hearings on North Service Area's Motion for Preliminary Injunction. We may uphold the decision of the superior court if an alternative ground would support, as a matter of law, the result reached by the superior court. Carlson v. State, 598 P.2d 969, 973 (Alaska 1979); Stordahl v. Government Employees Ins. Co., 564 P.2d 63, 67 n. 16 (Alaska 1977); Moore v. State, 553 P.2d 8, 20-216 (Alaska 1976). We will therefore consider whether an order of dismissal would be appropriate on the record before us. Carlson, 598 P.2d at 973. We may uphold the decision to dismiss if the complaint failed to state a claim on which relief can be granted. Alaska R.Civ.P. 12(b)(6). The complaint is based on the invalidity of Ordinance 91-18 without voter approval. The superior court has decided that the ordinance is valid. McGahan has had ample opportunity to argue the issue. We may therefore reach the issue and uphold the dismissal if, as a matter of law, the ordinance is valid without voter approval. . The trial court made no findings with respect to the potential for irreparable harm without the preliminary injunction or the possibility of protecting the Borough if the preliminary injunction were issued. It is therefore unclear whether the trial court applied the "serious and substantial question" standard or the "probable success on the merits" standard. Even under the less rigorous "serious and substantial question" standard, the trial court did not abuse its discretion. No authority supported the position that the voters and the Borough entered a "compact" which precluded the Borough from altering the service area as allowed by statute.

10427931

John Anthony LEE, Appellant, v. STATE of Alaska, Appellee

Lee v. State

1983-12-16

No. 7017

892

897

673 P.2d 892

673

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T18:09:56.146075+00:00

CAP

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

John Anthony LEE, Appellant, v. STATE of Alaska, Appellee.

John Anthony LEE, Appellant, v. STATE of Alaska, Appellee. No. 7017. Court of Appeals of Alaska. Dec. 16, 1983. Alex Swiderski, Asst. Public Defender, and Dana Fabe, Public Defender, Anchorage, for appellant. Martha Beckwith, Asst. Dist. Atty., Victor C. Krumm, Dist. Atty., Anchorage, and Norman C. Gorsuch, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

2843

17737

OPINION BRYNER, Chief Judge. John Lee pled no contest to assault in the first degree in violation of former AS 11.-41.200(a)(1). Superior Court Judge Seaborn J. Buckalew sentenced Lee to fifteen years in jail and specified that the first ten years of the sentence were imposed under the presumptive sentencing provisions of the revised criminal code, AS 12.55.125-.155. Lee appeals the validity of his sentence, claiming that Judge Buckalew should not have subjected him to presumptive sentencing and that Judge Buckalew's findings with respect to aggravating and mitigating factors were erroneous. On August 12,1981, Lee came home after he had been drinking. Lee's wife and son left the house upon Lee's return; Lee then fired two gunshots, one inside the house and one outside. Neighbors summoned the police. Officers Pete Nolan and Joe Austin were the first to respond. Officer Nolan approached Lee's house but was unable to see anything. He called on his radio for additional officers. As Officer Nolan walked away from Lee's house, two gunshots fire by Lee struck the ground near Nolan's feet. Nolan began to run. Lee fired two more shots, striking Nolan from behind in the thigh and back. Additional officers arrived at the scene and surrounded Lee's house. After approximately three hours of negotiations, Lee surrendered. During this period, Lee stated that he "had been dreaming about shooting a police officer for a long time." Upon arrest, Lee remarked, "My practicing paid off, I got one of them." Prior to Lee's sentencing, the prosecution filed notice that Lee had been convicted of grand larceny in 1972 and requested the court to sentence Lee as a second felony offender under the presumptive sentencing provisions of the revised criminal code. Judge Buckalew found that Lee's 1972 larceny was a "prior conviction" under the meaning of AS 12.55.145 and that he was therefore subject to presumptive sentencing as a second felony offender. Judge Bucka-lew also found that two statutory aggravating factors applied to Lee's case: first, that Lee's assault was knowingly directed at a law enforcement officer, AS 12.55.-155(c)(13), and, second, that Lee's conduct was among the most serious included in the definition of first-degree assault, AS 12.55.-155(c)(10). Judge Buckalew found one applicable mitigating factor: that Lee's prior conviction was of a less serious class (AS 12.55.155(d)(8)). The judge rejected Lee's claim that his offense was mitigated because it was committed under some degree of duress, coercion, threat or compulsion (AS 12.55.155(d)(3)). We first consider Lee's contention that he should not have been subjected to presumptive sentencing as a second felony offender. Lee was convicted of grand larceny under former AS 11.20.140, which made theft of property valued in excess of $100 a felony. Lee's offense involved property valued at approximately $405. On appeal, Lee maintains that his 1972 theft would now be classified as third-degree theft, a class A misdemeanor, and that it should therefore not have been treated as a prior felony conviction. The provisions of AS 12.55.145 define "prior conviction" for purposes of applying presumptive sentencing. Under AS 12.55.-145(a)(2), the offense upon which the prior conviction was based must have "elements substantially identical to those of a felony defined as such under Alaska law." In Wasson v. State, 652 P.2d 117 (Alaska App.1982), we considered a claim similar to Lee's. We concluded that a conviction for grand larceny under former AS 11.20.140 was not covered by AS 12.55.145 and could not be considered a prior conviction for purposes of triggering presumptive sentencing: Since the value of stolen property is clearly an element of a larceny offense, see Post v. State, 635 P.2d 1194 (Alaska App.1981), it necessarily follows that a former statute providing a lesser value for purposes of qualifying as a felony grand larceny does not "have [elements] substantially identical to those of a felony defined as such under [current] Alaska law." Consequently, the trial court erred in using a violation of former AS 11.20.-140 as a prior felony to enhance Wasson's sentence. Wasson, 652 P.2d at 119. In deciding Wasson, however, we expressly left open the possibility that prior grand larceny convictions involving property valued at less than $500 might be treated as prior felony convictions if a showing was made that the value of property stolen, when adjusted for inflation, would exceed the current $500 minimum used by the revised criminal code to distinguish between felony and misdemeanor thefts. Id. at 119 n. 2. The state now argues that the $405 value of property stolen by Lee in 1972 would exceed the current statutory minimum of $500 if adjusted for inflation. Thus, the state urges us to hold that Lee's grand larceny conviction could be used for presumptive sentencing purposes. We conclude that it is inappropriate to broaden the statutory definition of a prior conviction by considering inflation. The definition of "prior conviction" in AS 12.55.145(a)(2) includes only prior offenses with "elements substantially identical to those of a felony under Alaska law." (Emphasis added). Thus, the definition does not focus on the actual conduct of the defendant in the prior case. Rather, AS 12.-55.145 requires similarity between the elements of the former offense and the current law. There is simply no indication that the definition contemplates a case-by-case evaluation of whether a defendant's prior conduct might constitute a felony under current law. Moreover, a rule permitting adjustment for inflation would pose significant practical problems. Mere reference to historical rates of inflation, such as those reflected in the Consumer Price Index, would be an inaccurate way of attempting to fix the present-day value of previously stolen items, since different types of property increase and decrease in value at different rates; Expert testimony would be required in most cases. In cases where a precise description of the property involved in a prior larceny conviction is not available, no accurate determination of current value could be made. The possibility that a person might be subjected to presumptive sentencing as a second felony offender could vary from year to year or even from month to month, depending on fluctuations in the marketplace. It might be argued that persons previously convicted of petty larceny should be treated as second felony offenders where the value of property involved in the original offense increased at a particularly rapid rate. Indeed, a defendant previously convicted of felony theft under the revised criminal code might plausibly argue that he should not be treated as a second felony offender because the value of property he previously stole has declined and is currently below the statutory minimum of $500. It is difficult to see how a fair, uniform and realistically workable system for determining present value of previously stolen property could be implemented in light of such considerations. Consequently, it seems unlikely that the legislature, in enacting AS 12.55.145, intended inflation to be taken into account. A final consideration weighing against a broad interpretation of "prior conviction" is the long-established principle that criminal statutes must be strictly construed. 3 C. Sands, Sutherland Statutory Construction § 59.04 (3d ed. 1974). See also Wasson v. State, 652 P.2d at 120 (Coats, J., concurring). On balance, we conclude that a broad interpretation of AS 12.55.145 is inappropriate and that our holding in Wasson must govern in the present case. Because Lee was not previously convicted of an offense with elements substantially identical to a felony under the revised criminal code, he should not have been treated as a second felony offender for the purpose of applying the presumptive sentencing statutes. It will therefore be necessary to remand this case to the superior court for imposition of a non-presumptive sentence. Our holding that Lee was improperly subjected to presumptive sentencing does not mean that his prior conviction is irrelevant for sentencing purposes. Nor does our holding imply a disapproval of the length of the sentence imposed by Judge Buckalew in this case. We have consistently emphasized that prior felony convictions may properly be considered for the purpose of fashioning a sentence even though they do not meet the statutory requirements for triggering presumptive sentencing. Maal v. State, 670 P.2d 708, 711 (Alaska App., 1983); Seymore v. State, 655 P.2d 786, 787-88 (Alaska App.1982); Koganaluk v. State, 655 P.2d 339, 340 (Alaska App.1982). Here, we believe that Judge Buckalew, in imposing a non-presumptive sentence on remand, should be permitted broad discretion in determining the amount of weight to be given to Lee's prior felony conviction, even though that conviction cannot be used for presumptive sentencing purposes. Lee's remaining points on appeal involve the propriety of Judge Buckalew's findings with respect to aggravating and mitigating factors. Lee does not contest Judge Buckalew's finding that his assault was aggravated because it was knowingly directed against a police officer. He does, however, challenge the finding that his conduct was among the most serious within the definition of first-degree assault. Judge Buckalew found Lee's assault to be deliberate, premeditated, and unprovoked. In committing the assault, Lee loaded his gun with bullets that were specifically designed to maximize injury upon impact. Officer Nolan could easily have been killed by Lee's shots, and in fact he was hit twice and suffered serious physical injuries. In concluding that this offense was among the most serious in its class, Judge Buckalew stated: And as I analyze these facts Mr. Lee was just cool, calculated, deliberate and if you will on this particular occasion, he was handling that rifle like an expert. And to handle that rifle like an expert he had to know what he was about. And that's the way I look at the facts and the fact that the officer was shot under those circumstances, running away, shot twice, I don't think there's much argument about it, that that's the most serious kind of conduct. We conclude that Judge Buckalew's analysis of the facts is supported by ample evidence and that he did not err in finding that Lee's conduct was among the most serious within the definition of the offense. Lee also maintains that Judge Buckalew erred in rejecting his claim that the offense was mitigated because he acted under a significant degree of compulsion. AS 12.-55.155(d)(3) provides for a mitigating factor when an offense is committed "under some degree of duress, coercion, threat or compulsion insufficient to constitute a complete defense, but which significantly affected his [the defendant's] conduct." Prior to sentencing, Lee argued that AS 12.55.155(d)(3) applied because he was under emotional stress at the time of the offense and had acted out of internal compulsion. In support of this argument, Lee relied on his troubled financial and domestic situations, his intoxication, and expert testimony indicating that he had an impulsive personality and was easily provoked. Judge Buckalew rejected Lee's claim and found that AS 12.55.155(d)(3) required a showing of external compulsion. Lee challenges that finding. In Bell v. State, 658 P.2d 787, 791 (Alaska App.1983), we held that under certain circumstances AS 12.55.155(d)(3) might apply to an offense in which the accused acted under a form of compulsion that was entirely internal. To this extent, Judge Buckalew's construction of AS 12.55.-155(d)(3) was incorrect. However, our decision in Bell discussed the applicability of this mitigating factor to an offense committed under a good faith but unreasonable belief by the defendant that his conduct was necessary. Id. at 791. Nothing in Bell indicated that the scope of AS 12.55.-155(d)(3) is sufficiently broad to encompass behavior that is merely impulsive or the result of situational stress. Lee's reliance on this mitigating factor was based exclusively on a showing of impulsive character and financial and emotional stress. Lee did not present any evidence indicating that he acted out of a mistaken belief that his conduct was necessary. We therefore conclude that there is insufficient evidence in the record to support a finding that Lee's conduct was the result of internal compulsion within the meaning of the statute. In summary, we find that the use of Lee's prior conviction as a basis for presumptive sentencing in this case was inappropriate and that Lee must be resentenced to a non-presumptive term. We nevertheless hold that Judge Buckalew, on remand, may consider Lee's prior felony conviction in fashioning a non-presumptive sentence. We further approve Judge Buckalew's find ings applying aggravating and mitigating factors, as well as his overall assessment of the exceptional severity of Lee's offense. Given the unusually aggravated nature of this offense, the fact that Lee's prior felony may still be considered by the sentencing court on remand, and the fact that, in originally imposing Lee's sentence, the court discounted the significance of his prior felony because it was of a lesser class than the current offense, we recognize that this case may well be one in which little if any change will be necessary on remand. The need for a remand, however, is clear. Under these circumstances, determination of the actual sentence that Lee should receive upon remand must be left to the sentencing court. The sentence is VACATED, and this case is REMANDED for imposition of a non-presumptive sentence. . AS 11.46.140 provides, in relevant part: Theft in the Third Degree, (a) A person commits the crime of theft in the third degree if he commits theft as defined in AS 11.46.-100 of this chapter and (1) the value of the property or services is $50 or more but less than $500; or (2) the property is a credit card. (b) Theft in the third degree is a class A misdemeanor. . In fact, historical increases and decreases in prices for various types of property may be wholly unrelated to general inflationary or deflationary trends. For example, over the past decade innovations and refinements in the field of electronics have led to a decrease in the price of many products, despite a high average rate of inflation. Such developments may be highly significant not only because they run counter to general inflationary trends, but also because they create obsolescence. For example, a stereo system stolen in 1972 might have been valued at $400. Yet the current retail value of an identical system, in new condition, might be tremendously reduced because present-day sophistication of stereo equipment has rendered it obsolete. . Because historical trends in prices of specific types of property may be independent of general inflationary or deflationary trends, situations might also occur in which it would be obviously unfair to determine the significance of a prior theft by reference to the current value of previously stolen property. For example, a theft in 1972 of property valued at $100 might have involved a readily available item, such as a painting by an unknown artist. If the artist subsequently became well-known, his work might become scarce and highly valued. In such cases, where sharp increases in value resulted from circumstances that could not have reasonably been foreseen when the property was originally stolen, it would be unfair to rely on present value to determine if the prior grand larceny should be treated as a felony for purposes of presumptive sentencing. . In 1982, the Alaska legislature amended AS 12.55.145 to resolve future problems of the type involved in this case and in Wasson. Thus, AS 12.55.145(a) now states: a conviction in this or another jurisdiction of an offense having elements similar to those of a felony defined as such under Alaska law at the time the offense was committed is considered a prior felony conviction; . [Emphasis added.] The state argues that this provision should be considered in the present case. However, the amended version of AS 12.55.145 was not effective either at the time Lee's offense was committed or at the time of his sentencing. . Despite our remand of this case for imposition of a non-presumptive sentence, we think it necessary to address Lee's claim with respect to aggravating and mitigating factors. Al though these factors will not be binding on the superior court, they involve facts that will be highly relevant. Resolution of Lee's arguments will thus assist the sentencing court and may expedite the ultimate termination of this case. In light of our remand, however, we need not discuss Lee's contention that Judge Buckalew did not adequately explain his reliance on aggravating and mitigating factors in imposing a presumptive term. . We note that the unsuspended fifteen-year period of incarceration originally ordered by Judge Buckalew is equal to the presumptive term for a person convicted of a class A felony who has two prior felony convictions. We have previously approved sentences in this range in exceptionally severe cases involving first felony offenders. See Maal v. State, 670 P.2d 708, 712 (1983).

6911750

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

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

2014-10-10

No. S-15346

1253

1258

336 P.3d 1253

336

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T18:28:38.344178+00:00

CAP

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

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

JAMIE H., Appellant, v. STATE of Alaska, DEPARTMENT OF HEALTH & SOCIAL SERVICES, OFFICE OF CHILDREN'S SERVICES, Appellee. No. S-15346. Supreme Court of Alaska. Oct. 10, 2014. Megan Webb, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for Appellant. Janell M. Hafner, Assistant Attorney General, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for Appellee. Before: FABE, Chief Justice, WINFREE, STOWERS, MAASSEN, and BOLGER, Justices.

2875

17728

OPINION BOLGER, Justice. I. INTRODUCTION Jamie and Anna are the parents of Ian, a young teenager. The Office of Children's Services (OCS) sought termination of Jamie's, but not Anna's, parental rights to Ian. In closing argument, Jamie asserted that termination of his parental rights was not in Ian's best interests because OCS had not identified any permanent placement. But the superior court did not specifically address this issue in its findings when it ordered the termination of Jamie's parental rights. Jamie appeals, arguing that the termination should be vacated because the decision does not clearly state that termination of Jamie's parental rights was for purposes of freeing Ian for adoption or other permanent placement. But we conclude that the superi- or court did not err when it found that termination was in Ian's best interests. II. FACTS AND PROCEEDINGS A. The Family Jamie and Anna were a couple for many years. They both have mental health issues, addiction issues, and extensive criminal histories. Jamie began using marijuana when he was 12 years old, after he was seriously injured in a car accident, and by age 13, he was using methamphetamine. Anna's uncle sexually abused her, starting when she was six years old, and her mother and grandmother were aware of the abuse but did nothing to stop it. At age 16, Anna had a baby, whom she eventually gave up for adoption. Soon after that, Anna began using methamphetamine. Jamie and Anna had two other children when they lived in Oklahoma, but those children have always lived with Jamie's mother and step-brother and were not parties to these proceedings. Before Anna became pregnant with Ian (born in 2000), and during the first six months of her pregnancy, both parents regularly used methamphetamine. They stopped using when they realized Anna was pregnant, but after Tan's birth they went back to abusing drugs and aleohol, with periods of sobriety. Although Ian lived with his parents during his early years, by the time he was four, he and his two non-party siblings were living with Ian's grandmother in Oklahoma while his parents lived elsewhere. According to Jamie, Ian was exposed to domestic violence by Jamie's brother during that time. Jamie, Auna, and Ian moved to Alaska in 2004. Once in Alaska, Jamie and Anna had three more children; Kirsty was born in 2006, James was born in 2008, and Jon was born in 2010. The couple's relationship was chaotic and physically abusive, and apparently they were separated at the time of trial. All four children have special needs. B. OCS's Involvement With The Family The family's first encounter with OCS was in 2006, when the agency investigated a report of harm claiming that the family's pet pit bull bit Ian's face. The doctor who evaluated Ian determined that he suffered from attention deficit hyperactivity disorder with complex emotional trauma, and probable chronic post-traumatic stress disorder relative to a disruptive chaotic home environment and exposure to domestic violence and drug and alcohol use. The doctor also noted that Ian had probable brain damage and recommended more assessments and medication. Tan's mental illness and behavioral issues were compounded by his lack of care at home. At age six, Ian had to feed himself, routinely stayed up until 2:00 in the morning, had to get himself up and off to school, and often left for school on an empty stomach. OCS initiated a plan to help Ian's parents manage his aggressive behavior. To assist in parenting education, a family support agent with Kenai Peninsula Community Care Center met with the parents twice a week for eight months. According to the agent, Anna was relatively engaged, but Jamie showed little interest in parenting and rarely participated. The agent eventually discharged the family from in-home services because they had missed several meetings in a row and neither parent had followed through with a structured routine or adequate supervision for Ian. OCS was not significantly involved with the family again until June 2011, when police called OCS to report that Anna was suicidal; Anna bad called friends and told them she was planning to leave James and Jon in the car while she walked into the forest to kill herself. At that time, Ian and Kirsty were at home alone, and Jamie was in jail because of a domestic incident involving a firearm. An OCS worker went to the home and discovered that the children were very hungry, five-year-old Kirsty was wearing nothing but a diaper, and ten-year-old Ian was hoarding an empty peanut butter container. There was plenty of food for the pit bulls in the yard, but no nutritious food for the children. Ian and Kirsty were placed in one emergency foster home, and James and Jon were placed in another. Prins filed an Emergency Petition for Adjudication of Children in Need of Aid and for Temporary Custody, asserting that the children were in need of aid under AS 47.10.011(2), (8), (9), and (11) C. Tan's Situation Since Tan's removal from the family residence, he has lived in several longterm residential treatment facilities. At the time of trial, Ian was at Family Centered Services of Alaska, a therapeutic foster home, where his stay was indefinite. According to OCS, Ian was diagnosed with dysexecutive syndrome, a cognitive disorder; oppositional defiant disorder; and mood disorder. In therapy, Ian would share that he missed his mother, and he often looked forward to family sessions with her, but he rarely mentioned his father and did not ask to see him. In fact, because of Ian's emotional instability and his statements that he never wanted to see his father again, visitation with Jamie has not been deemed therapeutically appropriate. Since Ian was taken into OCS custody in June 2011 he has had little or no contact with his father but has had some successful visits with his mother. D. The Superior Court's Findings In December 2012 OCS filed a petition to terminate Jamie's parental rights to all four children and Anna's rights to the three younger children only. Before trial, Anna relinquished her parental rights to the three younger children with the understanding that if the court did not terminate Jamie's parental rights, she could withdraw her relinquishment. As a result, neither party presented evidence regarding Anna's conduct. In support of its petition, OCS presented evidence regarding Jamie's personality disorders, substance abuse, criminal history, and failure to conform to social norms. OCS also presented testimony that Ian's behavior and trauma were attributed to Jamie, as well as testimony about Ian's mental health issues and need for security, stability, and permanence. OCS representatives testified that they were looking into a family placement for Tan with Jamie's aunt in Oklahoma, if and when Ian is discharged from the foster home. Alternatively, OCS would try to find an adoptive placement for Ian. OCS did not seek to terminate Anna's parental rights to Ian, with the hope that she "might be able to parent [Ian] with enough wrap around supports, but if not she is instrumental in [Ian's] therapy and recovery." The superior court found that Ian was a child in need of aid pursuant to AS 47.10.011(8) in part because of Jamie's conduct, and that Jamie had not timely remedied his conduct; he failed to comply with the family preservation program, his participation in services with that agency was "virtually nonexistent," and he had not remedied the conditions identified in 2006 (exposure to domestic violence) which traumatized Ian. In September 2018 the superior court issued an order terminating Jamie's parental rights to Ian. The court remarked that Jamie had missed the opportunity to help Ian after Ian was diagnosed with complex emotional trauma and possible PTSD; instead [Jamie] destroyed his relationship with [Ian] to such an extent that [Ian] wants nothing to do with his father and refuses to talk about him. It does not appear [Jamie] can remedy this situation in a reasonable time.... Moreover, [Jamie] has done very little on his current case plan. No reason exists to believe [Jamie] will remedy these conditions within a reasonable time, and [Ian] needs permanence. The court found that OCS engaged in reasonable efforts to provide family support services, and that termination of Jamie's parental rights was in Ian's best interests. Jamie appeals, but he does not dispute that the evidence presented at trial supports the court's findings. III. STANDARD OF REVIEW The superior court's determination that termination of parental rights is in a child's best interests is a factual finding that we review for clear error. A finding is clearly erroneous if, after reviewing the record in the light most favorable to the prevailing party, we are left with a definite and firm conviction that the superior court was mistaken. We decide de novo whether the superior court's findings satisfy the requirements of the child in need of aid statutes, bearing in mind at all times that terminating parental rights is a drastic measure. IV. DISCUSSION The rights and responsibilities of a parent regarding a child may be terminated for purposes of freeing the child for adoption or other permanent placement. Jamie argues that termination of his parental rights to Ian was improper because there was no specific permanency plan for Ian and no intention of terminating Anna's parental rights, even if Ian remains in therapeutic foster care. In support, Jamie cites A.B. v. State, Department of Health & Social Services, wherein we held that when cireumstances create a risk of the child becoming a "half-orphan," thereby depriving the child of potential financial support and inheritance rights, the superior court must determine whether termination was for the purpose of freeing the child for adoption or other permanent placement and if not, then the court should decline to terminate parental rights. OCS argues that Jamie did not raise this argument before the superior court and thus cannot raise it now. We disagree. We have previously held: Arguments are considered on appeal if raised explicitly in the superior court, or if the issue is "1) not dependent on any new or controverted facts; 2) closely related to the appellant's trial court arguments; and 3) could have been gleaned from the pleadings," or if failure to address the issue would propagate "plain error." [ ] We conclude that Jamie preserved this issue for appeal when he asserted in his closing argument that termination of his parental rights was not in Ian's best interests because OCS had not identified any permanent placement. It is permissible to terminate one parent's rights without legally changing the relationship of the children to the other parent, so long as the statutory requirements for termination are met and the superior court makes findings that the goal of terminating the parent's rights is to free the children for adoption or other permanent placement. While difficulty finding permanent placement because of a child's severe behavioral problems does not prevent termination, a court may terminate parental rights only if it finds by a preponderance of the evidence that termination is in the child's best interests. Although OCS stated in its petition that termination of Jamie's parental rights was for the purpose of freeing Ian for a permanent placement, the location of that placement was unclear. However, at the time of trial, Ian was not in Anna's care or custody, and his stay in the therapeutic foster home was indefinite. Therefore, 4.8. does not apply-A.B. applies only if the child is still in the custody of the "non-offending" parent. Moreover, it is unlikely that OCS ever will place Ian permanently with Anna, given her parenting history and Jamie's continuing co-parenting of the younger three children. OCS presented substantial undisputed evidence that termination of Jamie's parental rights was needed to protect Ian from his father; Jamie was an unfit parent and caused serious harm to Ian, such that Ian's health and safety were at risk, while Anna's continued involvement could benefit Ian's therapeutic plan, and terminating her rights could be psychologically harmful to Ian. Therefore the superior court did not clearly err in finding that termination of Jamie's parental rights was in Ian's best interests. v. CONCLUSION For the foregoing reasons, we AFFIRM the superior court's judgment terminating Jamie's parental rights to Ian. . We use pseudonyms to protect the parties' privacy. . Ultimately, Kirsty was moved to live in the same foster home as James and Jon. . AS 47.10.011 provides in pertinent part that the superior court may find a child to be a child in need of aid if it finds by a preponderance of the evidence that the child has been subjected to: (2) a parent being incarcerated, (8) conduct or conditions created by the parent that have resulted in mental injury to the child or placed the child at substantial risk of mental injury as a result of a pattern of the parent's behavior, (9) parental neglect, or (11) parental mental illness or serious emotional disturbance that places the child at substantial risk of harm. . The court declined to terminate Jamie's parental rights to the other three children because OCS did not present sufficient evidence linking the mental injuries suffered by the other children to Jamie's conduct. Because the court did not terminate Jamie's parental rights to the other children, the court permitted Anna to withdraw her relinquishment of parental rights to them. . Judith R. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 289 P.3d 896, 900 (Alaska 2012) (citing Christina J. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 254 P.3d 1095, 1104 (Alaska 2011)). . Id. (citing Maisy W. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 175 P.3d 1263, 1267 (Alaska 2008)). . Id. (citing Carl N. v. State, Dep't. of Health & Soc. Servs., Div. of Family & Youth Servs., 102 P.3d 932, 935 (Alaska 2004)). . Christina J., 254 P.3d at 1104 (quotations and citation omitted). . AS 47.10.088(a). . 7 P.3d 946, 954-55 (Alaska 2000). . Seq Lion Corp. v. Air Logistics of Alaska, Inc., 787 P.2d 109, 115 (Alaska 1990) (quoting State v. Nw. Constr., Inc., 741 P.2d 235, 239 (Alaska 1987)). . AS 47.10.088(h) ('The rights of one parent may be terminated without affecting the rights of the other parent."); see also K.B. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth Servs., Mem. Op. & J. No. 1034, 2001 WL 34818265, at *2 (Alaska July 18, 2001). . See S.H. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth Servs., 42 P.3d 1119, 1124-25 (Alaska 2002); see also Louise A. v. State, Div. of Family & Youth Servs., Mem. Op. & J. No. 1162, 2004 WL 541373, at *3 (Alaska Mar. 17, 2004) ("Freeing a child for the possibility of a permanent, stable home is sufficient; there need not actually be an adoptive home at the time of termination."). . Child in Need of Aid Rule 18(c)(3). . The issue is further complicated by the fact that the court did not terminate Jamie's parental rights to the other three children. Jamie argues that, since he still has parental rights to the younger three children, there are continued efforts to create stability in the home, and therefore, continued reunification efforts could result in further stabilization for all four children. Given Ian's unique disabilities and therapeutic needs, combined with Jamie's history of parenting Ian, we disagree. . S.H., 42 P.3d at 1125 ("A.B. stands for the proposition that the risk of a child being 'half orphaned" should be considered in the best interests analysis where [OCS] seeks to terminate only one parent's rights and the child will remain in the other parent's custody." (emphasis added)); see also Patience P. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., Mem. Op. & J. No. 1417, 2012 WL 1232605, at *5 (Alaska Apr. 11, 2012) (stating that "[the decision in A.B. was subsequently limited to the specific facts of that case"); of. K.B., 2001 WL 34818265, at *2-3 (holding that, where permanency plan kept children in mother's physical custody, superior court did not abuse its discretion when it found that father's parental rights were terminated to free children for permanent placement and that termination was in children's best interests); Victor B. v. State, Dep't. of Health & Soc. Servs., Office of Children's Servs., Mem. Op. & J. No. 1399, 2011 WL 6004329, at *3-7 (Alaska Nov. 30, 2011) (upholding superior court's finding that father failed to remedy domestic violence issues and that continued custody would not be in the children's best interests, and concluding that termination of father's parental rights freed children for permanent placement with mother). . See K.B., 2001 WL 34818265, at *3 (upholding termination where superior court found that, where the children had lived in a "violent, frightening, dangerous, erratic environment" their entire lives, termination of the father's rights and permanent placement with mother would be an improvement that would serve the children's safety and, thus, was in their best interests).

6908022

In re William ESTELLE, Judge of the District Court, Third Judicial District at Palmer, Alaska

In re Estelle

2014-09-12

No. S-15538

692

699

336 P.3d 692

336

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T18:28:38.344178+00:00

CAP

Before: WINFREE, STOWERS, and MAASSEN, Justices.

In re William ESTELLE, Judge of the District Court, Third Judicial District at Palmer, Alaska.

In re William ESTELLE, Judge of the District Court, Third Judicial District at Palmer, Alaska. No. S-15538. Supreme Court of Alaska. Sept. 12, 2014. Before: WINFREE, STOWERS, and MAASSEN, Justices.

3894

24194

Order It 1s ORDERED: The Alaska Commission on Judicial Conduct has filed a Recommendation for Discipline of District Court Judge William Estelle, recommending that he be suspended without pay for 45 days. Following a formal disciplinary hearing, the Commission filed its Findings and Recommendation. The Commission unanimously agreed under a clear and convincing evidence standard that Judge Estelle violated AS 22.80.011(@)8)(C), (D), and (E), and Canons 1, 2A, 3C(1), and 3B(8) of the Code of Judicial Conduct. These findings were based on several instances where Judge Estelle signed pay affidavits incorrectly stating that he had no matters that were ripe and undecided for more than six months. Judge Estelle's Answer to the Commission's Complaint, as amended by a stipulation substituting an allegation of violation of Canon 3C(1) for Canon 8B(@)(a), admitted that he violated the charged statute and Canons. Judge Estelle has not filed a response to the Commission's Recommendation for Discipline. The Recommendation adequately sets forth the facts and cireumstances of Judge Estelle's violations. It correctly applies the factors under the American Bar Association's Standards for Imposing Lawyer Sanctions, which we have held should be applied to the extent possible when sanctioning judges. These standards are the ethical duty the judge violated; the judge's mental state; the extent of the actual or potential injury caused by the judge's misconduct; and any aggravating or mitigating cireumstances. Again, the Commission's Findings and Recommendation discuss each of these factors. Notably, the Commission found both aggravating and mitigating cireumstances but importantly did not find that Judge Estelle intentionally falsified his pay affidavits, and because of the mitigating cireumstances, concluded that a reduction from the usual baseline suspension of six months was warranted, thus recommending only a 45-day suspension without pay. In a judicial disciplinary proceeding, we conduct a de novo review of both the alleged judicial misconduct and recommended sanction. We conclude from our review of the Commission's Findings and Recommendation that Judge Estelle's misconduct has been established by clear and convincing evidence, particularly in light of his Answer admitting the charged allegations, and that the Commission's legal analysis and recommendation are appropriate. We thus accept the Commission's Recommendation, and adopt its Findings and Ree-ommendation. , FABE, Chief Justice, and BOLGER, Justice, not participating. . In re Inquiry Concerning a Judge, 788 P.2d 716, 723 (Alaska 1990). . In re Cummings, 211 P.3d 1136, 1138 (Alaska 2009). . The Commission's Findings and Recommendation are attached to this order as an appendix. . In his partial dissent, Justice Winfree suggests that the court's sanction in In re Cummings was too lenient, and thus sets a too-lenient benchmark for future cases. We think Justice Win-free's point is valid, but conclude the case before us today is not an appropriate case to address this important issue because only three justices are sitting on the Estelle matter, and Justice Winfree's argument deserves to be considered by the full court in an appropriate case raising the issue.

10471917

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

Donlun v. State

1974-10-21

No. 2188

472

475

527 P.2d 472

527

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:28:42.330390+00:00

CAP

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

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

Robert DONLUN, Appellant, v. STATE of Alaska, Appellee. No. 2188. Supreme Court of Alaska. Oct. 21, 1974. Herbert D. Soil, Public Defender, Lawrence J. Kulik, Asst. Public Defender, Anchorage, for appellant. Norman C. Gorsuch, Atty. Gen., Juneau, Joseph D. Balfe, Dist. Atty., Stephen G. Dunning, Asst. Dist. Atty., Anchorage, for appellee. Before RABINOWITZ, Chief Justice, and CONNOR, ERWIN, BOOCHEVER and FITZGERALD, Justices.

2087

12721

OPINION ERWIN, Justice. On October 19, 1973 appellant, Robert Donlun, was indicted for the offense of burglary in a dwelling in violation of AS 11.20.080. He pleaded not guilty and was tried before a jury in the superior court in the latter part of January, 1974. At the trial and in subsequent proceedings, it was established that in the early morning hours of August 5, 1973, appellant entered the apartment of a sleeping neighbor in the S & S Apartments located in Anchorage, Alaska, through a door that had been left partially open for ventilation. While in the apartment he moved from room to room occupied by sleeping occupants, stealing a portable television set, an iron, two cigarette lighters, and approximately $33 in cash. The theft was reported later that morning after the neighbor awoke and discovered that items were missing. Shortly thereafter, appellant attempted to sell the television set to another neighbor in the S & S Apartments. The neighbor indicated that she was interested but wished to try out the set before purchasing it. While in the neighbor's apartment the set was identified by an occupant of the burglarized apartment and a demand for return of the stolen property was made to appellant. When confronted with the demand, appellant produced all of the missing property with the exception of the cash and made certain damaging admissions indicating that it was he who had taken the missing property. Appellant is a 21-year-old native youth who lives with his unemployed mother in the S & S Apartments in Anchorage. He dropped out of school at age IS and since then has failed to either maintain steady employment or attempt to complete his schooling. Appellant has had a history of alcohol abuse since age 12, but, prior to the time of sentencing, had been making excellent progress in an alcohol rehabilitation program. A verdict of guilty was returned by the jury and a judgment of conviction was entered on March 12, 1974. A sentencing hearing was held before the trial judge later that same day. Following arguments by both parties, appellant received a sentence of 10 years with 4 years suspended. The terms of the sentence provided that appellant was not eligible for parole until he had served at least 2 years of his sentence. In imposing the sentence, the court stated that it was considering the fact that the burglarized dwelling was occupied and that the offense occurred at night. Appellant's attorney objected to the court's consideration of these facts, arguing that since burglary of an occupied dwelling or burglary of a dwelling at night, which carry maximum sentences of 20 and 15 years, respectively, had not been charged in the indictment, appellant's sentence could be for no more than 10 years, the maximum permitted for burglary of an unoccupied dwelling not at night. He then went on to argue that imposition of the maximum 10-year sentence was excessive in view of appellant's prior record, youth, and progress toward solving his drinking problem. We agree with appellant's contention that where a criminal statute provides for graded or enhanced ranges of punishments for aggravated instances of the proscribed offense, an indictment charging the offense must specify the aggravating facts before the defendant can be exposed to an increased range of punishment. Burglary at night and occupancy of the burglarized dwelling must be alleged in the complaint or indictment before a defendant can be exposed to the 15 and 20 year enhanced maximum sentences of AS 11.20.080. We are not unmindful of the rule that where a statute proscribes a single offense and commits, a single range of sentences to the discretion of the sentencing court, aggravating facts warranting sentences in the upper spectrum of the range need not be set forth in the complaint or indictment. Unlike such a statute, however, AS 11.20.080 sets forth not one but three ranges of sentences. The statute provides for sentences ranging from 1 to 10 years for a simple burglary in a dwelling, 1 to 15 years if the burglary •occurred at night, and 1 to 20 years if the burglarized dwelling was occupied at the time of the offense. The particular range of sentences to be applied in any given situation thus depends not upon the discretion of the sentencing court but rather upon the existence of particular aggravating facts set forth in the statute. We believe that if a defendant is to be afforded a fair opportunity to defend against a burglary charge involving aggravated circumstances, such circumstances must be set forth in the indictment, information, or complaint and proven at trial. If they are not, the maximum sentence prescribed by the aggravated circumstances may not be considered in sentencing the defendant. In this case the record reveals that, despite the fact that the aggravated fact of occupancy was not alleged in the indictment, appellant was nevertheless exposed to the larger range of sentences — 1 to 20 years — permitted for the offense of burglary of an occupied dwelling. The fact that the sentence did not exceed the maximum allowed for burglary of an unoccupied dwelling not at night — 10 years — is of no consequence, for if the sentencing court had believed 10 years, rather than 20 years, to be the maximum possible sentence, it might well have imposed a more lenient sentence. We therefore believe that appellant should be resentenced. Since we have concluded that appellant should be resentenced, we need not address ourselves in detail to appellant's second contention, that the 10-year sentence — the maximum permitted for the offense for which appellant was indicted and convicted —was excessive under the facts and circumstances of this case. We nevertheless take this opportunity to re-emphasize our view that the maximum sentence for a crime should generally be imposed only upon the worst type of offender: In sentencing, it should be remembered that the maximum sentence for a particular offense expresses a legislative judgment about how the worst offender within a class designated by the legislature should be treated. In general, maximum sentences should not be imposed without some foundation for characterizing a defendant as the worst type of offender. Appellant is not the type one would characterize as the worst type of offender. For example, the presentence report reveals: (1) that this burglary was appellant's first felony conviction and he had been convicted of two misdemeanor offenses; (2) appellant was only 21 years of age at the time of the offense; (3) that, when confronted by his accusers, appellant voluntarily returned the stolen property and admitted the crime; and (4) that at the time of the trial, appellant was reported to be making excellent progress in an alcoholic treatment program and demonstrated a willingness to continue. The American Bar Association has stated that in the vast majority of cases prison sentences are significantly higher than are needed to adequately protect the interests of the public and that, except for cases involving particularly serious offenses, dangerous offenders and professional criminals, maximum prison terms ought not to exceed 5 years. We agree. Remanded to the superior court for re-sentencing in conformity with this opinion. RABTNOWITZ, C. J., concurs. .The indictment charged : That on or about the 5th day of August, 1973, at or near Anchorage, in the Third Judicial District, State of Alaska, Robert Dun-lum did unlawfully and feloniously break and enter a dwelling house, to-wit: the residence of Ina Arnold located at Bldg. 9 Apt. 1256, S & S Apartments, the breaking and entering being with the intent to steal therein. All of which is contrary to and in violation of AS 11.20.080 and against the peace and dignity of the State of Alaska. . AS 11.20.080 provides : Burglary in dwelling house. A person who breaks and enters a dwelling house with intent to commit a crime in it, or having entered with that intent, breaks a dwelling house or is armed with a dangerous weapon in it, or assaults a person lawfully in it is guilty of burglary, and upon conviction is punishable by imprisonment in the penitentiary for not less than one year nor more than 10 years. However, if the burglary is committed at nighttime, it is punishable by imprisonment for not less than one year nor more than 15 years. If a human being is within the dwelling at the time of the burglary during the nighttime or daytime, it is punishable by imprisonment for not less than one year nor more than 20 years. .The weight of authority appears to support this position. In overturning a sentence under a burglary statute making the offense more severely punishable when the offender was armed and the dwelling was occupied, the Michigan Supreme Court stated : Burglary is a common-law offence, and not a crime ordained by legislation ; . it is a single or identical offence, as it was originally. The statute does not carve it into two. It. exposes it to different grades of punishment, according as it may or may not be accompanied by the incidents specified in the statute. It may be laid according to the common law, and without referring to the facts on which the imposition of the higher penalty depends; but in such case the punishment cannot exceed the lesser penalty. The accusation will support nothing more. 'Where the facts are supposed to warrant it, and the higher penalty is contemplated, the crime must be described with the attending facts which justify that penalty. Harris v. People, 44 Mich. 305, 6 N.W. 677, 678 (1880). Schwabacher v. People, 165 Ill. 618, 46 N.E. 809 (1897) ; McConnell v. Merriam, 231 Mich. 184, 203 N.W. 661 (1925) ; 4 F. Wharton, Criminal Law and Procedure § 1788, at 610 (12 ed. K. Anderson 1957) ; Annot., 125 A.L.R.. 605 (1940). Compare Rell v. State, 136 Me. 322, 9 A.2d 129 (1939). . The transcript of the sentencing hearing reveals that the sentencing judge believed that he was sentencing appellant in the "lower spectrum" rather than the "upper spectrum" of the permissible range. Since a 10-year sentence is the maximum permitted for burglary of an unoccupied dwelling during daylight hours, it is api>arent that the judge was considering either the 1- to 15-year range of sentences for burglary of a dwelling at night or the 1- to 20-year range for burglary of an occuined dwelling. The judge's emphasis on the 20-year maximum sentence of the latter range leads us to believe that he was sentencing appellant for the offense of burglary of an occupied dwelling. . The same reasoning applies, of course, to the exposure of appellant to the 15-year maximum sentence for burglary of an unoccupied dwelling at night. . Waters v. State, 483 P.2d 199, 201 (Alaska 1971). . Galaktionoff v. State, 486 P.2d 919, 924 (Alaska 1971). . The presentence report reveals that, prior to the instant case, appellant's record consisted of convictions in only two traffic-related cases. .A.B.A. Standards. Sentencing Alternatives and Procedures § 2.1, at 13-14 (Approved Draft 1968). See Torres v. State, 521 P.2d 386 (Alaska 1974) ; Peterson v. State, 487 P.2d 682 (Alaska 1971).

10426339

STATE of Alaska, DEPARTMENT OF LABOR, WAGE AND HOUR DIVISION, Appellant, v. UNIVERSITY OF ALASKA, Appellee

State, Department of Labor, Wage & Hour Division v. University of Alaska

1983-05-20

No. 5942

575

583

664 P.2d 575

664

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:23:18.837236+00:00

CAP

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

STATE of Alaska, DEPARTMENT OF LABOR, WAGE AND HOUR DIVISION, Appellant, v. UNIVERSITY OF ALASKA, Appellee.

STATE of Alaska, DEPARTMENT OF LABOR, WAGE AND HOUR DIVISION, Appellant, v. UNIVERSITY OF ALASKA, Appellee. No. 5942. Supreme Court of Alaska. May 20, 1983. Thomas Wickwire, Asst. Atty. Gen., Fairbanks, and Wilson L. Condon, Atty. Gen., Juneau, for appellant. Peter J. Aschenbrenner, Asehenbrenner & O’Meara, Fairbanks, for appellee. Before BURKE, C.J., and RABINOWITZ, CONNOR, MATTHEWS and COMPTON, JJ.

4769

30092

OPINION CONNOR, Justice. The State of Alaska appeals from a superior court judgment granting declaratory and injunctive relief against the Department of Labor, Wage and Hour Division [hereafter referred to as the "Department of Labor"]. The central issue is whether the superior court erred in declaring that the Department of Labor lacked subject matter jurisdiction to hear a purported wage claim brought against the University of Alaska. We find no error and affirm the judgment of the superior court. The essential facts are not in dispute. In February, 1980, the state legislature enacted the State Pay Bill Act expressing its intent that the Board of Regents of the University of Alaska increase University employees' salaries "by approximately seven percent" for the 1979 calendar year (retroactively), and "by an average of an additional 10 percent" for 1980. Ch. 3, § 35, SLA 1980. The Board of Regents, in anticipation of this legislative action, had instructed the president of the University to "adjust certain [salary] schedules more closely to State employee schedules and provide for the award of merit increases in a small number of cases." Upon the finding of the 1980 State Pay Bill Act, the President of the University, Jay Barton, directed the following action to be taken: (1) an across-the-board 7% increase in salary schedules was to be given to all University employees, retroactive to January 1, 1979; and (2) the additional monies available January 1, 1980, were to be used to "redress certain inequities in our present salary structure, partially fund geographic salary differentials, partially compensate for the impact of inflation, and reward merit where appropriate." As part of the implementation of the second prong of this scheme, all faculty and staff members who were currently earning $24.00 an hour or more were subject to a special review ("red-circled") by the chancellors of the University and by the office of the president. Any salary increase beyond the 7% level was to be individually determined. One of the employees whose position was "red-circled" was Thomas B. Gruenig, university counsel. As a result of his special review, Gruenig received his initial 7% increase but was denied any further pay increase, effective April 19, 1980. On March 17, 1980, Gruenig gave notice of his intention to resign, effective June 30, 1980. On May 13, 1980, Gruenig filed a written protest against the president's review with the University Grievance Council in Fairbanks. Gruenig alleged that the president had acted arbitrarily and in a manner contrary to all applicable statutes and regulations. Gruenig further claimed that the president's action denied him due process and equal protection, and constituted an "impairment of contract" in violation of Article I, § 15 of the Alaska Constitution and Article I, § 10 of the United States Constitution. After investigation the grievance council recommended dismissal of the claim, and the president affirmed this recommendation. Some time after his resignation, but prior to August 5, 1980, Gruenig contacted the Department of Labor, and assigned a "wage claim" to this agency. On August 5, 1980, the Department of Labor instituted a "wage claim" on Gruenig's behalf. The University contested the claim. The Department of Labor commenced an investigation and scheduled a hearing on the matter for December 3, 1980. Four University employees, including the president, received subpoenas to appear at the hearing. The University then filed suit in the superior court, seeking a temporary restraining order, preliminary injunction and permanent injunction to prevent the Department of Labor from hearing the wage claim. The University also sought a declaratory judgment that the Department of Labor did not have subject matter jurisdiction over Gruenig's claim. On December 1, 1980, the superior court ordered a temporary stay of the Department of Labor hearing. On December 23, the court orally issued what it termed a preliminary injunction against further investigation of the wage claim by the Department of Labor. A week later, the University moved for summary judgment incorporating by reference the memoranda and sworn affidavits filed in the earlier proceedings. The Department of Labor opposed the motion. The superior court granted summary judgment declaring that the Department of Labor lacked subject matter jurisdiction over Gruenig's claim against the University. The Department of Labor was ordered not to prosecute the "wage claim," and the "wage claim" filed with the Department of Labor was ordered dismissed. This appeal followed. This case presents the question of whether the superior court properly enjoined the Department of Labor from investigating, holding a hearing on, or further adjudicating the claim assigned to it by Gruenig. The question necessarily includes a two stage analysis: First, was the superior court correct in determining that the Department of Labor lacked jurisdiction over the claim of Gruenig? Second, if the Department of Labor lacked jurisdiction, was the superior court correct in issuing the injunction? The nature and scope of the Department of Labor's jurisdiction with regard to wage claims is determined by the legislative authorizations of AS 23.05.010 — .340. Under AS 23.05.060(4), the Department of Labor may institute court proceedings against an employer (at no cost to the employee) when the Department of Labor "is satisfied that the employer has failed to pay an employee an amount due by contract." The Department of Labor may take an assignment of a wage claim under AS 23.05.220. After a determination that the claim is valid and enforceable, and that the claimant is entitled to its services, the Department of Labor may prosecute an action for the collec tion of the claim. AS 23.05.230. If the employer disputes the claim, the employer must respond in writing to the claim and pay any wages conceded to be due. AS 23.05.180. In investigating the claim the Department of Labor has the power to "issue subpoenas, administer oaths, and take testimony concerning any matter within its jurisdiction." AS 23.05.050. The Department of Labor also has the power to examine the books, accounts, records, and payroll of the employer. AS 23.05.100. The employer is required to keep an accurate record "of the daily and weekly hours worked by each person, and of the wages paid each pay period to each person." AS 23.05.080. The Department of Labor may hold investigative hearings to determine whether a wage claim is "just and valid." AS 23.05.-200. If the employer does not settle the claim, the Department of Labor may refer the case to the attorney general for prosecution in the superior court. AS 23.05.210. Neither the statutes (AS 23.05) nor the substantive regulations adopted under their authority (8 AAC 25.010-.030) define "wage claim." However, where a statute delegating power to an administrative agency does not expressly define the extent of that power, it may be implied from the general policy and purposes underlying the legislative enactment. Kenai Peninsula Fisherman's Cooperative Association v. State, 628 P.2d 897 (Alaska 1981). The purpose of the Department of Labor is to "foster and promote the welfare of the wage earners of the state, improve their working conditions and advance their opportunities for profitable employment." AS 23.05.010. The above delineated statutory sections clearly promote that purpose by aiding an employee in the pursuit of a wage claim against an employer. Other sections provide further protection to the employee. The employer and employee must agree as to pay periods in the initial contract of employment. AS 23.05.140(a). The employer must pay all wages, salaries or other compensation due an employee within three working days of termination, regardless of the cause of termination. AS 23.05.140(b). If the employer fails to pay within three working days of termination, the employer is liable to pay the employee's regular wage, salary or other compensation from the time of demand to the time of payment for up to 90 working days. AS 23.05.140(d). As additional protection for the employee, the employer must notify the employee in writing at the time the employee is hired of the rate of pay and the day and place of payment. AS 23.05.160. Construing the term "wage claim" in light of AS 23.05 as a whole, we find that the power to accept an assignment of and to investigate and prosecute a wage claim does not include the power to deal with the claim in this particular ease. A "wage claim" contemplates an employee seeking agreed-upon or equitably owed compensation for services which is unpaid and therefore due. The legislature intended the Department of Labor's authority to extend only to claims for wages owing under an express or implied contract. This authority does not extend to a claim that an employer unconstitutionally, illegally, arbitrarily and capriciously failed to increase an employee's salary. Gruenig does not seek to recover wages due him, but rather claims that he was wrongfully denied a reclassification and a salary increase. The superior court therefore correctly concluded that the Department of Labor could not prosecute the claim of Gruenig, although Gruenig could pursue any other remedy otherwise provided by law. Additionally, we hold that the superior court's grant of summary judgment and a permanent injunction against prosecution of this claim by the Department of Labor was a proper exercise of its power to render a declaratory judgment under AS 22.10.020(b). The superior court properly exercised its discretion in providing judicial relief without requiring the University to exhaust its administrative remedies. The doctrine of exhaustion of administrative remedies is an expression of administrative autonomy and a rule of sound judicial administration. B. Schwartz, Administrative Law § 172, at 498 (1976). The purpose of the doctrine is to allow an administrative agency to perform functions within its area of special expertise, to develop a factual record and to exercise its discretion. By allowing an agency to conclude its evaluation, the courts may never have to intervene. Aleknagik Natives, Ltd. v. Andrus, 648 F.2d 496 (9th Cir.1980). However, where, as here, the jurisdiction of the agency is questioned on persuasive grounds, there is an exception to the exhaustion requirement. Most state courts which have addressed the question have concluded that the doctrine of exhaustion does not apply to cases where agency jurisdiction is challenged. Given the purposes of the exhaustion requirement in the usual case, we agree that this exception is a sound one. Obviously, a determination that an agency lacks jurisdiction spares the parties the trouble and expense of going through a useless hearing. Where an agency lacks jurisdiction there is no benefit to be gained through its special expertise, and pursuit of administrative remedies would be a futile and meaningless procedure. The burden on the University and the apparent doubt about the Department of Labor's jurisdiction justified the superior court's grant of judicial relief without requiring further administrative proceedings. Therefore, the judgment of the superior court granting summary declaratory judgment, dismissing the claim filed with the Department of Labor, and enjoining the Department of Labor from prosecuting the claim of Thomas Gruenig is AFFIRMED. . The pertinent provisions of the bill, read as follows: "Sec. 35. EMPLOYEES OF THE UNIVERSITY OF ALASKA. In determining compensation for employees of the University of Alaska under AS 14.40.170(2), it is the intent of the legislature that the Board of Regents amend the salary schedules for employees of the university who are not covered by collective bargaining agreements (1) to increase salaries by approximately seven percent, retroactive to January 1, 1979; and (2) to increase salaries by an average of an additional 10 percent, effective January 1, 1980. Sec. 36. This Act may not be applied to reduce the compensation of a person during his tenure in the office or position he holds on the effective date of this Act." Ch. 3, § 35-36, SLA 1980. . The Board of Regents, on January 23, 1980, had adopted the following statement of policy: "The Board of Regents as a matter of policy affirms its previous position that the University of Alaska employees receive wage and salary increases equivalent to those received by other State employees. Therefore, the Board of Regents directs the President of the University to administer wage and salary increases for non-covered University employees in accordance with the provisions of the pay bill as passed by the legislature and approved by the Governor. Policy effective January 25, 1980." The minutes of the Board of Regents also reflect the following interpretation of the policy referred to above: "The Board in approving this policy understands that the President will administer it as follows: Salary increase monies to become available March 16, 1980 will be applied to all wage and salary schedules except for that portion determined by the President necessary to (1) adjust certain schedules more closely to State employee schedules and provide for the award of merit increases in a small number of cases sufficient to attract and retain staff of the highest quality, and (2) the salary of the President will be set by the Board of Regents." . On April 29, 1980, President Jay Barton sent a memorandum to the University of Alaska chancellors titled "Special Note on the 'Over 24's' Review." With respect to administrative and executive salaries, the memorandum states: "Administrative and executive salaries were all examined closely. Salary levels, providing for comparability of similar jobs were established. The executive level compensation chart which is attached shows the final result of placements on the Anchorage base rate of pay. You will notice that there is a definite pattern in the compensation of individuals with like duties and levels of responsibility. A number of individuals were red-circled at their 1979 rates to bring them into parity with their counterparts." Specifically with regard to Gruenig, President Jay Barton later stated that the review had encompassed salary information not only from the State of Alaska but from throughout the United States, including various studies of faculties and administrators in other land grant colleges. According to Barton, by these comparisons, Gruenig was paid 40% above the median rate for university counsel, and was, by some $3,000.00 per year, the highest paid university counsel of the 145 employed by land grant colleges in the United States. Barton also pointed out that during this individual review, consideration was given to the facts that Gruenig's job responsibilities had been lessened in January 1980 and that Gruenig had chosen not to renew his employment contract on July 29, 1979, but merely to continue working under its general terms until further notice. . AS 23.05.220 provides: "Assignment of wage claims to department. (a) The department may take an assignment of (1) a wage claim and an incidental expense account and an advance; (2) a mechanics or other lien of an employee; (3) a claim based on a 'stop order' for wages or on a bond for labor; for damages for misrepresentation of a condition of employment; against an employment agency or its bondsman; for unreturned bond money of an employee; for a penalty for nonpayment of wages; for the return of a worker's tools in the illegal possession of another person; and for vacation pay or severance pay. (b) The department is not bound by any rule requiring the consent of the spouse of a married claimant, the filing of a lien for record before it is assigned, or prohibiting the assignment of a claim for penalty before the claim has been incurred or by any other technical rule with reference to the validity of an assignment. (c) The department may not accept an assignment of a claim in excess of $5,000." . AS 23.05.230 provides: "Prosecution of claims, (a) The department may prosecute an action for the collection of a claim of a person whom it considers entitled to its services, and whom it considers to have a claim which is valid and enforceable. (b) The department may prosecute an action for the return of a worker's tools which are in the illegal possession of another person. (c) The department may join several claimants in one lien to the extent allowed by the lien laws and, in case of suit, join them in one cause of action. No bond is required from the department in connection with an action brought as assignee under AS 23.05.220 and 23.05.230." . AS 23.05.180 provides: "Wages in dispute. If the amount of wages due is in dispute, the employer shall give written notice to the employee of the amount of wages which he concedes to be due, and shall pay that amount, without condition, within the time set by this chapter. Acceptance by an employee of a payment made under this section does not constitute a release of the balance of his claim." . AS 23.05.100 provides: "Inspections and examination of records. The department may (1)enter a place of employment during regular hours of employment and in cooperation with the employer, or someone designated by him, collect facts and statistics relating to the employment of workers; (2) make inspections for the proper enforcement of all state labor laws; (3) for the purpose of examination, have access to and copy from any book, account, record, payroll, paper or document relating to the employment of workers." .AS 23.05.200 provides: "Hearings on wage claims, (a) The department may hold hearings to investigate a claim for wages. It may cooperate with an employee in the enforcement of a claim against his employer when it considers the claim just and valid. (b) The authorized representative of the department, in conducting a hearing under this chapter, may administer oaths and examine witnesses under oath, issue subpoenas to compel the attendance of witnesses, and the production of papers, books, accounts, records, payrolls, evidentiary documents, and may take depositions and affidavits in a proceeding before the department at the place most convenient to both employer and employee. (c) If a person fails to comply with a subpoena or a witness refuses to testify to a matter regarding which he may be lawfully interrogated, the judge of a competent court may, on application by the department, compel obedience by proceedings for contempt as in the case of disobedience of the requirements of a subpoena issued from the court or a refusal to testify before it." . "Regular wage, salary or other compensation" is defined by regulation as: "... that level of compensation paid to an employee for his services which was usual and regular for a daily, weekly, or monthly period of work, as the case may be; this 'regular' level is to be determined based on the employee's actual working situation and is not limited to a level of compensation based on a 'standard' eight-hour workday or 40-hour workweek where the employee's regular and usual course of employment actually involved more or less hours of work for the relevant period; nothing in this paragraph requires that an employee have been hired on an hourly or weekly basis; he may have been paid by piece rate, salary, commission or other method of compensation agreed upon between the employer and employee." 8 AAC 25.030(4). . "Rate of pay" is defined by regulation as ".. . all renumeration for service from whatever source . received or anticipated to be received by an individual in the course of his service that are a contractual condition of his employment." 8 AAC 25.030(3). . Examples of such valid assigned claims may be found in Dresser Industries, Inc. v. Alaska Department of Labor, 633 P.2d 998 (Alaska 1981) and State v. Osborne, 607 P.2d 369 (Alaska 1980). . The Department of Labor unnecessarily argues that it is authorized to investigate wage claims of employees of the University despite the fact that the University is an instrumentality of the State of Alaska. The Department of Labor's confusion as to the issue was apparently caused by dictum in the oral ruling of the court at the preliminary injunction hearing, which was not included in the court's written findings. The University expressly does not contend that the Department of Labor has no jurisdiction over wage claims brought by employees of the University, but rather that the Department of Labor lacked subject matter jurisdiction over Gruenig's claim as it was not a "wage claim." . AS 22.10.020(b) provides: "(b) In case of an actual controversy within the state, the superior court, upon the filing of an appropriate pleading, may declare the rights and legal relations of an interested party seeking the declaration, whether or not further relief is or could be sought. The declaration has the force and effect of a final judgment or decree and is reviewable as such. Further necessary or proper relief based on a declaratory judgment or decree may be granted, after reasonable notice and hearing, against an adverse party whose rights have been determined by the judgment." . See, e.g., Univar Corp. v. City of Phoenix, 122 Ariz. 220, 594 P.2d 86 (Ariz.1979); Ogo Associates v. City of Torrance, 37 Cal.App.3d 830, 112 Cal.Rptr. 761 (Cal.App.1974); Ward v. Keenan, 3 N.J. 298, 70 A.2d 77 (N.J.1949); State v. Credit Bureau of Albuquerque, Inc. 85 N.M. 521, 514 P.2d 40 (N.M.1973); Walker Bank & Trust Co. v. Taylor, 15 Utah 2d 234, 390 P.2d 592 (Utah 1964). . The Department of Labor also contends on appeal that the grant of the preliminary injunction on December 23, 1980, was in error because (1) there was no finding of irreparable harm to support it and (2) it was in effect a permanent injunction. Both of these points are moot in view of the fact that the preliminary injunction was replaced by a permanent injunction on the University's motion for summary judgment on January 23, 1981. Barber v. Northern Heating Oil, Inc., 447 P.2d 72, 73 (Alaska 1968).

10426652

Randall C. REYNOLDS, Appellant, v. STATE of Alaska, Appellee

Reynolds v. State

1983-06-10

No. 6890

621

630

664 P.2d 621

664

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T18:23:18.837236+00:00

CAP

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

Randall C. REYNOLDS, Appellant, v. STATE of Alaska, Appellee.

Randall C. REYNOLDS, Appellant, v. STATE of Alaska, Appellee. No. 6890. Court of Appeals of Alaska. June 10, 1983. Robert B. Downes, Cole & Downes, Fairbanks, for appellant. Kristen Young, Asst. Atty. Gen., Anchorage, and Wilson L. Condon, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ., Judges.

5474

33285

OPINION SINGLETON, Judge. Randall C. Reynolds was convicted of sexual assault in the first degree, AS 11.41.410, and acquitted of kidnapping, AS 11.41.300. He received a five-year sentence. He appeals challenging his conviction and contending that the sentence imposed was excessive. Reynolds challenges the constitutionality of AS 11.41.410, Alaska's first-degree sexual assault statute, and argues that he should have been given a directed verdict of acquittal on the kidnapping and sexual assault charges or, alternatively, more favorable jury instructions. We affirm. Reynolds and J.D., his victim, were employees of separate businesses located in the Shoppers' Forum shopping mall in Fairbanks. On November 24, 1981, employees of the various businesses located in the mall were engaged in decorating it in anticipation of the Christmas shopping season. Reynolds and J.D. were acquainted but had never previously dated. J.D. accepted an invitation from Reynolds' father to join him, his girlfriend and Reynolds for dinner. The four went out to dinner and thereafter to a Fairbanks nightclub for drinks and dancing. J.D. allegedly asked Reynolds to take her home. Instead, he took her to his apartment. She alleges that he "forced" her to enter his apartment and used a key to close a deadbolt lock and pocketed the key, effectively preventing her from leaving. She contends that he had intercourse with her against her will and restrained her at the apartment until morning at which time he accepted her request to drive her home. She concedes that her objections were verbal, that she never forcibly resisted Reynolds and that Reynolds never threatened her or struck her. She contends that she was afraid of him particularly because she noticed a handgun on a chair in the room. She admits that Reynolds never touched or even mentioned the handgun. Reynolds testified that he had intercourse with J.D. with her consent. He contends that he did not notice anything about her behavior or demeanor which would indicate that she did not wish to have intercourse with him. Reynolds' father and his father's girlfriend testified that during the early evening J.D. seemed comfortable in Reynolds' company and satisfied to be with him. CONSTITUTIONAL ARGUMENTS Reynolds argues that AS 11.41.410 is unconstitutionally vague, chills constitutionally protected activity and, when applied to the facts of this case, results in the imposition of cruel and unusual punishment because the sanctions established are out of proportion to the seriousness of his conduct. See U.S. Const, amend. XIV, VIII. Alaska Const, art. 1, § 7, § 12. Essentially, Reynolds argues that the statute either requires strict liability regarding the putative victim's lack of consent or is so vague that reasonable people will disagree regarding the mens rea which the state must prove in order to obtain a conviction. He also contends that the statutory definitions make the offense so broad that it does not distinguish between serious and harmless conduct thereby depriving him of substantive due process. In order to place Reynolds' arguments in context, it is necessary to briefly consider the history of our first-degree sexual assault statute. At common law, rape, the predecessor to first-degree sexual assault, required that the defendant have intercourse with a woman forcibly and against her' will. See former AS 11.15.120. The phrase "forcibly and against her will" was interpreted to mean without her consent. Rape was a general intent crime. Walker v. State, 652 P.2d 88, 91 (Alaska 1982). The state was required to prove that the defendant intentionally engaged in the prohibited conduct, i.e., sexual intercourse to which the complaining witness had not consented. However, it was not necessary for the state to prove that the defendant knew or should have known that the victim did not consent. The potential harshness of this rule was mitigated by the common law requirement that in order for the state to prove the absence of consent, it must show that the victim "resisted to the utmost." In State v. Risen, 192 Or. 557, 235 P.2d 764 (Or.1951), the court interpreted a statute similar to our former rape statute and concluded: To constitute rape the act must have been committed forcibly and without the consent of the woman. The woman must resist by more than mere words. Her resistance must be reasonably proportionate to her strength and her opportunities. It must not be a mere pretended resistance but in good faith and continued to the extent of the woman's ability until the act has been consummated. 235 P.2d at 765 (citations omitted). Illustrative of the operation of this rule is Mills v. United States, 164 U.S. 644, 17 S.Ct. 210, 41 L.Ed. 584 (1897). In that case, the defendant seized his victim at gunpoint, told her he was "Henry Starr," the notorious train robber, and threatened to kill her. He succeeded in having intercourse with her on two occasions. The trial court instructed the jury that: The fact is that all the force that need be exercised, if there be no consent, is the force incident to the commission of the act. If there is nonconsent of the woman, the force, I say, incident to the commission of the crime is all the force that is required to make out this element of the crime. 164 U.S. at 647, 17 S.Ct. at 210, 41 L.Ed. at 585. The defendant was convicted and appealed contending that the instruction erroneously stated the law. The United States Supreme Court agreed and reversed stating: In this charge we think the court did not explain fully enough so as to be understood by the jury what constitutes in law nonconsent on the part of the woman, and what is the force necessary in all cases of nonconsent to constitute the crime. He merely stated that if the woman did not give consent the only force necessary to constitute the crime in that case was that which was incident to the commission of the act itself. That is true in a case where the woman's will or her resistance had been overcome by threats or fright, or she had become helpless or unconscious, so that while not consenting she still did not resist. But the charge in question covered much more extensive ground. It covered the case where no threats were made; where no active resistance was overcome; where the woman was not unconscious, but where there was simply nonconsent on her part and no real resistance whatever. Such nonconsent as that is no more than a mere lack of acquiescence, and is not enough to constitute the crime of rape. Taking all the evidence in the case, the jury might have inferred just that amount of nonconsent in this case. Not that they were bound to do so, but the question was one for them to decide. The mere nonconsent of a female to intercourse where she is in possession of her natural, mental, and physical powers, is not overcome by numbers or terrified by threats, or in such place and position that resistance would be useless, does not constitute the crime of rape on the part of the man who has connection with her under such circumstances. More force is necessary when that is the character of nonconsent than was stated by the court to be necessary to make out the element of the crime. That kind of nonconsent is not enough, nor is the force spoken of then sufficient, which is only incidental to the act itself . where a woman is awake, of mature years, of sound mind and not in fear, a failure to oppose the carnal act is consent; and though she object verbally, if she make no outcry and no resistance, she by her conduct consents, and the act is not rape in the man. 164 U.S. at 647-48, 17 S.Ct. at 210-11, 41 L.Ed. at 585. More recent cases have substantially diluted the requirement of "resistance to the utmost," increasing the risk that a jury might convict a defendant under circumstances where lack of consent was ambiguous. To counteract this risk, some courts, notably the Supreme Court of California, have held that the defendant is entitled to an instruction on reasonable mistake of fact. See People v. Mayberry, 15 Cal.3d 143, 125 Cal.Rptr. 1337, 542 P.2d 1337 (Cal.1975). The California instruction reads as follows: It is a defense to a charge of forcible rape that the defendant entertained a reasonable and good faith belief that the female person voluntarily consented to engage in sexual intercourse. If from all the evidence you have a reasonable doubt whether the defendant reasonably and in good faith believed she voluntarily consented to engage in sexual intercourse, you must give the defendant the benefit of that doubt and acquit him of said charge. California Jury Instructions-Criminal Instruction No. 10.23 (4th ed. 1979). Under People v. Mayberry, when a defendant argues "consent" as a defense, the state must prove that he intentionally engaged in intercourse and was at least negligent regarding his victim's lack of consent. Alaska has dispensed with any requirement that the victim resist at all. AS 11.-41.470 provides in relevant part: Definitions. For purposes of § 410-470 of this chapter [sexual offenses], unless the context requires otherwise, (3) "without consent" means that a person (A) with or without resisting, is coerced by the use of force against a person or property, or by the express or implied threat of imminent death, imminent physical injury, or imminent kidnapping to be inflicted on anyone; The code defines "force" and "physical injury" as follows: AS 11.81.900(b)(22) "force" means any bodily impact, restraint, or confinement or the threat of imminent bodily impact, restraint, or confinement; "force" includes deadly and nondeadly force; AS 11.81.900(b)(40) "physical injury" means physical pain or an impairment of physical condition; Thus, the legislature has substantially enhanced the risk of conviction in ambiguous circumstances by eliminating the requirement that the state prove "resistance" and by substantially broadening the definitions of "force" and "physical injury." We are satisfied, however, that the legislature counteracted this risk through its treatment of mens rea. It did this by shifting the focus of the jury's attention from the victim's resistance or actions to the defendant's understanding of the totality of the circumstances. Lack of consent is a "surrounding circumstance" which under the Revised Code, requires a complementary mental state as well as conduct to constitute a crime. See Neitzel v. State, 655 P.2d 325, 329 (Alaska App.1982). No specific mental state is mentioned in AS 11.41.-410(a)(1) governing the surrounding circumstance of "consent." Therefore, the state must prove that the defendant acted "recklessly" regarding his putative victim's lack of consent. Id. at 334. This requirement serves to protect the defendant against conviction for first-degree sexual assault where the circumstances regarding consent are ambiguous at the time he has intercourse with the complaining witness. While the legislature has substantially reduced the state's burden of proof regarding the actus reus of the offense, it has at the same time made it easier for the defendant to argue the defense of mistake of fact. The Alaska rule is more favorable to Reynolds than the rule of People v. Mayberry. This follows from the distinction the code draws between negligence and recklessness. The senate committee suggested: When a statute in the code provides that a person must recklessly cause a result or disregard a circumstance, criminal liability will result if the defendant "is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists." The test for recklessness is a subjective one — the defendant must actually be aware of the risk. On the other hand, if criminal negligence is the applicable culpable mental state, the defendant will be criminally liable if he "fails to perceive a substantial and unjustifiable risk that the result will occur or that the circumstance exists." The test for criminal negligence is an objective one — the defendant's culpability stems from his failure to perceive the risk. 2 Senate Journal 142 (1978). See also Tentative Draft Part 11, 12-19. In order to prove a violation of AS 11.41.410(a)(1), the state must prove that the defendant knowingly engaged in sexual intercourse and recklessly disregarded his victim's lack of consent. Construed in this way, the statute does not punish harmless conduct and is neither vague nor overbroad. We therefore reject Reynolds' constitutional attack on AS 11.41.410 in general. We will consider his constitutional attack on the slatute as it was applied to him hereafter. SUFFICIENCY OF THE EVIDENCE Having construed the statute, we are now prepared to consider Reynolds' other arguments. First, he contends that there was insufficient evidence to establish that he kidnapped J.D. or committed first-degree sexual assault against her. AS 11.41.300 provides in relevant part: Kidnapping. (A) A person commits the crime of kidnapping if (1) he restrains another person with intent to (c) . sexually assault him . . .; AS 11.41.410 provides in relevant part: Sexual assault in the first degree, (a) A person commits the crime of sexual assault in the first degree if, (1)being any age, he engages in sexual penetration with another person without consent of that person; AS 11.41.470(3)(A) provides in relevant part: (3) "without consent" means that a person (A) with or without resistance, is coerced by the use of force against a person or property, or by the express or implied threat of imminent death, imminent physical injury, or imminent kidnapping to be inflicted on anyone . .; Reynolds testified and conceded that he had sexual intercourse with J.D., i.e., that he sexually penetrated her. Since "force" includes "restraint," his guilt of kidnapping and first-degree sexual assault turns on whether he "restrained her" with intent to have sexual intercourse and whether he recklessly disregarded her lack of consent. In reviewing the denial of a judgment of acquittal, we apply the following test: [Tjhis court must consider the evidence and the reasonable inferences arising therefrom in the light most favorable to the state and determine if fair-minded jurors in the exercise of reasonable judgment could differ on the question of whether guilt has been established beyond a reasonable doubt. If the jurors could so differ, then the case was properly submitted to the jdry. Elson v. State, 633 P.2d 292, 298 (Alaska App.1981), aff'd 659 P.2d 1195 (Alaska 1983). We have carefully reviewed the record and conclude that reasonable people could differ as to the existence of the elements of "restraint" and "reckless disregard of lack of consent." J.D. testified that after they left the Feed and Fuel, a Fairbanks bar where she, the defendant, Reynolds, Reynolds' father and Reynolds' father's girlfriend had gone after dinner, she told Reynolds she wanted to go home. He refused to take her home and said they were going to visit a friend of his. She again stated that she wanted to go home, but he ignored her. They stopped in front of an apartment complex and Reynolds tried to talk J.D. into going inside. When she refused, he grabbed her wrist and pulled her out of the car. J.D. became frightened and again told Reynolds she wanted to go home. Reynolds ignored her and began pulling her down the sidewalk toward the building. As she was being pulled down the sidewalk, J.D. repeatedly told Reynolds she wanted to go home. J.D. testified that Reynolds pushed her into what turned out to be his apartment and locked the door with a key. The deadbolt on the door was key-operated and Reynolds put the key in his pants pocket. She therefore could not leave without his assistance. Once they were inside the apartment, Reynolds suggested that they sit down on the couch and talk. J.D. again told Reynolds she wanted to go home and he replied he would take her home soon. After they had been conversing for about fifteen minutes, Reynolds stated he wanted to give J.D. a tour of his apartment. She replied that she did not want a tour. At that point, Reynolds pulled J.D. off the couch and insisted on showing her the apartment. After the tour, Reynolds suggested they go back to the couch. After they had been sitting on the couch for a few minutes, Reynolds suddenly grabbed both of J.D.'s writs, pulled them over her head and forced her to lie down on the couch. J.D. told Reynolds she wanted to go home and attempted to get away from him. Reynolds acted like he did not hear her and began kissing her. J.D. testified that she repeatedly told Reynolds she "didn't want him to do anything" but he persisted. Reynolds then picked J.D. up and carried her into his bedroom. She tried to get away but was not able to. As she was being carried into the bedroom, J.D. repeatedly asked Reynolds to put her down. J.D. testified that she was trying to talk very softly because Reynolds was acting very strange and she did not want to upset him. After Reynolds carried J.D. into the bedroom, he threw her on the bed, and forcibly pulled off her boots, pantyhose, and underpants, slightly ripping her pantyhose in the process. At this point, J.D. noticed a handgun lying on a chair near the bed. J.D. testified that the gun "scared [her] to death" and that she was very afraid that Reynolds might use the gun. She concedes Reynolds never touched or mentioned the gun. Reynolds told J.D. to unhook her dress and she did so because she was very frightened. J.D. told Reynolds that she did not want to have sexual intercourse. Reynolds replied that he knew she wanted it, so why didn't she just admit it. Reynolds then had sexual intercourse with J.D. During intercourse Reynolds continued to ask J.D. if she "wanted it" until she said that she did. J.D. testified that she answered in the affirmative because "there was really nothing I could do at that point, other than agree with him, and hope everything would turn out all right, and I was just too scared of him to argue at all." J.D. testified that Reynolds complained that she was not enjoying it, and so out of fear she simulated a physical response. Reynolds also told J.D. that he had "planned" the entire incident in advance and that he had always wanted to "fuck a model." J.D. was the assistant manager of a modeling agency at the time. J.D. testified that she was sure she communicated her lack of consent and that Reynolds understood her. She further testified that she did not offer more physical resistance because she was afraid Reynolds would injure her. After the assault, J.D. asked Reynolds to take her home; he replied that he take her home in the morning. The next morning Reynolds would not take J.D. home until she promised to come back to his apartment that night and "spread her legs." J.D. made a prompt complaint to her roommate, T.R., upon arriving home and later that day contacted the police. While Reynolds never expressly threatened J.D., did not use a dangerous weapon or cause her serious physical injury, her testimony, if believed, establishes that he restrained her by locking his door with a key and pocketing the key, and physically preventing her from fleeing. The evidence, if believed, would also establish that he used force, i.e., physical impact on her, and caused her some physical injury, i.e., physical pain. Further, his statement to her that he had planned the entire incident would support an inference that his restraint and use of force was with the intent to have intercourse. Finally, J.D.'s objections and other actions and Reynolds' statements to J.D. and his actions with regard to her, viewed in their totality, would support an inference that he had a subjective awareness of a substantial risk that J.D. did not wish to have intercourse with him and recklessly disregarded that risk. The trial court therefore did not err in denying Reynolds' respective motions for judgment of acquittal on the charges of kidnapping and first-degree sexual assault. JURY INSTRUCTIONS Reynolds argues that the trial court incorrectly instructed the jury. He points out that the jury was not expressly told that it had to find that he "recklessly" disregarded J.D.'s lack of consent before it could convict him of first-degree sexual assault. He concedes that he did not object to the instructions on first-degree sexual assault and therefore must establish plain error to be heard on appeal. See Walker v. State, 652 P.2d 88, 92 n. 7 (Alaska 1982) (not plain error to fail to give instruction governing mistake of fact regarding victim's consent under prior rape law). The jury was instructed as follows regarding first-degree sexual assault: A person commits the crime of sexual assault in the first degree if he engages in sexual penetration with another person without the consent of that person. In order to establish the crime of sexual assault in the first 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 Fairbanks, in the Fourth Judicial District, State of Alaska, and on or about the 25th day of November, 1981; Second, that RANDALL REYNOLDS engaged in sexual penetration with [J.D.]; and, Third, that the penetration occurred without the consent of [J.D.]. While Reynolds is correct that the foregoing instructions standing alone might be interpreted as establishing strict liability regarding J.D.'s lack of consent, any such risk disappears when we examine the other instructions. For example, the jury was told: In the crimes charged in the indictment there must exist a joint operation of an act or conduct and a culpable mental state. To constitute a culpable mental state is not necessary that there exist an intent to violate the law. When a person knowingly does that which the law declares to be a crime, he is acting with a culpable mental state, even though he may not know that his act or conduct is unlawful. Significantly, the jury was given the following definition of the term "knowingly": A person acts "knowingly" with respect to conduct or to a circumstance described by the law when he is aware that his conduct is of that nature or that the circumstance exists. When knowledge of the existence of a particular fact must be proved by the state, that knowledge is established if a person is aware of a substantial probability of the existence of that fact, unless he actually believes that it does not exist. In conclusion, the jury was told that, before Reynolds could be convicted of first-degree sexual assault, it had to find beyond a reasonable doubt that he knowingly did an act which the law forbids, i.e., knowingly had sexual intercourse with J.D., knowing that she did not consent. Furthermore, -it is clear that Reynolds and his counsel understood that this was the burden the state had to meet. In his opening statement and his final argument, defense counsel argued that Reynolds had no reason to believe that J.D. did not want to have intercourse because she never expressed her lack of consent. In rebuttal, the prosecutor conceded that J.D. needed to communicate her non-consent in some way to Reynolds before he could be guilty of first-degree sexual assault and that it was up to the jury to decide whether J.D. had, in fact, communicated her lack of consent to Reynolds. During the trial, direct and cross-examinations of both J.D. and Reynolds focused on whether J.D. had communicated her lack of consent. On direct examination, J.D. testified that she told Reynolds several times that she wanted to go home and she did not want to kiss him or have sexual intercourse. On cross-examination, J.D. stated that she was sure that she told Reynolds she did not want to have intercourse and that he understood her. Reynolds testified that J.D. didn't say much and that she never gave him any reason to believe the incident occurred without her consent. Under these circumstances, we are satisfied that the trial court did not commit plain error in failing to specifically instruct the jury that Reynolds had to recklessly disregard a substantial risk that J.D. did not consent to intercourse before he could be convicted of first-degree sexual assault. SENTENCING Reynolds contends that, by eliminating a requirement of "utmost resistance" and defining "force" as any unprivileged touching of a putative victim, so that his conduct qualifies as first-degree sexual assault, the legislature subjected him to cruel and unusual punishment in violation of the eighth amendment to the United States Constitution and deprived him of substantive due process and the equal protection of the laws in violation of the fourteenth amendment of the United States Constitution. While he does not specifically mention the comparable provisions of our state constitution, we assume he seeks relief under them as well. Essentially, Reynolds argues that the legislature has irrationally grouped under a single statute, subject to a single range of punishments, such substantially diverse conduct as a brutal parking lot assault on a total stranger, resulting in permanent injuries, on the one hand, and the minor imposition of an overly amorous social friend, on the other, so as to irrationally fail to distinguish between minor harm and major injury- We recognize that the Alaska Statutes are in part based upon a series of state code revisions which in turn are based upon the Model Penal Code. We also realize that the Model Penal Code differentiates between degrees of rape depending upon whether the victim or another suffers serious physical injury or, alternatively, was not a previous social companion of the defendant See, e.g., Model Penal Code § 213.1. To a certain extent, J.D. was a "voluntary social companion of [Reynolds]" and did not suffer serious physical injury. Cf. N.Y.Penal Code § 130.35, § 130.00(8) (requires "forcible compulsion" for. first-degree rape and defines forcible compulsion as "physical force that overcomes earnest resistance; or a threat, expressed or implied, that places a person in fear of immediate death or serious physical injury to himself or another person, or in fear that he or another person will immediately be kidnapped.") We are satisfied, however, that the Revised Code cannot be viewed in isolation but must be construed along with the sentencing provisions of the new code which were enacted at the same time. See AS 12.55.005-185. Thus, at the time Reynolds was tried, possession or use of a firearm or serious physical injury to the victim were aggravating factors mandating a six-year presumptive term. AS 12.55.125(c)(1). In past decisions we have suggested that in the absence of this aggravating factor, a first offender should receive a substantially less severe sentence. We note that Reynolds received a five-year sentence. By the same token, AS 12.55.155 sets out a number of aggravating factors which the trial court should consider in determining an appropriate sentence. While these factors are not, strictly speaking, applicable to a first offender, we have indicated that the six-year presumptive term should not be exceeded unless the trial court finds one or more aggravating factors or extraordinary circumstances. When we construe the Revised Code and the concurrent amendments governing sentences together, we are satisfied that the legislature has not irrationally failed to distinguish between degrees of culpability and that the penalty provisions of the sexual offenses provisions of the Revised Code did not subject Reynolds to cruel and unusual punishment or deny him substantive due process or the equal protection of the laws. Finally, Reynolds contends that the sentence imposed was excessive. He points out that he is a first offender, that he did not use a dangerous weapon, that J.D. did not suffer physical injury and that his actions were not otherwise egregious. He contends therefore that a five-year sentence of imprisonment is excessive. See Ahvik v. State, 613 P.2d 1252 (Alaska 1980). In Ahvik, the defendant, age eighteen, raped his fifteen-year-old niece. He received a sentence of five years' imprisonment. On appeal, the supreme court held the sentence excessive and reversed for entry of a sentence not to exceed five years with two years suspended. In reaching its conclusion, the supreme court stressed that Ahvik had not assaulted a stranger, the victim suffered no serious physical injury, the assault was not sufficiently brutal to cause severe psychological or physical after-effects, that Ahvik was only eighteen and accepted responsibility for his crime and that his prognosis for rehabilitation was good. The supreme court concluded: We do not believe Ahvik should be placed with hardened criminals, as this is likely to reinforce any criminal tendencies he may already have. We believe that the sentence should include a recommendation that Ahvik be placed in a facility such as the Palmer Correctional Center, where there is an emphasis on rehabilitation programs. The classification requirements issued by the Alaska Department of Health and Social Services, Division of Corrections, for placement in the Palmer facility specify: "Due to the uniqueness of the facility, prisoners must be within three years of their mandatory release date." Our conclusion is that Ah-vik should not receive a sentence of more than five years with two suspended. 613 P.2d at 1254 (footnote omitted). Reynolds was twenty-three years old at the time of the offense. His victim, J.D., was a mature woman of twenty-one. She was not a stranger. He did not threaten her with a dangerous weapon or cause her severe personal injuries. Stephen Korenek, an adult probation officer, prepared the presentence report. He interviewed Reynolds and J.D. He noted that Reynolds was a first offender and that Reynolds had completed his education and been trained and steadily employed as a cosmetologist. He considered Reynolds' assault on J.D. the minimum which would qualify as first-degree sexual assault under current law and recommended a sentence of five years with four and one-half years suspended. He did note, however, three negative factors: first, that Reynolds would not acknowledge that J.D. had not agreed to have intercourse with him; second, that Reynolds had a prior incident in which he and his father took two seventeen-year-old girls to Reynolds' apartment and Reynolds (Jr.) carressed and fondled one of the girls without her permission; and third, that Reynolds seemed to have planned his assault on J.D. Reynolds argues that on balance, his case is indistinguishable from Ahvik so that he should receive a sentence of no more than three years. A number of factors, however, serve to distinguish this case from Ahvik and support the trial court's decision. First, the legislature has substantially amended sexual offense statutes in the interim since Ahvik was decided. Uniformly, the penalties have been increased. The current presumptive sentence for one who does not use a dangerous weapon or cause serious physical injury is eight years. AS 12.-55.125(i)(l). Where serious injuries are suffered or a dangerous weapon is used the presumptive term for a first offender is ten years. AS 12.55.125(i)(2). While these amendments were not in force at the time Reynolds committed his crimes, they provide some indication of current legislative views regarding the relative seriousness of the offense and weaken, somewhat, Ahvik's continuing authority. See Whittlesey v. State, 626 P.2d 1066, 1068 (Alaska 1980). Second, the trial court rejected the probation officer's recommendation of a minimum sentence and found three aggravating factors which were not present in Ahvik: (1) that Reynolds left a handgun in prominent view in his bedroom, intimidating the victim; (2) that Reynolds locked her in, and (3) that his conduct caused her substantial emotional suffering. In light of these factors a total sentence of five years' imprisonment was not clearly mistaken. The judgment of the superior court is AFFIRMED. . The Alaska Revised Code provisions defining sexual offenses are based on a proposed Michigan Code. See Alaska Criminal Code Revision, Part I at 99. The Michigan Code is discussed and criticized in Model Penal Code and Commentaries, Part II, § 213.1, at 289 (1980) and see Note Recent Statutory Developments In The Definition Of Forcible Rape, 61 Va.L.Rev. 1500 (1975). . While the jury acquitted Reynolds of kidnapping, he contends that permitting the jury to consider it enabled the jury to compromise, enhancing the risk that he would be unjustly convicted of sexual assault. . The trial court found the presence of the handgun near the bed suspicious, and implicitly found that Reynolds should have known that it would intimidate J.D. Judge Blair did not find that Reynolds intentionally relied on the gun to intimidate her.

10471839

Walter Mack GALAUSKA, Appellant, v. STATE of Alaska, Appellee

Galauska v. State

1974-10-25

No. 2027

459

472

527 P.2d 459

527

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:28:42.330390+00:00

CAP

Before RABINOWITZ, C. J., ERWIN, BOOCHEVER and FITZGERALD, JJ., and MOODY, Judge.

Walter Mack GALAUSKA, Appellant, v. STATE of Alaska, Appellee.

Walter Mack GALAUSKA, Appellant, v. STATE of Alaska, Appellee. No. 2027. Supreme Court of Alaska. Oct. 25, 1974. Stephen C. Cowper, of Cowper & Mad-son, Fairbanks, for appellant. Norman C. Gorsuch, Atty. Gen., Daniel W. Hickey, Dist. Atty., Juneau, Robert B. Downes, Asst. Dist. Atty., Fairbanks, for appellee. Before RABINOWITZ, C. J., ERWIN, BOOCHEVER and FITZGERALD, JJ., and MOODY, Judge.

7570

45772

OPINION FITZGERALD, Justice. Shortly after midnight on January 29, 1973, Arthur Charlie, Walter Galauska and Roger Peter left Fairbanks in Galaus-ka's pickup truck driving the Steese Pligh-way toward Chatanika. After passing Milepost 27, the vehicle was stopped on the roadway and all three men got out. Immediately thereafter Arthur Charlie was struck on the head with a rifle and knocked to the ground. He was dragged to a small ravine close by the highway and pushed over the edge, rolling to the bottom. John Balas, who lived at Mile 27½ on the Steese, was awakened early that morning by the barking of his dogs. He went outside to investigate. Hearing what he believed was someone groaning, he drove to the location of a telephone and called the state troopers at Fairbanks. Troopers Schouten and Port were dispatched. Balas was instructed to meet the two troopers at Mile 13¾. After rendezvousing, they drove to the point where Balas had heard the groans. There they found Charlie lying face down at the bottom of the ravine. Trooper Port immediately examined Charlie for vital signs of life and was able to find a weak pulse. Charlie was carried to the patrol car and transported to the hospital at Fairbanks. There he was pronounced dead shortly after arrival. Later an autopsy disclosed that Charlie's injuries included a fractured skull. In the course of their preliminary investigations, the state troopers interviewed both Galauska and Peter. Based on these interviews and evidence presented to the grand jury, Roger Peter and Walter Ga-lauska were jointly indicted for the murder of Arthur Charlie. Peter pled guilty shortly before trial to an information which charged him with manslaughter. This crime was said to have occurred when Peter rolled the wounded and helpless Charlie into a ravine near the highway and then abandoned him. Later at Galauska's trial on the murder charge, both Peter and Galauska testified and each accused the other of beating Charlie with the rifle. Since the testimony at trial sharply conflicted on the details of the killing, we have carefully examined the circumstances leading up to the event. Walter Galauska had been well acquainted with Arthur Charlie for at least six or seven years before the assault. Roger Peter was likewise well acquainted with Charlie, and it was said that Charlie was his cousin. Galauska and Peter became acquainted during December of 1972, when both were patients at the Fairbanks detoxification center. Shortly after 8 p. m. on January 29, 1973, Galauska, in company with Peter, drove his wife to downtown Fairbanks so that she might play bingo. Galauska left his truck in a parking lot and he and Peter began an extended tour of the Fairbanks bars, drinking as they went. While thus engaged, they met Robert Olsen, Tom Flaherty and Arthur Charlie. According to Galauska he had hoped to see the three men because Mrs. Galauska was to testify against them in court on the following day in connection with a burglary. Charlie, Flaherty and Olsen, together with Galauska had been jointly charged with the crime but Galauska had been successful in having the case against him dismissed. Mrs. Galauska had been concerned about testifying against the defendants, so Galauska had agreed to explain the circumstances to them hoping this would avoid hard feelings. When Olsen, Flaherty and Charlie were told of his wife's concern about testifying in the burglary case, Galauska recalls that they did not appear to be worried at the prospect of Mrs. Ga-lauska's testimony. Rather they explained that they had been advised by their attorney there was little to worry about since Arthur Charlie had stated that he was not going to say anything about anybody, and was going to stand on the fifth amendment. Roger Peter testified at Galauska's trial about this conversation. He. recalled it quite differently. According to Peter, Ga-lauska told Olsen, Flaherty and Charlie that he had been in the detoxification center and now had a "straight mind" to think about the case. Galauska further stated that "the state is gonna take Charlie and convict all three of them, regardless of him being charged or not, and give all three of them 10 years on larceny in the building." When questioned about his understanding of "all three of them", Peter testified that Galauska was referring to Olsen, Flaherty and Galauska. This testimony of Peter, if believed, has to do with a possible motive on the part of Galauska. It implies that Galauska continued to fear prosecution on the burglary charge if Charlie were to testify. Peter also testified that Galauska suggested a course of action for silencing Charlie: the best thing to do "is that Arthur Charlie make a disappearing scene for 120 days." Peter agreed with Galauska's account that at this point in the conversation Charlie said he was "gonna swear on the fifth amendment and that he wasn't gonna testify at all." Following this conversation, several more drinks, and an unsuccessful attempt by Galauska and Peter to locate Galauska's wife, the two returned to a bar where they again met Arthur Charlie. Galauska offered to buy a half gallon of wine and suggested the three take a ride in the pickup to drink it. His suggestion met with favor; the wine was bought and together they returned to the pickup. Peter started to drive, but after a few blocks Galauska demanded to take the wheel. Galauska's testimony was that he drove to the Steese Highway intending to proceed directly toward Chatanika. Peter testified that he thought they were going to Galauska's house, but instead Galauska suddenly announced, "No, I'm taking Charlie out to hide for 120 days," and then drove toward Chatanika. From this point on the testimony of Peter and Galauska becomes even more divergent. At trial Galauska gave the following explanation of the killing. On the way to Chatanika an argument broke out between Peter and Charlie which resulted in blows between them. He was compelled to stop the truck while the' two combatants continued their fight. Galauska stepped down on the driver's side of the vehicle to take a drink from the wine bottle. He heard swearing and scuffling, then saw Roger Peter reach into the truck, pull the seat forward and remove a rifle. At this point Galauska testified he ran around the front of the truck with the intention of disarming Peter. He saw Peter standing over Charlie, hitting him with the rifle. Ga-lauska went on to testify that he was able to pull the rifle away from Peter and to kneel down beside Charlie. He told Charlie, "Come on and get up," intending to help him into the truck and back to town. Instead, according to Galauska, Charlie said, "Get that crazy Roger Peter away from me. I'll hitchhike a ride to town." At this Galauska responded, "If that's the way you want it," and started to climb into the truck. But Peter now seized the rifle and again struck Charlie. Finally Peter ordered Galauska to get into the pickup. Then Peter laid the rifle on the floorboards and directed Galauska to drive off. According to Galauska, Charlie was left where he lay alongside the road. He was not rolled into the ravine. Peter's testimony of the events differs substantially. He testified that the pickup was stopped by Galauska to permit the men to urinate. When Charlie got out he accidentally slipped hitting Peter's previously injured eye. Peter, believing himself attacked by Charlie, immediately retaliated. However, Charlie explained his initial blow had been struck accidentally and so Peter turned away to the end of the truck and urinated. While thus engaged, he continued to talk to Charlie, who remained behind Peter some six or seven feet away. Peter heard a thud and as he turned saw Galauska with a rifle in his hands. He saw Charlie and Galauska struggling for the weapon. Peter himself grabbed at the rifle but was knocked off balance. After he was able to get up, he tried to remove the clip from the rifle which was still held by Galauska. When Peter was able to pull the clip out of the magazine, he began to unload it. Galauska had by then managed to knock Charlie down and was beating him on the head with the rifle. Peter disarmed Galauska and threw the rifle in the truck. He told Galauska, "We got to get him back to town." Galauska refused, saying, "No, he's not going back in my truck. He'll be all right in a couple of hours; help me roll him down the hill." Peter testified he helped Galauska roll Charlie into the ravine. He noted that Charlie was still breathing. On the return trip to Fairbanks Peter drove. He was told by Galauska to keep his mouth shut and that things were going to be all right; but, they would have to get rid of the rifle. Peter drove off the highway into a drive where the rifle was thrown from the truck. The troopers' investigation revealed that the bottom of the ravine where Charlie had been located was approximately fifty feet from the roadway. Along the roadway they found blood spots, a urine spot, the butt plate of a rifle, a beer can and a rifle cartridge. A number of days later the rifle was discovered in the snow near the driveway where it had been thrown. It was identified as belonging to Galauska and the cartridge recovered from the scene of the crime by the state troopers was shown to be the same caliber as Galauska's rifle. At the trial, the jury resolved the contradictory evidence and returned their verdict, finding Galauska guilty of manslaughter. In this appeal Galauska attacks the indictment as invalid. He claims the evidence at trial was insufficient to convict; he objects to an evidentiary ruling of the trial court and finally to the instructions given the jury. I. THE INDICTMENT Galauska urges that his indictment was fatally flawed by the presentation of inadmissible hearsay evidence to the grand jury. Galauska moved, unsuccessfully, to quash the indictment prior to trial; so the error, if any, is properly before this court Galauska bases his claim of error on testimony presented to the grand jury by a police officer who testified to a statement by Peter. This statement was similar in import to the testimony which Peter later gave at the trial of Galauska, i. e., that Ga-lauska had beaten Arthur Charlie with a rifle, over Peter's protests, and that Ga-lauska and Peter rolled Charlie off the roadside into a ravine. This statement as presented by the police officer was hearsay evidence. At the time of the grand jury proceedings, the State was seeking a joint indictment against Peter and Galauska. Thus the statement by the police officer before the grand jury was admissible hearsay evidence against Peter, but inadmissible as against Galauska. Alaska R.Crim.P. 6(r) involves the presentment of evidence before grand juries: "Evidence which would be legally admissible at trial shall be admissible before the grand jury. In appropriate cases, however, witnesses may be presented to summarize admissible evidence if the admissible evidence will be available at trial. Hearsay evidence shall not be presented to the grand jury absent compelling justification for its introduction. If hearsay evidence is presented to the grand jury, the reason for its use shall be stated on the record." (emphasis added) The first sentence of the rule deals with the presentment of admissible evidence and encompasses hearsay evidence which would be admissible pursuant to one of the recognized exceptions to the hearsay rule. In those instances there is no need for a compelling justification and the reason for its use need not be stated on the record. However, in circumstances involving inadmissible hearsay evidence there must be a compelling justification for its introduction to the grand jury. In Taggard v. State, 500 P.2d 238 (Alaska 1972), a police officer testified before a grand jury about information related by an informant incriminating the defendant. We held that a grand jury must be given some means of evaluating the worth of the hearsay evidence. In order to assess the sufficiency of hearsay evidence supporting the indictment, this court adopted a two step analysis: "The threshold question, which must be determined in all cases involving a challenge to the sufficiency of the evidence supporting a grand jury indictment, is whether the evidence presented a sufficiently detailed account of criminal activity and the defendant's participation in this activity so that 'if unexplained or uncontradicted it would warrant a conviction of the person charged with an offense by the judge or jpry trying the offense.' Where hearsay evidence has been introduced, we must also determine whether the credibility of the informant has been sufficiently established so that the grand jury may know how much weight to give to the hearsay testimony." Following our decision in Taggard, Alaska R.Crim.P. 6(r) was amended and the state was required to show compelling reasons before resorting to inadmissible hearsay testimony at the grand jury. In State v. Skan, 511 P.2d 1296 (Alaska 1973) we found the evidence presented to a grand jury insufficient to sustain an indictment. The testimony consisted of a hearsay statement given by an accomplice read to the grand jury by a state trooper. There was nothing before the grand jury other than the statement itself upon which the jury could evaluate the reliability of the testimony. The statement contained internal inconsistencies, making the evidence of questionable value. We noted too that Alaska R.Crim.P. 6(r) was not complied with since no explanation was given why the witness was not called before the grand jury. Galauska alleges the State failed to present compelling reasons for introducing Peter's inadmissible hearsay evidence. When the indictment for murder was sought against Galauska and Peter, the state's attorney stated for the record made at the grand jury proceedings that he intended to present Peter's written statement. He chose not to bring Peter before the grand jury since that could prejudice his constitutional rights. However, he advised the grand jury in the event it wished that Peter be presented, he would request the public defender to allow Peter to make a statement to the grand jury. The state attorney correctly advised the grand jury that while Peter's statement amounted to hearsay evidence it would be admissible against him. Against Galauska the statement was hearsay but there was a possibility that Peter might ultimately testify in the case. The state's attorney advised the grand jury that the statement would be corroborated by other testimony. Even though Peter's hearsay statement was admissible before the grand jury against him, Criminal Rule 6(r) was complied with in this case. Calling Peter before the grand jury would have led to the introduction of direct evidence only if Peter incriminated himself.' Concern for Peter's substantive rights consituted a compelling reason under Criminal Rule 6(r) for the use of his hearsay statement at the grand jury. As we have noted, the evidence before the grand jury when taken together presented a detailed account of the crime so as to warrant a conviction if the evidence is unexplained or uncontradicted at trial. Peter's statement itself outlined a detailed account of the criminal activity and the participation of both Galauska and Peter. The statement related specific details concerning the manner of the assault and the subsequent abandonment of the injured victim in a ravine. In addition to Peter's statement the state produced considerable corroborative testimony at the Grand Jury. Testimony was given that Galauska, Peter and Charlie were seen driving toward the highway in Galauska's truck shortly before the assault, and that the truck was found the next morning in Galauska's driveway. Police officers testified to the presence of bloodstains in the truck. The officers further testified to Galauska's admission of having seen Charlies in a bar on the evening of the killing, and related Galauska's claim of loaning his truck to a third party on that evening. The third party testified to the falsity of Galauska's claim. In addition, according to police testimony, it would probably have required two men to carry the inert Peter to the edge of the ravine. As we see it, this evidence was sufficiently corroborative of Peter's story to enable the grand jury to properly weigh the worth of Peter's hearsay statement and was sufficient. Since the presentment of the hearsay evidence complied with the Taggard standards and Alaska R.Crim.P. 6(r), we can find no substantial defect in the evidence presented to the grand jury nor in the indictment which followed to warrant reversal of the conviction. II. SUFFICIENCY OF THE EVIDENCE AS TO THE CAUSE OF DEATH Galauska's next argument on appeal concerns the State's failure to introduce sufficient evidence to establish beyond a reasonable doubt that the beating caused Charlie's death. Accordingly, Galauska claims error by the trial court in denying his motions for acquittal at the close of the State's case and at the end of the trial. The argument is based on a restricted reading of Armstrong v. State, 502 P.2d 440 (Alaska 1972). In Armstrong we discussed the standards to be utilized in determining whether expert testimony was necessary to support a conviction: "Expert testimony is not necessarily essential to support a conviction of homicide. Thus, where it is apparent that ordinary laymen could perceive, from such factors as the nature of the wound or the circumstances surrounding an attack, that a defendant's acts caused the death, medical testimony as to cause of death is not essential. A contrary result is reached, however, where from the nature of the agency alleged to have caused the death, the causal connection is not within the average layman's perception. In such circumstances, expert testimony is essential to support a conviction. [I]n the absence of such testimony, any deliberation by the jury as to cause of death would have been baseless conjecture." From this quoted passage Galauska extrapolates a rule requiring medical experts to state with certainty the exact cause of death in cases where expert testimony is necessary to prove the cause of death. Such a rule would be unworkable in homicide cases where the limitations of medical science may not permit such certainty. For this reason we held in Armstrong that the jury's function is to decide on the cause of death, aided where necessary, by medical experts: "In this case expert testimony served to reveal the physiological relationships relevant to [the victim's] death; once these were explained, the jury was competent to make an independent determination of cause of death on the basis of all the relevant evidence before it." In the present case, the jury was competent to make an independent determination based on all the evidence as to the cause of death by putting into proper perspective the testimony presented by the medical experts. The details of the assault and abandonment of Charlie coupled with the medical testimony demonstrates sufficient evidence to sustain the conviction. Even accepting Galauska's contention concerning the required certainity in expert testimony in establishing the cause of death in this case, we find ample evidence from which the jury could have determined, with the required certainty, that Charlie's death resulted from the beating. Dr. Roger Harding performed an autopsy on the body and discovered, in addition to the injuries apparent to the eye, an epidural hematoma beneath Charlie's skull at the point of fracture. According to Dr. Harding, such a hematoma usually causes death fairly rapidly unless treatment is received. Dr. Harding could point to no other plausible reason as the cause of death. It was his best guess at the time of the autopsy that the fracture and hematoma had caused death. Moreover, defense counsel did not cross-examine Dr. Harding as to the cause of death. On these facts we have no difficulty in holding that the jury could have found beyond a reasonable doubt that the beating inflicted on Charlie caused his death. III. THE EVIDENTIARY RULING Galauska asserts error by the trial court in refusing to allow defense counsel to present evidence of particular assaults which Peter had made in the past. The defense attempted to introduce evidence of prior assaults to show that in all probability Peter, rather than Galauska, had assaulted Charlie. As a general rule, evidence of character (in this case, predisposition to violence) is not admissible as tending to show that a person committed an act consistent with that character. The risk of prejudice to a defendant in a criminal trial or, in general, distracting or confusing the jury, usually outweighs the debatable probative value of such evidence. This is not to say that such evidence should always be excluded. Character evidence is allowed for a number of different reasons. Evidence of other crimes is admissible to show a motive, or a larger plan or conspiracy, and in a limited number of situations, is admissible on other independent grounds, e. g., evidence of convictions for crimes involving dishonesty .is admissible to show that a witness' testimony is untrustworthy. One accepted "exception" allowing evidence of prior crimes involves instances where the previous crime is so nearly identical in method with the crime in question that it indicates the same person committed both crimes. Galauska urges that previous assaults committed by Peter fall under this "signature-crime" exception. We must agree with the trial court, however, that there was nothing particularly unique about either Peter's alleged prior assaults or the assault on Arthur Charlie. Galauska argues, alternatively, that character evidence was admissible here because its probative value was not vitiated by the countervailing factor of unfair prejudice. In this assertion he is correct — the prejudice cited as a reason for excluding evidence of prior crimes is prejudice to a criminal defendant's chances of a fair trial, not to any general interest in protecting witnesses from a besmirched reputation. The trial judge did, however, allow evidence of Peter's violent character. Defense counsel was permitted to ask the chief of police of Ft. Yukon (Peter's home town) about Peter's reputation for violence. Counsel also asked the chief for his personal opinion of Peter's character for violence, based upon the chief's personal observations. To both questions the chief of police answered that Peter was known to have a tendency toward violence, particularly when drinking. The trial court did not allow defense counsel to introduce evidence of particular assaults. We conclude that the court did not abuse its discretion in limiting character evidence to reputation and opinion. Under more compelling facts we believe it might have been advisable to allow limited testimony as to particular assaults. In general courts allow only reputation evidence in order to avoid jury confusion and distraction. In this case, the trial court did not err in his ruling that allowing the defendant to attempt to prove specific assaults would have consumed trial time and confused the real issues with evidence of arguable probative weight. We find no error in the trial court's rulings on this subject. ly. THE ACCOMPLICE INSTRUCTION Galauska assigns as reversible error the trial court's refusal, upon request, to instruct the jury that an accomplice's testimony is to be viewed with distrust. Alaska R.Crim.P. 30(b) makes this instruction mandatory "on all proper occasions." The state responds that the instruction was improper because there was no evidence before the court from which it could be inferred that Peter or anyone else was legally an accomplice. We agree. According to well-established legal authority, an accomplice is one who, with criminal intent, knowingly aids, abets, assists or participates in the crime for which the defendant is charged. Galauska's contention that Peter was an accomplice has two prongs. His first line of attack is that Peter was an accomplice, as a matter of law, thereby requiring the trial court to instruct the jury on the untrustworthy nature of an accomplice's testimony. Galauska bases this argument on Peter's guilty plea to an information charging him with the manslaughter of Arthur Charlie. This guilty plea and conviction was, of course, an admission of record that Peter had committed the crime with which he was charged. Although Galauska was charged with murder, the evidence supported the lesser-included offense of manslaughter. Thus, Galauska points out, both men were "charged" with manslaughter in the death of Arthur Charlie. In contrast, the state argues that Peter and Galauska committed separate crimes. Peter pled guilty to an information charging him with "aiding and assisting one Walter Galauska roll the said Arthur Charlie into a snow-covered ravine and abandoning him . . . immediately after witnessing said Walter Galauska severely beat and strike the said Arthur Charlie about the read with a rifle . . . .''In the Galauska indictment, Galauska was charged with murdering Charlie by beating him about the head with a rifle. Therefore, the state contends, Peter and Galaus-ka were not charged with the same criminal acts, and could not be accomplices. We agree with this analysis. The jury was instructed that Galauska was guilty of homicide, if at all, only if he had killed Charlie by beating him with a rifle. No instruction was given regarding Galauska's potential culpability for rolling the wounded Charlie over into the ravine, nor was there any evidence produced at Galauska's trial to show that the abandonment of Charlie was a cause of death. In Taylor v. State, 391 P.2d 950 (Alaska 1964), it was held that in order to be an accomplice one must with the requisite intent take part in some way in the commission of a crime. Performing later acts which themselves amount to a crime does not make one an accomplice to prior crimes. Under the holding of Taylor, Peter was not an accomplice as a matter of law. Thus the state is correct in its contention that Peter's earlier guilty plea by itself was not evidence that he was an accomplice in the crime for which Galauska was charged. The second prong of Galauska's argument is that Peter's testimony at trial was sufficient to make him an accomplice. It is true that Peter admitted in his testimony that he was present at the scene of the crime and gave aid to Galauska after the beating of Charlie. However, in this jurisdiction one is not necessarily an accomplice merely because he is physically present at the scene of the crime and aided in its concealment. Fajeriak v. State, 439 P.2d 783 (Alaska 1968). The accomplice issue has been before this court a number of times. We have held that under some circumstances the trial judge is required to instruct on the issue as a matter of law. In Mahle v. State, 371 P.2d 21 (Alaska 1962) the undisputed testimony revealed that Clyde Ahern participated in breaking open a safe which the defendant and others had removed from the premises of a Sears Roebuck store in Anchorage. We held that as a matter of law Ahern was an accomplice to the crime of larceny and it was error not to so instruct the jury. It was held in Daniels v. State, 383 P.2d 323 (Alaska 1968) that the witness was as a matter of law not an accomplice under circumstances where the witness helped to count the money after a burglary and larceny. This was so even though the witness might have foreknowledge that the crime was about to be committed. In some circumstances the question of whether or not the witness is an accomplice may be properly left for the jury to decide. Such was the case in Flores v. State, 443 P.2d 73 (Alaska 1968). Flores had been charged with the murder of Jimmy O'Day and George Secco. The jury found him guilty of murder in the first degree as to Jimmy O'Day and of manslaughter in the death of George Sec-co. The circumstances of the killings were testified to at trial by George Toloff. The witness related that he was present at the remote quonset hut when an argument broke out between Flores and Secco. To-loff observed Secco with Flores' foot on his throat and shortly thereafter was told by Flores that Secco was dead. After the killing, Toloff aided Flores by dragging the body of Secco to a swamp. Sometime later Flores was driving To-loff and Jimmy O'Day from Anchorage to Palmer. As they neared Palmer, Flores stopped the car so that the three could get out and relieve themselves. At this point Flores struck O'Day with a tire iron and with a rock. He then ordered Toloff to help him drag O'Day down a bank. After O'Day had been dragged for some distance, Flores directed Toloff to get a shovel from the trunk of the vehicle. Toloff complied and Flores then struck O'Day several times with the shovel. Toloff further assisted Flores in disposing of O'Day's body by burial. Under these facts it was held that the question of whether Toloff became an accomplice by having in some manner knowingly and with criminal intent aided, abetted, assisted or participated in the slaying of Secco and O'Day was properly submitted to the jury. However, the trial court in Flores failed to adequately instruct the jury that the testimony of an accomplice ought to be viewed with distrust. The failure to give the proper instruction was held not plain error in view of the instructions actually given by the trial court, coupled with the failure of Flores' counsel to submit an appropriate instruction to the court. Moreover, the record revealed extensive corroboration concerning Toloff's testimony; hence a new trial was not required. The facts in Fajeriak v. State were somewhat analogous to these of the case now before us. In that case, as here, the testimony was in clear conflict. Fajeriak was charged with the murder of Anthony Rizzo. He was found guilty on the eye witness testimony of Dean Gamradt and James Benton. In his defense Fajeriak claimed that Gamradt did the killing. On the other hand, Gamradt testified that Fa-jeriak fired the fatal shots killing Rizzo and that Gamradt and Benton participated with Fajeriak in disposing of Rizzo's body. Under the testimony either Fajeriak had to be the murderer or Gamradt and Benton were the murderers. But Gamradt and Benton could not be accomplices as the record revealed no evidence that they either assisted Fajeriak in the shooting or were parties to a pre-arranged plan to do the killing. The evidence in the record now before us discloses that Galauska accused Peter of beating Charlie with the rifle while Peter on the other hand has testified that the fatal beating was administered by Galauska. Under the circumstances neither becomes the accomplice of the other. The trial court's refusal to give an accomplice instruction was not erroneous. We find no reversible error and affirm the conviction. . Galauska had been discharged from a detoxification center about 6:00 P.M. on the same day. . In Taggard v. State, 500 P.2d 238, 243 n. 20 (Alaska 1972) we noted that challenges to an indictment based on defects not appearing on the face of the indictment must he raised prior to trial. Since (lalauslta's objection involved the sufficiency of the evidence supporting the indictment, the objection was timely raised before trial thereby preserving the issue on appeal. . The underlying reasons for limiting the scope of admissions with respect to codefendants have been clearly articulated by Wigmore: "The probative process consists in contrasting the statements of the same person made now as litigant and made formerly elsewhere, and it is in that view that it becomes necessary to define the identity of the person. It follows that the statements of one who is confessedly a distinct person B do not become receivable as admissions against A merely because B is also a party. In other words, the admissions of one coplain-tiff or codefendant are not receivable against another, merely by virtue of his position as a coparty in the litigation. This is necessarily involved in the notion of an admission; for it is impossible to discredit A's claims as a party by contrasting them with what some other party B has elsewhere claimed; there is no discrediting in such a process of contrast, because it is not the same person's statements that are contrasted. Moreover, ordinary fairness would forbid such a license; for it would in practice permit a litigant to discredit an opponent's claim merely by joining any person as the opponent's coparty and then employing that person's statements as admissions. It is plain, therefore, both on principle and in policy, that the statements of a coparty (while usable of course against himself) are not usable as admissions against a coparty. The principle is particularly illustrated by the rule in regard to the admissions of a codefendant in a criminal case; here it has always been conceded that the admission of one is receivable against himself only." 4 J. Wigmore, Evidence § 1076, at 155-57 (J. Chadbourn rev. ed. 1972) (footnotes omitted). See, e. g., People v. Leary, 172 P.2d 34, 37-38 (Cal.1946) ("Accusatory statements, when they are admissible, may be re ceived against a defendant whether he be tried alone or jointly, provided that in the latter case they are properly limited to the defendant concerned."). See also C. McCormick, Law of Evidence § 239, at 505 & n. 20 (1954). .Had the person who witnessed the criminal act related his observations of the incident, there would be no hearsay problem. Similarly, if Galauska, as a declarant made an incriminating admission, the witness who heard the declaration would be allowed to present the evidence under the admission's exception to the hearsay rule. In the instant case, however, a police officer merely related what the witness (Peter) had stated about the actions and admissions of the declarant (Galauska). Since the police officer as a third party did not observe any' conduct or hear any declarations, a traditional hearsay problem was presented. . Eor an incisive commentary providing a heuristic device for analyzing the testimonial infirmities underlying the basis for the hearsay rule, see Tribe, Comment — Triangulating Hearsay, 87 Harv.L.Rev. 957 (1974). . 500 P.2d at 242-243 (footnote omitted). See also State v. Johnson, 525 P.2d 532 (Alaska 1974) ; State v. Skan, 511 P.2d 1296, 1297 (Alaska 1973). . Alaska Const., Art. I, § 9. . The American Bar Association Project on Standards For Criminal Justice, Standards Relating to the Prosecution Function and the Defense Function § 3.6, at 89-90 (Approved Draft, 1971) stated that the prosecutor should give "due regard for the privilege against self-incrimination and the right to counsel requires that the prosecutor advise such a person, before seeking to require his testimony before a grand jury, that he may he implicated and that lie should seek independent legal advice." Moreover, the state should not seek to "compel the appearance of a witness whose activities are the subject of the inquiry if the witness states in advance that if called he will exercise his constitutional privilege not to testify." Id. at 88. .Furthermore, the police had found the .303 cartridge at the scene of the killing at the time of the grand jury proceeding, but had not yet found the .303 rifle which was later proved to be owned by Galauska. . 502 P.2d at 445-446. (footnotes omitted) . 502 P.2d at 446. . This contention is itself debatable; the evidence indicated that Charlie was severely beaten, suffering multiple bruises, cuts and a fractured skull. It isn't necessary for us to decide whether these injuries, together with the fact of death a few hours after their infliction, were so obviously a cause of death as to be within the average layman's perception, in view of our holding on the adequacy of the expert medical testimony, infra. . See Nicholi v. State, 451 P.2d 351, 357 (Alaska 1969) ; Watson v. State, 387 P.2d 289, 293 (Alaska 1963). . "Character evidence is of slight probative value and may be very prejudicial. It tends to distract the trier of fact from the main question of what actually happened on the particular occasion. It subtly permits the trier of fact to reward the good man and to punish the bad man because of their respective characters despite what the evidence in the case shows actually happened." C. Wright & A. Miller, [Proposed] Rules of Evidence for United States Courts and Magistrates, Rule 404, at 36, Advisory Committee's Note (1973), quoting Tentative Recommendation and a Study Relating to the Uniform Rules of Evidence, Cal. Law Revision Comm'n, Rep., & Studies at 615 (1964). . C. McCormick, Law of Evidence § 157 (1954). . Id., at 331; Alaska R.Crim.P. 26(f). . See Nicholi v. State, 451 P.2d 351, 357 (Alaska 1969). . Peter's prior alleged assaults involved beatings of members of his family, and a friend, none of which were shown to have been committed with a weapon other than his fists. . "Where the character offered is that of a third person, not a party to the cause, the reasons of policy . for exclusion seem to disappear or become inconsiderable; hence, if there is any relevancy in the fact of character, i. e., if some act is involved upon the probability of which a moral trait can throw light, the character may well be received." 1 J. Wigmore, Evidence § 68, at 488 (3rd ed. 1940). Contra, O Wright & A. Miller, [proposed] Rules of Evidence for United States Courts and Magistrates, Rules 404, 405, (1973), which appear to make no provision for admitting character evidence under these circumstances. . The decision of a trial court concerning the admissibility of evidence are reviewable only for abuse of discretion. Lewis v. State, 469 P.2d 689, 695 (Alaska 1970). . Of. 1 J. Wigmore, Evidence § 198, at 676-77 (3rd ed. 1940) : When the turbulent character of the deceased, in a pi-osecution for homicide, is relevant . . . there is no substantial reason against evidencing the character by particular instances of violent or quarrelsome conduct. Such instances may be very significant; their number can be controlled by the trial Court's discretion; and the prohibitory considerations applicable to an accused's character . . . have here little or no force." (footnote omitted) . "Of the three methods of proving character provided by the rule, evidence of specific instances of conduct is the most convincing. At the same time it possesses the greatest capacity to arouse prejudice, to confuse, to surprise, and to consume time. Consequently the rule confines the use of evidence of this kind to cases in which character is, in the strict sense, in issue and hence deserving of a searching inquiry. When character is used circumstantially and hence occupies a lesser status in the case, proof .may be only by reputation and opinion." O. Wright & A. Miller, [Proposed] Rules of Evidence for United States Courts and Magistrates, Rule 405, comment at 37 (1973). . See Beavers v. State, 492 P.2d 88, 97 (Alaska 1971) ; Taylor v. State, 391 P.2d 950 (Alaska 1904). . Galauska was not requesting the trial court to forward to the jury the accomplice-as-a-matter-of-law instruction. This instruction was specifically disapproved in Anthony v. State, 521 P.2d 486 (Alaska 1974). . We do not now decide whether such a plea is conclusive evidence of commission of the crime in a proceeding to which Peter is not a party. . Fajeriak v. State, 439 P.2d 783, 789 (Alaska 1968). . Alaska R.Crim.P. 30(b) (2).

10350264

Roslyn GALLAGHER, Appellant, v. Gerard Robin GALLAGHER, Appellee

Gallagher v. Gallagher

1994-01-07

No. S-5484

123

125

866 P.2d 123

866

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:03:10.210501+00:00

CAP

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

Roslyn GALLAGHER, Appellant, v. Gerard Robin GALLAGHER, Appellee.

Roslyn GALLAGHER, Appellant, v. Gerard Robin GALLAGHER, Appellee. No. S-5484. Supreme Court of Alaska. Jan. 7, 1994. Albert Maffei, Anchorage, for appellant. No appearance by appellee. Before MOORE, C.J., and RABINOWITZ, MATTHEWS and COMPTON, JJ.

939

5554

OPINION COMPTON, Justice. This case presents three issues: (1) the power of a successor judge to amend the findings of fact and conclusions of law that have been entered by a judge who heard the case on its merits, (2) the power of the court to sua sponte vacate its previous orders and judgment, and (3) the effect of uncontested motions and orders. Because we find no reversible error we affirm the judgment of the superior court. I. FACTUAL AND PROCEDURAL BACKGROUND Roslyn Gallagher sued Gerard Robin Gallagher for divorce. The case was heard on the merits by Judge Joan M. Katz. Judge Katz entered written Findings of Fact and Conclusions of Law on June 13, 1991, and signed the Judgment of Divorce the next day. On June 21, Judge Brian L. Shortell, the Presiding Judge of the Third Judicial District, entered a general order placing Judge Elaine M. Andrews in the Family Court Division, and assigning to her even numbered domestic cases, including the case now before this court. On July 1, the assignment order signed by Judge Shortell became effective and Judge Andrews then became responsible for all the cases assigned to her. On June 27, Roslyn filed a Motion to Amend Findings of Fact and Conclusions of Law. In October Judge Andrews entered an Order Amending Findings of Fact and Conclusions of Law in accordance with the motion made by Roslyn. In November she entered a final Judgment of Divorce and a Qualified Domestic Relations Order (QDRO). In March 1992 Judge Andrews sua sponte entered an order vacating all previous orders and the judgment in the case which had been signed by her. She stated that they had been signed in error and that she had no intention to change, substantively, any factual findings or conclusions of law reached by Judge Katz, who had heard the case on its merits. The case was then referred to Judge Katz. In April Judge Katz entered an order denying Roslyn's Motion to Amend Findings of Fact and Conclusions of Law, which had previously been granted and later vacated by Judge Andrews. Roslyn then filed a petition for review, which was denied; however, it was treated as a timely appeal if a notice of appeal, statement of points on appeal, and a designation of record were filed by December 28, 1992. Roslyn complied. II. DISCUSSION Roslyn asserts that after Judge Andrews entered her orders and judgment, they could not be vacated by either Judge Andrews or Judge Katz, regardless of whether they were entered in error. We disagree. Judge Andrews had authority to vacate the orders and judgment sua sponte under Civil Rule 60(b). Martin v. Leonard Motor-El Paso, 75 N.M. 219, 402 P.2d 954, 956 (1965); see also McDowell v. Celebrezze, 310 F.2d 43, 44 (5th Cir.1962); Packard v. Whitten, 274 A.2d 169, 173 (Me.1971). Judge Andrews' action in vacating the orders and judgment was not an abuse of discretion. She earlier had erred in signing them when Judge Katz was still available to make the determinations requested. See Alaska R.Civ.P. 63(c), 40(d). Merely because the amended Findings of Fact and Conclusions of Law submitted by Roslyn were unopposed and the resulting Judgment and Decree of Divorce was not appealed does not mean that they were invulnerable to collateral attack under Alaska Civil Rule 60(b). The fact that a motion is uneontested does not mean that it must be granted as a matter of right. See Willie v. State, 829 P.2d 310, 312 (Alaska 1992) ("the state's failure to respond does not entitle [the defendant] to automatic suppression of the evidence"); Bauman v. State, Div. of Family & Youth Servs., 768 P.2d 1097, 1099 (Alaska 1989) ("the proponent has no absolute right to summary judgment merely because the opponent fails to respond"); Weaver Bros., Inc. v. Chappel, 684 P.2d 123, 126 (Alaska 1984) (since the moving party did not meet the burden of showing that there were no issues of material fact the summary judgment motion should be denied even if it was unopposed); Greater Anchorage Area Borough v. Real Prop. Taxpayer's Ass'n, 513 P.2d 1103, 1104 (Alaska 1973) (in remanding the case, the court noted that there may be reason for denial of the unopposed motion for attorney's fees). Further, Gerard had no way of knowing, within the thirty-day period for an appeal, that Judge Andrews had not intended to change, substantively, the factual findings and legal conclusions reached by Judge Katz. Thus the rule that "[cjonten-tions based on facts which are known to a party at a time when a direct appeal is possible must either be raised on direct appeal or in a Rule 60(b) motion made during the time for taking the appeal" does not apply. See Kenai Peninsula Borough v. English Bay Village Corp., 781 P.2d 6, 7 (Alaska 1989) (citations omitted). III. CONCLUSION For the above reasons the judgment of the superior court is AFFIRMED. BURKE, J., not participating. . The original Findings of Fact and Conclusions of Law provided that "an attempt to formulate a precisely equal property division is neither feasible nor necessary" and that the "parties should be left in approximately the same condition now as obtained at the start of their relationship and marriage." The amended Findings of Fact and Conclusions of Law provided for equal division of the property, including the real estate. . No brief was filed by Gerard.

10412526

ATLANTIC RICHFIELD COMPANY; Arco Pipe Line Company; BP Alaska, Inc.; Exxon Corporation; Exxon Pipeline Company; and Sohio Pipe Line Company, Appellants, v. STATE of Alaska; Alaska Department of Revenue; Alaska Department of Administration; Commissioner of Revenue Robert D. Heath, and Commissioner of Administration Lisa Rudd, Appellees

Atlantic Richfield Co. v. State

1985-08-16

No. S-52

418

443

705 P.2d 418

705

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:03:25.532191+00:00

CAP

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

ATLANTIC RICHFIELD COMPANY; Arco Pipe Line Company; BP Alaska, Inc.; Exxon Corporation; Exxon Pipeline Company; and Sohio Pipe Line Company, Appellants, v. STATE of Alaska; Alaska Department of Revenue; Alaska Department of Administration; Commissioner of Revenue Robert D. Heath, and Commissioner of Administration Lisa Rudd, Appellees.

ATLANTIC RICHFIELD COMPANY; Arco Pipe Line Company; BP Alaska, Inc.; Exxon Corporation; Exxon Pipeline Company; and Sohio Pipe Line Company, Appellants, v. STATE of Alaska; Alaska Department of Revenue; Alaska Department of Administration; Commissioner of Revenue Robert D. Heath, and Commissioner of Administration Lisa Rudd, Appellees. No. S-52. Supreme Court of Alaska. Aug. 16, 1985. J.W. Bullion, Ralph I. Miller, Thompson & Knight, Mark L. Hazelwood, Robert E. McManus, Atlantic Richfield Co., Dallas, Tex., and William B. Rozell, John F. Clough, III, Faulkner, Banfield, Doogan & Holmes, Juneau, for appellants Atlantic Richfield Co. and ARCO Pipe Line Co. John F. Daum, Barton H. Thompson, Jr., M. Randall Oppenheimer, O’Melveny & Myers, Los Angeles, Cal., Barry L. Wertz, Archie Parnell, Exxon Co., U.S.A., Houston, Tex., arid Robert J. Mahoney, Hartig, Rhodes, Norman, Mahoney & Edwards, Anchorage, for appellants Exxon Corp. and Exxon Pipeline Co. David A. Nelson, Terrence G. Perris, James J. Maiwurm, Howard J.C. Nieols, Squire, Sanders & Dempsey, Cleveland, Ohio, William H. Lutz, Jr., Squire, Sanders & Dempsey, Miami, Fla., Richard H. Hahn, Standard Oil Co., Cleveland, Ohio, and Richard O. Gantz, Carl J.D. Bauman, Hughes, Thorsness, Gantz, Powell & Brun-din, Anchorage, for appellants Sohio Alaska Petroleum Co., Sohio Pipe Line Co., and BP Alaska, Inc. Mitchell Rogovin, George T. Frampton, Jr., Michael D. Lowe, Jeffrey Blattner, Ro-govin, Huge & Lenzner, Washington, D.C., Jonathan K. Tillinghast, Birch, Horton, Bittner, Monroe & Pestinger, Juneau, John R. Messenger, Preston, Thorgrimson, Ellis & Holman, Deborah Vogt, Kathryn Kolk-horst, Asst. Attys. Gen., Juneau, and Norman C. Gorsuch, Atty. Gen., Juneau, for appellees. J. Lawrence Blankenship and Donna E. Cox, Oklahoma City, Okl., for amicus curiae State of Okl., ex rel. Oklahoma Tax Comn. Robert H. Carpenter, Jr., Asst. Atty. Gen., William J. Guste, Jr., Atty. Gen. of La., Baton Rouge, La., for amicus curiae State of La. Bobby R. Long, Jackson, Miss., for ami-cus curiae Mississippi State Tax Comn. Before BURKE, C.J., and RABINOW-ITZ, MATTHEWS and MOORE, JJ.

14697

92866

OPINION BURKE, Chief Justice. This is an appeal brought by several major oil producing companies in Alaska challenging the constitutionality of the Oil and Gas Corporate Income Tax, Former AS 43.21 (repealed 1982) ("the Oil Tax"). The issue is whether the State of Alaska must, as a matter of constitutional law, use the formula apportionment method to determine the portion of each corporation's worldwide oil production and pipeline transportation income that can be attributed to Alaska. During the tax years 1978 to 1981 the state used separate accounting, instead of formula apportionment, to determine taxable production and pipeline transportation income. Various actions challenging the constitutionality of the Oil Tax were consolidated on August 27, 1980, in the superior court. Appellants ARCO, Exxon, and Sohio argued below that the Oil Tax violated the commerce, due process, contract, and equal protection clauses of the United States Constitution, as well as the equal protection clause of the Alaska Constitution and the state constitutional and statutory provisions against retroactivity. They sought a refund of taxes paid under the Oil Tax. On November 12, 1981, the state moved for summary judgment seeking a declaration that the Oil and Gas Corporate Income Tax Act is constitutional. The trial court rejected the oil companies' claims of unconstitutionality and granted the state's motion for summary judgment. We affirm. I. THE OIL TAX In 1959, Alaska adopted the three-factor apportionment formula of the Uniform Division of Income for Tax Purposes Act (UDITPA) to determine the share of income of an integrated (unitary) interstate business subject to Alaska income taxation. AS 43.20.130 (repealed 1975). The apportionment formula relies on three indicators of business activity — payroll, property and sales — to compute Alaska's share of taxable income. Id. The value of property, payroll and sales in Alaska is compared to the value of property, payroll and sales of the corporation worldwide. The resulting ratio is then multiplied by the corporation's apportionable net income worldwide to arrive at an approximation of Alaska's share of taxable income. Prior to the enactment of the Oil Tax in 1978, all of the income tax liability of oil companies was determined under the formula apportionment method. Under the Oil Tax, a different methodology, separate accounting, was implemented to calculate the production and pipeline transportation income subject to Alaska taxation. The goal of the separate accounting method was to determine that portion of the value of a barrel of oil attributable to the oil being produced, i.e., taken from the ground. AS 43.21.020. The separate accounting of oil production income began with the determination of gross production revenue or "gross income." The Oil Tax defined gross income as the value of the oil at the point of production, i.e., the well-head price. AS 43.21.020(b). Essentially, gross income eq-ualled the price at which the oil was sold, or could be sold, to a refinery less transportation expenses. AS 43.21.020(b). The price at which oil was sold, or could be sold, to a refinery obviously did not include refining and marketing costs and profits. These costs and profits were thus excluded in determining the gross income figure for Alaskan oil. In addition, a number of other costs were deducted from gross income. "Upstream" costs, such as exploration expenses, royalties, lease acquisition and development costs, and general overhead and administrative expenses, and "downstream" costs, such as transportation and marketing costs were deducted from gross income. AS 43.21.020(c). The end result was net production income, which was taxed at the 9.4% rate applicable to all other corporate income at that time. Former AS 43.20.011 (amended, repealed and reenacted 1981). The Oil Tax used a similar methodology to' tax income from the pipeline transportation of oil and gas in Alaska. The items of income and expense related to Alaska pipeline transportation were keyed to the amount reported by the oil companies to the Federal Energy Regulatory Commission as net operating income. AS 43.21.-030. The validity of this portion of the Oil Tax is also at issue in this case, though the parties focus primarily on the taxation of production income. Under AS 43.21.040, all other income of the oil companies continued to be taxed under the UDITPA formula apportionment method. Such other income was primarily from marketing and refining operations. In computing this income, worldwide oil production and pipeline transportation income was subtracted from the total amount of income subject to apportionment by Alaska. Then the three-factor formula was applied, again with the production and pipeline income in Alaska deleted. The result attributed to Alaska a portion of worldwide refining and marketing income of the oil company approximating the share of such activities occurring in Alaska. This income, like the production and pipeline income, was taxed at the rate of 9.4%. Former AS 43.20.011 (amended, repealed and reenacted 1981). The Oil Tax was repealed effective January 1, 1982. Ch. 116, § 19, SLA 1981. It was replaced with a modified apportionment formula for the ensuing tax years. AS 43.20.072. The legislature took this step primarily to avoid a further increase in the possible $1.8 billion liability caused by this litigation. II. THE OIL TAX IS "TRUE" SEPARATE ACCOUNTING There are three basic methods by which the income of a multistate enterprise can be divided among the states entitled to tax the enterprise's income: separate accounting, specific allocation by situs and formula apportionment. The state claims the Oil Tax is true separate accounting, while the oil companies contend it is specific allocation by situs. A. The Three Methods For Division Of Income 1. Separate Accounting Separate accounting attempts to carve out of the taxpayer's overall business the income derived from sources within a single state, and by accounting analysis, to determine the profits attributable to that portion of the business. Income within the state is determined without reference to the success or failure of the taxpayer's activities in other states. In the case of goods (such as crude oil) sent to another state for processing, separate accounting values these goods at the price which could be obtained for them in their unprocessed form when leaving their state of origin. In other words, separate accounting recognizes that crude oil has a marketable value before it is refined. 2. Specific Allocation by Situs Specific allocation by situs refers to the method of dividing a tax measure (in whole or in part) by tracing particular property, receipts, or income to their source state, and attributing the item in its entirety to that state. This method is troublesome because more than one state is likely to have a legitimate basis for taxing the same item, especially when the tax is one measured by income. The specific allocation method has been used commonly with "non-business" income such as income from dividends, patent and copyright royalties, and gains or losses from the sale of capital assets. Under UDITPA, some non-business income of this nature is allocated in its entirety to the situs state. See AS 43.19.010, art. IV, § 5-8. Confusion may arise because the separate accounting methodology is very similar to the specific allocation approach. Both methods attempt to trace income to an identifiable source. The primary difference in the two methods is that separate accounting looks to the activities in the state and seeks to determine the income related to that activity. Specific allocation attributes income according to situs, or some other specific characteristic of the business enterprise, rather than on the basis of where the income itself was earned. Moreover, specific allocation results in all of a specified type of income and all associated profits being allocated to one state. Separate accounting, on the other hand, attempts to segregate out only those profits attributable to activities within the state for taxation by that state. 3. Formula Apportionment Formula apportionment is the method commonly used to divide the income of a unitary business among various jurisdictions in which the business operates. The formula method, "unlike separate accounting, does not purport to identify the precise geographical source of a corporation's profits; rather, it is employed as a rough approximation of a corporation's income that is reasonably related to the activities conducted within the taxing State." The formula method assumes that the total income of a business enterprise results from certain income producing factors — typically property, payroll and sales. The value of the corporation's property, payroll and sales within the taxing state is compared with the value of these factors outside the taxing state. The resulting ratio is then multiplied by the total apportionable net income worldwide of the multi-state corporation. B. The Oil Tax Is Separate Accounting The oil companies equate the Oil Tax with the specific allocation by situs method. They contend that the Oil Tax attributes all of the income and profits from oil production and transportation to Alaska. Their argument ignores the difference between the Oil Tax and the specific allocation method. The Oil Tax does not attribute income from the production of oil in its entirety to Alaska, the source state. Instead, it attempts to tax only that portion of income from the oil which is fairly related to Alaskan production activities. While total revenue for a barrel of oil during 1978-80 was approximately $26.64, only $6.77 was deemed production income attributable to Alaskan activities and subject to the Oil Tax. In segregating from total income a portion related only to activities in the state, the Oil Tax operates as a separate accounting system. The companies argue that the Oil Tax is not true separate accounting because it fails to take into account the profit-producing nature of activities occurring outside Alaska. For example, the geological and geophysical analysis of the Prudhoe Bay area was conducted primarily outside Alaska. The companies argue that only the expenses associated with these outside activities are deductible in computing income subject to the Oil Tax. Thus, in their view, the Oil Tax taxes profits earned outside Alaska. The state contends that oil companies can deduct profits attributable to general overhead or administrative activities outside of Alaska. Under Department of Revenue regulations, profits associated with such activities could be deducted if the taxpayer in fact considered them profit generally and reported them as such to the stockholders. 15 AAC 21.290(b) (Eff. 2/22/79, am. 3/26/82). The oil companies claim that the Security Exchange Commission prohibits the allocation of profits in this manner, citing 15 U.S.C. § 78m(b)(2)(B)(ii) (1982). This section provides that every issuer of a security subject to the provision must have an internal accounting system that permits preparation of financial statements "in conformity with generally accepted accounting principles or any other criteria applicable to such statements." The parties' experts disagree on the acceptability, under general accounting principles, of allocating profits to general overhead and administrative activities. Even if we assume that the allocation of profits to these activities is not generally accepted, 15 U.S.C. § 78m(b)(2)(B)(ii) allows the use of "other criteria" in financial statements. If, as the oil companies claim, profits exist that are actually attributable to general overhead and administrative activities outside of Alaska, the Securities Exchange Act does not prevent them from reporting such profits to their shareholders, and then deducting them from their Alaska income tax. Although amended after the repeal of the Oil Tax in 1982, 15 AAC 21.290(b) (Eff. 2/22/79, am. 3/26/82) operates retroactively. The oil companies, therefore, may amend their tax reports and returns to deduct any outside-generated profits attributable to general overhead and administrative activities associated with Alaskan oil production not previously deducted in computing Alaskan taxable income. The companies also assert that the Oil Tax is an inappropriate methodology because it presumes that crude oil has a value, i.e., that income has been generated when the oil is merely brought out of the ground. The oil companies argue that oil has no value whatsoever until it is sold. The oil companies cite our decision in Sjong v. State, Department of Revenue, 622 P.2d 967 (Alaska 1981), appeal dismissed, 454 U.S. 1131, 102 S.Ct. 986, 71 L.Ed.2d 284 (1982), for the proposition that the oil has no value until it is sold. We find their reliance misplaced. In Sjong, we upheld an apportioned net income tax as sessed against a nonresident crab fisherman, who fished exclusively in the international waters surrounding Alaska and sold his catch only to Alaska processors and canneries. Sjong claimed that no taxable income could be attributed to the state because he caught the crabs in international waters. We responded that "the process of fishing results in no profits until the catch is sold to processors in Alaska." 622 P.2d at 972 (footnote omitted). Obviously, profits do not result from crab fishing or oil production until the product is sold. This does not negate the fact that profits generated by the sale are partly attributable to the inherent value of the crab or oil at its point of production. In the state's view, the extraction of a natural resource, in and of itself, generates income. Thus, it argues that it is reasonable to attribute the income identified with the extraction of oil, measured in terms of "well-head value," to the state in which the oil was extracted. The state is joined in this position by Amicus Curiae, the states of Louisiana, Mississippi and Oklahoma, all which have long employed separate accounting to tax oil production income. The United States Supreme Court has likewise recognized the inherent value generated by the extraction of natural resources. In upholding the constitutionality of Montana's severance tax on coal mined in the state, the Court reasoned that "[t]he entire value of the coal, before transportation, originates in . [Montana], and mining of the coal depletes the resource base and wealth of the State, thereby diminishing a future source of taxes and economic activity." Commonwealth Edison v. Montana, 453 U.S. 609, 624, 101 S.Ct. 2946, 2957, 69 L.Ed.2d 884, 898 (1981) (footnote omitted). Before it is transported for sale, oil, like coal, has inherent value, to which profits and income can properly be attributed. We hold that the Oil Tax is fundamentally a separate accounting method for dividing income, distinct from both the specific allocation by situs and formula apportionment methods. C. Separate Accounting More Accurately Attributes Income Generated from Alaskan Oil Than Does Formula Apportionment The use of separate accounting to apportion the income of a unitary business, such as each of the companies in this litigation, has been roundly criticized. The United States Supreme Court has noted: The problem with this method is that formal accounting is subject to manipulation and imprecision, and often ignores or captures inadequately the many subtle and largely unquantifiable transfers of value that take place among the components of a single enterprise. Container Corp. of America v. Franchise Tax Board, 463 U.S. 159, 164-65, 103 S.Ct. 2933, 2940, 77 L.Ed.2d 545, 553 (1983) (citation omitted). For instance, while it [separate accounting] purports to isolate portions of income received in various States, [it] may fail to account for contributions to income resulting from functional integration, centralization of management, and economies of scale. Because these factors of profitability arise from the operation of the business as a whole, it becomes misleading to characterize the income of the business as having a single identifiable "source." Although separate geographical accounting may be useful for internal auditing, for purposes of state taxation it is not constitutionally required. Mobil Oil v. Commissioner of Taxes, 445 U.S. 425, 438, 100 S.Ct. 1223, 1232, 63 L.Ed.2d 510, 521 (1980) (emphasis added; citations omitted). These criticisms, however, are inapplicable to the oil and gas industry. The standard three-factor formula apportionment method was "developed and designed to meet the needs of manufacturing and mercantile industries, and [is] poorly adapted to a good many other businesses." The United States Supreme Court has noted that the three-factor formula is "necessarily imperfect": First, the one-third-each weight given to the three factors is essentially arbitrary. Second, payroll, property, and sales still do not exhaust the entire set of factors arguably relevant to the production of income. Container Corp. of America v. Franchise Tax Board, 463 U.S. at 183 n. 20, 103 S.Ct. at 2949 n. 20, 77 L.Ed.2d at 565 n. 20 (emphasis added). An assumption made in the use of formula apportionment is that "major income-producing elements can be identified and that these major elements contribute the largest portion of the unitary income of the taxpayer." A unique characteristic of unitary oil and gas businesses is that the major income-producing element is the value of the oil and gas reserves in the ground. While this element can be readily identified, it is not recognized under traditional formula apportionment methods. Instead, the typical factors used are property, payroll and sales, none of which accurately reflects the oil and gas corporations' activities in Alaska. The property factor includes only the. original cost of the wells and the lease, which do not necessarily represent the value of the oil reserves themselves. See AS 43.19.010, art. IV, § 11. As a result, the Prudhoe Bay field is valued at about one percent of its actual worth. Under UDIT-PA, the payroll factor includes only wages paid to employees based in the state. AS 43.19.010, art. IV, § 13-14. Oil production, however, is not a labor-intensive industry. Moreover, much of the production work is done by employees based in other states, or by independent contractors, whose earnings do not appear in the payroll factor. Finally, and most importantly, the sales receipts under UDITPA are credited solely to the destination state. AS 43.19.010, art. IV, § 16. The oil companies and the state agree that only a "tiny fraction" of the oil produced in Alaska is actually sold within the state. For all of the above reasons, separate accounting, not formula apportionment, is the prevailing method throughout the United States for reporting income from oil production. The Comptroller General's report explains that states use separate accounting to determine the income division for unitary oil and gas businesses "because it conforms more to [the businesses'] financial accounting procedures,, and . more accurately reflects income than formula apportionment." Alaska has not employed separate accounting to divide the income of all unitary businesses. According to the state, the Alaska legislature turned to separate accounting for oil producing businesses only after it determined that the use of formula apportionment to compute Alaska's share of oil production income would seriously underestimate the production income that was rightly subject to taxation by this state. The oil companies cite portions of legislative history to show that the Oil Tax was imposed in an effort to unilaterally effect a renegotiation of oil leases so as to shift the cost of Alaska's government to the oil industry. The legislature, however, formally declared that the income tax of corporations engaged in oil production or pipeline transportation would be computed under the Oil Tax because the formula apportionment method did not fairly represent the extent of those corporations' oil production and transportation activities in Alaska. Ch. 110, § 1, SLA 1978. To look beyond this articulated basis would lead to a "parade of legislators' affidavits containing their perceptions" of the Oil Tax's purpose. Alaska Public Employees Association v. State, 525 P.2d 12, 16 (Alaska 1984). We have recently disapproved of such inquiries. Id. The United States Supreme Court has also declined to search for the "real" motive beyond the legislature's expressed purposes when adjudicating equal protection and commerce clause challenges. In Minnesota v. Clover Leaf Creamery, 449 U.S. 456, 101 S.Ct. 715, 66 L.Ed.2d 659 (1981) the Court stated that it would assume that the objectives articulated by the legislature are actual purposes of the statute, unless an examination of the circumstances forces us to conclude that they "could not have been a goal of the legislation." 449 U.S. at 463 n. 7, 101 S.Ct. at 723 n. 7, 66 L.Ed.2d at 668 n. 7 (quoting Weinberger v. Wiesenfeld, 420 U.S. 636, 648 n. 16, 95 S.Ct. 1225, 1233 n. 16, 43 L.Ed.2d 514, 525 n. 16 (1975)). Nothing in the record leads us to conclude that accurate and fair allocation could not have been the legislature's goal in enacting the Oil Tax. The fact that the traditional formula apportionment method inaccurately reflects the oil companies' income and profits derived from Alaskan production activities is illustrated in the case of Sohio. The oil companies maintain that during 1978-80, when the Oil Tax was in effect, an average of only 10% of Sohio's payroll, 12% of its sales and 50% of its property were in Alaska. At the same time, Sohio indicated in its 1980 annual report that over 90% of its total oil production derived from the reserves in Alaska. [Record 1559] A media report offered by the state, with which the oil companies did not take issue, indicated that Alaskan oil had elevated Sohio from seventeenth to seventh in earnings in the oil industry: Once severely short of crude, Sohio's bonanza from its huge reserves of Alaskan oil skyrocketed 1979 profits to $1.2 billion, a phenomenal 2,200% blast in just one decade. Clearly the traditional formula apportionment method would inadequately reflect the phenomenal value of the companies' oil reserves in Alaska. III. SUMMARY JUDGMENT WAS PROPER The oil companies argue that there are numerous disputed issues of fact which preclude summary judgment for the state. Several of the alleged disputed issues of fact are irrelevant to the constitutional challenge and do not preclude summary judgment. Other claims by the oil companies reduce to the assertion that the characterization of the Oil Tax as a separate accounting methodology is a disputed issue of fact. The state argues that the question as to whether the Oil Tax is a form of separate accounting is a question of law. We agree with the state that a trial is not required in this case. The characterization of the Oil Tax is at most a "legislative fact" which is not the type of factual issue for which trial is necessary. See State v. Erickson, 574 P.2d 1, 4-6 (Alaska 1978). As the trial court held, "the asserted issues of material fact do not preclude summary judgment in any event because they are facts only in the sense that they provide premises in the process of legal reasoning. They are not that type of fact for which a trial is mandated." Finally, the oil companies claim that it is a disputed issue of fact whether the Oil Tax results in double taxation because it reaches income earned outside Alaska. An income attribution method, be it single-factor or three-factor formula apportionment or separate accounting, is not constitutionally invalid merely because it may result in taxation of some income that did not have its source in the state. See Moorman Manufacturing v. Bair, 437 U.S. 267, 272, 98 S.Ct. 2340, 2344, 57 L.Ed.2d 197, 204 (1978). Even if facts demonstrate that the Oil Tax reaches income earned outside Alaska, as alleged by the oil companies, the statute will be stricken only upon "clear and cogent evidence" that the income Alaska attributes to itself is "out of all appropriate proportions to the business transacted in [the] State," or has "led to a grossly distorted result." Container Corp. of America v. Franchise Tax Board, 463 U.S. at 170, 103 S.Ct. at 2942, 77 L.Ed.2d at 556 (citations omitted). Nothing in the record demonstrates that the Oil Tax led to a "grossly distorted result" or that it is "out of all appropriate proportions" to the business of extracting billions of barrels of oil from reserves located within Alaska. Disposition by summary judgment was appropriate in this case because no issue of material fact remained. The record provided the trial judge with a sufficient background to reach a decision. See Kelly v. Zamarello, 486 P.2d 906, 914 (Alaska 1971); cf. Ault v. Alaska State Mortgage Association, 387 P.2d 698, 701-02 (Alaska 1963). IV-. CONSTITUTIONAL CHALLENGES TO THE OIL TAX A. Background When state corporate income taxes were first adopted, separate accounting was regarded as the most precise method for dividing the income of a multistate corporation for taxation purposes. Although apportionment formulas were employed by states and their use approved by the United States Supreme Court, separate accounting was initially viewed as a benchmark by which to judge the reasonableness of state apportionment formulas. Thus, in Hans Rees' Sons, Inc. v. North Carolina, 283 U.S. 123, 128, 51 S.Ct. 385, 387, 75 L.Ed. 879, 905 (1931), the Supreme Court invalidated a state's apportionment formula under federal due process because the taxpayer showed that under separate accounting only 17% of the income was attributable to the state, whereas under the apportionment formula used, the state taxed from 66% to 85% of the corporation's income. The use of separate accounting as a basis for challenging state formula apportionment methods was eventually rejected in Butler Brothers v. McColgan, 315 U.S. 501, 62 S.Ct. 701, 86 L.Ed. 991 (1942). There, the Court acknowledged that an apportionment formula could be invalidated only if the taxpayer established by clear and cogent evidence that the formula taxed extraterritorial values. The Court held that the fact that no net income would be attributable to the state under separate accounting was insufficient to invalidate an apportionment formula. It is true that appellant's separate accounting system for its San Francisco branch attributed no net income to California. But . [that] does not prove appellant's assertion that extraterritorial values are being taxed. 315 U.S. at 507, 62 S.Ct. at 704, 86 L.Ed. at 996. The Court developed the doctrine that if a multi-state business is unitary, then the use of a formula apportionment method by the state is presumptively valid. In the instant litigation, all of the companies involved are unitary businesses. Thus, it is undisputed that the use of an apportionment formula would have been a permissible means of attributing a portion of the companies' income to Alaska. This case presents an interesting twist on previous constitutional challenges to state taxation methods by corporate taxpayers. In the past, apportionability often has been challenged by the contention that income earned in one State may not be taxed in another if the source of the income may be ascertained by separate geographical accounting. Mobil Oil v. Commissioner of Taxes, 445 U.S. at 438, 100 S.Ct. at 1232, 63 L.Ed.2d at 521. Conversely, in this litigation, the oil companies seek to defeat Alaska's separate accounting method by arguing that formula apportionment is required for unitary businesses. In recent years, the Court's endorsement of formula apportionment as the preferred method to divide income of a unitary business has become increasingly apparent. However, we do not interpret this preference as being a constitutional ruling that formula apportionment must be employed in lieu of separate accounting. While separate accounting is not constitutionally required, and while it may have some weaknesses when applied to some unitary businesses, this methodology has not been rejected as unconstitutional. The United States Supreme Court in Container Corp. concluded that: Both geographical accounting and formula apportionment are imperfect proxies for an ideal which is not only difficult to achieve in practice, but difficult to describe in theory.... But we see no evidence demonstrating that the margin of error (systematic or not) inherent in the three-factor formula is greater than the margin of error (systematic or not) inherent in . separate accounting.... 463 U.S. at 182, 183-84, 103 S.Ct. at 2949, 2949-2950, 77 L.Ed.2d at 564, 565. B. Due Process The oil companies claim that the Oil Tax is unconstitutional because it taxes extraterritorial values. They claim that the state impermissibly taxes all of their production income from Alaska oil, despite the contributions that other states have made to those earnings in terms of research, management and sales. "As a general principle, a state may not tax value earned outside its borders." Earth Resources v. State, Department of Revenue, 665 P.2d 960, 966 (Alaska 1983) (quoting ASARCO v. Idaho State Tax Commission, 458 U.S. 307, 315, 102 S.Ct. 3103, 3108, 73 L.Ed.2d 787, 794 (1982)); Container Corp. of America v. Franchise Tax Board, 463 U.S. at 164, 103 S.Ct. at 2940, 77 L.Ed.2d at 552. Any attempt to tax extraterritorial values would be an unconstitutional taking of property under the due process clause. Due process imposes two requirements before a state may tax income generated in interstate commerce. First, a "minimal connection" must exist between the interstate. activities and the taxing state. Second, the income attributed to the taxing state must bear a rational relationship to intrastate values of the enterprise. Exxon v. Wisconsin Department of Revenue, 447 U.S. 207, 219-220, 100 S.Ct. 2109, 2118-2119, 65 L.Ed.2d 66, 79 (1980); Mobil Oil v. Commissioner of Taxes, 445 U.S. at 436-37, 100 S.Ct. at 1231-1232, 63 L.Ed.2d at 520; Moorman Manufacturing v. Bair, 437 U.S. at 272-73, 98 S.Ct. at 2343-2345, 57 L.Ed.2d at 204. The first requirement — a minimal connection — is established if the corporation "avails itself of the 'substantial privilege of carrying on business' within the State." Exxon v. Wisconsin Department of Revenue, 447 U.S. at 220, 100 S.Ct. at 2118, 65 L.Ed.2d at 79 (quoting Mobil, 445 U.S. at 437, 100 S.Ct. at 1231, 63 L.Ed.2d at 520, quoting Wisconsin v. J. C. Penney Co., 311 U.S. 435, 444-45, 61 S.Ct. 246, 249-250, 85 L.Ed. 267, 271 (1940)). Clearly, a nexus exists between the oil production and transportation activities of ARCO, Exxon, and Sohio, and the State of Alaska. As to the second requirement, the United States Supreme Court has not required absolute precision in determining a state's share of interstate income. In Moorman Manufacturing v. Bair, 437 U.S. 267, 98 S.Ct. at 2340, 57 L.Ed.2d 197, an animal feed company which manufactured its product in Illinois and sold it in Iowa challenged the constitutionality of Iowa's statu tory apportionment formula. Instead of the typical three-factor (payroll, property and sales) formula, Iowa used a single-factor formula based exclusively on sales. The corporation argued that this formula resulted in extraterritorial taxation and violated the due process and commerce clauses of the federal Constitution. In addressing the rational relationship requirement, the Supreme Court stated: States have wide latitude in the selection of apportionment formulas and . a formula-produced assessment will only be disturbed when the taxpayer has proved by "clear and cogent evidence" that the income attributed to the State is in fact "out of all appropriate proportion to the business transacted . in that State," or has "led to a grossly distorted result." 437 U.S. at 274, 98 S.Ct. at 2345, 57 L.Ed.2d at 205 (citations omitted). The Court found the taxpayer had failed to demonstrate any arbitrary result in its case, and thus the tax survived the due process challenge. More recently the United States Supreme Court has expressly refused to constitutionally require a particular income attribution method to the exclusion of all others. In Container Corp. of America v. Franchise Tax Board, 463 U.S. 159, 103 S.Ct. 2933, 77 L.Ed.2d 545, the Supreme Court upheld California's inclusion of the income of Container Corporation's foreign subsidiaries in the state's apportionment formula. The corporation argued that inclusion of this income violated both the due process and commerce clauses, because the same income California was subjecting to apportionment was taxed by foreign jurisdictions under a separate accounting methodology. In rejecting this argument, the Court noted: In the case of a more-or-less integrated business enterprise operating in more than one State, . arriving at precise territorial allocations of "value" is often an elusive goal, both in theory and in practice. For this reason and others, we have long held that the Constitution imposes no single formula on the States, and that the taxpayer has the "distinct burden of showing by 'clear and cogent evidence' that [the state tax] results in extraterritorial values being taxed...." One way of deriving locally taxable income is on the basis of formal geographical or transactional accounting [separate accounting]. 463 U.S. at 164, 103 S.Ct. at 2939, 77 L.Ed.2d at 552-53 (citations omitted, emphasis added). We hold that the Oil Tax satisfies the second requirement of the due process clause. It makes a reasonable attempt to attribute only that income to Alaska that was generated in Alaska, while excluding expenses and profits generated beyond Alaska's borders. Under a separate accounting approach, income is viewed as earned when and where the principal operating activity occurs. Support activities are universally accounted for only as expenses, whether they occur in or outside the income-producing state. As with other states' separate accounting methods, the Oil Tax allows for the deduction of costs and profits from marketing, refining and transportation, and expenses related to other support activities. Moreover, Alaska's tax is unique in allowing a deduction for out-of-state profits as well as costs of general overhead and administrative activities incident to Alaskan oil production and transportation, if the companies report them as such. See 15 AAC 21.290(b) (Eff. 2/22/79, am. 3/26/82). By allowing all of these deductions, the Oil Tax is intended to tax only those profits associated with the companies' activities within the state. Thus, the Oil Tax taxes only a portion of the companies' income, although by a technique quite different from formula apportionment. Because the Oil Tax operates to tax only a portion of the companies' income, we hold that it satisfies the dual requirements of due process. C. Commerce Clause We have previously recognized that the commerce clause "places restraints upon the taxing power of states similar to those of the due process clause. In fact, these two constitutional limits overlap to a great extent." Sjong v. State, Department of Revenue, 622 P.2d at 973. Generally, if a state tax "is applied to an activity with a substantial nexus with the taxing State, is fairly apportioned, does not discriminate against interstate commerce and is fairly related to the services provided by the State," there is no impermissible burden on interstate commerce. Complete Auto Transit v. Brady, 430 U.S. 274, 279, 97 S.Ct. 1076, 1079, 51 L.Ed.2d 326, 331 (1977). The nexus and fair apportionment factors have been discussed in the previous due process section. We now turn to a consideration of the other two factors of the Complete Auto Transit test. The oil companies contend that the Oil Tax violates the commerce clause because it inevitably results in overlapping or dupli-cative taxation, thus discriminating against businesses engaged in interstate commerce. They claim that recent United States Supreme Court decisions on the subject of multiple taxation render the Oil Tax unconstitutional, citing Japan Line v. County of Los Angeles, 441 U.S. 434, 99 S.Ct. 1813, 60 L.Ed.2d 336 (1979), Mobil Oil v. Commissioner of Taxes, 445 U.S. 425, 100 S.Ct. at 1223, 63 L.Ed.2d 510, and Exxon v. Wisconsin Department of Revenue, 447 U.S. 207, 100 S.Ct. 2109, 65 L.Ed.2d 66. We disagree. In Japan Line, six Japanese companies challenged a California property tax on shipping containers. The Japanese-owned containers were subject to a property tax on 100% of their value in their home port of Japan. Under California's tax, all containers in the state on a specified tax day were subject to an apportioned ad valorem property tax. The companies contended that California's tax, as applied to their containers, created multiple taxation and violated the commerce clause. The Court in Japan Line assumed that the Complete Auto Transit test was met. However, because taxation of instrumental-ities of foreign commerce was at issue, the Court found it necessary to inquire whether California's tax, notwithstanding its fair apportionment, created a substantial risk of international multiple taxation. 441 U.S. at 451, 99 S.Ct. at 1823, 60 L.Ed.2d at 349. In this regard, the Court contrasted taxation of interstate instrumentalities with that of international instrumentalities: In order to prevent multiple taxation of interstate commerce, this Court has required that taxes be apportioned among taxing jurisdictions, so that no instrumentality of commerce is subjected to more than one tax on its full value. The corollary of the apportionment principle, of course, is that no jurisdiction may tax the instrumentality in full. "The rule which permits taxation by two or more states on an apportionment basis precludes taxation of all of the property by the state of the domicile.... Otherwise there would be multiple taxation of interstate operations." The basis for this Court's approval of apportioned property taxation, in other words, has been its ability to enforce full apportionment by all potential taxing bodies. 441 U.S. at 446-47, 99 S.Ct. at 1820-1821, 60 L.Ed.2d at 347 (citations omitted). While the Court could require apportionment among the states for property taxation purposes, it obviously could not prevent Japan from taxing 100% of the value of the containers. The Court held California's nondiscriminatory tax unconstitutional because it resulted in actual multiple taxation of instrumentalities of international commerce. The oil companies in the present litigation argue that if Alaska had been the home port instead of Japan in Japan Line, the Supreme Court would have invalidated Alaska's 100% ad valorem tax. We agree that Alaska would not be entitled to apply a property tax to the full value of instru-mentalities of foreign commerce. But the oil companies' attempt to equate a property tax on the full value of goods used in foreign commerce with the Oil Tax is inappropriate. While the single situs property tax may be analogous to the specific allocation by situs method of income taxation, it is a totally different species from separate accounting. The Oil Tax, as a separate accounting division-of-income method, does not automatically conflict with an apportionment method and result in double taxation. Because separate accounting and formula apportionment can coexist without overlapping tax bases, Japan Line does not require invalidation of the Oil Tax. In Mobil Oil v. Commissioner of Taxes, 445 U.S. 425, 100 S.Ct. 1223, 63 L.Ed.2d 510, the Court upheld the constitutionality of the inclusion of foreign source dividend ineome in the total income subject to taxation by Vermont. Mobil argued that Vermont could not tax its dividend income because New York, the state of commercial domicile, had the power under the commerce clause to allocate all of the dividend income to itself. Allowing Vermont to tax a share of the income by apportionment would, therefore, result in double taxation if New York implemented such a tax. In this situation, the Court considered the risk of multiple taxation to be sufficient since the specific allocation by situs method was "theoretically incommensurate" with apportionment. The Court found that if one method were constitutionally preferable, a tax based on the other method could not be sustained. 445 U.S. at 444-45, 100 S.Ct. at 1235-1236, 63 L.Ed.2d at 525. Instead of accepting Mobil's argument that specific allocation by situs was preferable, the Court found apportionment to be the better approach. While the Court chose not to rule on the constitutionality of a hypothetical New York tax, the Court stated that in theory New York could not exclusively tax Mobil's dividend income since the dividends reflect income from a unitary business, part of which is conducted in other states. In that situation, the income bears relation to benefits and privileges conferred by several states. These are the circumstances in which apportionment is ordinarily the accepted method. Id. at 446, 100 S.Ct. at 1236, 63 L.Ed.2d at 526 (emphasis added). Several months after the Mobil case, the Court decided Exxon v. Wisconsin Department of Revenue, 447 U.S. 207, 100 S.Ct. 2109, 65 L.Ed.2d 66. Exxon, like this litigation, involved state taxation of oil pro duction income. Exxon's activities in Wisconsin were limited to the marketing of petroleum products. Exxon challenged Wisconsin's inclusion of oil production income in the income subject to apportionment by Wisconsin. Exxon argued that production of oil and marketing of oil were two distinct operations. In Exxon's view, since it could illustrate by separate accounting that these two activities were distinct, Wisconsin could not constitutionally include production income in the tax base for apportionment. Exxon contended that the commerce clause required the allocation of all income derived from exploration and production functions to the situs state, rather than inclusion in the apportionment formula. Exxon asserted that since the producing state was constitutionally entitled to allocate all production income to itself, non-producing states could not tax an apportioned share of this same income. To this, the Supreme Court replied: We do not agree. As was the case with income from intangibles, there is nothing "talismanic" about the concept of situs for income from exploration and production of crude oil and gas. Presumably, the States in which appellant's crude oil and gas production is located are permitted to tax in some manner the income derived from that production, there being an obvious nexus between the taxpayer and those States. However, "there is no reason in theory why that power should be exclusive when the [exploration and production income as distinguished through separate functional accounting] reflects] income from a unitary business, part of which is conducted in other States. In that situation, the income bears relation to benefits and privileges conferred by several States. These are the circumstances in which apportionment is ordinarily the accepted method." In short, the Commerce Clause does not require that any income which a taxpayer is able to separate through accounting methods and attribute to exploration and production of crude oil and gas be allocated to the States in which those production centers are located. The geographic location of such raw materials does not alter the fact that such income is part of the unitary business of the interstate enterprise and is subject to fair apportionment among all States to which there is a sufficient nexus with the interstate activities of the business. 447 U.S. at 229-30, 100 S.Ct. at 2123-2124, 65 L.Ed.2d at 85 (emphasis added; citations omitted). Basically, both the oil companies and the state view Japan Line, Mobil and Exxon as prohibiting allocation of oil production income entirely to the situs state. The debate focuses on whether the Oil Tax allocates all oil production income to Alaska, as the oil companies contend, or is instead a distinct method of dividing the production income, as the state contends. Because we hold that the Oil Tax is a distinct method of dividing oil production income by use of separate accounting, its constitutional validity is not directly determined by these three cases. While Mobil and Exxon indicate the Court's strong endorsement of the use of apportionment formulas, the Court clearly implied that the use of separate accounting is constitutionally permissible under the commerce clause. The constitutional preference for apportionment of "unitary" dividend income in Mobil stemmed from the fact that the two competing methods at issue — specific allocation and formula apportionment — were "theoretically incom- mensúrate." Mobil, 445 U.S. at 444, 100 S.Ct. at 1235, 63 L.Ed.2d at 525. The type of duplicative taxation found unacceptable in Japan Line, Exxon and Mobil all involved one taxing jurisdiction using the specific allocation by situs method, while another used apportionment. In other words, one taxing jurisdiction taxed the whole pie, while another taxed a slice. In such a situation, double taxation is inevitable, and one method has to be chosen over another. By contrast, in Moorman Manufacturing v. Bair, 437 U.S. 267, 98 S.Ct. 2340, 57 L.Ed.2d 197, two jurisdictions used different apportionment formulas. Each took only a slice of the pie, but since they used different formulas to divide the pie, the Court recognized that there was high probability of some overlap. While the potential for overlap existed, it certainly was not inevitable, and the Court upheld Iowa's apportionment method. The Court held that prevention of duplicative taxation should be effected by a national uniform rule for the division of income, but that the "Constitution . is neutral with respect to the content of any uniform rule." Id. at 279, 98 S.Ct. at 2347, 57 L.Ed.2d at 208. Given the absence of federal legislation, the Court was unwilling to specify that a particular methodology was constitutionally preferable. While acknowledging a clear risk of multiple taxation in a variety of situations due to the divergence in division-of-income techniques employed by the various states, the Court found such risk preferable to choosing one technique as constitutionally superior to another. Id. at 278-80, 98 S.Ct. at 2347-2348, 57 L.Ed.2d at 207-09. The oil companies in the present litigation acknowledge that Moorman evidenced the Supreme Court's high degree of tolerance for apportionment formulas. But in their view, this tolerance does not extend beyond the apportionment method. They claim that Moorman does not sanction the use of Alaska's Oil Tax because the tax is not apportioned. We disagree. First, as we have previously explained, the Oil Tax utilizes a division-of-income method. Second, while Moorman pertained to the conflict presented when two jurisdictions employ different types of formula apportionment, the principle of the opinion was that non-uniform state taxes are inevitable and constitutionally permissible. Since Moor-man, the Court has continued to maintain that states enjoy broad leeway in their choice of division-of-income methods. See Container Corp. of America v. Franchise Tax Board, 463 U.S. at 164, 103 S.Ct. at 2939, 77 L.Ed.2d at 552. Container Corp. closely resembles the situation in this case. In Container Corp., California sought to determine its share of total income by use of formulary apportionment, while foreign jurisdictions employed separate accounting. Discussing discrimination against interstate commerce, the Court reiterated its view that the Constitution does not require the elimination of all overlapping taxation on the interstate level. 463 U.S. at 171, 103 S.Ct. at 2943, 77 L.Ed.2d at 557. Thus, if the problem were limited to the interstate level, "the fact that different jurisdictions applied different methods of taxation . would probably make little constitutional difference." 463 U.S. at 185, 103 S.Ct. at 2950, 77 L.Ed.2d at 566. In Container Corp., the Court faced the additional complication of international commerce. Even so, the Court upheld the tax, distinguishing Japan Line on the ground that Japan's specific allocation by situs method necessarily resulted in double taxation. Here,' by contrast, we are faced with two distinct methods of allocating the income of a multi-national enterprise. The "arm's-length" approach [i.e., separate accounting] divides the pie on the basis of formal accounting principles. The formula apportionment method divides the same pie on the basis of a mathematical generalization. Whether the combination of the two methods results in the same income being taxed twice or in some portion of income not being taxed at all is dependent solely on the facts of the individual case. 463 U.S. at 188, 103 S.Ct. at 2952, 77 L.Ed.2d at 568 (footnote omitted). The Court held that the two taxing methods do "not create an automatic 'asymmetry'." Id. at 194-95, 103 S.Ct. at 2955-2956, 77 L.Ed.2d at 572. "[I]t would be perverse, [therefore,] simply for the sake of avoiding double taxation, to require California to give up one allocation method that sometimes results in double taxation in favor of another allocation method that also sometimes results in double taxation." Id. at 193, 103 S.Ct. at 2955, 77 L.Ed.2d at 571. The fact that the Court found the two methods could coexist on the international level, where duplicative taxation is viewed more strictly, makes separate accounting a quite permissible alternative when only interstate commerce is involved, as is the case in the present litigation. The Supreme Court has repeatedly recognized that neither separate accounting nor formula apportionment will result in the attribution of the exact amount of income earned in the state to that particular state. Some multiple taxation may result when one jurisdiction employs one method and another uses a different approach. This threat is inherent in any system where state attribution methods are nonuniform. But a state does not offend the commerce clause merely because its method of dividing income is different from that of its neighbors. Moorman Manufacturing v. Bair, 437 U.S. at 278-80, 98 S.Ct. at 2347-2348, 57 L.Ed.2d at 208-09. We have already explained that the separate accounting method employed by the State of Alaska does not tax all profits generated from Alaskan oil production and does not impermissibly attribute extraterritorial values to Alaska. Using the leeway it retains absent a federal uniform approach, the Alaska legislature chose a constitutionally permissible method of income division, albeit not the one "ordinarily" employed for most other types of unitary businesses. We hold that the Oil Tax comports with the requirements of the Complete Auto Transit test and creates no impermissible burden on interstate commerce. The location of the oil fields in Prudhoe Bay creates a substantial "nexus" between the oil companies' activities and the State of Alaska. As discussed above, the Oil Tax is fairly apportioned to represent only that part of the companies' income generated from its Alaskan activities — oil and gas production and transportation. As in Container Corp., the Oil Tax does not inevitably result in multiple taxation. Moreover, any possible overlap created by Alaska's use of separate accounting and other jurisdictions' use of different income division methods is not the fault, in the constitutional sense, of Alaska. Thus, the Oil Tax does not discriminate against interstate commerce. Finally, because the oil companies all benefit from the "substantial privilege" of extracting oil in Alaska, the Oil Tax is fairly related to services provided in the state. D. Federal and State Equal Protection The oil companies assert that the Oil Tax violates both state and federal equal protection since it "arbitrarily [and] irrationally subjects] a special group of taxpayers to treatment not accorded taxpayers at large." They argue, in effect, that using a distinct method of taxation for multistate oil companies, but not for any other unitary businesses, violates equal protection. We reject the oil companies' equal protection challenge. The analysis under Alaska's equal protection clause involves a three-step process. Alaska Pacific Assurance v. Brown, 687 P.2d 264, 269-70 (Alaska 1984) [hereinafter cited as ALPAC]; State v. Ostrosky, 667 P.2d 1184, 1192-94 (Alaska 1983), appeal dismissed, — U.S. -, 104 S.Ct. 2379, 81 L.Ed.2d 339 (1984); State v. Erickson, 574 P.2d 1, 11-12 (Alaska 1978). First, in order to ascertain the appropriate level of review, the nature of the constitutional interest affected must be identified. AL-PAC, 687 P.2d at 269. Next, the validity of the statutes' purpose must be analyzed in light of the interest impinged. Id. Lastly, the means chosen must be examined, also in light of the interest, to insure that they are sufficiently related to the goals of the statute. Id. at 269-70. The interest involved here, freedom from disparate taxation, lies at the low end of the continuum of interests protected by the equal protection clause. Regarding the statute's purpose, the oil companies claim that greed and other improper motives led the Alaska legislature to enact the Oil Tax. The state, however, has adequately established that a primary purpose, of the Oil Tax was to rectify a perceived underestimation of oil production and pipeline transportation income that occurred with the application of an apportionment formula. The goal was to insure that the tax rate assessed to the oil companies on this income was commensurate with the rate applicable to the income of other corporations in the state. Ch. 110, § 1, SLA 1978. Taxing the oil companies differently to rectify a perceived inequity was the legislature's attempt to prevent disparate treatment; thus, the validity of this purpose in light of the companies' interest is established. Finally, the means chosen were sufficiently related to the goals of the legislation. The use of separate accounting, rather than formula apportionment, increased the amount of production and transportation income subject to Alaska taxation and more fairly represented the extent of the business activities of the oil companies in Alaska. The Oil Tax did not adversely affect any fundamental interest, nor did it contain a suspect classification. Thus, to be upheld under the federal analysis, it need only to have been rationally related to a legitimate state interest. Exxon v. Eagerton, 462 U.S. 176, 195-96, 103 S.Ct. 2296, 2307-2309, 76 L.Ed.2d 497, 513 (1983). The rational basis standard is particularly easy to meet in the area of taxation. The United States Supreme Court has stated that "[ljegisla-tures have especially broad latitude in creating classifications and distinctions in tax statutes." Regan v. Taxation with Representation of Washington, 461 U.S. 540, 547, 103 S.Ct. 1997, 2002, 76 L.Ed.2d 129, 138 (1983). The Oil Tax clearly bore a rational relationship to the state's goal of correcting a perceived inequity in the tax structure. While the oil companies dispute the underlying premise that the Oil Tax rectifies inequities, the legislature could have reasonably concluded that the Oil Tax would more accurately compute the companies' income generated in Alaska. Thus, the Oil Tax survives the equal protection challenge, under both the United States and the Alaska Constitutions. E. Contract Clause The oil companies argue that the Oil Tax is invalid because it impairs the obligation of the state's lease contracts with them. They contend that the tax increases the state's share under the lease contracts, and that such modification of the terms of the leases violates the contract clause of the United States Constitution. This argument is without merit. No lease provision has been impaired. In entering into the leases the state could not, and did not, contract away its power as a sovereign to tax income earned in the state. Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 102 S.Ct. 894, 71 L.Ed.2d 21 (1982) disposes of this issue: Contractual arrangements remain subject to subsequent legislation by the presiding sovereign. Even where the contract at issue requires payment of a royalty for a license or franchise issued by the governmental entity, the government's power to tax remains unless it "has been specifically surrendered in terms which admit of no other reasonable interpretation." St. Louis v. United R. Co., 210 U.S. 266, 280, 28 S.Ct. 630, 634, 52 L.Ed. 1054, 28 S.Ct. 630 (1908). 455 U.S. at 148,102 S.Ct. at 907, 71 L.Ed.2d at 36 (citations omitted); see also Exxon v. Eagerton, 462 U.S. at 187-94, 103 S.Ct. at 2304-2307, 76 L.Ed.2d at 508-12. VIII. RETROACTIVITY OF THE OIL TAX The Oil Tax Act was signed into law on July 8, 1978. Section 4 of the Act provided that it would apply retroactively to January 1, 1978. Section 5 provided the Act would be "effective" immediately. While the Senate voted 16 to 4 to approve section 5, the entire Oil Tax Act only passed by a vote of 11 to 9. Thus, at no time did more than 11 senators vote to approve section 4. The companies argue that the Act may not constitutionally be made applicable to income earned prior to July 8, 1978. They interpret article II, § 18 of the Alaska Constitution and AS 01.10.070(a) as requiring the approval of two-thirds majority of each house of the legislature to give retroactive effect to a new law. The companies argue that even though a two-thirds vote was attained for an immediate effective date, a two-thirds vote was also required to enact section 4, applying the Act retroactively to January 1, 1978. We disagree. AS 01.10.090 states that "[n]o statute is retrospective unless expressly declared therein." A two-thirds vote requirement does not appear in that section, nor elsewhere in Alaska law. The legislature, however, has recognized that where retroactive application of a portion or all of a bill is desired, an immediate effective date, which does require a two-thirds vote under article II, § 18 and AS 01.10.070(a), should be used in conjunction with the retroactivity section. Legislative Affairs Agency, Manual of Legislative Drafting 11 (1977); Uniform Rules of the Alaska State Legislature, Rule 10 (May 3, 1977). Accordingly, because two-thirds of the legislature voted to make the Oil Tax Act immediately effective, a separate two-thirds vote for the Act to be retroactive was not constitutionally required. The Oil Tax was properly retroactive to January 1, 1978. The superior court's action in granting the state's motion for summary judgment is AFFIRMED. COMPTON, J., not participating. APPENDIX 1 AS 43.21, Oil and Gas Corporate Income Tax provided: Sec. 43.21.010. Application [Repealed effective January 1, 1982]. AS 43.21.010— 43.21.120 applies to every corporation doing business in the state which derives income from the production of oil or gas from a lease or property in the state or from the pipeline transportation of oil or gas in the state. The tax calculated under AS 43.21.-010 — 43.21.120 is measured by the total taxable income of the corporation during the tax period as determined under AS 43.21.020 — 43.21.040 and is calculated at the rates established under AS 43.20.011(e). Sec. 43.21.020. Determination of taxable income from oil and gas production [Repealed effective January 1, 1982]. (a) The taxable income of a corporation from the production of oil and gas from a lease or property in the state shall be the corporation's net income as calculated by the department in accordance with this section. (b) Gross income of a corporation from oil and gas production shall be the gross value at the point of production of oil or gas produced from a lease or property in the state. The department shall by regulation determine a uniform method of establishing the gross value at the point of production. In making its determination the department may use the actual prices or values received for the oil or gas, the posted prices for the oil ór gas in the same field, or the prevailing prices or values of oil or gas in the same field. In addition, in its determination of gross value at the point of production of oil or gas produced from a lease or property, the department shall determine the reasonable costs of transportation from the point of sale to the point of production of the oil or gas. Transportation costs set by a tariff properly on file with the Alaska Pipeline Commission or other regulatory agency shall be considered prima facie reasonable, but if a tariff properly on file with a regulatory agency is subsequently amended, changed, or overturned retroactively, the reasonable costs of transportation shall be recomputed for that period using the newly determined tariff. (c) Net income from oil and gas production shall be determined by the department by deducting from gross income the following: (1) royalties paid in kind or in value; (2) taxes imposed under AS 43.55.011-43.55.150 and AS 43.57.010 which are actually paid or incurred by the corporation on the production from a lease or property in the state; (3) taxes imposed under AS 43.56.010-43.56.210 and AS 29.53.010-29.53.460 which are actually paid or incurred by the corporation on property used directly in the production of oil or gas from a lease or property in the state, including property used in production, gathering, treatment, or preparation of the oil or gas for pipeline transportation, but only if those property tax payments were due and payable only after the date of commercial production from the lease or property with which the property was associated; (4) the direct costs incurred by or for the corporation in operating the lease or property, including the direct costs of producing, gathering, treating, or preparing the oil or gas for pipeline transportation, but not of any payments received for those activities and not including any indirect cost or overhead expense; (5) depreciation (using the unit of production method or such other reasonable methods as the department may by regulation establish) on property used directly in the production, gathering, treatment, or preparation of the oil or gas for pipeline transportation including amortization of capitalized interest for investments in this property at a rate not to exceed the average cost of borrowed capital to the taxpayer during the year in which it is capitalized; (6) the amortization of lease acquisition payments and taxes paid or incurred under AS 43.56.010-43.56.210 and AS 29.-53.010-29.53.460 (including capitalized interest on both) for or on producing properties before the commencement of commercial production from the lease or property for which the property is being used; (7) interest expense of the corporation not capitalized during construction, that was paid or incurred in connection with property in Alaska; however, unless (f) of this section applies, the interest expense may not exceed that portion of the total interest paid by the consolidated business of which the corporation is a part, determined by multiplying the total interest by a fraction, the numerator of which is the value of the corporation's real and tangible personal property used directly in the production of oil or gas from a lease or property in the state and the denominator of which is the value of all real and tangible personal property of the consolidated business; in this subsection, "total interest paid by the consolidated business" does not include interest expense arising from intercompany obligations within the consolidated business except to the extent that the interest expense reflects a pass-through of interest on a third-party borrowing by the parent or other member of the consolidated business with the purpose, expressed at the time of the third-party borrowing, of financing Alaska business activity of the taxpayer corporation; (8) expenses incurred by the corporation after December 31, 1977, of unsuccessful exploration of oil or gas in the state including the acquisition costs of abandoned properties, dry hole costs, and the costs of geologic and geophysical exploration related to those abandoned properties; (9) general overhead or administrative expense incurred by the corporation attributable to deriving income from the production of oil or gas from a lease or property in the state to the extent, except as provided in (f) of this section, that it does not exceed that portion of the total general overhead or administrative expense incurred by the consolidated business of which the corporation is a part, determined by multiplying the total general overhead or administrative expense by a fraction, the numerator of which is the value of the corporation's real and tangible personal property used directly in the production of oil or gas from a lease or property in the state and the denominator of which is the value of all real and tangible personal property of the consolidated business; (10) the amount of income from the production of oil and gas from a lease or property that is divided among the regional Native corporations under sec. 7(i) of the Alaska Native Claims Settlement Act. (P.L. 92-203); (11) the tax imposed by sec. 4986 of the Internal Revenue Code that is paid or incurred by the taxpayer for oil production from leases or properties in the state. (d) Deductions from gross income under this section shall not include expenses previously deducted on a return filed under AS 43.20.011-43.20.350. (e) Where a corporation subject to AS 43.21.010-43.21.120 shares the production or proceeds of the production from a lease or property through a working interest, royalty interest, overriding royalty interest, production payment, net profit interest, joint venture or other agreement, the department shall allocate the deductions from gross income between the corporation and the persons with whom it has such an agreement in accordance with the terms of the agreement. (f) If a corporation demonstrates to the satisfaction of the department that it paid or incurred actual expenses for interest or for general overhead or administration attributable to deriving income from the production of oil or gas from a lease or property in the state in an amount greater than the amount determined under (c)(7) or (c)(9) of this section, the department may allow the corporation to deduct the greater amount. Sec. 43.21.030. Determination of income from oil and gas pipeline transportation [Repealed effective January 1, 1982], (a) Except as provided in (c) of this section, taxable income attributable to the transportation of oil in a pipeline engaged in interstate commerce in Alaska shall be deter mined by the department and shall be the amount reported or that would be required to be reported to the Federal Energy Regulatory Commission or its successors as net operating income, less those portions of interest and general administrative expense attributable to the pipeline transportation of oil in the state, except that taxable income shall also include taxes on or measured by income. The department shall establish regulations governing the determination of interest and general administrative expense attributable to pipeline transportation of oil in the state. (b) Except as provided in (c) of this section, taxable income attributable to the transportation of natural gas in a pipeline engaged in interstate commerce in Alaska shall be determined by the department and shall be the amount reported or that would be required to be reported to the Federal Energy Regulatory Commission as net operating income less that portion of interest and general administrative expense attributable to pipeline transportation in the state, except that the taxable income shall also include taxes on or measured by income. The department shall establish regulations governing the determination of interest and general administrative expense attributable to pipeline transportation of natural gas in the state. (c) Taxable income attributable to the transportation of oil or natural gas in Alaska of any corporation not under the Federal Energy Regulatory Commission jurisdiction, or of a corporation under the jurisdiction of the Federal Energy Regulatory Commission but not reporting the operation of pipelines in Alaska separately from the operation of pipelines elsewhere, shall be determined by the department and shall be based upon an amount equal to that which would have been reported to the Federal Energy Regulatory Commission under (a) of this section in the case of oil pipelines, or (b) of this section in the case of natural gas pipelines, had the corporation been, in fact, under Federal Energy Regulatory Commission jurisdiction for the taxable year and required to report on the operation of Alaska pipelines separately from the operation of pipelines elsewhere. Sec. 43.21.040. Determination of income from activities other than oil and gas production or pipeline transportation [Repealed effective January 1, 1982], (a) Taxable income of a corporation subject to AS 43.21.010-43.21.120 from activities in this state other than the production of oil or gas from a lease or property in the state or the pipeline transportation of oil or gas in the state shall be determined in accordance with the method established in art. IV of AS 43.19.010 and in AS 43.20.071, as modified by (b) — (f) of this section. (b) The total taxable income of the consolidated business is its entire income less the portion of that entire income attributable to worldwide production and pipeline transportation of oil and gas. In this section, (1) for a member of a consolidated business who is required to file under the Internal Revenue Code, "entire income" means taxable income under Subtitle F and chapter 1 of Subtitle A of the Internal Revenue Code of 1954, as amended, except that those provisions adopted after December 31, 1975, which change or modify exemptions from tax are not adopted by reference as a part of this section until the second January 1 following the effective date of the federal law; (2) for a member of a consolidated business who is not required to file under the Internal Revenue Code, "entire income" means book income, except that a taxpayer may elect to report his income as the income would be determined under (1) of this subsection. (c) The numerator and denominator of the property factor, of the payroll factor and of the sales factor shall be calculated without reference to that portion of property, payroll or sales directly related to the production of oil or gas from a lease of property in the state or the pipeline transportation of oil or gas in the state. (d) Repealed by § 17 ch. 116, SLA 1981. (e) Repealed by § 17 ch. 116, SLA 1981. (f) The value attributed to vessels transporting Alaskan oil or gas of the consolidated business which are not owned or effectively owned by the consolidated business shall be excluded from the property factor. Sec. 43.21.050. Assessment of income and tax [Repealed effective January 1, 1982]. (a) The department shall assess taxable income and the amount of tax payable on that taxable income. (b) On or before August 15 of each year the department shall send to every corporation taxable under AS 43.21.010-43.21.120 a notice of assessment showing the amount of income taxable under AS 43.21.010-43.-21.120 for the previous year and the amount of tax payable on that taxable income. (c) For purposes of AS 43.21.010-43.21.-120 the department may combine taxable incomes of corporations subject to tax under AS 43.21.010-43.21.120 who are part of the same consolidated business. (d) If the methods of allocation and apportionment provided in AS 43.21.010-43.-21.120 do not fairly represent the extent of a corporation's business activity in the state, the corporation may petition for or the department may require, in respect to all or any part of the corporation's business activity, if reasonable, the employment of any method authorized under art. IV, sec. 18, of the Multistate Tax Compact (AS 43.-19.010) to effectuate an equitable allocation and apportionment of the corporation's income. The commissioner shall include in his annual report required in AS 43.21.110 a report on all relief granted under this subsection, including for each case a statement of the changes in tax liability resulting from the granting of relief, the tax years involved, and a description of the method of determining taxable income that was substituted for those provided in AS 43.21.010-43.21.120. Sec. 43.21.060. Returns [Repealed effective January 1, 1982], On or before April 15 of each year, a corporation subject to tax under AS 43.21.010-43.21.120 shall submit a return in a form prescribed by the department setting out information required by the department to determine taxable income. For purposes of AS 43.21.-010-43.21.120, the department may require corporations subject to tax under AS 43.21.-010-43.21.120 who are part of the same consolidated business to file a single return. Sec. 43.21.070. Payment of tax [Repealed effective January 1, 1982], The tax levied under AS 43.21.010-43.21.120 is payable to the department on or before September 30 of each year or in installments, including prepayments of estimated tax, at the times and under the conditions the department may by regulation require. This tax is payable on the due date set out in this section even though the assessment is under appeal or the validity, enforceability or application of AS 43.21.010-43.21.120 or any provision of AS 43.21.010-43.21.120 is challenged before the department or in the courts. Sec. 43.21.080. Transitional rules [Repealed effective January 1, 1982], The department shall provide by regulation transition rules for corporations subject to tax under AS 43.20.011-43.20.350 before July 9, 1978 to avoid double taxation of the same income or double deduction of the same expense of those corporations as a result of becoming subject to tax under AS 43.21.010-43.21.120. Sec. 43.21.090. Regulations [Repealed effective January 1, 1982]. The department may adopt regulations in accordance with the Administrative Procedure Act (AS 44.62.010-44.62.650) as appropriate to administer and enforce AS 43.21.010-43.21.-120. Sec. 43.21.100. Penalties [Repealed effective January 1, 1982]. The penalties established in AS 43.20.011-43.20.350 apply to AS 43.21.010-43.21.120. Sec. 43.21.110. Public reporting [Repealed effective January 1, 1982], (a) The commissioner of revenue shall compile and transmit to the legislature an annual consolidated report of state revenues and taxation policies under AS 43.21.010-43.21.120. This report shall include total aggregate income tax paid by corporations covered under AS 43.21.010-43.21.120 and aggregate income and deductions by category, so classified as to prevent the identification of particular returns or reports. (b) The legislative auditor shall transmit to the legislature an annual report reviewing the actions of the department in administering AS 43.21.010-43.21.120. Sec. 43.21.120. Definitions [Repealed effective January 1,1982]. Unless the context requires otherwise the definitions contained in AS 43.55.140 are applicable to AS 43.21.010-43.21.120. In addition, in AS 43.-21.010-43.21.120. (1) "base of operations" means the closest point on land to the offshore oil or gas production operations from which goods, services and supplies flow to those offshore oil or gas production operations; (2) "consolidated business" means a corporation or group of corporations having more than 50 per cent common ownership direct or indirect, or a group of corporations in which there is common control either direct or indirect as evidenced by any arrangement, contract or agreement. . Atlantic Richfield Company and ARCO Pipeline Company (collectively "ARCO"), Exxon Corporation and Exxon Pipeline Company (collectively "Exxon"), and BP Alaska, Inc. and Sohio Pipe Line Company (collectively "Sohio"). . AS 43.21 (Ch. 110, § 3, SLA 1978; am. ch. 113, § 28-32, SLA 1980; am. ch. 116, § 6-11, § 17 SLA 1981) was repealed effective January 1, 1982. Ch. 116, § 19, SLA 1981. For convenience, we refer to the Oil Tax by the former statutory section numbers throughout this opinion. See Appendix 1 for the full text of AS 43.21. . Other oil companies were also involved initially in the litigation, but were dismissed upon agreeing to defer their constitutional claims pending resolution of this case. . In 1970, Alaska adopted the Multistate Tax Compact, enacted as AS 43.19.010. It is basically a restatement of UDITPA with a few minor changes. The three-factor apportionment formula is now described at AS 43.19.010, art. IV, § 9-15. . The oil companies dispute whether the methodology of the Oil Tax is in fact "true" separate accounting. See infra section II.B. . The following graph, submitted by the State of Alaska, illustrates the estimated revenues, costs and profits contained in each barrel of Alaskan oil during the years 1978-80: . See generally J. Hellerstein, State Taxation: Corporate Income and Franchise Taxes ¶ 8.3, at 323-327 (1983). . P. Hartman, Federal Limitations on State and Local Taxation § 9.17, at 522 (1981). . G. Altman & F. Keesling, Allocation of Income in State Taxation 38 (2d ed. 1950). . J. Hellerstein, supra note 7, ¶ 8.4, at 328. . Id. . Id. at 329. . "[A] unitary business may be defined simply as any business which is carried on partly within and partly [outside] the taxing jurisdiction." Keesling & Warren, The Unitary Concept In the Allocation of Income, 12 Hastings LJ. 42, 46 (1960). . Moorman Mfg. v. Bair, 437 U.S. 267, 273, 98 S.Ct. 2340, 2344, 57 L.Ed.2d 197, 204 (1978). . P. Hartman, supra note 8, § 9.18, at 523-524. .The wellhead price did not include refining and marketing costs and profits. The following deductions were also taken from the wellhead price: royalties, native corporation revenue sharing, production, ad valorem and windfall profit taxes, direct operating expenses, exploration, acquisition, and development costs, unca-pitalized interest and general overhead and administrative expenses inside and outside Alaska (including á reasonable profit). AS 43.21.-020(c); 15 AAC 21.200 (Eff. 2/22/79). See graph supra note 6. . The only logical interpretation of the 1982 amendment to 15 AAC 21.290(b) is that it operates retroactively for the tax years 1978-81. It cannot be meaningfully applied prospectively because it was adopted after the Oil Tax was no longer in effect. We must assume that the process of amending 15 AAC 21.290(b) was intended to be operative. We cannot imagine that the Department of Revenue ("Department") would engage in a futile act. See 2A C. Sands, Sutherland Statutory Construction § 45.12, at 54 (4th ed. 1984). The retroactivity of the Department's regulations is governed by the Alaska Administrative Procedure Act, AS 44.62.240. Under this statute, an "interpretative regulation," such as 15 AAC 21.290(b), may be retroactive only if the agency "has adopted no earlier inconsistent regulation and has followed no earlier course of conduct inconsistent with the regulation." The Department's earlier omission of a deduction for outside-generated profits attributable to general overhead and administration associated with Alaskan oil production could be construed as inconsistent conduct with the 1982 amendment to 15 AAC 21.290(b). AS 44.62.240, however, is concerned with the issues of fairness and notice. See, e.g., AS 43.21.050(d) (authorizing Department to fashion an equitable tax if relief from an unfair allocation is required). In this case, a retroactive interpretation of the 1982 amendment confers a benefit on the oil companies by allowing an additional tax deduction not previously available. Unlike many retroactive enactments, 15 AAC 21.290(b), as amended, does not create a harsh or unfair result for the affected parties. Therefore, the 1982 amendment to 15 AAC 21.290(b) operates retroactively for the tax years 1978-81. . See also Texas Co. v. Cooper, 236 La. 380, 107 So.2d 676, 687-91 (1958) (rejected argument that production of oil in absence of sale, does not result in taxable income); Magnolia Petroleum v. Oklahoma Tax Comm'n, 190 Okl. 172, 121 P.2d 1008, 1013 (1941) ("[0]il produced in the state had an easily ascertainable market price that would represent the value of the product attributable wholly to Oklahoma.''). . While party to a tax suit in South Carolina, Exxon recognized the existence of oil's wellhead value. In its brief, Exxon asserted that "E & P [exploration and production] income is fully earned at the wellhead, and . [is] functionally independent of . refining and marketing operations." Appellant's Opening Brief at 19, Exxon v. South Carolina Tax Comm'n, 273 S.C. 594, 258 S.E.2d 93 (1979), appeal dismissed, 447 U.S. 917, 100 S.Ct. 3005, 65 L.Ed.2d 1109 (1980). Exxon went on to note that their witness testified that the posted field price was also accepted by the accounting profession as a reliable, independent measure of the value of crude oil at the wellhead. Using this value, . the net income earned by exploration and production could be and is accurately measured. This is in accordance with generally accepted accounting principles, because crude oil has a known, realizable value. Id. at 26. .See, e.g., G. Altman & F. Keesling, supra note 9, at 38 ("It is obvious, however, that a separate accounting, no matter how detailed, is basically false if the business done in more than one state is of a unitary character, ."); Dexter, The Unitary Concept in State Income Taxation of Multistate — Multinational Businesses, 10 Urb. Lawyer 181, 207 (1978) ("[T]he use of separate accounting to attribute unitary income to a taxing jurisdiction is conceptually inconsistent.''). . J. Hellerstein, supra note 7, ¶ 10.9, at 689. . A. Cohen, Apportionment and Allocation For-mulae and Factors Used by States in Levying Taxes Based on or Measured by Net income of Manufacturing, Distributive and Extractive Corporations 14 (1954). [Record 1561] . Id. . See B. Sorensen, Memorandum to the Honorable Neis A. Anderson, Jr. (May 27, 1976) (discussing state corporate income tax). . Rudolph, State Taxation of Interstate Business: The Unitary Business Concept and Affiliated Groups, 25 Tax L.Rev. 171, 191 (1970). Of the top five producing states, three — Alaska, Louisiana and Oklahoma — require the use of separate accounting to determine income attributable to oil production. Texas imposes no corporate income tax, and California requires formula apportionment. Statistical Abstract of the United States at 730 (1983). But see Cal.Rev. & Tax Code Ann. § 25137 (West 1979) (allowing separate accounting, or other alternative methods of apportionment, when total formula apportionment does "not fairly represent the extent of the taxpayer's business activity in this state."). . GAO Report to the Chairman, House Committee on Ways and Means: Key Issues Affecting State Taxation of Multijurisdictional Corporate Income Need Resolving 3 (1982). [Record 17,023]. . The Oil Tax was enacted only after it was considered by two legislatures over a four year period. Sixty-three hearings were held and dozens of studies and reports were made. . See, e.g., Minutes of Senate Finance Committee (May 21, 1977): "[T]he income tax is not designed to pick up additional money but to try to establish equal treatment between companies operating within the state." (Statement of Senator Chancy Croft) [Record 4759]; Minutes of Senate Resource Committee (February 22, 1978): "If we're seeking to raise money — I think the most effective way is through a severance tax." (Statement of Commissioner Sterling Gallagher [Record 1704] ); Office Memo to Senator Rader from Kay Brown (December 22, 1977): "[Separate accounting [is the] most equitable method because under it every corporation] pays [the] same effective tax rate." (Statement of Senator Chancy Croft) [Record 1661]; Testimony Before House/Senate Resources Committees (January 25, 1978): "[T]he purpose [of separate accounting] is not to get higher taxation, but it gives you a direct fix on what the profitability of the industry's operations are." (Statement of consultant Milton Lipton) [Record 1941] . Investing a Mountain of Cash Before the Oil Runs Out: An Oil Giant's Dilemma, Bus. Wk. 60 (August 25, 1980). [Record 684] . For example, whether the oil companies had, themselves, measured their income by methods similar to those used by the Oil Tax is irrelevant. .An extensive record was developed, which is divisible into three categories. First, the bulk of the record consists of the legislative history of the Oil Tax. Second, competing affidavits from various economists and accountants present divergent economic theories on how oil production income is generated, and how, as a matter of policy, it should be divided among the states for taxation purposes. Finally, a large number of affidavits submitted by the companies describe the various activities associated with oil production which occur outside Alaska. . Wisconsin adopted the first corporate income tax in 1911. J. Hellerstein, supra note 7, ¶ 1.2, at 5. . Id. ¶ 8.3, at 324. . Underwood Typewriter v. Chamberlain, 254 U.S. 113, 41 S.Ct. 45, 65 L.Ed. 165 (1920). . See J. Hellerstein, supra note 7, ¶ 8.7, at 338-343. . See, e.g., Exxon v. Wisconsin Dep't of Revenue, 447 U.S. 207, 229-30, 100 S.Ct. 2109, 2123-2124, 65 L.Ed.2d 66, 85 (1980); Mobil Oil v. Commissioner of Taxes, 445 U.S. 425, 446, 100 S.Ct. 1223, 1236, 63 L.Ed.2d 510, 526 (1980). . See Mobil, 445 U.S. at 438, 100 S.Ct. at 1232, 63 L.Ed.2d at 521; Exxon v. Wisconsin Dep't of Revenue, 447 U.S. at 223, 100 S.Ct. at 2120, 65 L.Ed.2d at 81. . See Mobil, 445 U.S. at 438, 100 S.Ct. at 1232, 63 L.Ed.2d at 521; Earth Resources v. State, Dep't of Revenue, 665 P.2d 960, 966 (Alaska 1983). .The due process clause of the fourteenth amendment 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. U.S. Const, amend. XIV, § 1. . See La. Income Tax Reg. art. 47:244.A (1985); Miss.Code Ann. § 27-7-23(b)(3) (1983); Okla. Stat.Ann. tit. 68, § 2358, A.4.a, b, c (1985); see also Webb Resources v. McCoy, 194 Kan. 758, 401 P.2d 879, 890 (1965). . See Container Corp., 463 U.S. at 188, 103 S.Ct. at 2952, 77 L.Ed.2d at 568 (Formula apportion ment and separate accounting are "two distinct methods of allocating the income of a multinational enterprise."). . The commerce clause is set forth in article I, § 8 of the United States Constitution: The Congress shall have Power To . regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes; . . The Court indicated that it need not decide "under what circumstances the mere risk of multiple taxation would invalidate a state tax, or whether this risk would be evaluated differently in foreign, as opposed to interstate, commerce." 441 U.S. at 452 n. 17, 99 S.Ct. at 1823 n. 17, 60 L.Ed.2d at 350 n. 17 (emphasis in original). . See discussion supra section II.A.2. . Container Corp., 463 U.S. at 194-95, 103 S.Ct. at 2955-2956, 77 L.Ed.2d at 572. . There is language in Japan Line to the effect that an "unapportioned" tax will not be sustained. 441 U.S. at 447, 99 S.Ct. at 1820, 60 L.Ed.2d at 347. However, this statement must be read in context. In the property tax area, separate accounting is not even a viable theory for dividing income. Allocation of the full property to one state or apportionment among several states are the only two options. Since allocation of the full property value to one of several proper taxing jurisdictions is unconstitutional, apportionment is the only permissible means of dividing the value of property used in interstate commerce for property taxation purposes. . Cf. Moorman, 437 U.S. at 277, 98 S.Ct. at 2346, 57 L.Ed.2d at 207. . See W. Hellerstein, Memorandum to Mr. Milton Barker (April 20, 1981) (discussing proposed Oil Tax). [Record 17,091] . In both Exxon and Mobil, the Court stated that separate accounting "is not constitutionally required." Exxon, 447 U.S. at 223, 100 S.Ct. at 2120, 65 L.Ed.2d at 81; Mobil, 445 U.S. at 438, 100 S.Ct. at 1232, 63 L.Ed.2d at 521. . See W. Hellerstein, supra note 48, at 2. [Record 17,093] . See discussion supra section IV.B. . See Exxon v. Wisconsin Dep't of Revenue, 447 U.S. at 229, 100 S.Ct. at 2123, 65 L.Ed.2d at 85. . See Commonwealth Edison v. Montana, 453 U.S. at 628-29, 101 S.Ct. at 2959-2960, 69 L.Ed.2d at 901. . In determining questions of equal protection under the Alaska Constitution, we employ a single test. As we stated in State v. Erickson, 574 P.2d 1, 12 (Alaska 1978): Such a test will be flexible and dependent upon the importance of the rights involved. Based on the nature of the right, a greater or lesser burden will be placed on the state to show that the classification has a fair and substantial relation to a legitimate governmental objective. . See Regan v. Taxation with Representation of Washington, 461 U.S. 540, 547, 103 S.Ct. 1997, 2002, 76 L.Ed.2d 129, 138 (1983). See generally P. Hartman, supra note 8, § 3.1, at 131-38. .The State of Alaska began issuing oil and gas leases a few months after passage of the Alaska Land Act, as 38.05, in 1959. The first oil and gas leases at Prudhod Bay were issued in 1964 the state entered into lease contracts with the oil companies, whereby the state sold the companies whatever gas and oil might be found on the leaseholds in exchange for "bonus" payments and royalties of 12½%. . "No State shall . pass any . Law impairing the Obligation of Contracts_" U.S. Const., art. I, § 10, cl. 1. . The Alaska Constitution provides: "The power of taxation . shall not be . contracted away, except as provided in this article." Alaska Const, art. IX, § 1. . Ch. 110, SLA 1978. . Alaska Const, art. II, § 18 provides: Laws passed by the legislature become effective ninety days after enactment. The legislature may, by concurrence of two-thirds of the membership of each house, provide for another effective date. . AS 01.10.070(a) contains language paralleling Alaska Const, art. II, § 18.

10425318

Douglas B. BRAATEN, Appellant, v. STATE of Alaska, Appellee

Braaten v. State

1985-09-06

No. A-279

1311

1328

705 P.2d 1311

705

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T18:03:25.532191+00:00

CAP

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

Douglas B. BRAATEN, Appellant, v. STATE of Alaska, Appellee.

Douglas B. BRAATEN, Appellant, v. STATE of Alaska, Appellee. No. A-279. Court of Appeals of Alaska. Sept. 6, 1985. Mark E. Ashburn, Bailey & Mason, Anchorage, for appellant. Cynthia M. Hora, Asst. Atty. Gen., Anchorage, and Norman C. Gorsuch, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

9488

58051

OPINION COATS, Judge. Douglas Braaten was convicted of first-degree sexual assault, AS 11.41.410(a)(1). He appeals his conviction and sentence. We affirm the conviction, but find it necessary to remand for further sentencing proceedings. I. FACTS G.J. testified at trial that on Sunday, July 10, 1983, she attended a union picnic. At the picnic she met a man to whom she gave her telephone number. On Saturday, July 16, 1983, G.J. received a telephone call. The caller asked if she knew who this was; G.J. replied she thought it was the man she met at the picnic. The caller replied that he was the man from the picnic. G.J. had talked to the man at the picnic about the Pines Club, and she asked the caller if he had looked for her at the Pines Club since they had met. The caller said he had. The two talked about going to the Pines Club that evening, but the plan was never definite and, in fact, never materialized. In the early morning hours of July 21, 1983, G.J. was awakened by a telephone call from the man she had talked to on the 16th. She asked him what time it was; he said it was 2:30. She asked him why he was calling, and he said that he was sorry for calling, but that his mother had died, that he was upset, and that he needed someone to talk to. G.J. eventually agreed to let the caller come over, and gave him directions to her apartment. G.J. waited in the living room. She soon received another call asking for better directions from a nearby Qwik Stop. Shortly thereafter, she heard a truck pull up to her building, and went out into the hall, expecting to see the man she had met at the picnic. The man who walked into the building, however, was definitely not the man G.J. had met at the picnic. G.J. asked this man who he was looking for, and he responded, "Bob." G.J. then went back into her apartment and shut the door. A short time later, there was a knock at G.J.'s door. When she answered it, the man who had been in the hallway told her that "Bob" had not answered his door, and asked to use her phone to call "Bob." She allowed him to use the phone, which was by the door, and left the door open. The man dialed twice, unsuccessfully, and then asked to use G.J.'s bathroom. When he returned, he dialed six numbers, then hung up. G.J. then told him he should leave. The man walked toward the door and then slammed it shut and knocked G.J. to the floor. He told her he would cut her with a knife or smother her if she tried to scream. During the struggle the man pulled G.J.'s hair, scratched her face and apparently bit her on the head. He dragged her into the bedroom and forced her to have intercourse three times. G.J. eventually convinced the man to leave by assuring him that she would not call the police and telling him that she was still his friend. G.J. put on her robe and went upstairs to a friend's apartment. The friend testified at trial that G.J. had scratches on her face and neck and teeth marks on her head which were bleeding. G.J. was very upset, and told the friend that she had been raped and that she wanted to talk to her parish priest. G.J. called her priest and told him she had been raped by a man she did not know. The priest advised her to call the police, which she did. G.J. gave a description of the man who had assaulted her to the police. In particular, she told the police that her assailant was wearing a black shirt with the word "Nike" printed on it, and that he had sores on his stomach. The officer interviewing G.J. remembered seeing a photograph of a man wearing a Nike shirt in connection with another case. The officer located the picture, which was taken in the course of an investigation of a sexual assault on May 11, 1983. The photo was of Douglas B. Braaten. Because Braaten matched the description given by G.J. in other respects, the officer prepared a photographic line-up and showed it to G.J., who quickly identified Braaten. Braaten testified at trial that he met G.J. at the Pines Club on July 1, 1983. He got her telephone number that night, and called her a few weeks later. He called her in the early morning hours of July 21st, and she invited him over. After they talked for awhile, G.J. suggested Braaten stay, and walked towards the bedroom. The sexual activity that followed was consensual, according to Braaten. When he got up to leave, she asked him if they would-see each other again, and he told her that he didn't think so because he was engaged. She became upset and Braaten left. Following Braaten's conviction, the state filed notice of presumptive sentencing and of three aggravating factors under AS 12.-55.155. Braaten was subject to a presumptive term of eight years. AS 12.55.125(i). Superior Court Judge Ralph E. Moody found the existence of the three statutory aggravators, and sentenced Braaten to twenty years with twelve years suspended. II. PHOTO OF BRAATEN IN THE NIKE T-SHIRT Braaten first argues that the manner in which the state introduced the photo of Braaten taken in connection with the earlier investigation was prejudicial, because it suggested prior bad acts. Oksoktaruk v. State, 611 P.2d 521, 524 (Alaska 1980). A. Proceedings Prior to trial, defense counsel indicated that he had not been provided with reports of the prior sexual assault investigation focused on Braaten. Counsel stated that while the prosecution had agreed not to introduce anything from the reports unless the defense "opened the door," the defense should still be able to examine those reports. The state initially refused to turn over the reports. The court ruled that since Braaten knew about the investigation in May (and also about an earlier investigation that was the subject of other reports held by the prosecution), the reports would really be of no use to him. The court went on to rule: I think the state's position is well taken in this case, but with this understanding. You cannot bring it up and cross examine until you've shown me the relevancy of it. If you can show the relevancy, the defendant will then be given these statements, and if they can show reason for a continuance, they will be given a continuance. The court also stated that the reports "will be sealed as having been examined in-camera by the court, and it may very well become relevant at some other time." In his opening statement, the prosecutor stated: Now, in addition to the description of the man's clothes — remember the Nike shirt. In addition to that [G.J.] also told the police that her assailant had what she thought were red sores on his belly. And the police, when the case was turned over to — to Dave Sherbahn, who was a sergeant head of the sensitive crimes unit, the rape unit, of the Anchorage Police Department, when he interviewed her, he got more information from her. She was not able to ever put a name on the person. But he's going to tell you that he came across a picture of the-defendant, Doug Braaten, that was taken before the night of the rape wearing a shirt that had those letters written on it. And based on that, and based upon her description of the man, the size and weight and the little mustache, he thought that it was a good possibility that Doug Braaten was the man that had assaulted her. The police secured — went back and they put on what they called a photo lineup. They wanted to just see if they had the right guy. [Emphasis added.] Defense counsel objected and moved for a mistrial on the grounds that this statement by the prosecutor suggested a prior police contact and essentially involved the reports that the defense had been unable to discover. The court ruled that since the prosecutor did not refer to the source of the photo located by Officer Sherbahn, there was no problem, and no grounds for mistrial. The prosecutor stated that he wasn't aware that the photo came from the undisclosed investigation, but he agreed to check. When he found out that the photo was taken in connection with that case, the prosecutor turned over the police reports to defense counsel. In further discussions, the prosecutor stated that he had no intention of putting on anything in reference to the investigation in the case-in-chief except for the photograph itself. The prosecutor went on to make an offer of proof to establish that the photograph should be admitted. He explained the circumstances under which the photo was taken. Defense counsel then offered to stipulate that Braaten had the Nike T-shirt before July 21, stating that he couldn't understand how the prosecution would be able to introduce the photo without in some way suggesting the prior investigation. Defense counsel pointed out that the crucial part of the state's evidence was going to be the photographic lineup, and that the source of the photograph used in the lineup was essentially irrelevant. The prosecutor refused to stipulate, and Judge Moody stated he would not force the prosecution to accept the stipulation. Defense counsel was granted a brief continuance on the basis of the newly disclosed reports. Immediately before the state was going to call the officer who had taken the picture of Braaten in May, defense counsel renewed his objection. The prosecutor argued that the picture was relevant, that it would have been relevant regardless of who had taken it, and that Officer Feicht-inger's testimony was necessary to lay a foundation for the photograph's introduction. The prosecutor stated: The fact that it was obtained by the police officer, as I say, is fortuitous. We certainly have no intention of even mentioning any other police contact. This is simply not a bad act. We're not going to get into it, Judge. Judge Moody ruled again that the photograph was admissible, and Feichtinger was called to testify. Feichtinger stated that-he met Braaten on May 11, 1983, and gave a description of how Braaten was dressed that day, including the Nike T-shirt. The prosecutor showed Feichtinger the photograph, and he stated that he had taken it on May 11. This was the extent of Feicht-inger's testimony; there was no cross-examination. The prosecutor next called Sergeant Sherbahn. Sherbahn was first asked his position and he replied that he was the supervisor in charge of the sexual assault unit. Sherbahn was then questioned about his interview with G.J. on July 21. In recording G.J.'s description, Sherbahn wrote "Knight" instead of "Nike." He realized his mistake later and, according to his testimony, this caused him to recall seeing a photograph of someone wearing a Nike T-shirt. Sherbahn was then allowed to testify that he subsequently obtained the photograph that he remembered seeing and that he was able to associate a name with the photograph and eventually to arrange a photographic lineup. Sherbahn went on to testify that G.J. identified Braaten from the photographic lineup, and that the T-shirt and other items of clothing were later seized from Braaten's apartment pursuant to a warrant. The shirt and other items were ultimately introduced into evidence. B. Analysis Alaska Rule of Evidence 404(b) provides: (b) Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order 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. The parties have analyzed this case with reference to Evidence Rule 404(b) and Ok- soktaruk v. State, 611 P.2d at 524. We have recently stated: The exclusionary provision of Evidence Rule 404(b) represents the "presumption in our law that the prejudicial effect of introducing a prior crime outweighs what probative value may exist with regard to propensity. No case by case balancing is permitted." Oksoktaruk v. State, 611 P.2d 521, 524 (Alaska 1980). When, however, a prior bad act is relevant to a material fact other than propensity, the court may admit the evidence if an Evidence Rule 403 balancing shows the evidence to be more probative than prejudicial. In making this balance, the Alaska Supreme Court has cautioned that "[i]f prior crimes were found admissible whenever offered to prove a fact classified as material to the prosecution's case, 'the underlying policy of protecting the accused against unfair prejudice . [would] evaporate through the interstices of the classification.' " Oksoktaruk, 611 P.2d at 524, quoting E. Cleary, McCormick on Evidence § 190, at 453 (2d ed. 1972). The trial court's inquiry, then, is two-fold. First, the court must determine that the evidence sought to be admitted has relevance apart from propensity. Second, the court must determine that the nonpropensity relevance outweighs the presumed highly prejudicial impact of the evidence. Freeman v. State, 486 P.2d 967, 977-79 (Alaska 1971). If there is no genuine nonpropen-sity relevance, the balancing step is never reached. Lerchenstein v. State, 697 P.2d 312, 315 (Alaska App.1985) (footnote omitted). It appears to us that there was no need to introduce evidence that Officer Feichtinger took the picture of Braaten or that Sergeant Sherbahn recalled seeing it. These facts had no probative value. The prosecution could have established the relevant fact, that this was a photograph of Braaten taken on a particular date, by means of the defense stipulation. By allowing the prosecution to show the circumstances under which the photograph was taken, the court ran the risk that the jury might infer that Braaten had been the subject of another investigation. We therefore believe that the preferable procedure would have been to have accepted the defense stipulation to help avoid the risk that the jury might draw the inference that Braaten might have been a suspect in another case. Although we conclude that accepting the defense stipulation would have been the preferable procedure, we conclude that any error in allowing the testimony on how the photograph was obtained did not appreciably effect the jury's verdict and was harmless error. Love v. State, 457 P.2d 622 (Alaska 1969). There was no testimony that Braaten was a suspect in another investigation or that the photograph was taken in connection therewith. It is quite possible that the jurors did not draw any inference that the picture might have been taken as part of another investigation. Even if the jurors did draw that inference, they would not know the circumstances of the former investigation. It seems highly unlikely that a juror would put any weight on the fact that Braaten's picture had been taken as part of another investigation even if the juror drew that inference. We therefore conclude that the error was harmless. III. PHOTO OF BRAATEN'S STOMACH Before trial, the state obtained permission to introduce a photo of Braaten's stomach taken after his arrest. The photo was admitted mainly to show that Braaten had sores on his stomach, as described by G.J. during her interview with police. Braaten offered to stipulate that G.J. had identified the sores in the photo as being the same as the sores on the stomach of her attacker. Braaten argues on appeal that Judge Moody abused his discretion in allowing introduction of the photograph. 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). He emphasizes that the prosecutor made some questionable arguments based on the photo at the close of the evidence, and that the photo was cumulative evidence, in the sense that there was much stronger identity evidence available to the prosecution. While the closing arguments were probably improper, Braaten has failed to demonstrate the potential for substantial prejudice arising from the photo itself. Judge Moody did not abuse his discretion in admitting the photo of Braaten's stomach. IV. POLICE REPORT ON ACTIVITIES OF G.J. Braaten next contends that he was improperly denied discovery of police reports relating to G.J.'s activities. A. Proceedings Sometime after the alleged assault, Braa-ten told his roommate, Mike Crawford, that he had met G.J. over the weekend of July 4th at the Pines Club. Crawford testified to this before the grand jury. Police apparently investigated the story by asking G.J. about her activities that weekend, then contacting people G.J. said she was with in order to corroborate her story. While discussing possible discovery of Braaten's pri- or police contacts, the prosecutor brought up a potential discovery problem arising out of the statement made to Crawford and the resulting investigation. Judge Moody stated initially that the prosecutor would have to make reports available as soon as he had them. The prosecutor persisted in arguing that he shouldn't be required to turn over the reports until they were made technically relevant by Braaten's direct testimony that he met G.J. over that weekend. Judge Moody finally stated that the prosecutor should either disclose whatever he found out or bring it to the court to show why it should not be disclosed. Later that day, the prosecutor brought in two typewritten sheets containing what appears to be a summary of G.J.'s version of her activities, July 1 through July 4. Someone wrote "Not discoverable" at the top of the first sheet before the two sheets were presented to Judge Moody. There were xerox copies of charge slips attached to the two pages; these were apparently made from G.J.'s copies, and supported her version of her activities. The prosecutor stated that he still believed the material was not discoverable, and that he was complying with the court's ruling, which he characterized as follows: [T]he court ruled . that if a witness who we anticipated calling on direct has any information, even information that might possibly come out on . on perhaps rebuttal, but only on rebuttal, that I was to approach the court and give it to the court to decide whether or not it was discoverable. Since the two pages contain nothing that suggests G.J. ever met Braaten, Judge Moody ruled that they were not discoverable. Defense counsel argued further, and the prosecutor admitted he might use the report or something connected to it on rebuttal. Judge Moody ruled finally that if the prosecutor did try to introduce the material at any stage, the court would entertain a motion for continuance. G.J. testified at trial that she had never met Braaten before July 21. Immediately before the defense case, counsel stated that Braaten was going to take the stand and testify that he had met G.J. earlier. Based on this fact, counsel asked again for discovery of the report prepared on G.J.'s activities and/or a continuance. The court ruled that it still was not discoverable material. Braaten testified that he met G.J. at the Pines on Friday, the 4th of July weekend. He was with a friend, Allen Getz. According to Braaten, he called G.J. a few weeks later, and they made a tentative date which never materialized because Braaten had to work late. On cross-examination, Braaten maintained that he met G.J. at the Pines on July 1, and that she gave him her telephone number. According to Braaten, the slip of paper was destroyed, so he looked her number up in the phone book, and later destroyed or lost the second slip. The prosecutor asked why Getz was not there to testify, and Braaten answered that Getz had told him he could not really identify either G.J. or the other woman the two men danced with on July 1. On rebuttal, the state called only Sergeant Sherbahn, who testified that a thorough search was made of Braaten's apartment at the time the warrant was executed for, inter alia, any slip of paper with G.J.'s telephone number. B. Analysis Alaska Rule of Criminal Procedure 16(a) provides: (a) Scope of Discovery. In order to provide adequate information for informed pleas, expedite trial, minimize surprise, afford opportunity for effective cross-examination, and meet the requirements of due process, discovery prior to trial should be as full and free as possible consistent with protection of persons, effective law enforcement, and the adversary system. Alaska Rule of Criminal Procedure 16(b) provides in relevant part: (b) Disclosure to the Accused. (1) Information Within Possession or Control of Prosecuting Attorney. Except as is otherwise provided as to matters not subject to disclosure and protective orders, the prosecuting attorney shall disclose the following information within his possession or control to defense counsel and make available for inspection and copying: (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; (3) Information Tending to Negate Guilt or Reduce Punishment. The prosecuting attorney shall disclose to defense counsel any material or information within his possession or control which tends to negate the guilt of the accused as to the offense or would tend to reduce his punishment therefor. (7) Other Information. Upon a reasonable request showing materiality to the preparation of the defense, the court in its discretion may require disclosure to defense counsel of relevant material and information not covered by subsections (b)(1), (b)(2), (b)(3), and (b)(6). The discussion at trial seemed to involve both Rule 16(b)(l)(i) and (b)(3). On appeal, Braaten cites the sections quoted above, but concentrates upon Rule 16(b)(l)(i). Also relevant to this issue is Criminal Rule 16(d)(6), which provides: Upon request of any party, the court may permit (i) any showing of cause for denial or regulation of disclosure, or (ii) any portion of any showing of cause for denial or regulation of disclosure to be made to the court in camera ex parte. A record shall be made of such proceedings. If the court enters an order granting relief following such a showing, the entire record of the proceedings shall be sealed and preserved in the records of the court, to be made available to the supreme court in the event of an appeal. 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), the supreme court set forth standards and procedures to be used in applying Criminal Rule 16. Based upon considerations of due process and compulsory process, the court reached the following conclusions regarding the rule. Non-disclosure was proper only if (1) the prosecution showed that discovery of the evidence would be inconsistent with protection of persons or enforcement of the laws and (2) the trial judge concluded that the material was not relevant to the defense. If the district attorney failed to show that disclosure would harm en forcement or protection efforts, the material must be disclosed. The question of relevance would then be decided in an adversary context; both counsel would have the opportunity to make their respective arguments. Disclosure is also required if the judge's in camera inspection showed that the material was relevant to the defense — whether or not the prosecutor had demonstrated that discovery would be inconsistent with enforcement or protection efforts. In the latter circumstance, the state must decide between continuing to prosecute, while incurring the problems posed by disclosure, and terminating the prosecution in order to maintain the material's secrecy. Id. at 643. [Footnotes omitted.] The prosecution in this case made no showing that discovery would be inconsistent with protection of persons or enforcement of the laws. While it may be concluded that Judge Moody found that the report was not relevant under any subsection of Rule 16(b), we believe that under the approach set forth in Braham, the court was required to disclose the report without reaching this question, in light of the provision of Rule 16(b)(l)(i). The two page report submitted by the prosecutor was apparently a summary of G.J.'s statements to the police concerning her activities during the period Braaten claimed he met her. The complaining witness, G.J., was clearly a person "known by the government to have knowledge of relevant facts," so that the summary of her statements on any area of the investigation would seem to fall within the scope of Criminal Rule 16(b)(l)(i). See also Mahle v. State, 371 P.2d 21, 22-24 (Alaska 1962) (police reports of oral statements by witnesses should have been disclosed under former statute governing discovery). We hold that, in the absence of a showing by the prosecutor under Criminal Rule 16(d)(6), the court should have allowed discovery of the report. Our conclusion is bolstered by the supreme court's decision in Howe v. State, 589 P.2d 421 (Alaska 1979), where the court discussed the duty of the prosecution to disclose names, addresses and statements by persons who have relevant knowledge, but who might not be called to testify, or who might not be called until the rebuttal portion of trial. The supreme court stated in Howe that [t]he relevance criterion expressed in Criminal Rule 16(b)(l)(i) will . justify non-production of the names of rebuttal witnesses whose knowledge was reasonably not thought to be germane to the case until a position taken by the defense during trial made it so. Id. at 424. The court held in Howe that the trial court erred in refusing to compel discovery of a report prepared by a psychiatrist hired by the state. The state argues that discovery of material relating to G.J.'s whereabouts was not compelled until the matter was made formally relevant by Braaten's testimony. We believe this argument is foreclosed by Howe. It was certainly clear before trial that there was a strong possibility that Braaten would testify as he did. Thus, the state may not argue that the contents of the report were not thought to be germane. The state had a duty to disclose, and it existed "at an early stage in the proceedings." Id. at 424. We hold that the court should have allowed discovery of the report brought in by the prosecutor. We note also that Braaten asked for all reports prepared in connection with that part of the investigation, and that the prosecutor brought in only a document which appears to be a summary of G.J.'s statements, even though he had earlier stated or implied that other persons were questioned regarding G.J.'s activities. Under these circumstances, the court should probably have inquired whether there were more reports in the prosecutor's possession. A defendant contesting a discovery ruling is hampered by his lack of knowledge of the precise nature of the information within the prosecutor's control. For this reason, an in camera examination of the material submitted by the prosecutor must involve more than a cursory determination that the material is not exculpatory. Where there is a suggestion that the prosecutor has not submitted all the requested material, the court should inquire further. However, the particular circumstances of this case also compel us to the conclusion that the error was harmless. Braaten's testimony that he met G.J. on July 1, at the Pines, was entirely uncorroborated. The state called no new witnesses on rebuttal, nor did the prosecutor introduce any information taken from the two-page report submitted to the court. Thus, little prejudice could have resulted from the court's ruling on this score. The report itself does not contain any exculpatory material, nor is there any reason to believe that any other statements taken by police in connection with this matter disclosed exculpatory information. In light of the lack of prejudice and the limited usefulness of the report itself, we believe that the error was harmless. See Spencer v. State, 642 P.2d 1371 (Alaska App.1982). V. SENTENCE Braaten challenges two of the three ag-gravators found by Judge Moody. He also argues that Judge Moody failed to explain the relative weights he attached to the aggravating factors, and that the twelve-year increase rendered the sentence excessive, even though it was suspended. A. "Victim Particularly Vulnerable" Alaska Statute 12.55.155(c)(5) sets forth the following factor in aggravation of the presumptive term: (5) the defendant knew or reasonably should have known that the victim of the offense was particularly vulnerable or incapable of resistance due to advanced age, disability, ill health, or extreme youth or was for any other reason substantially incapable of exercising normal physical or mental powers of resistance. [Emphasis added.] Braaten and the state agree that Judge Moody's finding of the aggravator set forth in AS 12.55.155(c)(5) was based solely on the fact that G.J. was in her own apartment "where she had a right to be protected." The state argues that Judge Moody correctly construed the statute. According to the state, the phrase "particularly vulnerable" stands by itself, and the phrase "due to advanced age, disability, ill health, or extreme youth" modifies only "incapable of resistance," by virtue of the principle of statutory construction known as the "last antecedent rule." 2A C. Sands, Sutherland on Statutory Construction, § 47.33, at 245 (4th rev.ed. 1984). Under this con struction, the state argues that a victim can be found to have been "particularly vulnerable" for a reason or reasons not mentioned in the statute. We cannot agree. The state's argument presupposes that each of the two phrases can serve effectively as legal standards. In the context of the presumptive sentencing scheme, a finding that the victim was "incapable of resistance" will not generate much difficulty. A finding that the victim of a crime was "particularly vulnerable" is more likely to generate difficulty, in part because "vulnerable" is a more vague term. Prosecutors will almost always be able to make a prima facie case that someone who has just been the victim of a crime was vulnerable. Since the phrase in question cannot serve as an effective independent standard, we conclude the qualifying phrase applies both to "particularly vulnerable" and to "incapable of resistance." The governing principle in this case is that penal statutes should be construed strictly in favor of the accused. C. Sands, Sutherland on Statutory Construction, § 59.03, at 6-7 (4th ed. 1974). We hold that a finding that the victim was particularly vulnerable under AS 12.55.-155(c)(5) may not be based solely on environmental factors such as the one presented here. Instead, we believe the section requires a finding that the victim was "substantially incapable of exercising normal physical or mental powers of resistance," either for one of the reasons listed or for some similar reason, before the aggravator can be found. Since the finding of vulnerability in this case was based solely upon an environmental factor, we hold that the court erred in concluding that the aggravator in 12.55.155(c)(5) had been established. B. "Most Serious Offense" Braaten also challenges Judge Moody's finding that the conduct constituting this offense was among the most serious included in the definition of the offense. AS 12.55.155(c)(10). Judge Moody pointed out that G.J. sustained physical injury and that Braaten obtained entry by subterfuge. In addition, we note that the assault was of fairly long duration, involving three separate acts of intercourse, according to G.J., and that Braaten initially told G.J. he would cut her with a knife if she screamed and later told her he would "smother" her. On these facts, we cannot say that Judge Moody was clearly erroneous in finding Braaten's conduct "among the most serious included within the definition of the offense." C. Excessiveness Braaten was subject to an eight-year presumptive term. AS 12.55.125(i). Judge Moody imposed a sentence of twenty years with twelve suspended. Judge Moody's comments in imposing sentence were directed mainly at describing the horrible nature of the offense of sexual assault in general. He did not discuss the aggravating factors, although he did point out that Braaten assaulted G.J. "a number of times." Judge Moody recognized that Braaten was a young man, but saw this as a factor in aggravation, because Braaten still had "20 to 25 years [in which] . to carry out these propensities." It was clear, according to Judge Moody, that Braaten would need some supervision when he got out, and that he needed substantial time hanging over his head. We have concluded that the sentencing court erred in finding one of the three aggravating factors. Our past decisions establish that those subject to presumptive sentences should not receive sentences which deviate substantially from the presumptive term in the absence of substantial reasons in the record for such deviation. See Juneby v. State, 641 P.2d 823 (Alaska App.1982), modified on other grounds, 665 P.2d 30 (Alaska App.1983). The mere fact that aggravating factors have been established by clear and convincing evidence does not of itself require aggravation of a sentence. Id. In this case, the court properly found two aggravators. Since the finding that the offense was "among the most serious" was based in part upon the injury sustained, however, the court should not have attached any independent significance to the physical injury aggravator. Juneby v. State, 665 P.2d 30 (Alaska App.1983). Thus, there was essentially only a single aggravator properly 'applicable. While a single aggravating factor which establishes that the defendant's conduct is substantially more aggravated than the typical offense may justify a substantial increase over the presumptive term, the sentencing court's failure to state what weights it was attaching to the aggravators in this case makes it impossible for us to conclude that the increase in this case was justified. We also conclude that the amount of suspended time which was imposed in this case was excessive. The amount of suspended time is one and a half times the presumptive term for the offense and it seems to us that this period of suspended time is excessive under the facts of this case. Therefore, on remand, we direct the superior court to impose a sentence not exceeding twelve years with four suspended. The conviction is AFFIRMED. The sentence is VACATED and this case is REMANDED for resentencing. BRYNER, C.J., and SINGLETON, J" concur. . Although Braaten ultimately testified that he was the person who had intercourse with G.J., Braaten's concession on the issue of identity was apparently not clear until his testimony at the end of the trial. We note that Braaten's counsel did not make an opening statement until after the state rested and that Braaten's counsel did not offer to stipulate on the issue of identity. . 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. . Braaten makes a separate argument that information relating to G.J.'s activities may well have been directly helpful to the defense or it may [sic] suggested lines of further investigation that would have produced relevant evidence for the defense. Defendant testified that he was with Allen Getz the evening of the July 4th weekend that he met [G.J.]. It is certainly possible that information either in the report or suggested by it would have either refreshed the memory of Mr. Getz or corroborated the testimony of the defendant on this issue. This is apparently a reference to Criminal Rule 16(b)(3). Far from having some tendency to negate his guilt, however, the report at issue is purely inculpatory in that, if believed, it would establish that G.J. could not have met Braaten at the Pines Club. Braaten's hypothetical uses for the report are not supported; the very most Braaten could hope for out of this report would be to gain some grounds for impeaching G.J. on a collateral matter. We are therefore not convinced that the material was discoverable solely under Rule 16(b)(3). . Section 47.33 reads in part: Referential and qualifying words and phrases, where no contrary intention appears, refer solely to the last antecedent. The last antecedent is "the last word, phrase, or clause that can be made an antecedent without impairing the meaning of the sentence." Thus a proviso usually is construed to apply to the provision or clause immediately preceding it. The rule is another aid to discovery of intent or meaning and is not inflexible and uniformly binding. Where the sense of the entire act requires that a qualifying word or phrase apply to several preceding or even succeeding sections, the word or phrase will not be restricted to its immediate antecedent. Evidence that a qualifying phrase is supposed to apply to all antecedents instead of only to the immediately preceding one may be found in the fact that it is separated from the antecedents by a comma. [Footnotes omitted.] . This was the third aggravator found by Judge Moody, AS 12.55.155(c)(1).

10425154

Antonin BERAN, Appellant, v. STATE of Alaska, Appellee; Gary CARLOS, Appellant, v. STATE of Alaska, Appellee; Peter MOST, Appellant, v. STATE of Alaska, Appellee; Williard PARK, Appellant, v. STATE of Alaska, Appellee; Ralph BORS, Petitioner, v. STATE of Alaska, Respondent; Elizabeth IANI and David Iani, Petitioners, v. STATE of Alaska, Respondent; John JENSEN, Kurt Kvernick, Dennis O'Neill, and Larry Hendricks, Petitioners, v. STATE of Alaska, Respondent; Paul MORENO and Paul Zackar, Petitioners, v. STATE of Alaska, Respondent; Sam WHITTEN, Robert H. Blake, and Mark I. Hutton, Petitioners, v. STATE of Alaska, Respondent

Beran v. State

1985-09-06

Nos. A-535, A-679, A-629, A-630, A-668, A-652, A-638, A-658 and A-727

1280

1293

705 P.2d 1280

705

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T18:03:25.532191+00:00

CAP

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

Antonin BERAN, Appellant, v. STATE of Alaska, Appellee. Gary CARLOS, Appellant, v. STATE of Alaska, Appellee. Peter MOST, Appellant, v. STATE of Alaska, Appellee. Williard PARK, Appellant, v. STATE of Alaska, Appellee. Ralph BORS, Petitioner, v. STATE of Alaska, Respondent. Elizabeth IANI and David Iani, Petitioners, v. STATE of Alaska, Respondent. John JENSEN, Kurt Kvernick, Dennis O’Neill, and Larry Hendricks, Petitioners, v. STATE of Alaska, Respondent. Paul MORENO and Paul Zackar, Petitioners, v. STATE of Alaska, Respondent. Sam WHITTEN, Robert H. Blake, and Mark I. Hutton, Petitioners, v. STATE of Alaska, Respondent.

Antonin BERAN, Appellant, v. STATE of Alaska, Appellee. Gary CARLOS, Appellant, v. STATE of Alaska, Appellee. Peter MOST, Appellant, v. STATE of Alaska, Appellee. Williard PARK, Appellant, v. STATE of Alaska, Appellee. Ralph BORS, Petitioner, v. STATE of Alaska, Respondent. Elizabeth IANI and David Iani, Petitioners, v. STATE of Alaska, Respondent. John JENSEN, Kurt Kvernick, Dennis O’Neill, and Larry Hendricks, Petitioners, v. STATE of Alaska, Respondent. Paul MORENO and Paul Zackar, Petitioners, v. STATE of Alaska, Respondent. Sam WHITTEN, Robert H. Blake, and Mark I. Hutton, Petitioners, v. STATE of Alaska, Respondent. Nos. A-535, A-679, A-629, A-630, A-668, A-652, A-638, A-658 and A-727. Court of Appeals of Alaska. Sept. 6, 1985. Marcia Vandercook, Anchorage, and William Bixby, Valdez, for Antonin Beran. Frederick Torrisi and David B. Snyder, Dillingham, for Peter Most, Williard Park and Gary Carlos. Frederick Torrisi and David B. Snyder, Dillingham for Ralph Bors. Melvin M. Stephens, II, Hartig, Rhodes, Norman, Mahoney & Edwards, Kodiak, for David and Elizabeth Iani. Jeffrey M. Feldman, Gilmore & Feldman, Anchorage, for John Jensen, Dennis O’Neill, Kurt Kvernik and Larry Hendricks. Bridgette E. Siff, Asst. Public Defender, and Dana Fabe, Public Defender, Anchorage, for Paul Moreno and Paul Zackar. Lewis F. Gordon, Anchorage, for Sam Whitten, Robert H. Blake, Mark I. Hutton. W.H. Hawley, Asst. Atty. Gen., Anchorage, G. Scott Sobel, Asst. Dist. Atty., Russell S. Babcock, Asst. Dist. Atty., Victor C. Krumm, Anchorage, and Norman C. Gor-such, Atty. Gen., Juneau, for the State of Alaska. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

7040

43932

OPINION SINGLETON, Judge. After separate trials, Antonin Beran, Gary Carlos, Peter Most, and Williard Park were convicted of violating regulations adopted by the State Board of Fisheries. The offenses occurred after the effective date of Fish and Game Regulation 5 AAC 39.002 which provides: Liability for Violations. Unless otherwise provided in 5 AAC 01-5AAC 41 or in AS 16, a person who violates a provision of 5 AAC 01-5 AAC 41 is strictly liable for the offense, regardless of his intent. In reliance on this regulation, the trial court in each case applied a strict liability standard. Each of the four appellants was convicted on the basis that he was strictly liable for having some length of net in the water after the closing of the fishery, notwithstanding the fact of mechanical problems encountered while hauling in the net. They now appeal, contending that the legislature has not authorized the Board of Fisheries to make violations of its regulations strict liability offenses. They also argue that if the legislature had authorized the Board of Fisheries to adopt strict liability regulations the regulations are unconstitutional. Ralph Bors and the petitioners, charged with fishing violations, sought pretrial determinations from Judges Victor D. Carlson and J. Justin Ripley that 5 AAC 39.002 was invalid. Upon denial of their request, they petitioned for review raising essentially the same arguments as Beran. Finding that the issues presented were of sufficient significance to warrant immediate resolution, we granted the petitions for review. We consolidated all of these cases with Beran. Appellate Rule 402(b)(2). Having carefully reviewed the Alaska statutes dealing with administrative crimes and having considered the parties' oral arguments and their briefs on the law, we conclude, first, that the legislature has authorized the Board of Fisheries to make the breach of a regulation a "violation" and a strict-liability offense which would be punishable by a noncriminal fine. Second, we are satisfied that the legislature has authorized the Board of Fisheries to constitute the breach of a regulation a crime which would be punishable by imprisonment, but only if mens rea is required. Where a higher degree of mens rea is not specified in a regulation we will continue to infer a negligence requirement as a predicate to a sentence of imprisonment. See Reynolds v. State, 655 P.2d 1313 (Alaska App.1982). Third, we conclude that the legislature has not authorized the Board to adopt a regulation if a violation of the regulation would subject the violator to the statutory penalty of imprisonment in the absence of a finding of mens rea. We therefore need not consider the parties' constitutional arguments except to the extent that an understanding of the constitution helps us to determine the legislature's intent in authorizing agencies to adopt regulations whose violation subjects violators to civil and criminal penalties. Applying these principles to 5 AAC 39.002, we accept the state's representation that the Board of Fisheries intended to make violations of the described fishing regulations strict liability offenses to the extent permitted by the legislature including, if authorized, imprisonment as a possible penalty. Under our reading of the relevant statutes, imprisonment is not a permissible penalty for a violation of a regulation based upon strict liability in the absence of express legislative authorization. However, imprisonment is a permissible penalty for violation of a regulation based upon a finding of negligence or some higher level of mens rea without further legislative authorization. The language of 5 AAC 39.002 providing for strict liability does not specifically address the question of penalties. In our view, the regulation is valid to the extent that it governs violations but invalid to the extent that it governs crimes. The question then becomes whether we invalidate the regulatory scheme for adopting strict liability but failing to specify the penalties to which it attaches or whether we should enforce the regulatory scheme to the extent that it is within the legislative authorization. We conclude that the latter result is preferable. We reach this conclusion by analogy to the legislature's treatment of severability in AS 01.10.030 which provides: Any law heretofore or hereafter enacted by the Alaska legislature which lacks a severability clause shall be construed as though it contained the clause in the following language, "If any provision of this Act, or the application thereof to any person or circumstance is held invalid, the remainder of this Act and the application to other persons or circumstances shall not be effected [sic] thereby." Strictly speaking, this statute does not apply to the interpretation of regulations. Nevertheless, the effect of invalidating a statute on constitutional grounds is sufficiently similar to the effect of invalidating a regulation for lack of statutory authorization that similar rules should apply. In Lynden Transport, Inc. v. State, 532 P.2d 700, 711-15 (Alaska 1975), the supreme court interpreted this statute and determined that ultimately severance was a question of legislative intent. In attempting to fathom legislative intent the court adopted the following test: The test for determining the severability of a statute is twofold. A provision will not be deemed severable "unless it appears both that, standing alone, legal effect can be given to it and that the legislature intended the provision to stand, in case others included in the act and held bad should fall." [Quoting Dorchy v. Kansas, 264 U.S. 286, 290, 44 S.Ct. at 323, 324, 68 L.Ed.2d 686, 690 (1924).] 532 P.2d at 713. We conclude that the Board of Fisheries' intent was to make fishing regulations strict-liability offenses to the extent possible under law. Therefore we are confident that the Board would wish to preserve strict liability as a predicate for a noncriminal fine without surrendering the power to have those who negligently violate the regulations subject to imprisonment. Finally, we conclude that this intent can be given legal effect by viewing the Board's action in adopting 5 AAC 39.002 as in effect serving to separate each affected regulation into two offenses: a crime requiring a negligence mens rea punishable by possible imprisonment and a violation satisfied by strict liability but only punishable by a noncriminal fine or possible forfeiture. In order to insure that all those accused of fishing regulation violations receive due process the prosecutor should give notice in advance of trial of whether he or she will be seeking possible imprisonment as a penalty. Cf. Johansen v. State, 491 P.2d 759, 766 n. 27 (Alaska 1971) (in order to insure that proper procedures will be followed in contempt proceedings, prosecutor must announce at the beginning of a proceeding whether he or she is seeking a criminal contempt conviction with possible imprisonment as a sanction or only a finding of civil contempt). If the prosecutor seeks imprisonment as a penalty for the breach of a fishing regulation, the jury must be instructed on the applicable mens rea. In the absence of such notification by the prosecutor on the record the court should treat the matter as a prosecution of a violation and on conviction only impose appropriate sanctions. The judgment of conviction should also indicate whether the conviction was for a crime or only for a violation. Before setting out the reasons which lead us to this result a preliminary comment is in order. Since we find a legislative intent not to permit criminal offenses without mens rea in the absence of an express authorization to be determinative in this case, we need not address the legislature's authority to delegate to an agency the power to establish the elements of an offense including the mens rea. See United States v. Grimaud, 220 U.S. 506, 31 S.Ct. 480, 55 L.Ed. 563 (1911); W. LaFave & A. Scott, Criminal Law § 14 at 101-105 (1972); 1 Davis, Administrative Law § 3.11 (2d ed. 1978); Charney, The Need for Constitutional Protections for Defendants in Civil Penalty Cases, 59 Cornell L.Rev. 478 (1974); Abrahams and Snowden, Separation of Powers and Administrative Crimes: A Study oflrrecon-cilables, 1976 So.Ill.L.J. 1; Schwenk, The Administrative Crime, Its Creation and Punishment by Administrative Agencies, 42 Mich.L.Rev. 51 (1943). LaFave and Scott state the rules applicable to this question as follows: A legislature may delegate to an administrative agency the power to make rules, the violation of which is punishable as a crime by virtue of a penalty set by statute. But the legislature may not delegate the power to determine which administrative regulation shall carry criminal penalties, nor may it delegate the power of adjudication when criminal penalties are to be imposed. The legislature may make it a crime to violate an administrative order. W. LaFave and A. Scott, Criminal Law § 14 at 101 (1972). A fortiori we do not decide, in this case, whether the legislature may constitutionally give express authorization to an administrative agency to establish strict liability offenses which under applicable statutes are punishable by sentences of imprisonment. No statute provides such express authorization. Our inquiry is limited to deciding whether the legislature in fact intended to provide implicit authorization to agencies to adopt strict liability regulations which would be punishable by imprisonment. We begin our analysis of the Board of Fisheries' statutory authorization to enact regulations by considering four statutes: AS 11.81.220, AS 16.05.251, AS 44.62.020 and AS 44.62.030. Alaska Statute 11.81.220 provides: No conduct constitutes an offense unless it is made an offense (1) by this title; (2) by a statute outside this title; or (3) by a regulation authorized by and lawfully adopted under a statute. AS 16.05.251(a)(4): Regulations of the Board of Fisheries. (a) The Board of Fisheries may adopt regulations it considers advisable in accordance with the Administrative Procedure Act (AS 44.62) for (4) establishing the means and methods employed in the pursuit, capture and transport of fish; Alaska Statute 44.62.020 provides: Authority to adopt, administer, or enforce regulations. Except for the authority conferred upon the lieutenant governor ., AS 44.62.010-44.62.320 do not confer authority upon or augment the authority of a state agency to adopt, administer, or enforce a regulation. To be effective, each regulation adopted must be within the scope of authority transfered and in accordance with standards prescribed by other provisions of law. Alaska Statute 44.62.030 provides: Consistency between regulation and statute. If, by express or implied terms of a statute, a state agency has authority to adopt regulations to implement, interpret, make specific or otherwise carry out the provisions of the statute, no regulation adopted is valid or effective unless consistent with the statute and reasonably necessary to carry out the purposes of the statute. In summary, in determining whether a regulation is authorized by statute we look to four things. First, the scope of authority conferred by the authorizing statute. Second, the extent to which the regulation is in accordance with "standards prescribed by other provisions of law." AS 44.62.020. Third, the extent to which the regulation is consistent with the authorizing statute, and fourth, the extent to which the regulation is reasonably necessary to carry out the purpose of the authorizing statute. Applying these standards, we conclude that in the absence of express statutory authorization, an administrative regulation is not a strict liability offense if the violation is punishable by imprisonment because in the absence of express legislative authorization strict liability offenses are not in accordance with "standards prescribed by other provisions of law." We further conclude,that to the extent a regulation calls for a possible penalty of criminal imprisonment, strict liability is not reasonably necessary to carry out the purpose of the statutes authorizing the Board of Fisheries to adopt it. Thus imposing a prison sentence on someone convicted of violating an administrative regulation on the basis of strict liability fails two of the four tests for evaluating the validity of an administrative regulation. We will deal with these issues in turn. ABSENT EXPRESS STATUTORY AUTHORIZATION, IS AN ADMINISTRATIVE REGULATION BASED ON STRICT LIABILITY AND PUNISHA-' BLE BY IMPRISONMENT "IN ACCORDANCE WITH OTHER PROVISIONS OF LAW"? AS 01.10.010 provides in relevant part: Applicability of common law. So much of the common law not inconsistent with the Constitution of the State of Alaska or the Constitution of the United States or with any law passed by the legislature of the State of Alaska is the rule of decision in this state. The common law consists of judicial pronouncements in situations not dealing with a constitutional question or statutory interpretation unless and until modified by the Alaska legislature. See, e.g., Surina v. Buckalew, 629 P.2d 969, 973 (Alaska 1981). Consequently, in determining what standards are prescribed "by other provisions of law" (AS 44.62.020) to which administrative regulations must conform we must look (1) to the state and federal constitutions, (2) to statutes enacted by the legislature and (3) to appellate court decisions declaring the common law to the extent that they are not inconsistent with the constitution or a legislative enactment. Examination of these sources leads us to conclude that, in the absence of express statutory authorization, administrative agencies do not have the power to establish strict liability crimes but do have the power to establish strict liability violations. Looking first to the constitution, the courts of this state have consistently recognized that strict liability offenses punishable by possible imprisonment are of questionable constitutionality. See, e.g., State v. Rice, 626 P.2d 104 (Alaska 1981); Hentzner v. State, 613 P.2d 821 (Alaska 1980); Kimoktoak v. State, 584 P.2d 25 (Alaska 1978); Speidel v. State, 460 P.2d 77 (Alaska 1969). See also Reynolds v. State, 655 P.2d 1313 (Alaska App.1982). In Kimoktoak the court recognized the importance of the constitution in statutory interpretation when it said, Finally, we note that in Campbell, [State v. Campbell, 536 P.2d 105 (Alaska 1975)] we recognized the well-established rule of statutory construction that a court should if possible construe statutes so as to avoid the danger of unconstitutionality. We have alluded to this rule on many other occasions. It recognizes that the legislature, like the courts, is pledged to support the state and federal constitutions and that the courts, therefore, should presume that the legislature sought to act within constitutional limits. [Citation omitted.] 584 P.2d at 31. Recognizing that strict liability crimes were constitutionally suspect, the Kimokt-oak court construed an ambiguous statute to require mens rea. Closely related to the constitutional concerns expressed above is the position of the common law explicated in case law. To a limited extent the common law objections and constitutional objections to strict liability crimes overlap. A number of common law authorities which recognize the constitutionality of strict liability crimes, nevertheless criticize adoption of strict liability crimes on common law grounds. See, e.g., W. LaFave & A. Scott, Criminal Law § 31 at 218-223 (1972); Hall, General Principles of Criminal Law, 325-359 (2d ed. 1960); Mueller, Mens Rea and the Law Without It, 58 W.Va.L. Rev. 34- (1955). But see Wasserstrom, Strict Liability in the Criminal Law, 12 Stan.L.Rev. 731 (1960). LaFave & Scott summarize the arguments against strict liability as follows: Aside from the question of constitutionality, there is the question of wisdom in providing • for strict-liability crimes. The reasons for having statutes imposing criminal liability without fault are those of expediency: in some areas of conduct it is difficult to obtain convictions if the prosecution must prove fault; so enforcement requires strict liability. If the conduct to be stamped out is harmful enough, or if the number of prosecutions to be expected is great enough, the legislature may thus wish to make the absence of fault no defense, in order to relieve the prosecution of the task of going into the matter. For the most part, the commentators have been critical of strict-liability crimes. "The consensus can be summarily stated: to punish conduct without reference to the actor's state of mind is both inefficacious and unjust. It is ineffica-cious because conduct unaccompanied by an awareness of the factors making it criminal does not mark the actor as one who needs to be subjected to punishment in order to deter him or others from behaving similarly in the future, nor does it single him out as a socially dangerous individual who needs to be incapacitated or reformed. It is unjust because the actor is subjected to the stigma of a criminal conviction without being morally blameworthy. Consequently, on either a preventive or retributive theory of criminal punishment, the criminal sanction is inappropriate in the absence of mens rea." [Footnote omitted.] W. LaFave & A. Scott, Criminal Law § 31 at 222. Finally, and most importantly, the legislature's treatment of strict liability in the revised criminal code strongly militates in favor of construing statutes authorizing agencies to enact regulations defining crimes to require express statutory authorization before permitting an administrative agency to attach the potential punishment of imprisonment to conviction of a strict liability offense. AS 11.81.600(b) provides: A person is not guilty of an offense unless he acts with a culpable mental state, except that no culpable mental state must be proved (1) if the description of the offense does not specify a culpable mental state and the offense is (A) a violation; or (B) designated as one of "strict liability"; or (2) if a legislative intent to dispense with the culpable mental state requirement is present. The legislature has exercised great care to insure that strict liability will not be inferred in interpreting statutes. It seems reasonable to rely upon that decision to preclude an inference of legislative authorization for administrative agencies to establish a strict liability offense except to the extent that that offense would be a "violation" and imprisonment unavailable as a sanction. In summary, whether we look to the constitution, the common law or state statutes discussing the circumstances under which strict liability may be inferred, we are left with the conclusion that in the absence of express statutory authorization a regulation imposing strict liability but providing for punishment by possible imprisonment is not "in accordance with standards prescribed by other provisions of law." AS 44.62.020. IS STRICT LIABILITY NECESSARY TO CARRY OUT THE PURPOSE OF THE STATUTES AUTHORIZING THE FISHERIES BOARD TO ADOPT REGULATIONS AND MAKE THEIR VIOLATIONS CRIMINAL? In Kelly v. Zamarello, 486 P.2d 906, 911 (Alaska 1971) the Alaska Supreme Court concluded: Thus, where an administrative regulation has been adopted in accordance with the procedures set forth in the Administrative Procedure Act, and it appears that the legislature has intended to commit to the agency discretion as to the particular matter that forms the subject of the regulation, we will review the regulation in the following manner: First, we will ascertain whether the regulation is consistent with and reasonably necessary to carry out the purposes of the statutory provisions conferring rule-making authority on the agency. This aspect of review insures that the agency has not exceeded the power delegated by the legislature. Second, we will determine whether the regulation is reasonable and not arbitrary. This latter inquiry is proper in the review of any legislative enactment. In State v. Rice, 626 P.2d 104, 110 (Alaska 1981) the court indicated that a hunting regulation establishing strict liability without regard to knowledge of legality would bear no reasonable relation to a legitimate regulatory purpose. If this is so, then strict liability would not be necessary to carry out the statutory authorization found in AS 16.05.251(a)(4). The state argues vigorously that this court should not question the wisdom of the policy determination of the Joint Boards of Fisheries and Game, that the strict liability standard is necessary for effective enforcement of fish & game regulations; citing Kelly v. Zamarello, and Earth Resources Co. v. State Department of Revenue, 665 P.2d 960 (Alaska 1983). Essentially the state argues that the Joint Board was concerned that a due care defense, i.e., a requirement of a negligence mens rea or a reasonable mistake of fact defense (the two are virtually interchangeable) could so easily be feigned that fishermen would violate the regulations with impunity if the state were required to prove negligence. We are satisfied that the state has misunderstood the issue. Under our interpretation of the statute and implementing regulations, a fisherman who violates a regulation without fault is not free from any sanction. He is subject to a reasonable fine and at the very least the forfeiture of any fish illegally taken. Commercial fishing is a business; forfeiture of the fish illegally taken and in addition a fine should take the profit out of violations and deter most violators. It is only where the state seeks possible imprisonment as a penalty that a negligence mens rea must be proved. There is nothing in the record presented to the Board of Fisheries or the trial courts in these cases to support a finding that a penalty of imprisonment is necessary in the great majority of eases to effectively enforce the regulations. In fact, the evidence is to the contrary. See Statistical Analysis of Major Fish & Game Sentencing Outcomes in Alaska, Nicholas Maroules and Francis N. Troxell, Alaska Judicial Council (April 1983). Very few commercial fish offenders are actually ordered to serve time in jail. According to the state's brief on appeal Fish & Wildlife Protection records indicate that 16,182 persons were charged with fish and game offenses between January 1, 1983, and October 12, 1984. These records together with the Judicial Council study further show that only 95 commercial fish offenders were ordered to serve time in jail between 1973 and October 12, 1984 — .06 of 1% of all Fish & Game offenders. The state elaborates on this argument: Fish & Wildlife records do not show any person served time in jail in 1980 and that eleven persons served time in jail in 1981. Council records show that twenty-two persons served time in jail in 1980 and 1981. In order to arrive at the total of 95, it was assumed that eleven persons were ordered to serve jail sentences in 1980. While jail sentences are rare, there is at least the potential that a person convicted of multiple fishing violations could be sentenced to a substantial period of imprisonment. See, e.g., State v. Graybill, 695 P.2d 725 (Alaska 1985) (affirming consecutive sentences totaling seven years with five and one-half years suspended imposed on recidivist violator of hunting regulations). Under our interpretation of the Board's authority, the state is free to seek conviction and a fine under a theory of strict liability for violations exactly as they have in the past. It is only in the rarer case where the state desires imposition of a criminal penalty that it must show a negligence mens rea. Since it appears that the state in fact only asks for a penalty of imprisonment for substantial recidivists it is unlikely that it will have difficulty proving the requisite mens rea. See, e.g., Alaska Evidence Rule 404(b) which 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. Beran, Carlos, Most, and Park were convicted of fishing in closed waters. 5 AAC 24.310(c); 5 AAC 27.810(d). The state did not prove negligence. Beran received a sentence of a $4,000 fine with $1,500 suspended and 30 days' imprisonment with 30 days suspended. Carlos received a sentence of $3,000 with $2,250 suspended and 15 days' imprisonment with 15 days suspended. Most received the same sentence. Park received a sentence of a $1,500 fine with $1,000 suspended, and 15 days' imprisonment with 15 days suspended. Under our view of the applicable statute and regulations, fines in these amounts may be a permissible penalty for commercial violations. The suspended sentence is not. On remand, the state should determine whether it wishes to seek a criminal penalty from each of the appellants in which case reprosecution with appropriate jury instructions would be required. Al ternatively, the state may request that the suspended jail term be stricken from the judgment and the conviction be treated as one for a violation. See Nix v. State, 624 P.2d 823 (Alaska App.1981) (where defendant was necessarily found guilty of a lesser-included offense and the only errors requiring reversal relate to greater offense trial court may on remand enter conviction on lesser offense as an alternative to holding new trial). Should the state request an amended judgment and the appellant objects, the trial court should hear argument from the parties on the appropriateness of the fine suspended as a civil penalty. See State v. O'Neill Investigations, Inc., 609 P.2d 520, 537-38 (Alaska 1980) (Dimond J., concurring). The petitioners have not yet been tried. On remand the state shall elect in each case whether to seek a penalty of imprisonment, in which case a mens rea of negligence must be proved, or proceed on a theory of strict liability in which case the penalties to be imposed on conviction shall not exceed an appropriate fine. These cases are REMANDED for further proceedings consistent with this opinion. BRYNER, C.J., and COATS, J. concur. . In Beran, the court refused to instruct the jury that mens rea (literally, a guilty mind) was an element of the offense. In each of the three other cases on appeal, the court denied a pretrial motion for an instruction that would require a jury to find (at a minimum) negligence in order to convict. That motion being denied, the three men consented to bench trials. . Beran also urges that this court declare 5 AAC 39.002 invalid because the regulation was adopted allegedly without satisfying the notice requirements of the Alaska Administrative Procedures Act. AS 44.62.200. As Beran did not make this argument at trial nor did he list the issue in his statement of points on appeal, we will not consider this issue on appeal. .Elizabeth and David Iani also argue that Judge Carlson abused his discretion in denying their motion for a change of venue from Naknek to Kodiak. AS 22.10.030(d). We decline to decide the venue issue at this juncture. If the Ianis are ultimately convicted, they may pursue this issue on appeal. . We use the term "violation" as it is defined in AS 11.81.900(b)(56): "Violation" is a noncriminal offense punishable only by a fine, but not by imprisonment or other penalty; conviction of a violation does not give rise to any disability or legal disadvantage based on conviction of a crime; a person charged with a violation is not entitled (A) to a trial by jury; or (B) to have a public defender or other counsel appointed at public expense to represent him; See also AS 11.81.250(a)(6) (violations are offenses '"which characteristically involve conduct inappropriate to an orderly society but do not denote criminality in their commission'"). Violations are thus quasi-criminal. See State v. Clayton, 584 P.2d 1111, 1113 n. 4 (Alaska 1978). We use the term "noncriminal" fine to exclude fines "so heavy" that they indicate criminality. The distinction between "criminal" and "noncriminal" fines is made in a number of Alaska Supreme Court decisions which consider offenses for which a right to jury trial and the appointment of counsel attach. See Alexander v. Anchorage, 490 P.2d 910, 915 (Alaska 1971) (right to counsel) and Baker v. Fairbanks, 471 P.2d 386, 402 (Alaska 1970) (jury trial). Criminal prosecutions are defined to include those prosecutions whose penalty may include a period of imprisonment, the loss of a valuable license, or a fine so heavy that it indicates criminality. Alexander, 490 P.2d at 913. In these consolidated cases, the parties have concentrated on the significance of imprisonment as a penalty and have not considered the extent to which a substantial fine or the loss of a valuable license would require a finding of mens rea. Vie therefore do not resolve that issue. We note that the supreme court does not seem to consider either the size of a fine or the risk of loss of a license as significant in themselves but rather views them as indicative of the community's attitude toward the conduct in question. Wood v. Superior Court, 690 P.2d 1225, 1233 (Alaska 1984). In the supreme court's view, if an adverse judgment followed by the penalties under consideration serves to brand the defendant with the same stigma as a misdemeanor convic-tion, the penalties are criminal penalties and the defendant is entitled to the assistance of counsel and the right to a jury trial. See Alaska Public Defender Agency v. Superior Court, 584 P.2d 1106, 1110 (Alaska 1978) (discussing fines) and Alaska Board of Fish and Game v. Loesche, 537 P.2d 1122, 1125 (Alaska 1975) (discussing loss of a valuable license). The issue is discussed further in State v. O'Neill Investigations, Inc., 609 P.2d 520, 537-38 (Alaska 1980) (Dimond, J., concurring, joined by Rabinowitz, C.J.) (approving |5,000 fine as a civil penalty but noting the importance of the collateral consequences of an adverse judgment in determining criminality). See also Brown v. Multnomah County District Court, 280 Or. 95, 570 P.2d 52 (1977) (first offense of driving while intoxicated is a crime rather than an infraction despite the absence of imprisonment as a sanction because of collateral consequences). . We use the term "crime" as defined in AS 11.81.900(b)(9): "'crime' means an offense for which a sentence of imprisonment is authorized; a crime is either a felony or a misdemean- or." . The parties have not directly addressed the question whether Alaska law permits forfeitures other than a forfeiture of contraband for a violation of strict liability offenses. See State v. Rice, 626 P.2d 104, 110-115 (Alaska 1981). Cf. Resek v. State, — P.2d -, Op. No. 2972 (Alaska, August 30, 1985) (discussing forfeitures as civil or criminal penalties). Beran is the only person before this court in this proceeding who was convicted of an offense and he was not sentenced to such a forfeiture. It is therefore not necessary for us to decide this question at this time. See also n. 4 (regarding fines). . Also significant are AS 16.05.710 which provides: License forfeiture. Upon a first or second conviction of a person for a violation of AS 11.16.05.440-16.05.720 or a federal or state law or regulation for the protection of the commercial fish of the state, the court may, in addition to the penalty imposed by law, forfeit the commercial fishing license of the person for a period of one year. Upon a third conviction, the court may, in addition to the penalty imposed by law, forfeit the commercial fishing license for a period not the exceed three years. and AS 16.05.720 which provides: Penalties, (a) Except as modified by (c) of this section, a person who violates AS 16.05.-480-16.05.690 or the regulations of the department pertaining to commercial fisheries is guilty of a misdemeanor and upon conviction is punishable by a fine of not more than $5,000, or by imprisonment for not more than one year, or by both. (b) The court shall transmit the proceeds from all fines to the proper state officer for deposit to the general fund of the state. (c) A person who is convicted of commercial fishing in closed waters, commercial fishing during a closed period or season, or commercial fishing with unlawful gear including but not limited to nets, pots, tackle or other devices designed or employed to take fish commercially, is guilty of a misdemeanor and in addition to the penalty imposed under (a) of this section is punishable by a fine of not less than the gross value to the fisherman of the fish found on the vessel or at the fishing site at the time of the violation. Upon a third conviction of a person for a violation of this subsection, in addition to the forfeiture provision in AS 16.05.710, the fine shall be not less than three times the gross value to the fisherman of the fish found on the vessel or at the fishing site, or, if no fish are found on the vessel or at the fishing site, a fine of not more than $10,000. While these statutes purport to provide penalties for any violation of an administrative regulation they do not expressly address the question of mens rea or indicate whether differing penalties require a differing level of mens rea. In order to decide that question we must consider the interplay of these statutes with other statutes discussed in the text of this decision. We therefore do not consider the general reference to anyone violating a regulation as being guilty of a misdemeanor to preclude us from holding that someone who negligently, recklessly or intentionally violates a regulation is guilty of a misdemeanor but one who violates the regulation without fault is at most guilty of a violation. Reading all statutes in pari materia, we conclude that the legislature intended to permit th Board of Fisheries to adopt regulations the breach of which would be subject to civil or criminal penalties depending on the presence or absence of mens rea. In addition, the legislature has established appropriate penalties for the conduct proscribed. . AS 44.62.020-30 are part of the Alaska Administrative Procedure Act. This act was derived from former California law. Pan American Petroleum Co. v. Shell Oil Co., 455 P.2d 12, 21 n. 36 (Alaska 1969). We have not been cited to any cases or commentary from California helpful to an interpretation of these statutes. . We recognize that the Alaska Supreme Court has been more critical of strict liability than the courts of other jurisdictions, see, e.g., State v. Buttrey, 293 Or. 575, 651 P.2d 1075 (1982) (upholding constitutionality of statute which made driving without a license under some circumstances a class C felony absent any showing of mens rea. Buttrey received a five-year suspended imposition of sentence on condition, inter alia, that she serve one year's imprisonment.) We would point out in this regard that the line between strict liability and negligence is a narrow one. We apply an objective standard in determining negligence. Many of the United States Supreme Court cases which appear to authorize strict-liability offenses may be establishing a negligence standard with the duty defined to require a very high degree of care. See, e.g., United States v. International Minerals & Chemical Corp., 402 U.S. 558, 91 S.Ct. 1697, 29 L.Ed.2d 178 (1971) (where defendant engages in a heavily regulated industry he must be presumed to be aware of the terms and regulations); United States v. Freed, 401 U.S. 601, 91 S.Ct. 1112, 28 L.Ed.2d 356 (1971) (no specific intent required for receiving and possessing a firearm not registered to him). The scope of the duty which the law imposes on those engaged in commercial fishing is not an issue presented in this appeal. We assume that upon timely request the trial court will instruct the jury regarding the specific duties which the law imposes upon the defendant in a given case. . The Revised Criminal Code is based upon the Model Penal Code (Approved Draft 1962), Neit-zel v. State, 655 P.2d 325, 327 (Alaska App.1982). Consequently, recognition of what the legislature altered, modified or eliminated from the Model Penal Code is useful in determining legislative intent. Id. The Model Penal Code makes its culpability requirements applicable to offenses defined by statutes outside the Code. MPC § 2.05. The revised code does not. AS 11.81.640. The reasons for this change do not appear in the Commentary to the Revised Criminal Code set out in the Senate Journal. See, Supp. No. 47 in 2 Senate Journal (1978) (regarding "Construction of Statutes with respect to Culpability" and "Effect of Ignorance or Mistake on Liability"), following p. 1413. The issue is not discussed in the tentative draft of the revised code. See Alaska Criminal Code Revision Part 2, at 7-24 (Tent.Draft 1977); Part 5 at 6-10 (Tent.Draft 1978). A number of reasons might explain the legislature's action without establishing legislative intent to implicitly authorize agencies to establish strict liability offenses punishable by imprisonment. We therefore recognize the problem posed by AS 11.81.640 but adhere to the views expressed in the text of this opinion. Cf. Adams v. Waddell, 543 P.2d 215, 217-18 (Alaska 1975) (while exercise of option to purchase real estate is expressly excluded from coverage under Article II of the UCC, court construing former may consider principles found in latter as relevant recent legislative judgment) Regó v. Decker, 482 P.2d 834, 838 (Alaska 1971) (accord). . We do not suggest that prior convictions of strict liability fishing offenses are automatically admissible to disprove a reasonable mistake of fact defense. The proper interpretation and application of A.R.E. 404(b) and 403 are matters committed to the sound discretion of the trial court. . See n. 4 supra. .We hold that every fish and game regulation comprises both a crime requiring mens rea and a violation which differs from the crime only in that a conviction does not require a finding of . mens rea. The parties have not briefed and we do not decide whether a violation is therefore a Iesser-included offense of every fish and game violation prosecuted as a crime. . Nothing in this opinion would preclude a trial court from imposing a forfeiture as a penalty for conviction of a violation if after argument it is convinced such a penalty is authorized by the statutes and the constitution.

9476462

Robert J. RIDDELL, Appellant, v. Irvin H. EDWARDS, Appellee

Riddell v. Edwards

2001-10-05

No. S-9326

4

10

32 P.3d 4

32

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T18:00:13.572446+00:00

CAP

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

Robert J. RIDDELL, Appellant, v. Irvin H. EDWARDS, Appellee.

Robert J. RIDDELL, Appellant, v. Irvin H. EDWARDS, Appellee. No. S-9326. Supreme Court of Alaska. Oct. 5, 2001. Robert J. Riddell, pro se, Ward Cove. Bryan T. Schulz, Holman & Schulz, Ket-chikan, for Appellee (no brief filed). Before FABE, Chief Justice, and MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.

3486

21247

OPINION BRYNER, Justice. I. INTRODUCTION After Lillie M. Rahm-Riddell passed away in September 1997, her brother, Irvin H. Edwards, and her husband, Robert J. Rid-dell, filed competing requests to probate wills that Lillie had executed in 1992 and 1997. The 1992 will left most of Lillie's estate to Edwards; the 1997 will left almost everything to Riddell. After a bench trial, Superi- or Court Judge Larry R. Weeks declared the 1997 will invalid, concluding that Lillie was incompetent when she executed it and that she acted under Riddell's undue influence. Finding that the 1992 will was valid, Judge Weeks admitted it to probate. Riddell appeals, challenging these findings and arguing that he was entitled to a jury trial We affirm, holding that Riddell had no statutory or constitutional right to a jury trial in a probate proceeding and that the superior court did not clearly err in finding Lillie's 1997 will invalid for lack of testamentary capacity. II. FACTS AND PROCEEDINGS Lillie N. Rahm-Riddell was a long-time resident of Ketchikan. Lillie met Robert Riddell in December 1998, when she was in her early nineties and Riddell was in his mid-sixties. Riddell began working as Lillie's handyman, performing odd-jobs around her house. «Their relationship quickly developed, and within months of their meeting, Riddell and Lillie began living together in Lillie's home and at a cabin in Eagle Creek. Although Riddell provided companionship and assistance to Lillie, her friends came to believe that he discouraged independent communication with Lillie. Further, they often felt uncomfortable around Riddell because he was rude and abusive toward them. In April 1995 Lillie revoked a power of attorney that gave her daughter, Anita May Zugoff, access to her funds. Lillie also transferred money from an Alaska Federal Savings & Loan account to three separate accounts at Bank of America. Riddell had access to all information concerning her new bank accounts. When Edwards attempted to discuss these transfers with Lillie, Riddell intervened and would not allow him to talk to Lillie; according to Edwards, Lillie seemed confused about the monetary transfers. These actions led Zugoff to petition for appointment of a conservator on April 27, 1995. While the conservatorship proceeding was pending, Riddell married Lillie in a ceremony performed in Ketchikan on May 1, 1995. In January 1996 Superior Court Judge Thomas M. Jahnke appointed the Public Guardian as Lillie's primary conservator. Several months later, a court-appointed attorney filed a domestic violence petition against Riddell on Lillie's behalf. The petition was prompted by reports that Lillie, the Public Guardian, Lillie's part-time care taker, her hospital, and attorneys involved in her case had been subjected to physical attacks or verbal threats by Riddell. After a hearing, Superior Court Judge Patricia A. Collins granted the petition, finding that Riddell had abused Lillie and enjoining Riddell from contact with her. The Office of Public Advocacy subsequently arranged for Lillie to be placed in an assisted living home in Washington. She lived there until Riddell located her; Riddell removed Lillie from the home and moved her to Oregon. He refused to reveal Lillie's location, even after the superior court expressly ordered him to do so. Lillie died September 4, 1997, in Springfield, Oregon. Lillie executed three different wills in the five years preceding her death. Lillie's attorney, Richard Whittaker, prepared the first will, which Lillis executed on August 14, 1992. The 1992 will left Lillie's brother, Edwards, an undivided one-half of her estate; it left her daughter, Zugoff, an undivided one-quarter of her estate; and it left two grandchildren undivided eighths of her estate. Lillie signed a second will on June 3, 1994. According to Riddell, he prepared the 1994 will at Lillie's request. This will nominated Riddell as Lillie's personal representative and left him her "home and property . and all the furniture, appliances, pictures, tools and whatever is deemed necessary and needed for his confortable [sic] living in my home." It gave Edwards an undivided three-fourths of any monies remaining after payment of claims against the estate and costs of administration, while leaving Riddell the remaining one-fourth of the monies. Zu-goff received nothing but Lillie's station wagon. On January 29, 1997, almost eight months before she died, Lillie executed a will in Springfield, Oregon. This will left her entire estate to Riddell and expressly disinherited her brother, daughter, and grandchildren. Riddell also prepared this will. Two months after Lillie's death, on November 10, 1997, Edwards filed an application for informal probate of Lillie's 1992 will and requested appointment as personal representative. In February 1998 Riddell filed an application for informal probate of Lillie's 1997 will, asking to be appointed as personal representative. No one requested probate of the 1994 will. Riddell moved to dismiss Edwards's probate application, arguing that Lillie's 1997 will revoked her 1992 will. Edwards opposed the motion, challenging the 1997 will as invalid due to Lillie's lack of testamentary capacity and Riddell's undue influence. Judge Weeks denied Riddell's motion to dismiss, finding triable issues of fact concerning the validity of the 1997 will. Riddell demanded a jury trial; Judge Weeks denied this motion and proceeded to hold a bench trial on the competing requests for probate. Upon conclusion of the trial, Judge Weeks issued a memorandum decision finding that the 1997 will was invalid due to lack of testamentary capacity and the presence of undue influence. Finding that Edwards had established that the 1992 will was properly executed, Judge Weeks admitted the will to probate and appointed Edwards personal representative. Riddell filed this appeal. III, DISCUSSION A. Riddell Was Not Entitled To a Jury Trial. Riddell contends that the superior court erred in denying his motions for a jury trial. This claim raises a question of law that we review de novo. In denying Riddell's demand for a jury trial, Judge Weeks determined that, because probate matters are generally equitable in nature, no right to a jury trial ordinarily exists in a probate case unless expressly authorized by statute Judge Weeks relied on McGill v. Wahi for the proposition that "[the Alaska Constitution preserves a jury trial only for those causes of action which are legal, and not equitable in nature." In that case, we concluded that, because the McQills' claim for a prescriptive easement was "in the nature of an equitable claim and was historically tried in the courts of equity," the were not entitled to a jury trial Riddell nonetheless cites Alaska Probate Rule 11, AS 18.06.085 and In re Estate of McCoy, elaiming that these authorities "show[ ] that Jury Trials in probate cases are allowed in the State of Alaska, therefore, [Riddell] was and is entitled to a jury trial." But Riddell misinterprets these authorities. Alaska Statute 18.06.085(a) only entitles a party in a probate case to a jury trial when "any controverted question of fact arises as to which any party has a constitutional right to trial by jury." Article I, section 16 of the Alaska Constitution, guarantees parties the right to a jury trial only to the extent that the right existed at common law: "In civil cases where the amount in controversy exceeds two hundred fifty dollars, the right of trial by a jury of twelve is preserved to the same extent as it existed at common law." Riddell was thus entitled to a jury trial under AS 18.06.085(a) only to the extent that the common law preserved such a right as to the facts at issue in this case. Here, as the superior court correctly recognized, will contests are "unknown to the common law" and exist only as permitted by statute. As the court also correctly recognized, because probate matters are equitable, and because no constitutional right to a jury trial exists in matters of equity, the Alaska Constitution does not guarantee jury trials in will contest cases. Riddell cites no statute creating a right to jury trial in such cases, and we are aware of none. Therefore, we affirm the trial court's denial of Riddell's motion for a jury trial. B. The Superior Court Did Not Clearly Err in Declaring the 1997 Will Invalid. Riddell next contends that the superior court erred in declaring the 1997 will invalid and in admitting the 1992 will to probate. When decisions of "testamentary capacity depend[ ] largely, if not entirely, on oral testimony given by witnesses seen and heard by the trial judge, [it is the superior court's] province to judge their credibility, and we may not reverse [its] decision unless we find it to be clearly erroneous." The superior court's factual findings are clearly erroneous only "if we are left with 'a definite and firm conviction on the entire record that a mistake has been made, although there may be evidence to support the finding. " We review all evidence in the light most favorable to the party prevailing below." Riddell opposed Edwards's petition for probate of the 1992 will, alleging that the 1997 will was properly executed and that it revoked the 1992 will. Under AS 13.16.170 the "[plroponents of a will have the burden of establishing prima facie proof of due execution in all cases, and if they are also petitioners, prima facie proof of death and venue." The statute further provides that "[clontes-tants of a will have the burden of establishing . revocation." Judge Weeks found that the 1992 "will was proved up at this trial and Mr. Whittaker testified [Lillie] was competent at the time. No one contradicted that testimony." Riddell does not specifically challenge this finding. He contends that the 1997 will revoked the 1992 will. In Alaska a will may be revoked by a physical act of revocation or by execution of a subsequent will that revokes the previous will either expressly or by inconsistency. Under Alaska law, marriage does not revoke a preexisting will." It follows that Riddell could prevail only by establishing the validity of the 1997 will, which expressly revoked Lillie's prior wills. Here, even though the 1997 will appeared to be correctly executed, it was open to challenge on grounds of testamentary capacity, fraud, or undue influence. The trial court found lack of testamentary capacity and undue influence. Judge Weeks determined that Lillie lacked the requisite testamentary capacity to execute her 1997 will under the standard set out in Paskvan v. Mesich: Disease, great weakness, the use of alcohol and drugs, and approaching death do not alone render a testator incompetent to make a will. The question is always whether, in spite of these things, [a testator} had sufficient mental capacity to understand the nature and extent of [her] property, the natural or proper objects of [her] bounty, and the nature of [her] testamentary act. To meet this standard, Lillie had to have testamentary capacity at the time she executed her 1997 will. As we recently said in In re Estate of Kottke, "a deficiency on any one of the three elements [of testamentary capacity] invalidates the will." Based on the evidence presented at trial, Judge Weeks determined that Lillie was incompetent at the time she executed her 1997 will. He found that Lillie "suffered from Alzheimer's disease and/or senile dementia from 1998 until her death. She undoubtedly confabulated when she was forgetful and was very forgetful. She would make up stories to cover her forgetfulness and those stories would often result in erroneous and inaceu-rate information being transmitted." This finding is supported by testimony from at least four doctors who all agreed that Lillie suffered from dementia, Alzheimer's disease, or both. Further, in both March and November of 1995, two of these doctors determined that Lillie was incompetent to manage her financial affairs. Indeed, all witnesses at trial except Riddell and his relatives believed that Lillie was incompetent to manage her affairs. Dr. Lasse, a court-appointed psychologist, even noted that Lillis was confused about her relationship with Riddell. Judge Weeks also considered Superior Court Judge Thomas M. Jabhnke's earlier memorandum and order regarding Lillie's conservatorship, which appointed a public guardian to act as Lillie's conservator on January 30, 1996. Judge Jahnke's order stated that "[alt numerous points in her conversation with the court, [Lillie] was utterly confused about the status of people in her life and about her own capabilities." Our review of the record convinces us that Judge Weeks's finding of testamentary incapacity is supported by substantial evidence and is not clearly erroneous. Indeed, overwhelming evidence suggests that Lillie was incompetent and did not understand the extent of her estate or the status of her personal relationships. Thus, we affirm the superior court's decision invalidating the 1997 will. Because Lillie's 1997 will was invalid, and Riddell did not otherwise challenge the validity of the 1992 will, we also affirm the superior court's order admitting the 1992 will to probate. IV. CONCLUSION We AFFIRM the superior court's decision. . Cf. McGill v. Wahl, 839 P.2d 393, 396 (Alaska 1992). . Focusing on a sentence in the superior court's written decision that states "[the Alaska Su- ' preme Court has said there is right to a jury trial in equity cases in this state," Riddell claims that the superior court engaged in "deceitfulness, bias, prejudice, and contempt" by denying him a jury trial. In context, however, it is obvious that the superior court simply committed a clerical error by omitting the word "no'" between the words "is" and "right" in its written decision. As we explain in the text, our prior cases make it clear that there is no right to a jury trial in cases of equity. . McGill, 839 P.2d at 396; see also Alaska Const. art. 1, § 16. . McGill, 839 P.2d at 396. . Probate Rule 11 provides: A demand for jury trial pursuant to AS 13.06.085 is governed by Civil Rules 38 and 39, except that the demand must be served no later than 20 days after service of the first pleading directed to a triable issue or five days before the scheduled hearing, whichever is earlier. The first pleading in a creditor's claim is the petition for allowance. The demand for jury trial must specify the issues to be tried by jury and the legal basis supporting the right to jury trial on those issues. . AS 13.06.085 provides: (a) If duly demanded, a party is entitled to trial by jury in any proceeding in which any controverted question of fact arises as to which any party has a constitutional right to trial by jury. (b) If there is no right to trial by jury under (a) of this section or the right is waived, the court in its discretion may call a jury to decide any issue of fact, in which case the verdict is advisory only. . 844 P.2d 1131 (Alaska 1993). . 80 Am.Jur.2d Wills § 1026 (1975); see also 47 Ara.Jur.2d Jury § 51 (1995); 3 William J. Bowe & Douglas H. Parker, Page on the Law of Wills § 26.85 (rev. ed. 1961) ("[Nlo constitutional right exists to a trial by jury in a proceeding to probate or contest a will."). . See McGill v. Wahl, 839 P.2d 393, 396 (Alaska 1992). . Although Probate Rule 11 evidently contemplates a jury trial in some probate cases, since it describes how the right should be implemented, see supra, note 5, the rule's provisions do not support Riddell's position. Probate cases are not confined to will contests, but often involve creditors' claims, which raise contract issues that traditionally are matters at law and, as such, are triable before juries. Probate Rule 11, which expressly refers to "a creditor's claim," appears to address these situations. . In re Estate of Kraft, 374 P.2d 413, 416 (Alaska 1962); see also Alaska R. Civ. P. 52(a); Paskvan v. Mesich, 455 P.2d 229, 232 (Alaska 1969). . In re Estate of Kottke, 6 P.3d 243, 245 (Alaska 2000) (quoting Mathis v. Meyeres, 574 P.2d 447, 449 (Alaska 1978)); see also Paskvan, 455 P.2d at 232, 240. . See Kottke, 6 P.3d at 245 (citing Mathis, 574 P.2d at 449). . AS 13.16.170. . Riddell separately maintains that, even if the 1997 will is invalid, the 1994 will independently revoked the 1992 will; according to Riddell, then, the court should have admitted the 1994 will instead of the 1992 will. But Riddell never applied to admit the 1994 will to probate or argued that it had priority over the 1992 will. Accordingly, we deem this argument to be waived. See Zeman v. Lufthansa German Airlines, 699 P.2d 1274, 1280 (Alaska 1985) ("As a general rule, a party may not present new issues or advance new theories to secure reversal of a lower court decision."). . See AS 13.12.507. . Alaska Statute 13.12.301(a) provides that a testator's surviving spouse, who married the testator after the testator executed a will, is entitled to receive, as an intestate share, no less than the value of the share of the estate the surviving spouse would have received if the testator had died intestate as to that portion of the testator's estate, if any, that neither is devised to a child of the testator who was born before the testator married the surviving spouse and who is not a child of the surviving spouse nor is devised to a descendant of such a child or passes under AS 13.12.603 or 13.12.604 to such a child or to a descendant of such a child, unless (1) it appears from the will or other evidence that the will was made in contemplation of the testator's marriage to the surviving spouse; (2) the will expresses the intention that it is to be effective notwithstanding a subsequent marriage; or (3) the testator provided for the spouse by transfer outside the will and the intent that the transfer be in lieu of a testamentary provision is shown by the testator's statements or is reasonably inferred from the amount of the transfer or other evidence. Moreover, in conformity with the Uniform Probate Code, AS 13.12.508 states that "[elxcept as provided in AS 13.12.8033 [effect of testator's homicide by beneficiary] and 13.12.804 [revocation of probate and nonprobate transfers by divorce], a change of circumstances does not revoke a will or a part of it." See also Uniform Probate Code § 2-508 (1993). Therefore, although marriage is a change in circumstances, it does not revoke a pre-existing will. . See 95 C.J.S. Wills § 274(d)(1) (1957); 2 William J. Bowe & Douglas H. Parker, Page on the Law of Wills § 21.27 (rev. ed.1960). . Paskvan, 455 P.2d at 234 (quoting In re Estate of Kraft, 374 P.2d 413, 416 (Alaska 1962)). . See 1 William J. Bowe & Douglas H. Parker, Page on the Law of Wills § 12.2 (rev. ed.1960). . 6 P.3d 243, 246 (Alaska 2000). . Alzheimer's disease is a progressive, degenerative condition. . Lillie once stated that "[Riddell has] been my right hand man, and now he's mine;" but on another occasion she stated that [Riddell is] not my husband; he's a boarder." . That proceeding was limited to the appointment of a conservator for Lillie, but Judge Jahnke noted that there is "substantial overlap in the issues that must be addressed by a court in evaluating one's competency to manage one's financial affairs and one's competency to assent to a marriage and make a will"; examples include testamentary capacity and undue influence. . Judge Jahnke's earlier findings are significant. Although we recognized in Paskvan v. Mesich that a finding of incompetency in a guardianship proceeding does not necessarily determine the issue of testamentary capacity, we further held that the finding in the guardianship proceeding is "evidence to be considered, along with other evidence, on the issue of testamentary capacity." 455 P.2d at 238-39 (internal citations omitted); see also 2 William J. Bowe & Douglas H. Parker, Page on the Law of Wills § 21.27 (rev. ed.1961). Judge Weeks recognized that there may be "instances when a person is incompetent followed by other times when a person may be competent and that sequence may continue for many years." But the judge expressly concluded that Lillie "did not know the extent of her property at the time of the last will in January 1997." . The trial court independently found the 1997 will invalid on the ground of undue influence. A finding of undue influence presupposes the existence of testamentary capacity. See 1 William J. Bowe & Douglas H. Parker, Page on the Law of Wills § 15.4 (1960) ("Undue influence is said to presuppose mental capacity, and to require it as essential to the existence of undue influence. This is true as far as the absence of mental capacity renders the will invalid, and makes any inquiry into undue influence unnecessary."). Our decision affirming the finding that Lillie lacked testamentary capacity makes it unnecessary to address the court's added finding of undue influence.

10360034

Jack B. BUSTER, Appellant, v. James R. GALE, Thomas A. Westerhof and Mary E. Westerhof, Appellees

Buster v. Gale

1994-01-14

No. S-5020

837

846

866 P.2d 837

866

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:03:10.210501+00:00

CAP

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

Jack B. BUSTER, Appellant, v. James R. GALE, Thomas A. Westerhof and Mary E. Westerhof, Appellees.

Jack B. BUSTER, Appellant, v. James R. GALE, Thomas A. Westerhof and Mary E. Westerhof, Appellees. No. S-5020. Supreme Court of Alaska. Jan. 14, 1994. Hal P. Gazaway, P.C., Anchorage, for appellant. Susan D. Mack, James T. Stanley, P.C., Anchorage, for appellees. Before MOORE, C.J., and RABINOWITZ, BURKE, MATTHEWS and COMPTON, JJ.

5262

31359

OPINION RABINOWITZ, Justice. I. FACTS AND LOWER COURT PROCEEDINGS In June 1984 James Gale, Thomas Wester-hof, and Mary Westerhof (Gale and the Westerhofs) executed a deed of trust in favor of Cameron Milliron and M. Jo Milliron (the Millirons), as security for an obligation of $44,000. The signatures of Gale and the Westerhofs were notarized, and the deed of trust was recorded. Jack Buster (Buster) argues that Gale and the Westerhofs additionally signed a deed of trust note (the note), in which they assumed the $44,000 debt to the Millirons. The Milli-rons assigned the note to Robert Baines and Christine Baines (the Baineses) in May 1985. The assignment was certified and recorded. In his deposition, Robert Baines stated that alter Gale and the Westerhofs had defaulted on their payments in September 1986, he "closed the escrow and took possession of the original deed of trust note." Baines also stated in his deposition that he gave the note to Buster in May 1988. The location of the note after this time is unclear. Buster testified that Robert Baines instituted an action to collect on the note in 1988, and that at that time, Buster had the original note. Buster further testified that he believed that he later accidentally threw the note out "in a frenzy of housecleaning." According to Buster, all three original documents — the deed of trust, the note, and the assignment from the Millirons to the Baines-es — were lost. In May 1988, before moving from Alaska to Paris, France, the Baineses executed general powers of attorney in Buster's favor. Buster further claims that under these general powers of attorney, he assigned the note to himself "as Robert Baines' attomey-in-fact" on January 16, 1990. Buster testified that he wrote this assignment on the back of the original note. Also on January 16, Buster filed a complaint against Gale and the Westerhofs to recover on the note. In December 1990, Buster met with Gale and Thomas Westerhof to discuss a settlement between the parties. Gale and Wester-hof offered Buster $8,000 to settle the dispute. According to Thomas Westerhofs testimony, Buster reached into his briefcase at this point to pull out the note, and discovered that he did not have it. Buster then went home to look for the note, but was unable to find it. No formal settlement was ever reached between Buster, the Westerhofs, and Gale. Buster states that he signed a second assignment of the note "signed by me for Christine Baines as her power of attorney" on January 23, 1991. During direct examination, Buster testified that he wrote this assignment on the back of the original note. However, during cross-examination, Buster admitted that he had been unable to produce the note at the December 1990 meeting between himself, Gale, and Thomas Westerhof. Buster then stated that he must have written the January 23 assignment on the back of a copy. In March 1991, Buster listed Robert Baines on his preliminary witness list. Buster then deposed Baines in Anchorage in July 1991. At this deposition, Baines indicated that he then resided in London, England. When questioned about his availability for trial in Alaska in December 1991, Baines responded that he did not anticipate being in Alaska but stated: "[I]f it's necessary, well, we'll — we'll make arrangements." Three days prior to the commencement of the superior court trial Buster filed a designation of deposition testimony, indicating his intent to use the Robert Baines deposition. At trial, Gale and the Westerhofs objected to the use of the deposition of Robert Baines, claiming that there was no showing that Baines was unavailable. Buster testified that Robert Baines had told him, one month prior to trial, that he would be travelling in North Africa for two or three weeks, and then would be returning to London. The superior court found that Robert Baines might be an essential witness, and that the record did not adequately reflect Baines' unavailability. The court held that Robert Baines' deposition would not be admitted, but offered a continuance of the trial: "Probably the best way to handle this would be to close all the discovery except a beefed up deposition, maybe even by phone, of Mr. Baines, although it sounds like somebody wants him to be here. I'd be willing to search for a one-day spot on the trial calendar." Both parties turned down the superior court's suggested continuance. At trial, Buster sought to admit into evidence a document titled Plaintiffs Trial Exhibit # 1 (Exhibit # 1), which consisted of a copy of what was purported to be the note including the endorsements from the Milli-rons to the Baineses, and from the Baineses to Buster. Buster testified that at some point after he realized that the original was lost, he wrote "certified to be a true and exact copy of the original" on the copy, and signed his name. Buster argued that under Alaska Rule of Evidence 1003, he did not have to establish the admissibility of the purported copy of the note and signature page by clear and convincing evidence. Buster further argued that Gale and the Westerhofs had not contested the contents of the note or its original execution in their responses to his requests for admission. The superior court refused to admit the copy. Gale and Thomas Westerhof testified that they recognized their signatures on the copy, but that they could not remember if the contents of the copy were the same as what they had signed. They testified that they had not retained any copies of the note in their records. Gale and the Westerhofs argued that Buster's claim on the lost note was governed by former AS 45.03.804, that the appropriate standard of proof for that statute was clear and convincing evidence, and that Buster had failed to meet this burden. Upon conclusion of the non-jury trial, the superior court entered findings of fact and conclusions of law. The court found that "Jack Buster's testimony is not unworthy of belief, although his testimony lacks corroboration." In its conclusions of law the superi- or court stated in part: 1. AS 45.03.804 provides the procedure by which the owner of a lost promissory note is to maintain an action to recover on said note. 2. Plaintiff has the burden of establishing ownership of the lost note, and the circumstances surrounding the loss of the note, followed by proving the terms and conditions of the note. 3. The applicable standard of proof to be met by plaintiff pursuant to AS 45.03.804 is the clear and convincing standard. 5. Plaintiff has not met his burden of proof and is therefore not the prevailing party in this action. 6. Defendants are entitled to judgment in this action and plaintiff shall take nothing by way of his complaint. Thereafter a formal judgment was entered dismissing Buster's claim for relief and awarding Gale and the Westerhofs attorney's fees of $4,430.40 and costs of $1,423.78. This appeal followed. Three questions are presented in this appeal. First, did the superior court err in excluding Buster's purported copy of the note? Second, did the superior court err in precluding Buster's introduction of Robert Baines' deposition into evidence? Third, did the superior court err in holding that Buster had failed to prove his right to recover on the note? II. DISCUSSION A. Did the Superior Court Err in Excluding Buster's Exhibit # 1? Buster argues that the superior court erred in requiring that he establish the authenticity of Exhibit # 1 by clear and convincing evidence. Buster contends that he produced the proper evidentiary foundation for the admission of the document under Alaska Rules of Evidence 901, 1003, and 1004. 1. Did the Superior Court Err in Holding that the Burden of Proof for Admissibility of Buster's Exhibit #1 Was Clear And Convincing Evidence? Exhibit # 1 was alleged to be a true and accurate copy of a lost original. Generally, the original of a document is required to be produced at trial under the so-called "best evidence" rule. See 2 McCormick on Evidence § 229 (John William Strong ed., 4th ed. 1992). Nonetheless, the Alaska Rules of Evidence establish liberal guidelines for admission of copies. Evidence Rule 1003 states: A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original. Evidence Rule 1004 states in relevant part: The original is not required, and other evidence of the contents of a writing . is admissible if (a) . All originals are lost or have been destroyed, unless the proponents in bad faith lost or destroyed them.... Evidence Rule 901 states the general rule for authenticating documents: The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.... The basic requirement of authentication was defined as follows in McQueeney v. Wilmington Trust Co., 779 F.2d 916 (3d Cir.1985): The burden of proof for authentication [of documents] is slight. "All that is required is a foundation from which the fact-finder could legitimately infer that the evidence is what the proponent claims it to be." Id. at 928 (quoting In re Japanese Elec. Prod. Antitrust Litig., 723 F.2d 238, 285 (3d Cir.1983), rev'd on other grounds sub nom. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). Implicit in the superior court's exclusion of Exhibit # 1 is the assumption that since the authenticity of the copy could not be established by clear and convincing evidence, the document was not admissible. We disagree. The appropriate standard of proof for the initial determination of admissibility of a copy is reached by combining the basic standard for admissibility of original documents, as expressed in McQueeney, with an additional requirement that when either of the two conditions of Evidence Rule 1003 are met, the proponent must also establish one of the four exceptions of Evidence Rule 1004. 2. Was Buster's Proof of the Copy's Authenticity Sufficient to Warrant Its Admission into Evidence? This question can be expanded as follows: Did Buster establish a foundation from which the factfinder could legitimately infer that the copy of the note and endorsements was authentic, and if so, given that an Evidence Rule 1003 objection was raised, did Buster establish admissibility under Evidence Rule 1004? Buster sought to establish that the three-page exhibit, including the endorsements, was identical to the lost original. Thus, in the context of Evidence Rule 1003, "the original" refers not only to the two-page note, but also to the third page of signatures. As a result of the substantive law implicated by the claim, namely former AS 45.03.202(b), and his own testimony, Buster needed to prove that the signature page was in fact a copy of the back of the note. We conclude that Buster met this burden. Buster's own testimony provided the basis for a legitimate inference that the first two pages of the note (its terms and conditions) were in fact identical to the original note that Gale and the Westerhofs signed. As observed earlier, both Gále and Thomas West-erhof testified that they recognized their signatures, and neither challenged the terms of the note. Particularly compelling is the fact that in their cross-motion for partial summary judgment, Gale and the Westerhofs attached an exhibit which consisted of a copy of a deed of trust note identical in text to the copy Buster sought to introduce. This same exhibit attached to the cross-motion by Gale and the Westerhofs contained a copy of the endorsement page, which included all of the endorsements at issue except Christine Baines' assignment to Buster. Thus we hold that the superior court erred in refusing to admit into evidence Buster's Exhibit # 1. The exhibit was admissible to show that Gale and the Westerhofs executed the note and its terms, and that the note was endorsed by the Millirons and by Robert Baines through Buster, his attorney-in-fact. B. Did the Superior Court Err in Finding that Robert Baines Was Not "Unavailable" Under Alaska Civil Rule 32(a)(3)(B)? Buster argues that the superior court erred in its ruling that the deposition of Robert Baines could not be used at trial. Alaska Civil Rule 32 governs the use of non-party witnesses' depositions at trial: (a) At the trial . any part or all of a deposition . may be used against any party who was present or represented at the taking of the deposition or had reasonable notice thereof, in accordance with any of the following provisions: (3) The deposition of a witness whether or not a party, may be used by any party for any purpose if the court finds . (B) that the witness is at a greater distance than 100 miles from the place of trial or hearing, or is out of the state, unless it appears that the absence of the witness was procured by the party offering the deposition. . Gale and the Westerhofs were represented at the deposition by their attorney. During the deposition, Robert Baines had stated that he could come to Alaska for the trial if it were necessary. At trial, Buster stated that for Baines to come to Anchorage would involve a costly flight from London, England. Buster argued that this expense might not be justified based on Buster's belief that there was a good chance that Gale and the Wester-hofs would declare bankruptcy if he received an affirmative judgment. In ruling that use of the deposition would not be allowed, the superior court stated that "the record does not affirmatively reflect by affidavit or sworn testimony [Baines'] unavailability. ." At the conclusion of trial, the judge noted: Mr. Buster says that it's his belief that about someplace in this time frame Baines may be in North Africa . Mr. Buster would not even contend that that is the same as saying that he's not available to be here. Citing to In re Adoption of IJW, 565 P.2d 842 (Alaska 1977), Buster argues that the trial court failed to make a factual determination as to whether the conditions of Civil Rule 32 were satisfied and instead "focused on a lack of showing of the unavailability of Baines to testify at trial." Gale and the Westerhofs argue that Baines should not be presumed to be unavailable for three reasons: (1) Baines' initial presence in Anchorage for the deposition mandates a higher requirement of proof of subsequent unavailability; (2) Baines stated at the deposition that he could be available in Anchorage for trial, if necessary; and (3) the evidence of Baines' actual location at the time of trial was inconclusive. We hold that the superior court erred in its ruling that Buster could not introduce into evidence Robert Baines' deposition. Under the parallel federal rule it has been held that deposition testimony of witnesses living more than 100 miles from the place of trial is freely admissible at trial. Klepal v. Pennsylvania R.R. Co., 229 F.2d 610, 612 (2d Cir.1956). As to the requisite showing necessary for admission of deposition testimony, Professor Moore states: "Although the proximity of a witness is to be measured at the time the deposition is offered, a showing that the witness resided beyond the 100-mile distance at some recent earlier time will usually be sufficient to admit the deposition, in the absence of evidence to the contrary." See 4A James W. Moore & Jo Desha Lucas, Moore's Federal Practice ¶ 32.05, at 32-32 to 32-33 (2d ed. 1993) (footnote omitted); see also IJW, 565 P.2d at 846. The record discloses that Buster established that Baines was not within 100 miles of the place of trial at the time of trial. Thus we conclude that the superior court's ruling was erroneous. C. Did The Superior Court Err in Holding that Buster Failed to Present Clear And Convincing Evidence of His Right to Recover on the Note? Our earlier holdings that the superior court erred in its refusal to admit into evidence Exhibit # 1 and Robert Baines' deposition testimony would normally require a remand for mew trial. On the other hand, review of the record persuades us that a new trial is unnecessary, since we conclude that on the basis of the evidence admitted at trial the superior court erred in holding that Buster failed to present clear and convincing evidence of his right to recover on the note. On the contrary, Buster proved all the elements of his right to recover on the note under former AS 45.03.804. Our starting point is the well established common law doctrine that an unintentional loss of a written evidence of debt does not extinguish the rights and obligations of the parties thereto. Bottum v. Herr, 83 S.D. 542, 162 N.W.2d 880, 884 (1968); 52 Am. Jur.2d Lost and Destroyed Instruments § 2 (2d ed. 1970). In recognition of this principle, and the historic common law remedies afforded in law and equity to the owner of a lost instrument, the drafters of the Uniform Commercial Code provided: The owner of an instrument which is lost, whether by destruction, theft or otherwise, may maintain an action in his own name and recover from any party liable thereon upon due proof of his ownership, the facts which prevent his production of the instrument and its terms. The court may require security indemnifying the defendant against loss by reason of further claims on the instrument. Former U.C.C. § 3-804 (superseded 1990). At the time of the events leading to this litigation, this provision of the U.C.C. was part of Alaska statutory law. See former AS 45.03.804. In order to determine whether the superi- or court erred in its ruling that Buster failed to prove his claim under former AS 45.03.-804, we must first determine if the superior court correctly held that "clear and convincing evidence" is the appropriate burden of proof for actions under former AS 45.03.804. Courts that have addressed this burden of proof issue under similar statutory provisions have required proof by "clear and convincing" evidence. See, e.g., Castellano v. Bitkower, 216 Neb. 806, 346 N.W.2d 249, 252 (1984) (stating that the appropriate standard of evidence regarding lost notes is "clear and convincing" evidence); Lutz v. Gatlin, 22 Wash.App. 424, 590 P.2d 359, 361 (1979) ("To establish a lost instrument, the evidence must be clear, cogent and convincing"). Clear and convincing evidence has been characterized as evidence that is greater than a preponderance, but less than proof beyond a reasonable doubt. Castellano provides a useful statement of the standard, holding that "clear and convincing evidence means and is that amount of evidence which produces in the trier of fact a firm belief or conviction about the existence of a fact to be proved." 216 Neb. 806, 346 N.W.2d at 253; see also Welton v. Gallagher, 2 Haw.App. 242, 630 P.2d 1077, 1081 (1981), offd, 65 Haw. 528, 654 P.2d 1349 (1982). We believe that the clear and convincing evidence standard adopted by the superi- or court is the appropriate standard of proof under former AS 45.03.804, as it provides the heightened scrutiny that is necessary to ensure that a party claiming to have lost physi cal control over an instrument was in fact the rightful owner of the instrument. This heightened standard should reduce the instances where multiple parties come forward to claim ownership of a missing note. While the statute envisions such a problem and accordingly provides that a court may require the posting of security to indemnify the defendant against future claimants, the heightened burden of proof serves as an additional safeguard. We next address whether the superi- or court erred in its conclusion that Buster failed to present clear and convincing evidence of his right to recover on the note. Under the provisions of former AS 45.03.-804, Buster must establish (a) the facts which prevent production of the instrument, (b) the terms of the instrument, and (c) "due proof of ownership." We address these issues seri-atim. Upon review of the record we believe that Buster's uncontradicted evidence clearly and convincingly established that the note in question was unintentionally lost. Similarly, study of the evidence persuades us that Buster clearly and convincingly established the terms of the note. We reach this conclusion for essentially the same reasons identified in our earlier discussion of the admissibility of Exhibit # l. Proof of Buster's ownership of the note involves the following critical links: (1) the initial promise to pay embodied in the note by Gale and the Westerhofs to the Millirons; (2) the subsequent assignment of the note by the Millirons to the Baineses; (3) proof that Buster was given general powers of attorney by the Baineses; and (4) the conveyances, through the general powers of attorney, of the Baineses' interest in the note to Buster. We conclude that Buster clearly and convincingly proved that Gale and the Wester-hofs executed a deed of trust note on June 14, 1984, in the principal sum of $44,000 to the Millirons. The unrefuted evidence also shows that the Millirons assigned their interests in the note to the Baineses in May 1985. It is also uncontradieted that the Baineses granted general powers of attorney to Buster in May 1988. Lastly, we are persuaded that the evidence in the record clearly and convincingly establishes that under the unre-voked general powers of attorney given him by the Baineses, Buster conveyed both of their interests in the note to himself. In light of the above, we hold that Buster has clearly and convincingly proved ownership of the note as well as the remaining elements of a claim under former AS 45.03.804. V. CONCLUSION The matter is REVERSED and REMANDED to the superior court with directions to vacate its judgment and award of attorney's fees and costs, and to enter an appropriate judgment for Buster under the deed of trust note. In fashioning its judgment on remand the superior court shall determine whether it will require security to indemnify Gale and the Westerhofs against loss by reason of further claims on the deed of trust note. . The deposition was ruled inadmissible at trial, and this evidentiary ruling is one of the issues in this appeal. . Buster testified that this action was dismissed for lack of prosecution. . Buster attached a copy of the note to the complaint, but he did not attach a copy of the back of the note, where the endorsement and assignment signatures allegedly were located. . Buster testified: "I executed this to correct an oversight in the previous assignment of 1990 where I'd failed to note that Christine Baines was also the holder of this note . so I executed an assignment of whatever interest she may have also to myself." . Buster also deposed Christine Baines at the same time he deposed Robert Baines, and excerpts from the "Christine M. Baines deposition taken July 18, 1991" were included in Buster's designation of deposition testimony. . An attachment to the April 1991 cross-motion for partial summary judgment filed by Gale and the Westerhofs consisted of an identical copy of the note and an endorsement page including all of the endorsements at issue except the assignment of the interest of Christine Baines. . Additionally, Gale and the Westerhofs claimed as an affirmative defense that "[Buster] contracted with defendants to accept $8,000.00 in exchange for the original deed of trust note and dismissal of this action." This point was not argued with much enthusiasm at trial, and is not relevant to the appeal. .In its oral opinion the superior court informed counsel for the Westerhofs and Gale that I've rejected your ownership argument and I've rejected your accord and satisfaction argument, decided simply on the narrow issue that [Buster] fails to meet his clear and convincing burden and therefore obtain the admission of [Exhibit # 1], without which his case fails. . This case involves the review of both questions of law and evidentiary proceedings. The appropriate standard of review for questions of law is substitution of judgment. Langdon v. Champion, 745 P.2d 1371, 1372 n. 2 (Alaska 1987); Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979). The appropriate standard of review for evidentiary decisions is abuse of discretion. Dura Corp. v. Harned, 703 P.2d 396, 409 (Alaska 1985). This court has stated that "[w]e will find that a trial court abused its discretion only 'when we are left with a definite and firm conviction, after reviewing the whole record, that the trial court erred in its ruling.' " Id. at 409 (quoting Peter Pan Seafoods, Inc. v. Stepanoff, 650 P.2d 375, 378-79 (Alaska 1982)). . Two primary justifications have been advanced for this rule: first, the principle that the original words of a document are the most cer-tarn proof of its terms; and second, the idea that production of the original of a document is a safeguard against fraud. Id. § 231. In actions on an instrument such as a promissory note, the production of the original is important for both of these reasons. .A distinction between the initial admissibility of evidence and its ultimate weight has been drawn by treatises discussing Federal Rule of Evidence 901, which is comparable in its main body to Alaska Rule of Evidence 901: In reaching its determination [regarding admissibility], the court must view all the evidence introduced as to authentication or identification, including issues of credibility, most favorably to the proponent. The ultimate decision as to whether a person, document, or item of real or demonstrative evidence is as pur ported is for the trier of fact_ [U]pon consideration of the evidence as a whole, if a sufficient foundation has been laid in support of introduction, contradictory evidence goes to the weight to be assigned by the trier of fact and not to admissibility. Michael H. Graham, Federal Practice and Procedure § 6821, at 850 (interim ed. 1992). . Former AS 45.03.202(b) provided that to negotiate an instrument, "[a]n endorsement must be written by or on behalf of the holder and on the instrument or on a paper so firmly affixed to the instrument thereto as to become a part of the instrument." Buster testified that the endorsements had been written on the back of the note. . Buster testified that three weeks prior to trial he received a call from Robert Baines and that Baines told him that "he was in London and he and his wife were on their way to North Africa somewhere for two or three weeks, and then they'd be returning to London." . The official comment to this section read: Purposes: This section is new.' It is intended to provide a method of recovery on instruments which are lost, destroyed or stolen. The plaintiff who claims to be the owner of such an instrument is not a holder as that term is defined in this Act, since he is not in possession of the paper, and he does not have the holder's prima facie right to recover under the section on the burden of establishing signatures. He must prove his case. He must establish the terms of the instrument and his ownership, and must account for its absence. If the claimant testifies falsely, or if the instrument subsequently turns up in the hands of a holder in due course, the obligor may be subjected to double liability. The court is therefore authorized to require security indemnifying the obligor against loss by reason of such possibilities. There may be cases in which so muqh time has elapsed, or there is so little possible doubt as to the destruction of the instrument and its ownership that there is no good reason to require the security. The requirement is therefore not an absolute one, and the matter is left to the discretion of the court. Article 3 of the U.C.C. was substantially revised in 1990. See 2 U.L.A. 5 (1991). As a result, significant changes occurred in the language of § 3-804. This section has been renumbered § 3-309, and it reads as follows: (a) A person not in possession of an instrument is entitled to enforce the instrument if (i) the person was in possession of the instrument and entitled to enforce it when loss of possession occurred, (ii) the loss of possession was not the result of a transfer by the person or a lawful seizure, and (iii) the person cannot reasonably obtain possession of the instrument because the instrument was destroyed, its whereabouts cannot be determined, or it is in the wrongful possession of an unknown person or a person that cannot be found or is not amenable to service of process. (b) A person seeking enforcement of an instrument under subsection (a) must prove the terms of the instrument and the person's right to enforce the instrument. If that proof is made, Section 3-308 applies to the case as if the person seeking enforcement had produced the instrument. The court may not enter judgment in favor of the person seeking enforcement unless it finds that the person required to pay the instrument is adequately protected against loss that might occur by reason of a claim by another person to enforce the instrument. Adequate protection may be provided by any reasonable means. The legislature recently amended AS 45.03, adopting language which substantially conforms with the new changes in the U.C.C. See AS 45.03.309. . In part, the record reveals the following testimony on Buster's part: Q What happened to the original of the deed of trust note? A I discarded the original note by error. Q How? A I'd had a previous collection matter with Mr. Westerhof and had maintained that file just for — in case that there was some ancillary information that might be of use to me in there, and I married the two files, that is, the old file and the new file, the new file being the one that contained this particular note. And in a frenzy of housecleaning one day I decided that there was no information in the old file on Mr. Westerhof and I threw it in the garbage along with a number of other files. It wasn't until some time later that I — that I reasoned that I must have included this new file or this particular — the original to this note in that file and discarded it, because it was nowhere to be found and that's the only explanation that I have. Buster testified further that during settlement negotiations with Gale and Thomas Westerhof I went back because these gentlemen were still waiting for me and I told 'em I couldn't find the note and that until I could find the note or determine what happened to it, there wasn't any point in proceeding further. Then they went away, I went back and made a more thorough and careful search of all my files and records and — an exhaustive search, and couldn't find it. . In addition to the evidence previously referred to we note that counsel for Gale and the Wester-hofs stipulated that they signed the note and that it had a principal amount of $44,000. . Our resolution of this appeal makes it unnecessary to address any other issues raised herein.

9477389

John BRUNS and Dennis Saathoff, Appellants, v. MUNICIPALITY OF ANCHORAGE, ANCHORAGE WATER & WASTEWATER UTILITY, Appellee

Bruns v. Municipality of Anchorage, Anchorage Water & Wastewater Utility

2001-06-01

No. S-9394

362

372

32 P.3d 362

32

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T18:00:13.572446+00:00

CAP

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

John BRUNS and Dennis Saathoff, Appellants, v. MUNICIPALITY OF ANCHORAGE, ANCHORAGE WATER & WASTEWATER UTILITY, Appellee.

John BRUNS and Dennis Saathoff, Appellants, v. MUNICIPALITY OF ANCHORAGE, ANCHORAGE WATER & WASTEWATER UTILITY, Appellee. No. S-9394. Supreme Court of Alaska. June 1, 2001. Rehearing Denied Aug. 14, 2001. Kenneth W. Legacki, Anchorage, for Appellants. Theresa Hillhouse, Assistant Municipal Attorney, Mary K. Hughes, Municipal Attorney, Anchorage, and Jill D. Bowman, Stoel Rives LLP, Seattle, WA, for Appellee. Before FABE, Chief Justice, MATTIIEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.

5061

32312

OPINION FABE, Chief Justice. I. INTRODUCTION John Bruns and Dennis Saathoff. former general foremen for the Municipality of Anchorage's Anchorage Water and Wastewater Utility, filed suit in Anchorage Superior Court in 1996 claiming back overtime pay. Bruns and Saathoff alleged that the Municipality owed them overtime pay under federal, state, and municipal law. The superior court granted the Municipality's motion for summary judgment and dismissed the plaintiffs' claims on the basis that the plaintiffs failed to exhaust their administrative remedies. Bruns and Saathoff have appealed this decision. Because Bruns and Saathoff alleged that they were threatened with discharge if they pursued their administrative remedies, there is a factual issue as to whether their failure to exhaust administrative remedies was excused. Therefore, we reverse and remand to the superior court for trial of this factual issue. II. FACTS AND PROCEEDINGS John Bruns and Dennis Saathoff are former employees of the Anchorage Water and Wastewater Utility, a utility owned by the Municipality of Anchorage. Both Bruns and Saathoff spent the last phases of their careers at Anchorage Water and Wastewater Utility as general foremen. Bruns was a general foreman from June 11, 1983 until his retirement on January 26, 1996. Saathoff was a general foreman from 1979 or 1980 until his retirement on April 29, 1994. As general foremen, Bruns and Saathoff were "non-represented employees" and not within a union's bargaining unit. The Municipality has an ordinance governing overtime pay for non-represented Municipal employees such as Bruns and Saathoff. Anchorage Municipal Code (AMC) 3.30.129(B)(1) states as a general rule that "overtime" work must be compensated at one and one-half times the normal pay rate. Sometime during 1995 it came to the attention of Thomas Tierney, Director of the Municipality's Department of Employee Relations, that the Municipality was inconsistently applying AMC 8.30.129. In a meeting on October 3, 1995, Tierney reported to the mayor and other Municipality officials that many non-represented Municipality employees were entitled to overtime pay under AMC 3.30.129 but were not receiving it. Ti-erney explained that the employees did not "put in" for the overtime because they had the impression that they were not entitled to it. At the same time, the Municipality considered amending AMC 8.30.129 to eliminate overtime compensation for non-represented employees earning salaries above a certain level, including both Bruns and Saathoff. The Municipality eventually passed an amendment that eliminated overtime for some employees-but for fewer than originally contemplated. This change took place after Bruns and Saathoff both retired. Both Bruns and Saathoff claim that they worked overtime during their tenure as general foremen, and were not fully compensated for this overtime work. Bruns claims that he responded to an average of nine "call-outs a year, and he claimed overtime for at least some of these However, Bruns was not paid for all of the call-outs that he claimed. Bruns also asserts that he was eligible for "standby" pay but did not put in for it until the last few months of his career, because he was under the impression that he would not get it if he asked for it. Saathoff also claims that he was on standby and did many call-outs, and was not paid overtime pay for any of these services. On March 1, 1996, Bruns and Saathoff together filed suit against the Municipality in Anchorage Superior Court, claiming an entitlement to back overtime pay. Because they based one claim on the federal Fair Labor Standards Act (FLSA), the Municipality removed the case to the U.S. District Court in Anchorage. Bruns and Saathoff also made claims under state and municipal law; the U.S. District Court exercised supplemental jurisdiction over these claims. The U.S. District Court granted the Municipality's motion for summary judgment on the federal law claims, because Bruns and Saathoff were "exempt" employees not subject to the FLSA. It remanded claims under state and municipal law to the superior court. The U.S. District Court entered final judgment, and the U.S. Court of Appeals for the Ninth Cireuit affirmed the grant of summary judgment. In the superior court, the Municipality moved for summary judgment on the plaintiffs' state and municipal law elaims. Bruns and Saathoff filed an opposition to these motions, and the superior court granted the Municipality's motions for summary judgment, ruling that Bruns and Saathoff failed to exhaust their administrative remedies. The Municipality moved for an award of attorney's fees and costs, and the superior court awarded $24,421.00 in attorney's fees to the Municipality. Bruns and Saathoff appeal the superior court's rulings. III. STANDARD OF REVIEW This is an appeal of summary judgment entered by a superior court, and therefore should be reviewed de novo. We will affirm a summary judgment if there are no genuine issues of material fact and if the moving party is entitled to judgment as a matter of law. This appeal requires us to decide whether the doctrine of exhaustion of administrative remedies applies to a particular claim; this is a question of law that we review de novo. If this doctrine applies, we will review for abuse of discretion the lower court's findings on whether the available administrative remedies were actually exhausted. Any conclusions of law, such as the conclusion that the failure to exhaust was excused, will be reviewed using our independent judgment. IV, DISCUSSION In the superior court, the Municipality sue-cessfully moved for summary judgment on all claims asserted by Bruns and Saathoff, The plaintiffs had two different groups of claims in this suit: (1) a state law claim under the Alaska Wage and Hour Act; and (i) a municipal law claim under AMC 3.30.129(B) and AS 28.05.140(b). The plaintiffs have only appealed the dismissal of their municipal law claims under AMC 3.830.129(B) and AS 23.05.140(b). Bruns and Saathoff have abandoned their state law (Alaska Wage and Hour Act) claims on appeal, because the Municipality is exempted from the Alaska Wage and Hour Act under AS 28.10.055(5). Therefore, the Alaska Wage and Hour Act is not applicable to this case. The municipal law claims made by Bruns and Saathoff arise under AMC 8.30.129(B), which requires the Municipality to pay overtime compensation to its employees under some circumstances. This municipal law claim is bound up with a state statute, former AS 28.05.140(b), which provided: If the employment is terminated, regardless of the cause of termination, all wages, salaries, or other compensation for labor or services become due immediately and shall be paid within three working days after the termination at the place where the employee is usually paid or at a location agreed upon by the employer and employee. Former AS 23.05.140(b) required an employer to pay all wages due, including overtime, upon termination of the employee. Anchorage Municipal Code 3.30.129(B), in turn defines what wages are due, and are therefore required to be paid by AS 23.05.140(b) Anchorage Municipal Code 3.30.129(B) states as a general rule that approved overtime work in excess of forty hours per week must be compensated at one and one-half times the normal pay rate. The ordinance also defines and requires compensation for two specialized types of overtime pay-"call-out" pay and "standby" pay. As already noted, the plaintiffs claim that they are entitled to overtime pay owed to them under AMC 8.30.129(B); if this is true, AS 28.05.140(b) demands that they be paid these wages, since they must be paid wages due to them after termination. However, the superior court, in its decision granting the Municipality's motion for summary judgment, held that the plaintiffs' municipal law claim is foreclosed, because the plaintiffs failed to exhaust the administrative remedies available under AMC 3.30.101. Anchorage Municipal Code 8.30.101 provides for a three-step procedure for grievances filed by employees because of disputes concerning AMC 3.30.129 and other matters. The three steps are: (1) "informal discussion,".(2) decision by agency head after receipt of a written grievance, and (8) decision by the mayor's office. We have stated that the analysis of the doctrine of exhaustion of administrative remedies involves three questions. In applying the doctrine of exhaustion of remedies, we must decide the following: (a) is exhaustion of remedies required?; (b) did the complainant exhaust those remedies?; and (c) is the failure to exhaust remedies exeused? These three questions will be discussed in turn. A. Bruns and Saathoff Were Required to Exhaust Their Administrative Remedies. Generally, employees must exhaust any administrative remedies that they have before pursuing direct judicial actions against their employers. And, as the Municipality argues, there were administrative remedies available to Bruns and Saathoff; AMC 3.30.100-.102 provides a three-step procedure for grievances-such as those had by Bruns and Saathoff-concerning alleged violations of Title 3, Chapter 30 of the Anchorage Municipal Code. The superior court held that the plaintiffs were required to exhaust the administrative remedies available under AMC 8.30.100-102. The issue of whether an employee is required to exhaust administrative remedies is a question of law that we review de novo. As we have held previously, employees who have a dispute with the Municipality over some provision of the Municipality's "Personnel Rules" are subject to the requirement that employees must exhaust the administrative remedies available to them before seeking judicial relief. In Municipality of Anchorage v. Higgins, we considered a case where a plaintiff employee of the Municipality filed suit because he was reclassified from a "classified" to an "executive" employee of the Municipality. We held that the employee in Higgins failed to exhaust the remedies available under AMC 3.30.101 before proceeding with judicial action. Like the employee in Higgins, Bruns and Saathoff have asserted claims under the Municipality's Personnel Rules. Therefore, like the employee in Higgins, they must exhaust the administrative remedies available under AMC 8.30.101. In two arguments, the plaintiffs claim that, nevertheless, they were not required to exhaust the remedies available under AMC 3.30.101. The plaintiffs claim: (1) that their claim is really a state claim under AS 23.05.140(b), and that there is no exhaustion of remedies requirement for AS 23.05.140(b); and (2) that the exhaustion of remedies requirement does not apply because the plaintiffs are challenging the validity of a statute and not any particular agency decision. For the reasons stated below, we reject both of these arguments. 1. The requirements of AMC 3.30.129(B) mast be fulfilled before AS 28.05.140(b) is considered. The plaintiffs argue that they were not required to exhaust their administrative remedies because the exhaustion requirement does not apply to AS 28.05.140(b), and that their claims under AMC 8.30.129(B) are better construed as claims under AS 23.05.140(b). Specifically, the plaintiffs claim that there is no exhaustion requirement for AS 23.05.140, that AS 28.05.140 creates rights that are "non-waivable" and not subject to administrative proceedings, that the Municipality is attempting to enforce a fifteen-day "private" statute of limitations that does not apply to AS 28.05.140, and that the grievance process of AMC 8.80.101 is "preempted" by AS 28.05.140. All of these arguments amount to this: the plaintiffs argue that their municipal law claim under AMC 3.30.129(B) is better construed as a state law claim under AS 28.05.140(b), and for the four reasons above, the exhaustion requirement does not apply to AS 23.05.140(b). The plaintiffs' arguments here fail for one central reason: a violation of AMC 3.30.129(B) is really the predicate for a violation of AS 28.05.1406). Alaska Statute 28.05.140(b) only requires employers to pay all wages due to terminated employees within three days of termination. However, AS 28.05.140(b) does not define what wages are due, or impose any requirements on employers that any specific wages, including overtime wages, will be due. Anchorage Municipal Code 8.30.129(B), on the other hand, defines what overtime wages are due, by defining and requiring overtime, call-out, and standby pay. As already established, the plaintiffs had to exhaust administrative remedies before bringing a claim for a violation of AMC 8.30.129(B). The plaintiffs cannot show a violation of AS 28.05.140(b) without first showing a violation of AMC 3.30.129(B), so they cannot escape the exhaustion of administrative remedies requirement. In reaching this conclusion we are guided by our previous decisions concerning the application of AS 28.05.140(b). In Reed v. Mu-mierpality of Amchorage, we considered a suit brought by an employee for unpaid wages under AS 28.05.140(b). We held that this claim should be construed as a claim under the underlying collective bargaining agreement that defines what wages are due to the employee: We do not believe that [the employee's] cause of action is strictly or solely an action for liability upon a statute [AS 28.05.140(b)]. Rather, we construe [the employee's] cause of action in Count I to allege a breach of the collective bargaining agreement.... The agreement contains the specified wage rates at which employees . are required to be paid. Both parties agree that they are bound by the collective bargaining agreement. The Mu-micwpality's failure to pay the specified wage would be a violation of the collective bargaining agreement. Thus, [the employee's] complaint alleging that the Municipality failed to pay these rates may be construed to state a cause of action for breach of the collective bargaining agreement. In Reed, we also held that the six-year contract limitations period for the underlying collective bargaining agreement would apply to the employee's claim, rather than the two-year limitations period for AS 28.05.140(b). In Quinn v. Alaska State Employees Ass'n, we considered a suit brought by an employee for unpaid overtime under AS 28.05.140(b). Quinn also stands for the proposition that the underlying authority that defines what wages are due-in Quinn, the Alaska Wage and Hour Act-must be looked to first to determine if wages are due. In Quinn, we held that claims barred under the Alaska Wage and Hour Act are not "revived" by AS 28.05.140(b) Quinn and Reed together indicate that, for a cause of action under AS 28.05.140(b), the court should look first to the underlying statute or agreement that resolves the question of what wages are due. As we held in Reed and Quinn, claims under AS 28.05.140 are to be construed as claims under the underlying authority that defines what wages are due. Alaska Statute 25.05.14" does not create "non-waivable" rights because it grants no rights at all unless the wages are owed under AMC 3.30.129(B) or some other authority. Reed establishes that the limitations period for AS 28.05.140 does not trump the limitations period for the underlying authority that establishes what wages are due; this also indicates that AMC 3.80.129(B) (as the underlying authority) and AMC 3.30.101 are not preempted by AS 28.05.140. Because the amount of wages must be established by AMC 3.30.129(B) before applying AS 28.05.140(b), we reject each of the arguments made by the plaintiffs concerning the independence of their AS 28.05.140(b) 2. Bruns and Saathoff sought an administrative remedy. The plaintiffs also claim that they were not required to exhaust their administrative remedies because they were challenging the validity of a statute, and not an administrative decision, and under those cireumstances, exhaustion is not required. In State Department of Transportation & Public Facilities v. Fairbanks North Star Borough, and Carter v. Alaska Public Employees Ass'n, we held that exhaustion of administrative remedies is not required when an administrative remedy is not appropriate. An administrative remedy is not appropriate when the claimant challenges the validity of a statute authorizing or requiring administrative action and does not seek a particular analysis or application of a statute. In other words, exhaustion is required when the plaintiff seeks relief that the administrative agency in question could have (but didn't) grant-this relief is "administrative." On the other hand, if the plaintiff seeks relief that the administrative agency could not have granted, such as overturning or interpreting a statute, exhaustion is not required because the relief sought is "judicial." Bruns and Saathoff claim that exhaustion was not required in their case because they do not challenge any particular agency decision. However, Bruns and Saa-thoff seek a clearly administrative remedy-they seek payment of allegedly due overtime wages. Bruns and Saathoff do not ask us to interpret or overturn provisions of state and federal law-rather, they ask this court to enforee these provisions. Therefore, Bruns and Saathoff seek an administrative remedy and were therefore required to exhaust their administrative remedies. B. Bruns and Saathoff Did Not Exhaust the Available Administrative Remedies. The parties do not dispute that Bruns and Saathoff failed to exhaust the available administrative remedies. Both parties agree that Saathoff only proceeded through the first step of the three-step grievance process under AMC 3.30.101, by discussing with his supervisors his dissatisfaction with the overtime pay situation. And, Bruns only proceeded through the second step of the three-step grievance process. Bruns discussed the matter with his supervisors and then filed a written grievance on November 3, 1995 with Tom Tierney, the Municipality's Director of Employee Relations. After Tierney denied Bruns's request for retroactive overtime pay, however, Bruns did not proceed to the third step of the procedure by appealing the matter to the mayor's office. Therefore, neither Bruns nor Saathoff proceeded through all three steps of the administrative process required by AMC 8.30.101, and neither exhausted his administrative remedies. C. The Failure to Exhaust Administrative Remedies May Be Excused. We have previously held that even if a plaintiff failed to exhaust her administrative remedies, the plaintiff may still seek judicial relief if the failure is excused. The superi- or court held that the failure of Bruns and Saathoff to exhaust the available administrative remedies is not excused. We will review this decision, which is a conclusion of law, using our independent judgment. Bruns and Saathoff argue that their failure to exhaust the available administrative remedies is excused because threats of retaliatory discharge dissuaded them from going ahead with the grievance process. We have stated that the failure to exhaust administrative remedies is excused "where the administrative remedy is inadequate or where the pursuit of the administrative remedy would be futile due to the certainty of an adverse decision." We have never considered the issue of whether fear of retaliatory discharge excuses failure to exhaust administrative remedies. However, fear of retaliatory discharge, like futility, bias, or other defects in the administrative process, can make pursuit of administrative remedies difficult or ineffective, and in some cireumstances can excuse the employee's failure to exhaust available administrative remedies. Bruns and Saathoff have both stated under oath that they were threatened with retaliatory discharge when they brought up the subject of overtime pay with their immediate supervisors. This presents a factual question of whether threats were actually made that might excuse the plaintiffs' failure to exhaust their administrative remedies. The superior court failed to address this factual issue explicitly and even if it did so implicitly, a material factual issue remains that prevents summary judgment. V. CONCLUSION Bruns and Saathoff were required to exhaust the available administrative remedies provided by AMC 8.80.101 before bringing this judicial action against the Municipality, and they failed to do so. However, because the plaintiffs alleged under oath that they were threatened with retaliatory discharge if they pursued their administrative remedies, there is a factual issue as to whether the failure is excused. Therefore, we REVERSE the superior court's grant of summary judgment and award of attorney's fees, and REMAND for further proceedings. . Overtime work must be approved by the agency head and includes hours actually worked in excess of 40 hours in a week. AMC 3.30.129(B)(1). . Anchorage Ordinance 96-55 (April 2, 1996) (amendment AMC 3.30.129). . In a "call-out," an employee is "called out" to perform overtime work after completing a scheduled shift. See AMC 3.30.129(B)(2). . An employee is on "standby" status when the employee must remain available for work outside of regularly scheduled working hours. See AMC 3.30.129(B)(3). . In this opinion, Bruns and Saathoff will sometimes be referred to collectively as "the plaintiffs." . 29 U.S.C. § 201-219. . Bruns v. Municipality of Anchorage, No. 97-36060, 1999 WL 288910, 182 F.3d 924 (9th Cir. May 10, 1999) (unpublished opinion). . See Moore v. Allstate Ins. Co., 995 P.2d 231, 233 (Alaska 2000). . See id.; Alaska R.Civ.P. 56(c). . See State, Dep't of Transp. & Pub. Facilities v. Fairbanks North Star Borough, 936 P.2d 1259, 1260 n. 3 (Alaska 1997). . See State v. Beard, 960 P.2d 1, 5 (Alaska 1998). . See id. . The Alaska Wage and Hour Act claims made by Bruns and Saathoff were claims under AS 23.10.060(b) and AS 23.10.110. . AS 23.10.055 states in part, "The provisions of AS 23.10.050-23.10.150 do not apply to . (5) an individual employed by the United States or by the state or political subdivision of the state." . Former AS 23.05.140(b) (1983). . This is because AS 23.05.140(b) by itself does not define what wages are due-it simply requires that wages that are due be paid. . AMC 3.30129(B)(1). . Former AMC 3.30.129(B) provides: Pay rates for overtime premium pay. 1. Time and one-half pay. Employees shall be paid at one and one-half times their regular rate of pay for all hours actually worked in excess of 40 hours in one week.... 2. Call-out pay. When an employee has completed his scheduled shift and is "called out" to perform additional work, he shall receive overtime pay for actual hours worked with a minimum guarantee of four hours' pay at the employee's straight time hourly rate. Overtime pay shall be paid in accordance with subsection B.1 of this section. 3. Standby pay. In cases where it is found necessary to have employees remain available for work in a standby status after regularly scheduled hours, on scheduled days off, or holidays, they shall receive two hours' pay at the straight time rate for each day of such duty. When such an employee is called out for work, the standby pay shall be credited toward the minimum call-out payment. . AMC 3.30.100 defines a "grievance" (subject to the procedure in AMC 3.30.101) as a "dispute involving the interpretation, application or alleged violation of any section of this chapter [including AMC 3.30.129]." . AMC 3.30.101 provides: A grievance shall be processed in accordance with the procedures and within the time limits stated in this section and section 3.30.102. A. Step 1-Informal Discussion The aggrieved employee shall discuss the grievance with the agency head. If the grievance cannot be resolved informally through discussion, it shall then be reduced to writing as a formal grievance, and the written grievance shall be submitted to the agency head. The written grievance must be submitted within 15 days of the date that the employee knows or has reason to know of the conduct or actions upon which the grievance is based. Failure to notify the municipality within the specified time limits identified in the procedure shall constitute a bar to further action on the alleged grievance.... B. Step 2-Decision by Agency Head Upon receipt of [the written grievance submitted in Step 1], an agency head shall, within five working days, respond in writing. Upon receipt of the agency head's response, the employee shall have five working days to appeal the decision in writing to the mayor. If the employee fails to appeal the agency head's decision within five days, such failure to respond will serve to declare the grievance as settled based upon the agency head's decision. C. Step 3-Decision by Mayor Within five working days of receipt of a written appeal from the decision of the agency head, the mayor or his designee shall review the matter and respond in writing to the employee's grievance. Upon receipt of the mayor's decision, the employee shall have [ive working days in which to submit a written request for arbitration to the director. If the employee fails to file a written request for arbitration within the five days, such failure will serve to declare the grievance as settled based upon the mayor's decision. If, after proceeding through all three steps, the employee is not satisfied with the outcome, the employee may seek arbitration under AMC 3.30.102. The results of this arbitration may be appealed to the superior court under AS 09.43.120-.150. . See State, Dep't of Transp. & Pub. Facilities v. Fairbanks North Star Borough, 936 P.2d 1259, 1260-61 (Alaska 1997). . See Wilson v. Municipality of Anchorage, 977 P.2d 713, 724 (Alaska 1999). . AMC 3.30.100-.102. . See Fairbanks North Star Borough, 936 P.2d at 1260 n. 3. . Title 3, Chapter 30 of the AMC. . 754 P.2d 745 (Alaska 1988). . Under the Municipality's Personnel Rules, "classified" employees can only be fired for cause, while "executive" employees serve at will without right of grievance or appeal. See Higgins, 754 P.2d at 746. . Id. at 746-48. . The administrative remedies procedure required by AMC 3.30.129(B) and AMC 3.30.101 has a builtin 15-day "statute of limitations," since, in the first step of the three-step administrative grievance procedure required by AMC 3.30.101, the claimant is required to submit a written grievance within 15 days after the employee knows of the conduct in question. . The plaintiffs argue that AS 23.05.140 preempts AMC 3.30.101 because the municipal ordinance "substantially interferes with the effective functioning of the statute or its underlying purpose." Foreman v. Anchorage Equal Rights Comm'n, 779 P.2d 1199, 1203 n. 8 (Alaska 1989). The plaintiffs argue that there is substantial interference because the municipal ordinance's 15-day limitations period interferes with the much longer two-year limitations period under state law to enforce AS 23.05.140. See AS 23.10.130. The plaintiffs claim that there is interference because the state limitations period may lapse in the time that it takes to pursue administrative remedies under AMC 3.30.101. The plaintiffs also argue that AMC 3.30.129(B) and AMC 3.30.101 are "in violation of the public policy" embodied in AS 23.05.140 because of the conflict between the two limitations periods. . 741 P.2d 1181, 1186 (Alaska 1987). . Reed, 741 P.2d at 1185 (emphasis added). . Id. . 944 P.2d 468, 472-73 (Alaska 1997). . Id. at 472. . 741 P.2d at 1185. . The plaintiffs' arguments were: AS 23.05.140 has no exhaustion requirement, AS 23.05.140 creates "non-waivable" rights, the Municipality is attempting to enforce a "private" statute of limitations (AMC 3.30.101), and AMC 3.30.101 is "preempted" by AS 23.05.140. . 936 P.2d 1259, 1261-62 (Alaska 1997). . 663 P.2d 916, 922 n. 19 (Alaska 1983). . See Fairbanks North Star Borough, 936 P.2d at 1261-62 (holding that exhaustion is not required where the state challenged the validity of an ordinance that would have been applied by the administrative entity-a planning commission-in question); Carter, 663 P.2d at 922 n. 19 (holding that, where the issue was the interpretation of a public records statute, exhaustion is not required because "the remedy sought is judicial rather than administrative"). . As discussed earlier, AMC 3.30.101 establishes a three-step grievance process: (1) informal discussion; (2) decision by the agency head; and (3) appeal to the mayor's office. After the three-step process, under AMC 3.30.102 the matter may be appealed to arbitration and then to the superior court under AS 09.43.120-.150. . See State v. Beard, 960 P.2d 1, 5 (Alaska 1998). . See id. at 5-6. . "Retaliatory discharge" is the discharge of the employee by the employer in retaliation for some activity protected by public policy, such as the employee's exercise of some political or legal right, or the employee's investigation of possible violations of law by the employer. See Palmateer v. International Harvester Co., 85 Ill.2d 124, 52 Ill.Dec. 13, 421 N.E.2d 876, 878-79 (Ill.1981). . Eidelson v. Archer, 645 P.2d 171, 181 (Alaska 1982). . Courts have held that failure to exhaust administrative remedies may be excused where the administrative procedures are ineffective because of lack of meaningful access, bias, futility, or the possibility that the claimant could face irreparable harm if the administrative process is followed. See Kevin W. Reese, Administrative Remedies Must Be Exhausted Absent Circumstances Supporting an Exception to Exhaustion Doctrine, 47 S.C.L.Rev. 17, 22 (1995); see also McCarthy v. Madigan, 503 U.S. 140, 148, 112 S.Ct. 1081, 117 L.Ed.2d 291 (1992) (explaining principle that a failure to exhaust administrative remedies may be excused when the administrative process is biased); Bowen v. City of New York, 476 U.S. 467, 483-84, 106 S.Ct. 2022, 90 L.Ed.2d 462 (1986) (holding that a failure to exhaust administrative remedies may be excused when the claimant faces a danger of irreparable harm from the administrative process); Robyns v. Reliance Standard Life Ins. Co., 130 F.3d 1231, 1236 (7th Cir.1997) (applying standard that a failure to exhaust administrative remedies may be excused where "there has been a lack of meaningful access to the review procedures"); Eidelson, 645 P.2d at 181 (establishing that failure to exhaust administrative remedies may be excused where the pursuit of the administrative remedy would be futile due to the certainty of an adverse decision). The plaintiffs' fear of retaliatory discharge is a type of harm that could render the administrative remedies here ineffective. It is well established that retaliatory discharge, if carried out, gives rise to a private right of action against the employer. We have recognized retaliatory discharge claims in our prior decisions. See Norcon, Inc. v. Kotowski, 971 P.2d 158, 167 (Alaska 1999) (recognizing that "retaliatory discharge [for whistle blowing activities] gives rise to a cause of action for breach of the duty of good faith and fair dealing"); Bishop v. Municipality of Anchorage, 899 P.2d 149, 154 (Alaska 1995) (assessing claim for alleged retaliatory discharge for protected First Amendment activity). . Because we find that there is a factual issue as to whether the alleged threats excused the plaintiffs' failure to exhaust administrative remedies, we will not address the plaintiffs' other argument that their failure is excused because the administrative remedies available under AMC 3.30.101 (specifically, the 15-day limitations period) were inadequate. . The superior court awarded attorney's fees to the Municipality after granting summary judg ment in favor of the Municipality. Because we reverse this grant of summary judgment, the award of attorney's fees must necessarily be reversed as well.

10576002

O. M. LIEN et al., Appellants, v. CITY OF KETCHIKAN et al., and Sisters of St. Joseph of Newark, a Washington corporation, Appellees

Lien v. City of Ketchikan

1963-06-24

No. 275

721

725

383 P.2d 721

383

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:00:27.374877+00:00

CAP

Before NESBETT, C. J., and DIMOND and AREND, JJ.

O. M. LIEN et al., Appellants, v. CITY OF KETCHIKAN et al., and Sisters of St. Joseph of Newark, a Washington corporation, Appellees.

O. M. LIEN et al., Appellants, v. CITY OF KETCHIKAN et al., and Sisters of St. Joseph of Newark, a Washington corporation, Appellees. No. 275. Supreme Court of Alaska. June 24, 1963. David J. Free, Anchorage, for appellants. E. E. Bailey, Stump & Bailey, Ketchikan, for City of Ketchikan. R. L. Jernberg, Gore & Jernberg, Ketchi-kan, and George J. Toulouse, Jr., Seattle, Wash., for Sisters of St. Joseph. Before NESBETT, C. J., and DIMOND and AREND, JJ.

2038

12169

DIMOND, Justice. The City of Ketchikan has provided for the construction of a hospital with a combination of federal, state and local funds. After approval by the voters at a special election, the city executed an agreement to lease the hospital to the Sisters of St. Joseph of Newark, a charitable, non-profit corporation, for a period of 10 years at a rental of $1.00 a year. Under the terms of the lease the Sisters are to operate and maintain the hospital at their own expense. In this action to cancel the lease the plaintiff-appellant, Lien, assailed the lease arrangement as being invalid on various grounds. The superior court held against plaintiff and dismissed his complaint, and he has appealed. Public Purpose Plaintiff contends that when a hospital constructed with public funds is leased to a non-profit corporation managed by a sectarian religious order, there is a violation of the public purpose section of the state constitution which provides: "No tax shall be levied, or appropriation of public money made, or public property transferred, nor shall the public credit be used, except for a public purpose." The moneys used to construct the Ketchikan hospital were spent for a public purpose, since a community hospital serves the general welfare. That purpose does not become non-public when the hospital is turned over to a charitable, nonprofit corporation for operation, rather than being operated by the city itself. The public purpose remains unchanged. This is apparent from those provisions of the lease which obligate the Sisters to not deny admission or care of patients on account of race, color or creed, and which require the Sisters to establish fair and equitable rates and charges "sufficient only to pay the cost of operation." And it is of no consequence that the members of this charitable corporation may belong to a sectarian religious order. The test of whether a public purpose is being served does not depend on the religious or non-religious nature of the agency that will operate the leased property, but upon the character of the use to which the property will be put. The use as a public hospital will not be changed by the lease to the Sisters. There is no violation of article IX, section 6 of the state constitution. Authority to Lease A statute authorizes municipalities to sell, lease or otherwise dispose of real estate and other property "when in the judgment of the city council it is no longer required for municipal purposes." Relying upon this statute, plaintiff contends that since no finding was made that the hospital property was not required for municipal purposes, and that any such finding if made would not be justified by the facts, that the city had no authority to lease the property. The statute relied upon by plaintiff has no application to this case. It was enacted prior to statehood when all cities derived their governmental powers from the legislature. Cities are now authorized by the state constitution to adopt home rule charters , and the City of Ketchikan had adopted a charter and was a home rule city prior to the time the lease was made. By constitutional provision cities have "the powers and functions conferred by law or charter." The meaning of this provision is that where a home rule city is concerned the charter, and not a legislative act, is looked to in order to determine whether a particular power has been conferred upon the city. It would be incongruous to recognize the constitutional provision stating that a home rule city "may exercise all legislative powers not prohibited by law or by charter" , and then to say that the power of a home rule city is measured by a legislative act. We hold that AS 29.10.132(a), which authorizes municipalities to lease property, is not relevant where the powers of a home rule city are being considered. This statute is not the source of the city's power to lease its hospital to the Sisters. Therefore, the portion of that statute which requires a finding that property to be leased is not required for municipal purposes is not a limitation on the power of the City of Ketchikan to lease its hospital. Plaintiff contends that the lease is without effect because of the city's failure to comply with certain provisions of the charter relating to the establishment of a public utility and a granting of a franchise to furnish a public utility service. This contention must be rejected for the reason that the language of the charter dealing with utilities does not suggest that the term "public utility" was meant to include a hospital, and plaintiff has failed to show that this was contemplated by the framers of the charter. Delegation of Power The lease provides that "The Lessee shall have the responsibility for establishing the necessary rules, regulations and by-laws for the internal operation of the hospital and nothing in this lease may be construed as delegating this power to the Lessor." Plaintiff argues that this provision constitutes an invalid delegation of the city's power and duty to determine all matters of policy, in contravention of section 2-4 of the city charter which states: "Except as otherwise provided in this charter, all powers of the city, including the determination of all matters of policy, shall be vested in the council." We find no violation of this section of the charter. The city had the power to lease the hospital; it was under no obligation to operate it as a governmental institution, administered and staffed by municipal employees. It would be impracticable for the city to attempt to provide rules and regulations for the internal functioning of an institution which has been turned over to another for management and operation. The city has established policy in the lease by including provisions which adequately recognize and protect the public interest. The Sisters are obliged to operate and maintain the hospital and equipment at their own expense, and in such a manner that there will be compliance with minimum hospital standards prescribed by the state, and eligibility for accreditation by the Joint Commission on Accreditation of Hospitals. Provision must be made for the care of Indian patients as prescribed by federal law, and a reasonable volume of charity care must be provided to conform to the requirements of the federal Hill-Burton Act. No person may be denied admission to the hospital on account of race, creed or color. The Sisters must establish fair and equitable rates and charges sufficient only to pay the costs of operation, and they must establish and maintain an adequate accounting system and provide the city with an annual audit of hospital accounts made by a certified public accountant. The foregoing lease provisions demonstrate that the city has fulfilled, rather than abdicated, its duty of determining policy matters. There has been no invalid delegation of municipal power. Freedom of Religion Asserting that the Sisters are a sectarian order of the Catholic faith, plaintiff contends that the effect of the lease is to give a preference to the Catholic church. This, plaintiff argues, violates article I, section 4 of the state constitution which forbids the making of a law respecting the establishment of religion or prohibiting the free exercise thereof. The Sisters are a non-profit corporation, organized for charitable purposes. There is nothing in the articles of incorporation indicating that the corporation's objective is to further religious beliefs or dogmas of the Catholic church. The hospital was constructed and the lease made in order to provide for the care of the sick, without regard to race, color or creed, and thus accomplish a valid public purpose. There is nothing in this arrangement from which it can be inferred that a tax-established, public institution is to be utilized to aid a religious group to spread its faith or to interfere with the religious beliefs of others. The city's action was not designed, nor does it have the effect by its nature, of promoting or giving a preferred position to whatever religious beliefs the individual members of the corporation might have. The fact that specific sectarian beliefs may be entertained by those persons does not bar the city from achieving its valid secular goal of caring for the sick. Plaintiff asserts that when the hospital has been completed and turned over to the Sisters in accordance with the lease , that the Sisters, as a matter of fact, will engage in the practice of teaching patients religion, and will operate the hospital under a sectarian code of ethics so as to give one sect preference over another and so as to interfere with the free exercise of plaintiff's own religious beliefs. If it should appear as an objective fact, after the Sisters commence operation of the hospital, that the operative effect of the lease arrangement is to violate the constitutional provision regarding the establishment of religion and religious freedom, then that will be time enough for the judiciary to intervene. Out of a proper regard for the right of the city to administer its affairs and serve the public need as it deems fit, this court will refuse to strike down the city's arrangement in the absence of a factual situation where judicial intervention becomes a practical necessity. At this time plaintiff is unable to show that he has sustained or is immediately in danger of sustaining some direct injury as a result of the city's plan for hospital care, which makes it incumbent upon the court to pass upon the constitutional question. What plaintiff asks us to do is to give an abstract opinion on what is in essence a hypothetical case, and that we shall not do. Suffice it to say we find no violation of article I, section 4 of the constitution on the face of the city's arrangement to lease its hospital to the Sisters. The remaining specifications of error raised by plaintiff in his brief do not warrant discussion — either because they have been disposed of by the points covered in this opinion, or because they are lacking in substance. The judgment is affirmed. .The federal funds are made available by the Hospital Survey and Construction Act, commonly called the Hill-Burton Act. Act of August 13, 1946, ch. 958, 60 Stat. 1041 [42 U.S.C.A. § 291 (1957)]. The state funds are in the nature of matching funds with the federal and are available to local governments on a participating basis. AS 18.20.140-18.20.220; S.L.A.1900, ch. 182, § 2. The local funds were obtained through the sale of the City's general obligation bonds in an amount not to exceed $1,200,000. . Alaska Const, art. IX, §'6. . AS 29.10.132(a). . Alaska Const, art. X, § 9. . Alaska Const, art. X, § 7. .Alaska Const, art. X, § 11. . Alaska Const, art. I, § 4 reads: "No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof." . The articles of incorporation of the Sisters of St. Joseph of Newark provide in art. HI: "The objects and purposes of this incorporation shall be to establish and maintain hospitals, orphanages, homes for young women, homes for the aged, the blind, or the infirm and with the further object and purpose of engaging generally in any such kindred charities as those concerned in this corporation may from time to time find necessary or convenient." . But cf. Illinois ex rel. McCollum v. Board of Education, 3S3 U.S. 203, 210, 68 S.Ct. 461, 464, 92 L.Ed. 649, 658 (1948). . See McGowan v. Maryland, 366 U.S. 420, 445, 81 S.Ct. 1101, 1115, 6 L.Ed.2d 393, 410 (1961). . At the time the superior court rendered its decision the hospital was still under construction. . See Poe v. Ullman, 367 Ü.S. 497, 81 S.Ct. 1762, 6 L.Ed.2d 989 (1961).

10412817

Errol RESEK, Appellant, v. STATE of Alaska, Appellee

Resek v. State

1985-08-21

No. A-684

463

465

705 P.2d 463

705

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T18:03:25.532191+00:00

CAP

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

Errol RESEK, Appellant, v. STATE of Alaska, Appellee.

Errol RESEK, Appellant, v. STATE of Alaska, Appellee. No. A-684. Court of Appeals of Alaska. Aug. 21, 1985. James C. Merbs, Anchorage, for appellant. Leonard M. Linton, Jr., Chief Asst. Dist. Atty., Victor C. Krumm, Dist. Atty., Anchorage, and Norman C. Gorsuch, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

646

3979

OPINION COATS, Judge. Errol Resek was convicted, based upon his plea of no contest, of four counts of misconduct involving a controlled substance in the third degree, AS 11.71.-030(a)(1). Judge Ralph E. Moody sentenced Resek to eight years with three years suspended on each count, and ordered the sentences to be served concurrently. Judge Moody also ordered Resek to pay a fine of $5,000 and to perform 150 hours of community service per year of probation. Resek appeals this sentence as excessive. We affirm. At the time of this offense Resek was forty-two years old and had no prior convictions. Resek points out that misconduct involving a controlled substance in the third degree is a class B felony and that the presumptive sentence for a second felony offender convicted of a class B felony is four years. AS 12.55.125(d)(1). In Austin v. State, 627 P.2d 657-58 (Alaska App.1981), we stated that "[njormally a first offender should receive a more favorable sentence than the presumptive sentence for a second offender. It is clear this rule should be violated only in an exceptional case." Thus Resek's sentence can be justified only if the trial judge could properly find that this was an exceptional case. Furthermore, in Stuart v. State, 698 P.2d 1218, 1223 (Alaska App. 1985), we found that a sentence of twelve years with six years suspended was excessive for a person who we found was properly classified as among "the most serious category of drug dealers, those who are engaged in smuggling or sale of large quantities of narcotics or possession of large quantities for sale." Noting Stuart's good record and favorable prospects for rehabilitation, we ordered Stuart's sentence reduced to six years with two years suspended. See also Marin v. State, 699 P.2d 886 (Alaska App.1985); Lausterer v. State, 693 P.2d 887 (Alaska App.1985). Since Re-sek's sentence exceeds Stuart's to some degree, we must find that Judge Moody could properly find that his offense was more aggravated than Stuart's. Judge Moody found that Errol Resek was integrally involved in a major drug organization which was run by his brother, Alex Resek. Judge Moody found that this organization was importing substantial quantities of cocaine on a regular basis. The presentence report described this organization as "the largest cocaine operation in the history of the State of Alaska." Errol Resek's role involved the storage and processing of large amounts of cocaine in his home and at his place of work. According to the presentence report, Errol Resek "helped prepare it for sale, collected money for cocaine sales, and frequently transported it." Judge Moody found that Errol Resek's offense was the worst type of offense although he did not find that Errol Resek was the worst type of offender. Given Judge Moody's findings that Errol Resek was substantially involved in this major drug organization and the fact that his findings are supported by substantial evidence, we conclude that Errol Resek's offense constitutes an exceptional case and that a sentence slightly in excess of the one which we permitted in Stuart can be justified. From Judge Moody's findings we conclude that Errol Resek was more seriously involved in the distribution of cocaine than Stuart. We therefore find that the sentence was not clearly mistaken. McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974). The sentence is AFFIRMED. . The prosecutor represented that the drug organization run by Alex Resek imported approximately one kilogram (2.2 pounds) of cocaine into Anchorage each week. Judge Moody appears to have accepted this representation as accurate.

9477355

HOFFMAN CONSTRUCTION COMPANY OF ALASKA, Appellant, v. U.S. FABRICATION & ERECTION, INC., and the Sisters of Providence of Washington, d/b/a Providence Hospital, Appellees

Hoffman Construction Co. of Alaska v. U.S. Fabrication & Erection, Inc.

2001-05-11

No. S-9116

346

362

32 P.3d 346

32

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T18:00:13.572446+00:00

CAP

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

HOFFMAN CONSTRUCTION COMPANY OF ALASKA, Appellant, v. U.S. FABRICATION & ERECTION, INC., and the Sisters of Providence of Washington, d/b/a Providence Hospital, Appellees.

HOFFMAN CONSTRUCTION COMPANY OF ALASKA, Appellant, v. U.S. FABRICATION & ERECTION, INC., and the Sisters of Providence of Washington, d/b/a Providence Hospital, Appellees. No. S-9116. Supreme Court of Alaska. May 11, 2001. Rehearing Denied Aug. 30, 2001. Sanford M. Gibbs, Law Offices of Brown, Waller & Gibbs, Anchorage, for Appellant. Bruce E. Davison & Joseph A. Pollock, Davison & Davison, Inc., Anchorage, for Ap-pellee U.S. Fabrication & Erection, Inc. Robert J. Dickson and John M. Conway, Atkinson, Conway & Gagnon, Anchorage, for Appellee The Sisters of Providence of Washington. Before FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.

8814

55984

OPINION FABE, Chief Justice. I. INTRODUCTION Four U.S. Fabrication & Erection, Inc. workers brought suit alleging that they had been exposed to asbestos while working at a construction project at Providence Hospital in Anchorage. The general contractor on the project, Hoffman Construction, settled the suit, and sought indemnity and defense costs from subcontractor U.S. Fabrication & Erecetion, Inc. (USF & E) under a contractual indemnity provision; however, USF & E simultaneously claimed indemnity and defense from Hoffman under an implied contractual theory. Providence also sought indemnity and defense costs from Hoffman under a contractual indemnity provision. The superi- or court held that both USF & E and Providence were entitled to indemnity and defense from Hoffman. For the reasons stated below, we affirm in part and reverse in part. II, FACTS AND PROCEEDINGS In November 1992 the Sisters of Providence in Washington, a nonprofit corporation which owns and operates the Providence Alaska Medical Center in Anchorage, Alaska, entered into a construction contract with Hoffman Construction Company of Alaska. Hoffman agreed to be the general contractor for new construction and renovation of buildings on the Providence Hospital campus. The renovation work on Providence Hospital was to involve the abatement of asbestos, and the original Providence/Hoffman contract included asbestos abatement within the scope of Hoffman's duties. However, in an amendment to the Providence/Hoffman contract (Amendment # 1), the parties removed asbestos abatement responsibilities from the seope of Hoffman's duties under the contract. Asbestos abatement on the project was instead handled by EHS Alaska, Inc., which provided consulting services, and Locher Interests, which was the project manager for asbestos abatement. However, under Amendment # 1, Hoffman retained the duty to coordinate its work and the work of its subcontractors on the asbestos abatement. Amendment #1 to the Providence/Hoffman contract also added seismic upgrade work on the existing South Tower building on the Providence Hospital campus. This work consisted of strengthening the structural steel frame of the South Tower by adding steel beams, braces, and columns to the interior structure of the building. Hoffman subcontracted with USF & E to do the steel erection work on the South Tower. Both construction and asbestos abatement work went on simultaneously at the South Tower throughout 1994. Both the Providence/Hoffman contract and the Hoffman/USF & E contract contained indemnity provisions,. The Providence/Hoffman contract's indemnity clause required Hoffman to indemnify and defend Providence for any claim "arising out of . the performance of this Construction Contract, regardless of whether or not it is caused in part by a party indemnified hereunder." The Providence/Hoffman indemnity clause also made Hoffman responsible for any claims "arising out of or resulting from [Hoffman's] breach of [the Providence/Hoffman contract], or any unlawful act or omission of [Hoffman and its agents]." The Hoffman/USF & E contract also contained an indemnity clause, which required USF & E to indemnify and defend Hoffman for any claims "directly or indirectly arising out of . any failure of [USF & E] to perform any of the terms and conditions of this Subcontract," or for any claims arising out of USF & E's "performance of or failure to perform" its work under the subcontract. The Hoffman/USF & E indemnity clause also made USF & E responsible for any claims "arising from injuries, including death to [USF & E's] employees," unless the injuries were caused by or resulted from "the sole negligence of [Hoffman]." On July 3, 1996, Floyd Brooks, a former USF & E employee, filed a personal injury action in Anchorage superior court against USF & E, Hoffman, and Providence. In this suit, Brooks alleged that, through the negligence of USF & E, Hoffman, and Provi dence, Brooks and other workers were exposed to asbestos in the course of their work on the South Tower. Brooks initially attempted to maintain the suit as a class action, but later converted it to a direct action, with three other USF & E employees as co-plaintiffs. The plaintiffs specifically alleged that they were exposed to asbestos while working on the South Tower some time before July 24, 1994. While working on the structural steel, the Brooks plaintiffs picked up scraps of material that had been blown into their area by the wind; later they came to believe that this material was asbestos. The Brooks plaintiffs claimed that their work area was not cleared of asbestos until after they entered the area. During the summer of 1998, the Brooks plaintiffs settled with all of the parties by accepting a payment of $25,000 from Hoffman and $75,000 from USF & E's insurance carrier. On January 5, 1998, Providence filed a motion for summary judgment, seeking a ruling that Hoffman owed Providence a duty of indemnity and a duty of defense under the indemnity clause in the Providence/Hoffman contract. On February 27, 1998, Hoffman filed its opposition to Providence's motion as well as a cross-motion against Providence, also seeking indemnity and defense costs. On November 20, 1998, the superior court issued an order granting Providence's motion and denying Hoffman's cross-motion, ruling that Hoffman owed Providence a duty of indemnity and a duty of defense. Hoffman now appeals the superior court's grant of Providence's motion for summary judgment. On August 11, 1998, Hoffman filed a motion for summary judgment against USF & E seeking a ruling that USF & E had a duty to defend and indemnify Hoffman under the indemnity clause in the Hoffman/USF & E contract. On September 1, 1998, USF & E filed its opposition to Hoffman's motion as well as a cross-motion for summary judgment seeking recovery of its defense costs based on an implied contractual indemnity theory. In its November 20, 1998 order, the superior court denied Hoffman's motion against USF & E and granted USF & E's cross-motion, holding that Hoffman owed USF & E a duty of indemnity and a duty of defense. On April 22, 1999, the superior court issued partial final judgments in favor of Providence and USF & E pursuant to Civil Rule 54(b). Hoffman now appeals both the denial of its motion for summary judgment against USF & E and the grant of USF & E's cross-motion for summary judgment. III. STANDARD OF REVIEW This is an appeal of summary judgment entered by the superior court, and we will apply de novo reviews We will affirm a summary judgment if there are no genuine issues of material fact and if the moving party is entitled to judgment as a matter of law. When making this determination, we will draw all reasonable inferences in favor of the non-moving party. We are not bound by the reasoning articulated by the superior court and can affirm a grant of summary judgment on alternative grounds, including grounds not advanced by the superior court or the parties. Moreover, we will consider any matter appearing in the record, even if not passed upon by the superior court, in defense of the judgment. However, we will not consider arguments that were not raised below, unless the issues establish plain error, or the issues (1) do not depend upon new facts, (2) are closely related to other arguments at trial, and (8) could have been gleaned from the pleadings. This appeal requires us to interpret the Providence/Hoffman and Hoffman/USF & E contracts. If there is no dispute about the surrounding cireumstances of the formation of an indemnity contract, the interpretation of the contract's language is a matter of law for us to determine. When interpreting contracts, the goal is to give effect to the reasonable expectations of the parties. To determine the intent of the parties, we will look to the written contract as well as extrinsic evidence regarding the parties' intent at the time the contract was made. Where there is conflicting extrinsic evidence, the court, rather than the jury, must decide the meaning except where the written language, read in context, is reasonably susceptible to both asserted meanings. IV,. DISCUSSION A. The Superior Court Property Held that Hoffman Has a Duty to Defend Providence. The superior court granted Providence's motion for summary judgment, ruling that Hoffman owed Providence a duty of indemnity and a duty of defense. Hoffman appeals this decision. In order to decide whether the superior court properly granted Providence's motion, we must address three issues: (1) the distinction between the duty to defend and the duty to indemnify; (2) the scope of the indemnity clause in the Providence/Hoffman contract; and (3) any applicable exceptions that could prevent enforcement of the Providence/Hoffman contract. An analysis of these three issues shows that, as a matter of law, the indemnity clause in the Providence/Hoffman contract requires Hoffman to defend Providence under the circumstances presented here. 1. The distinction between the duty to defend and the duty to indemnify The duty to defend in an indemnity clause like the one in the Providence/Hoffman contract is triggered when the indemni-tee requires a defense; however, the duty to indemnify is not triggered until the indemni-tee is liable for damages. The duty to defend is triggered merely by claims of injury that fall within the scope of the indemnity clause, requiring a defense for the indemni-tee and requiring the indemnitor to provide that defense. In Stephan & Sons, Inc. v. Municipality of Anchorage, we stated that "[Iwle think that the duty to defend attaches as long as the principal case continues to include a cause of action [within the seope of the indemnity clause]." This means that, for the duty of defense, the "true facts" are irrelevant; a duty to defend can be found even if there are genuine issues of material fact concerning liability for the plaintiffs' injuries. However, for the duty to indemnify, the issue of causation of the plaintiffs' injuries may be relevant because there is a duty to indemnify only when the indemnitee is liable for damages. Hoffman claims that summary judgment in favor of Providence cannot be affirmed because there is an unresolved factual issue concerning the cause of the Brooks plaintiffs' alleged exposure. However, as we held in Stephan & Sons, causation is immaterial to the duty of defense; Hoffman has a duty to defend Providence as a matter of law if the claims asserted by the Brooks plaintiffs are within the scope of the indemnity clause in the Providence/Hoffman contract. 2. The Brooks plaintiffs' claims are within the scope of the Providence/Hoffman indenmity clause. In the first part of the Providence/Hoffman indemnity clause, Hoffman promises to indemnify and defend Providence for any claim "arising out of . the performance of this construction contract, regardless of whether or not it is caused in part by a party indemnified hereunder." Hoffman claims that the Brooks plaintiffs' claims did not "arise out of" Hoffman's performance of the contract because its performance did not include any asbestos abatement responsibilities Therefore, Hoffman argues that claims of asbestos exposure could not arise out of Hoffman's performance since its performance had nothing to do with asbestos. We have interpreted similar indemnity clauses very broadly in the past and found that an employee's claims "arise out of" an indemnitor's performance if the injury occurs when the employee is on the job that is the subject of the indemnification agreement. In Burgess Construction Co. v. State, the state and a construction contractor (Burgess) contracted to build a road. Their contract included an indemnity clause. Two Burgess employees were killed in an accident, and wrongful death actions were brought against the state. The state then brought an indemnity action against Burgess. We summarized the text of the indemnity clause as follows: Burgess was required to "indemnify and save harmless" the State from all claims brought because of injuries received by any person "on account of the operations of Contractor. We concluded that the accident in Burgess was within the scope of the inderanity clause because "the accident victims were Burgess' employees engaged in operations in fulfillment of the contract at the time of the accident. In Duty Free Shoppers Group Lid. v. State, a shop at the Anchorage International Airport had an indemnity clause as part of its lease with the state." An employee of Duty Free sat down in a broken airport lounge chair during her coffee break and was injured. The employee brought suit and the state settled; then the state sought to en-foree the indemnity clause against Duty Free. The text of the indemnity clause read as follows: [Duty Free] shall indemnify and save harmless [the state] . from all claims . arising] or resulting] from any acts or omissions of [Duty Free] . in connection with the use or occupancy of the Premises or any other portion of the Airport. We concluded that the seope of the Duty Free Shoppers indemnity clause was broad enough to include the accident in that case, because the accident happened to the indem-nitor's employee while she was on the job at the airport. In Burgess and Duty Free Shoppers, we held that a clause requiring indemnity and defense for claims brought "on account of" or "in connection with" the indemnitor's work is broad enough to include any claims for injuries sustained by the indemnitor's employees while on the job that is the subject of the indemnity clause. We also held that fault was immaterial to this analysis. The Providence/Hoffman indemnity clause is similar to those considered in Burgess and Duty Free Shoppers Because the Brooks plaintiffs were on the jobsite performing work for USF & E, and in turn, for Hoffman, their claims "arise out of" Hoffman's performance of the Providence/Hoffman contract, and the claims fall within the seope of the first part of the Providence/Hoffman indemnity clause. 3. Alaska Statute 45.45.900 and the policy of "mondelegable duties" do not apply to prevent enforcement of the Providence/Hoffman indenmity clause. Hoffman claims that the Providence/Hoffman indemnity clause is rendered unenforceable by (a) AS 45.45.900, or by (b) the public policy of "nondelegable duties." However, neither of these applies under the cireum-stances here, and the Providence/Hoffman indemnity clause is fully enforceable. a. Alaska Statute 45.45.900 Alaska Statute 45.45.900 limits the enforceability of indemnification clauses: it requires that such clauses not be enforced if they serve to indemnify the indemnitee from its own sole negligence or willful misconduct. Hoffman claims that the trial court read the Providence/Hoffman indemnity clause so broadly that, under this reading, Hoffman could be responsible to indemnify Providence for Providence's sole negligence. Because there is an issue of material fact as to whether the plaintiffs' claims were caused by Providence's sole negligence, Hoffman claims, as a matter of law this court cannot decide that the clause creates a duty to indemnify or defend, because the clause might be invalid under AS 45.45.900. Therefore, Hoffman argues, we should remand this case for resolution of the issue of material fact. However, Hoffman's interpretation of AS 45.45.900 is incorrect. As we have previously held, AS 45.45.900 only invalidates an indemnity clause if the clause purports to indemnify the indemnitee for the inderani-tee's sole negligence. The Providence/Hoffman indemnity clause does not purport to indemnify Providence for Provi dence's sole negligence since the injuries caused by Providence's sole negligence would be outside the scope of the indemnity clause. The first part of the Providence/Hoffman indemnity clause indemnifies Providence for any claim "arising out of . the performance of this construction contract, regardless of whether or not it is caused in part by a party indemnified hereunder." (Emphasis added.) The negative implication is that a claim caused wholly by Providence is not within the scope of the indemnity clause. The second part of the Providence/Hoffman indemnity clause makes Hoffman responsible for any claims "arising out of or resulting from [Hoffman's] breach of [the Providence/Hoffman contract], or any unlawful act or omission of [Hoffman and its agents]." An injury caused by Providence's sole negli-genee would be outside the seope of this part of the clause as well, because such an injury could not possibly arise from Hoffman's "breach" or "unlawful acts." Neither part of the Providence/Hoffman indemnity clause purports to indemnify Hoffman for Providence's sole negligence. Therefore, as a matter of law, AS 45.45.900 does not invalidate the Providence/Hoffman indemnity clause. b. The public policy of "nondelegable" duties Hoffman argues that, because Providence was working with asbestos, Providence had a nondelegable duty to protect the workers and independent contractors from asbestos and the Providence/Hoffman indemnity clause should not be enforced. However, Hoffman failed to make this argument below, and therefore it is waived. As a general rule, we will not consider arguments for the first time on appeal. In McConnell v. State, we provided for an exeeption to this waiver rule: We will consider arguments not raised explicitly in the trial court . if the issue is 1) not dependent on any new or controverted facts; 2) closely related to the appellant's trial court arguments; and 3) could have been gleaned from the pleadings. Hoffman admits that it failed to make its argument on nondelegable duties below, but it claims that the exception stated in MeCon-mell applies. Hoffman claims that the first two McConmell requirements are fulfilled, because: (1) the facts supporting Hoffman's nondelegable duties argument are already in the record; and (2) Hoffman argued in the superior court that Providence should not be able to escape lability for its own asbestos abatement activities. Hoffman does not discuss the third prong of MeConmell, whether its nondelegable duties argument could be "gleaned from the pleadings." Hoffman fails to satisfy the exception to the waiver rule stated in McConnell. The first MceConmell requirement is satisfied because the facts supporting Hoffman's nondel-egable duties argument are already in the record. But Hoffman does not meet the second MceConmell requirement. The non-delegable duties argument made for the first time on appeal is not like any argument Hoffman made in the superior court. Hoff man claims that its argument raised below (already discussed in this opinion) that AS 45,45.900 invalidates the indemnity clause was similar to the nondelegable duties argument now raised. However, the argument raised below is not similar to Hoffman's new argument. The application of AS 45.45.900's statutory limitations to the language of the Providence/Hoffman indemnity clause does not bear on whether asbestos abatement is an ultra-hazardous activity that gives rise to nondelegable duties. Hoffman has waived its nondelegable duties argument and we will not consider it further. We affirm the superior court's ruling that Hoffman has a duty to defend Providence. Hoffman's duty is triggered by any claim of injury that is within the seope of the indemnity clause; the claims made by the Brooks plaintiffs are in fact within the seope of the Providence/Hoffman indemnity clause. The indemnity clause is fully enforceable despite AS 45.45.900, and Hoffman has waived its nondelegable duties argument. B. The Superior Court Erred in Holding thut Hoffman Has a Duty to Indemnify Providence. In its November 20, 1998 order, the superior court granted Providence's motion for summary judgment and found that Hoffman has a duty to indemnify Providence. Because there are issues of material fact as to causation of and Hability for the Brooks plaintiffs' alleged exposure, we reverse this rulings As discussed earlier, the duty to indemnify in an indemnity clause like the one in the Providence/Hoffman contract is not triggered until the indemnitee is liable for damages. Providence has no liability here because the Brooks plaintiffs' claims were settled by Hoffman (together with USF & E's insurance carrier) without any payments by Providence. Also, there are issues of material fact as to ultimate lability for the Brooks plaintiffs' claims, because there are issues of fact as to causation of these injuries. Therefore, we reverse the superior court's ruling that Hoffman owes Providence a duty of indemnity as a matter of law under the Providence/Hoffman contract. C. The Superior Court Erred in Holding thut USF & E Has No Duty to Defend Hoffman. In its November 20, 1998 order, the superior court denied Hoffman's motion for summary judgment, ruling that USF & E did not have a duty to defend Hoffmar. Hoffman appeals this ruling. In order to decide whether the superior court properly denied Hoffman's motion, we must address three issues: (1) the distinction between the duty to defend and the duty to indemnify; (2) the scope of the indemnity clause in the Hoffman/USF & E contract; and (3) the exceptions that could potentially apply to prevent enforcement of the Hoffman/USF & E contract. An analysis of these three issues shows that, as a matter of law, the indemnity clause in the Hoffman/USF & E contract requires USF & E to defend Hoffman under the circumstances presented here. 1. The distinction between the duty to defend and the duty to indenmmify As discussed in Part IV.A.1 above, the duty to defend in an indemnity clause like the one in the Hoffman/USF & E contract is triggered when the indemnitee requires defense; however, the duty to indemnify is not triggered until the indemnitee is liable for damages. The duty to defend is triggered merely by claims of injury that fall within the scope of the indemnity clause. Therefore, USF & E has a duty to defend Hoffman if the Brooks plaintiffs' claims are within the seope of the Hoffman/USF & E indemnity clause. 2. The Brooks plaintiffs' claims are within the scope of the Hoffman/USF & E indemmity clause. Like the Providence/Hoffman indemnity clause, the Hoffman/USF & E indemnity clause has two parts. The claims asserted by the Brooks plaintiffs are within the scope of both. The first part of the indemnity clause in the Hoffman/USF & E contract holds USF & E liable for (1) any claims "directly or indirectly arising out of . any failure of [USF & EJ] to perform any of the terms and conditions of this Subcontract," or (i) any claims arising out of the "performance of or failure to perform" USF & E's work under the subcontract. USF & E argues that the Brooks plaintiffs' claims are not within the scope of this first part of the clause because USF & E did not breach any of its contractual obligations under the Hoffman/USF & E contract, and USF & E's performance had nothing to do with asbestos. But, as we discussed in the context of the Providence/Hoffman contract, the phrase "arising out of [the indemnitor's] performance" is very broad and includes claims for any injuries sustained by the indemnitor's employees while on the job fulfilling the contract with the indemnitee. It is undisputed that the alleged asbestos exposure occurred while USF & E employees were performing work contracted for by Hoffman-the "performance" referred to by the first part of the indemnity clause in the Hoffman/USF & E contract. Therefore, the Brooks plaintiffs claims are within the scope of the first part of the Hoffman/USF & E indemnity clause. The second part of the Hoffman/USF & E indemnity clause makes USF & E responsible for any claims "arising from injuries, including death to [USF & E's] employees," unless the injuries were caused by or resulted from "the sole negligence of [Hoffman}." The Brooks plaintiffs' claims are also within the seope of this second part of the indemnity clause. USF & E is responsible to defend Hoffman for all claims of injury to USF & E employees, unless the injury was caused by Hoffman's sole negligence. Since the Brooks plaintiffs were USF & E employees, and their alleged injuries were not caused by Hoffman's sole negligence, their claims are also within the seope of this see-ond part of the indemnity clause. 8. Alaska Statute 45.45.900, the "public duty" exception, the policy of "nondel-egable duties," and the doctrine of "unclean hands" do not apply to prevent enforcement of the Providence/Hoffman indemmity clause. USF & E claims that the Hoffman/USF & E indemnity clause is rendered unenforceable for four reasons: (a) AS 45.45.900, (b) the "public duty" exception, (c) the policy of "nondelegable duties," and (d) the doctrine of "unclean hands." However, none of these apply under the circumstances, and the Hoffman/USF & E indemnity clause is fully enforceable. a. Alaska Statute 45.45.900 As discussed earlier, AS 45.45.900 limits the enforceability of indemnification clauses, requiring that such clauses will not be enforced if they serve to indemnify the indem-nitee from its own sole negligence or willful misconduct. USF & E claims that, "[ble-cause [the indemnity language in the Hoffman/USF & E subcontract] could be construed as requiring indemnity for Hoffman's sole negligence or willful misconduct, the entire indemnity clause is void." But AS 45.45.900 only invalidates an indemnity clause if the clause purports to indemnify the indemnitee for the indemnitee's sole negligence or willful misconduct. The Hoffman/USF & E indemnity clause does not purport to indemnify Hoffman for the sole negligence or willful misconduct of Hoffman or its abatement contractors; claims arising from the sole negligence or willful misconduct of Hoffman would be outside the scope of the indemnity clause. The first part of the Hoffman/USF & E indemnity clause explicitly excludes USF & E from liability for any claims "caused by the sole negligence or willful misconduct of [Hoffman]." Thercfore, this part of the Hoffman/USF & E indemnity clause complies with AS 45.45.900. The sccond part of the Hoffman/USF & E indemnity clause, which makes USF & E responsible for any injuries sustained by USF & E employees while on the job, also explicitly excludes claims of injury caused by Hoffman's sole negligence, but does not explicitly exclude injuries caused by Hoffman's willful misconduct. Theoretically, the clause could be read to require a duty of defense for claims caused by Hoffman's willful misconduct. However, AS 45.45.9000 does not apply to invalidate an indemnity clause merely because therc is a theoretical possibility that the clause could be applied to indemnify the indemnitee for its willful misconduct. Instead, AS 45.45.900 only applies to invalidate an indemnity clause if the clause is actually applied, as between the parties, to indemnify an indemnitee for the indemnitee's own sole negligence or will-{ul misconduct. USF & E has not alleged, and no evidence in the record suggests, that the Brooks plaintiffs' alleged exposure was caused by Hoffman's willful misconduct. Therefore, AS 45.45.900 does not apply to invalidate the second part of the Hoffman/USF & E indemnity clause. b. The "public duty" exception We established the "public duty" exception to the enforcement of indemnity clauses in Manson-Osberg Co. v. State and Burgess Construction Co. v. State We held in those cases that an indemnity clause will not be enforced where the clause serves to indemnify an indemnitee from its own negligence and tends to promote a breach of the indemnitee's duty to the public In Burgess, we articulated the two principles behind the "public duty" exception: (1) the exception applies to entities that must guard against negligence at all times, since indemnity agreements would create improper incentives for them to breach a duty owed to the public; and (2) public service entities should not be able to impose liability on those they are supposed to serve, since the recipients of the public service would have no choice but to accept that liability. USF & E claims that the "public duty" exception applies here to invalidate the Hoffman/USF & E indemnity clause because Hoffman "had an express contractual and legal duty to ensure safety of the workplace." USF & E claims that Hoffman breached this duty by allowing the Brooks plaintiffs' exposure to occur. However, an examination of our decisions in which we have applied the "public duty" exception shows that the exception does not apply to the Hoffman/USF & E contract. In two cases, State v. Korean Air Lines Co. and Kuhn v. State, we considered the "public duty exception and held that it applied to invalidate the indemnity clauses at issue. In Korean Air Lines, the state attempted to enforce a clause indemnifying the state for its own alleged negligence in design of Anchorage International Airport. In Kuhn, the state attempted to enforce an indemnity clause that was incorporated into required permits for use of the Dalton Highway. The indemnity clause in Kuhn indemnified the state for claims related to maintenance of the Dalton Highway. In these cases, we found that both of the "public duty" principles demanded that the indemnity clauses be invalidated because: (1) the clauses gave the state, as the owner and operator of the airport, and as the maintainer of the Dalton Highway, an incentive to exercise less caution in operating the airport and maintaining the Dalton Highway, to the detriment of its duty to protect the traveling public; and (2) it is unfair for the state as a public service organization to shift its responsibilities to the public, since users of the airport and the Dalton Highway have no choice but to accept the state's terms in order to use the services. The & E indemnity clause is unlike the clauses considered in either Korean Air Lines or Kuhn. Hoffman's duties to its subcontractors are not public duties like the duties owed by the state to travelers on highways or at airports. Also, it is not unfair to impose a liability-shifting agreement on USF & E as it was in Korean Air Lines and Kuhn. In both Korean Air Lines and Kuhn, the indemnitors had no choice but to accept the indemnity clauses because they were dealing with a public service entity (the state) that controlled a unique resource (respectively, the Anchorage Airport and the Dalton Highway) critical to the indemnitors' business. USF & E, on the other hand, could have chosen other employment and rejected Hoffman's terms. Therefore, the "public duty" exception does not apply to the Hoffman/USF & E indemnity clause. c. The public policy of "nondelegable" duties In two separate arguments, USF & E claims that the Hoffman/USF & E indemnity clause is unenforceable because the burdens it purports to shift from Hoffman to USF & E are "nondelegable." These burdens are (1) duties to protect its subcontractors' employees from harm, and (2) strict liability for asbestos activities. First, USF & E claims that Hoffman has a nondelegable duty to protect its subcontractors' workers, and USF & E claims that this duty cannot be shifted to USF & E through an indemnity contract. Although USF & E cites several cases for the proposition that a general contractor has a legal duty to maintain a safe working environment for its subcontractor's employees, these cases do not apply to Hoffman's ability to shift liability contractually. Even if Hoffman has a non-delegable duty that makes it liable under such circumstances, it can always shift this liability under Alaska law through an indemnity contract. Under Alaska law, indemnity agreements that shift liability from the in-demnitee to the indemnitor are valid, subject to the restrictions of AS 45.45.900. As we held in Burgess v. State and Duty Free Shoppers Group Lid. v. State, if an indemnity clause is broad enough it may indemnify regardless of the parties' liabilities or fault. Second, USF & E claims that Hoffman is strictly liable for its asbestos activities and that this strict liability cannot be transferred to another party, like USF & E, through an indemnity contract. USF & E cites several authorities for the proposition that asbestos work creates strict liability for the person directing the work. It does not, however, any tion that Hoffman cannot contractually shift this liability. Strict liability, like the duties discussed above, can be freely shifted through an indemnity clause, as Hoffman and USF & E have done. We decline to create a new exception to the enforceability of indemnity agreements where these duties and liabilities are involved. d. "Unclean Hands" USF & E, citing Knaebel v. Heiner, claims that Hoffman eannot enforce the Hoffman/USF & E indemnity clause because Hoffman has "unclean hands." Knaebel indicates that "unclean hands" is an equitable defense that requires a showing of "wrongdoing" by the other party: "In order to successfully raise the defense of 'unclean hands," the defendant must show: (1) that the plaintiff perpetrated some wrongdoing; and (2) that the wrongful act related to the action being litigated." USF & E's "unclean hands" defense to enforcement of an indemnity clause is novel, but it is foreclosed by our previous decisions construing indemnity clauses. The only "wrongdoing" that USF & E has alleged here for the purposes of "unclean hands" is that Hoffman breached its "legal and contractual duty" to ensure workplace safety and protect USF & E employees from asbestos exposure-in other words, the "wrongdoing" consists only of negligence. However, in Burgess v. State, Duty Free Shoppers Group Ltd. v. State, and C.J.M. Construction, Inc. v. Chandler Plumbing & Heating, Inc., we held that an indemnity clause that indemnifies the indemnitee for its own negligence is enforceable." Thus, an allegation of negligence cannot suffice to raise the defense of "unclean hands. Allowance of this claim would create a broad exception to the enforceability of indemnity agreements, and would defeat the entire purpose of indemnification, which is to shift liability from one who is legally liable for an injury to another party in exchange for consideration. We conclude that the "unclean hands" defense should not be available to indemnitees merely because the indemnitor's negligence caused or had a role in the claim or injury that is the subject of indemnification. We reverse the superior court's ruling that USF & E had no duty to defend Hoffman. USF & E has such a duty because the duty to defend requires only that the claimed injury be within the seope of the indemnity clause; the claims made by the Brooks plaintiffs are within the scope of the Providence/Hoffman clause. The indemnity clause is fully enforceable despite AS 45.45.900, the "public duty" exception, the policy of "non-delegable duties," and the "unclean hands" defense. One further point must be made here concerning the scope of USF & E's duty to defend Hoffman. We have concluded that USF & E has a duty to defend Hoffman, and that therefore Hoffman is entitled to reimbursement of its defense costs from USF & E. We have also concluded that Hoffman has a duty to defend Providence, and that therefore Providence is entitled to reimbursement of its defense costs from Hoffman. USF & E's duty to defend does not extend to Hoffman's costs for reimbursing Providence, and USF & E is not required to reimburse Hoffman for the payments that Hoffman must make to Providence. This is because USF & E only has a duty to defend Hoffman, and in this opinion we decline to hold as a matter of law that USF & E has a duty to indemnify Hoffman. Reimbursement of Hoffman's costs to Providence would be indemnification, rather than provision of a defense to Hoffman. D. The Superior Court Properly Held that Hoffman Is Not Entitled to Summary Judgment on USF & E's Alleged Duty to Indemmify Hoffman. In its order denying Hoffman's motion for summary judgment against USF & E, the superior court held that Hoffman was not entitled to a ruling that USF & E had a duty to indemnify Hoffman as a matter of law. As noted earlier, we could only decide as a matter of law that there is a duty to indemnify if the indemnitee is liable for damages. Hoffman claims that it was liable for damages because it paid $25,000 in settlement to the Brooks plaintiffs, and Hoffman seeks indemnification from USF & E to cover this amount. Where there is an indemnity contract that includes both a duty to defend and a duty to indemnify, and the indemnitee makes a settlement payment to a third party, the indemnitee is entitled to indemnification for that payment when: (1) the indemnitor received adequate notice of underlying proceedings, (2) the indemnitee was potentially liable to the third party, and (8) the settlement was reasonable. If the indemnitor did not receive actual notice, then the indem-nitee must show actual liability in order to be entitled to indemnification. While it is clear that USF & E received adequate notice of the underlying proceedings, and of Hoffman's claim for indemnification, we cannot say as a matter of law whether the $25,000 settlement payment was reasonable. Therefore, the superior court properly denied Hoffman's motion for summary judgment on USF & E's alleged duty to indemnify Hoffman. E. The Superior Court Erred in Holding that USF & E Was Emtitled to Implied Contractual Indemmity from Hoffman. Hoffman argues that the superior court's summary judgment in favor of USF & E on the issue of implied contractual indemnity should be reversed. The superior court granted USF & E's cross-motion for summary judgment against Hoffman. In doing so, the superior court implicitly held that Hoffman owed a duty of indemnity and defense to USF & E, since in this cross-motion USF & E requested such a ruling under a theory of implied contractual indemnity. In its order, the superior court did not explicitly hold that USF & E was entitled to implied contractual indemnity. However, the final judgment in favor of USF & E against Hoffman seems to indicate that USF & E is entitled to reimbursement of its defense costs. Because USF & E is not entitled to implied contractual indemnity as a matter of law, we reverse the superior court's ruling. The only other occasion that we have had to discuss implied contractual indemnity was in Fairbanks North Star Borough v. Kandik Construction, Inc. In Kandik Construction, a design firm (Roen) contracted with Fairbanks North Star Borough to design a subdivision. The borough in turn contracted with a construction company (Kandik) to construct the subdivision. Kan-dik sued both Roen and the borough on contractual theories for defects in design of the subdivision, and sued Roen alone for professional malpractice. The borough filed a cross-claim against Roen for implied contractual indemnity. In Kandik Construc tion, we described implied contractual indemnity as a "three-part implied promise": The Borough's indemnity action was one for implied contractual indemnity, which rests on the principle that a contract to perform a service contains a three-part implied promise: 1) the indemnitor will perform the service in a proper manner, or 2) the indemnitor will discharge foreseeable damages resulting from improper performance, unless 3) the indemnitee's own participation in causing the damages precludes recovery. This model cannot be applied to the Hoffman/USF & E contract, because the contract "to perform a service" runs the other way in the Hoffman/USF & E contract: it was USF & E that contracted to perform a service for Hoffman, and yet USF & E is the party that seeks implied indemnity here. In Kandik Construction, the implied indemnitor was the party providing the service; however, if we were to apply implied contractual indemnity here, the implied indemnitor would be Hoffman, the party receiving the service. The Kandi Construction model for implied contractual indemnity simply does not fit the circumstances of the Hoffman/USF & E contract. Moreover, to apply implied contractual indemnity here would contradict the express contractual will of the parties. Hoffman and USF & E signed a contract that shifted certain risks from Hoffman to USF & E. USF & E asks this court to completely reverse this shift, so that Hoffman would be fully liable for these risks. USF & E cites no authority and provides no argument supporting the superior court's decision, and the superior court's decision itself is not supported. Because there is no support for such a radical shift in the contractual relationship between Hoffman and USF & E, we reverse the superior court's grant of USF & E's cross-motion on implied contractual indemnity. V. CONCLUSION Because the Brooks plaintiffs' claims of injury are within the seope of both the Providence/Hoffman and Hoffman/USF & E indemnity contracts, we AFFIRM the ruling that Hoffman owes Providence a duty to defend, and we REVERSE the ruling that USF & E does not owe Hoffman a duty to defend. Because there are issues of material fact that preclude a ruling on the duty to indemnify under both contracts, we REVERSE the ruling that Hoffman owes Providence a duty to indemnify, and AFFIRM the ruling denying summary judgment on the issue of USF & E's duty to indemnify Hoffman. Finally, because implied contractual indemnity does not apply in this case, we REVERSE the grant of summary judgment for USF & E on the issue of implied contractual indemnity. We REMAND this case for proceedings consistent with this opinion. . The full text of the Providence/Hoffman indemnity clause read as follows: 14.2. Indemnity 14.2.1. To the fullest extent permitted by law, CONTRACTOR shall indemnify, defend, and hold harmless PROVIDENCE, the Project Coordinator, ARCHITECT, and their employees and agents, from and against all claims, damages, losses, liabilities and expenses, including attorney's fees, arising out of or resulting from the performance of this Construction Contract, regardless of whether or not it is caused in part by a party indemnified hereunder. 14.2.2. To the fullest extent permitted by law, CONTRACTOR shall indemnify, defend, and hold harmless PROVIDENCE, the Project Coordinator, ARCHITECT, and their employees and agents, from and against all claims, damages, losses, liabilities and expenses, including attorney's fees, arising out of or resulting from CONTRACTOR'S breach of this Construction Contract, or any unlawful act or omission of CONTRACTOR, any subcontractor, anyone directly or indirectly employed by CONTRACTOR or any subcontractor, or anyone for whose acts CONTRACTOR or any subcontractor may be liable. . The full text of the Hoffman/USF & E inderanity clause reads as follows: Subcontractor in addition to his obligations to provide insurance as required by this Subcontract, shall indemnify, defend and save harmless Contractor and its officers, agents and employees from and against all claims, loss, damage, liability, costs, charge or expense (including attorneys' fees) directly or indirectly arising out of or resulting from any failure of Subcontractor to perform any of the terms and conditions of this Subcontract or the performance of or failure to perform the Work or in any manner caused or claimed to be caused by any act, inaction, fault or negligence of Subcontractor or anyone acting on his behalf, even though the same may have resulted from the joint, concurring or contributory act or negligence of Contractor, or those in privity of contract with Contractor, unless the same be caused by the sole negligence or willful misconduct of Contractor, or those in privity of contract with Contractor.... In addition to the insurance and indemnity requirements set forth above, Subcontractor expressly agrees to defend, indemnify and hold Owner, Its Architects and Engineers, Hoffman Corporation, Its subsidiaries, their officers, agents and employees harmless from all claims and loss (including reasonable attorney fees) arising from injuries, including death, to its employees and employees of its subcontractors... The indemnities assumed by Subcontractor shall not, however, extend to injuries or damages caused by or resulting from the sole negligence of the Contractor. . See Moore v. Allstate Ins. Co., 995 P.2d 231, 233 (Alaska 2000). . Seeid.; Alaska R.Civ.P. 56(c). . See Moore, 995 P.2d at 233. . See Wright v. State, 824 P.2d 718, 720 (Alaska 1992); Moore, 995 P.2d at 233. . See Wright, 824 P.2d at 720. . See State Farm Auto. Ins. Co. v. Raymer, 977 P.2d 706, 711 (Alaska 1999). . See Duty Free Shoppers Group Ltd. v. State, 777 P.2d 649, 652 (Alaska 1989); C.J.M. Constr., Inc. v. Chandler Plumbing & Heating, Inc., 708 P.2d 60, 64 (Alaska 1985). . See Larsen v. Municipality of Anchorage, 993 P.2d 428, 431 (Alaska 1999). . See id. . See id. . 629 P.2d 71, 76 (Alaska 1981). . See id. at 76-77. . See id. at 73, 75-76. . Id. at 76-77. . 614 P.2d 1380 (Alaska 1980). . Id. at 1381. . Id. at 1383. . 777 P.2d 649 (Alaska 1989). . Id. at 651. . Id. at 652-53. . Burgess, 614 P.2d at 1381-83; Duty Free Shoppers, 777 P.2d at 651-53. Several other jurisdictions have also concluded that similar indemnity clauses are broad enough to include all claims for injury incurred by the indemnitor's employees working at the jobsite. See Cirrito v. Turner Constr. Co., 189 Conn. 701, 458 A.2d 678, 681 (1983); Perkins v. Rubicon, Inc., 563 So.2d 258, 259 (La.1990); Vitty v. D.C.P. Corp., 268 N.J.Super. 447, 633 A.2d 1040, 1043 (1993); O'Connor v. Serge Elevator Co., 58 NY.2d 655, 458 N.Y.S.2d 518, 444 N.E.2d 982, 983 (1982); Wallace v. Sherwood Constr. Co., 877 P.2d 632, 633-34 (Okla.App.1994). However, we acknowledge that courts in other jurisdictions have come to the opposite conclusion, holding that the employee's mere presence and work activity on the jobsite is not enough to trigger such an indemnity clause. See National Hydro Systems v. M.A. Mortenson Co., 529 N.W.2d 690, 693 (Minn.1995); Hershey Foods Corp. v. General Elec. Serv. Co., 422 Pa.Super. 143, 619 A.2d 285, 290 (1992); Robert H. Smith, Inc. v. Tennessee Tile, Inc., 719 S.W.2d 385, 388 (Tex.App.1986); Jones v. Strom Constr. Co., Inc., 84 Wash.2d 518, 527 P.2d 1115, 1118 (1974). Because of our earlier decisions in Burgess and Duty Free Shoppers, we decline to follow these latter jurisdictions. . Duty Free Shoppers, 777 P.2d at 652-53; Burgess, 614 P.2d at 1382-83. . Hoffman also claims that extrinsic evidence shows that the Providence/Hoffman indemnity clause should be read narrowly. Hoffman notes that while Providence's contracts with its abatement contractors contained asbestos risk insurance requirements, the Providence/Hoffman contract contained no such requirement. Hoffman claims that this indicates that the parties reasonably expected that Hoffman would have no asbestos-related responsibilities under the Providence/Hoffman contract. However, this is irrelevant. As previously noted, even if Hoffman had no asbestos-related responsibilities, the scope of the Providence/Hoffman indemnity clause is broad enough to include any claims of injury brought by employees on the job working for Hoffman. Because we find that the Brooks plaintiffs' claims are within the scope of the first part of the Providence/Hoffman indemnity clause, we need not address the second part of that clause. . See Aetna Cas. & Sur. Co. v. Marion Equip. Co., 894 P.2d 664, 670 (Alaska 1995). Additionally, AS 45.45.900 only applies to invalidate an indemnity clause if the clause is actually applied, as between the parties, to indemnify an indemni-tee for the indemnitee's own sole negligence. See Rogers & Babler v. State, 713 P.2d 795, 798 (Alaska 1986) ("We think AS 45.45.900 should come into effect only when it is determined, as between [the parties], that the [indemnitee] is solely negligent."). In the present case, this second requirement is irrelevant because we find that the Providence/Hoffman indemnity clause fails the first requirement: it does not purport to indemnify Providence for its sole negligence. Providence claims that AS 45.45.900 does not apply to invalidate the clause unless Providence alone is 100% at fault. However, this is not strictly correct; AS 45.45.900 would invalidate the clause if applied when Providence and its abatement contractors were collectively 100% at fault. As we held in Rogers & Babler: "The indemnity provision involved here . is only against public policy in those instances that it purports io indemnify [the indemnitee] for its negligence in the absence of [the indemnitor's] negligence." Rogers & Babler, 713 P.2d at 798. If Providence and its abatement contractors were jointly negligent, while Hoffman was not at all at fault, the indemnity clause would serve to indemnify Providence "for its negligence in the absence of Hoffman's negligence," an outcome forbidden by Rogers & Babler. See also AS 45.45.900 ("[Plamage or expense arising . from the sole negligence or wilful misconduct of the promisee or the promisee's agents, servants or independent contractors who are directly responsible to the promisee, is against public policy and is void and unenforceable.") (emphasis added). . See Frost v. Ayojiak, 957 P.2d 1353, 1355-56 (Alaska 1998). . 991 P.2d 178, 183 (Alaska 1999) (internal quotations and citations omitted). . We have also stated that waiver will not be found if the issue raises plain error. See State Farm Auto. Ins. Co. v. Raymer, 977 P.2d 706, 711 (Alaska 1999). There is no such plain error here. . In addition, the judgment declaring that Hoffman is liable for indemnification may be moot, since Providence asserted at oral argument that it bad no claim for indemnification separate from defense costs. . See Stephan & Sons, Inc. v. Municipality of Anchorage, 629 P.2d 71, 73, 75-76 (Alaska 1981). . There is conflicting evidence in the record to support causation of the Brooks plaintiffs' alleged exposure by several different parties working at the Providence construction project. As Hoffman points out, the asbestos abatement contractors may have caused the alleged exposure by not adequately isolating the abatement areas where the construction was going on. Also, Providence may have caused the alleged exposure because Providence actually directed and coordinated the asbestos abatement efforts, departed from the recommendations of its consultant EHS, and made the decision to proceed with asbestos abatement and other construction simultaneously. USF & E may have caused the alleged exposure because USF & E failed to inspect the area or provide safety gear before commencing work. And finally, Hoffman may have caused the alleged exposure by failing to coordinate the efforts of its subcontractors with the abatement contractors, as the superior court found. . See Stephan & Sons, 629 P.2d at 73, 75-76. . See supra Part IV.A.2 (applying Burgess v. State, 614 P.2d 1380 (Alaska 1980) and Duty Free Shoppers Group Ltd. v. State, 777 P.2d 649 (Alaska 1989). USF & E asserts that extrinsic evidence that supports its claims should be considered. USF & E argues that because USF & E was not required to purchase insurance that would insure it from asbestos-related risks, and because USF & E was not able to do so even if it had tried, this indicates that the parties did not expect that the liability clause would shift asbestos-related liability to USF & E. This extrinsic evidence is not enough to narrow the scope of the broad Hoffman/USF & E indemnity clause. . Since the Brooks plaintiffs' claims "arise out of" USF & E's performance, we need not decide whether the Brooks plaintiffs' claims arose out of any breach by USF & E. . See supra Part IV.A.3.a (applying Aetna Cas. & Sur. Co. v. Marion Equip. Co., 894 P.2d 664, 670 (Alaska 1995)). . See Rogers & Babler v. State, 713 P.2d 795, 798 (Alaska 1986). . 552 P.2d 654, 659-60 (Alaska 1976). . 614 P.2d 1380, 1382 (Alaska 1980). . See Manson-Osberg, 552 P.2d at 659-60; Burgess, 614 P.2d at 1381-82. . See Burgess, 614 P.2d at 1381-82. . 776 P.2d 315 (Alaska 1989). . 692 P.2d 261 (Alaska 1984). . 776 P.2d at 315-16. . 692 P.2d at 262-63. . Id. . See Korean Air Lines, 776 P.2d at 318; Kuhn, 692 P.2d at 266. . See id. . See Bachner v. Rich, 554 P.2d 430, 444 (Alaska 1976) (holding that AS 18.60.075 creates legal duty for employers to keep workplace safe for employees); State v. Marathon Oil Co., 528 P.2d 293, 297 (Alaska 1974) (same); Kelley v. Howard S. Wright Constr. Co., 90 Wash.2d 323, 582 P.2d 500, 506 (1978) (general contractor has "nondel-egable" duty to provide to subcontractor employees safe workplace). . Burgess, 614 P.2d 1380, 1382-83 (Alaska 1980); Duty Free Shoppers, 777 P.2d 649, 652-53 (Alaska 1989). . See Karjala v. Johns-Manville Products Corp., 523 F.2d 155, 159 (8th Cir.1975) (holding that a manufacturer of asbestos can be strictly liable for asbestos exposure); Jenkins v. T & N PLC, 45 Cal.App.4th 1224, 53 Cal.Rptr.2d 642, 647 (1996) (holding that supplier of asbestos can be strictly liable for asbestos exposure); Livingston Bd. of Ed. v. U.S. Gypsum Co., 249 N.J.Super. 498, 592 A.2d 653, 656 (1991) (same). . USF & E cites Burgan v. City of Pittsburgh, 115 Pa.Cmwlth. 566, 542 A.2d 583, 589 (1988) and Widson v. International Harvester Co., 153 Cal.App.3d 45, 200 Cal.Rptr. 136, 146-47 (1984). However, these authorities do not support the proposition that strict lability cannot be shifted through indemnity contract. The court in Bur-gan refused to enforce an indemnity clause because of something similar to the "public duty" exception discussed earlier in this opinion: the indemnitee, as a blasting company, had a public duty to exercise the utmost care to protect the public from its operations; therefore, it was not allowed to transfer lability through an indemnity clause because of the incentive to exercise less care. 542 A2d at 589. In Widson, the court was merely interpreting the scope of a general indemnity clause, and the court refused to enforce the indemnity clause in Widson because the liability was strict liability and the clause concerned was only general in language, and not specific enough to cover the liability. 200 Cal. Rptr. at 146-47. . 663 P.2d 551 (Alaska 1983). . Id. at 554. . 614 P.2d 1380, 1382-83 (Alaska 1980). . 777 P.24 649, 652-53 (Alaska 1989). . 708 P.2d 60, 64 (Alaska 1985). . Of course, this is subject to AS 45.45.900, discussed above. . See Atlantic Richfield Co. v. Interstate Oil Transp. Co., 784 F.2d 106, 110-12 (2d Cir.1986); Compania Sud Americana De Vapores, S.A. v. I.T.O. Corp. of Baltimore, 940 F.Supp. 855, 869 (D.Md.1996); In re Cooper Mfg. Corp., 131 F.Supp.2d 1238, 1252-55 (N.D.Okla.2001). Cf. Theodore v. Zurich General Accident & Liability Ins. Co., 364 P.2d 51, 54-56 (Alaska 1961) (holding that insurer's duty to defend included obligation to reimburse insured for prudent settlement, where insured faced potential liability and insurer refused tender of defense against that liability). . See id. . USF & E, along with Hoffman and Providence, was sued in the underlying proceedings. . Hoffman's cross-claim against USF & E asserted Hoffman's claim that USF & E had a duty to defend and indemnify Hoffman. . 823 P.2d 632 (Alaska 1991). . Id. at 636.

9476436

Jun E. CHOI, Appellant, v. Gloria ANVIL, Hazel Akerelrea, Elena Alexie, Edna Angaiak, Rita Angaiak, and Anna Westdahl, Appellees

Choi v. Anvil

2001-09-07

No. S-9550

1

4

32 P.3d 1

32

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T18:00:13.572446+00:00

CAP

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

Jun E. CHOI, Appellant, v. Gloria ANVIL, Hazel Akerelrea, Elena Alexie, Edna Angaiak, Rita Angaiak, and Anna Westdahl, Appellees.

Jun E. CHOI, Appellant, v. Gloria ANVIL, Hazel Akerelrea, Elena Alexie, Edna Angaiak, Rita Angaiak, and Anna Westdahl, Appellees. No. S-9550. Supreme Court of Alaska. Sept. 7, 2001. Rehearing Denied Oct. 10, 2001. RN. Sutliff, Anchorage, and Laurence Keyes, Hughes, Thorsness, Powell, Huddle-ston & Bauman, LLC, Anchorage, for Appellant. Leonard R. Devaney III, Law Offices of Leonard Devaney, Nome, for Appellee Alex-ie. John S. Hedland and Amy L. Vaudreuil, Hedland, Brennan, Heideman & Cooke, Anchorage, for Appellees Anvil, Akerelrea, An-gaiak, and Westdahl. Before FABE, Chief Justice, EASTAUGH, BRYNER, and CARPENETI, Justices.

1591

10135

OPINION - BRYNER, Justice. I, INTRODUCTION Jun E. Choi rear-ended another car with his taxi cab. Plaintiffs injured in the collision sued Choi to recover their damages and prevailed following a jury trial. Choi appeals, contending that the plaintiffs' failure to present expert testimony on causation and damages required the trial court to enter a directed verdict in his favor. We affirm, concluding that the plaintiffs were not required to present expert testimony to establish their claims. II. FACTS AND PROCEEDINGS Jun Choi, a taxi cab driver for Quyana Cab in Bethel, was driving a cab with three passengers when he rear-ended a pick-up truck driven by Gloria Anvil. Anvil also had three passengers in her pick-up. The road was icy, and Choi was unable to stop. No one sustained visible physical injuries in the collision or sought medical attention immediately afterward. Everyone except Choi and Anvil left the scene before Officer Jerry Evan arrived to investigate the accident. Although three of the plaintiffs consulted physicians or health aides about pain they experienced after the accident, apparently none of their injuries required any specific medical treatment between the time of the accident and the trial. Choi's three passengers, Anvil, and two of her passengers filed suit for injuries allegedly suffered in the accident. In his answer, Choi admitted that he negligently caused the collision. Superior Court Judge Dale O. Curda conducted a two-day jury trial on the issues of causation and damages, with all evidence and witness testimony occurring the first day. In their trial testimony, the plaintiffs complained of various ailments like back, neck, and arm pain. None of the plaintiffs provided any expert testimony or otherwise offered any evidence beyond their own testimony to establish the causation, permanence, or extent of their alleged injuries. Only four other witnesses testified at trial: Officer Evan; Choi, by videotaped deposition; Cezary Mac-zynski, a mechanic who testified that Choi did not ask him for an estimate on the damages to the cab; and Gemma Akerelrea, a community health practitioner in Scammon Bay who testified briefly by telephone that plaintiff Hazel Akerelrea, her sister-in-law, complained of pain after the accident. At the close of Anvil's case, Choi moved for a directed verdict. The court initially denied the motion, but later granted it with respect to future damages. The jury returned substantial verdicts in favor of the plaintiffs. Choi appeals, raising a single issue-that the plaintiffs were required as a matter of law to present expert evidence to establish causation of their "subjective injuries." III. DISCUSSION Choi urges us to adopt a rule that would require expert testimony to establish causation of "subjective injuries in personal injury actions. Citing several Nebraska Supreme Court cases, Choi argues that his proposed rule is justified because "[slubjec-tive injuries require a lay person to speculate as to the existence and cause of [an] injury. We decline to adopt such a rule. Our case law requires expert testimony only when the nature or character of a person's injuries require the special skill of an expert to help present the evidence to the trier of fact in a comprehensible format. In Houger v. Houger, we considered an argument that an expert was necessary to establish that an injured worker was medically unfit for work. We rejected that argument, noting that "there are numerous . matters involving health and bodily soundness, not exclusively within the domain of medical science, upon which the ordinary experience of everyday life is entirely sufficient." We have since affirmed this principle and "require[d] expert medical testimony to establish a causal connection only where there is no reasonably apparent (as distinguished from obvious) causal relationship between the event demonstrated and the result sought to be proved." Choi's proposed Nebraska rule posits that all subjective injuries "are of such a character as to require skilled and professional persons to determine the cause." But the Nebraska courts' characterization of subjective injuries fails to give credit to the life experiences of jurors and judges as triers of fact. The record in this case demonstrates the adequacy of lay testimony to establish causation and damages of subjective injuries in typical cases. The plaintiffs testified that the collision caused their bodies to jerk, fly forward, or violently strike their seats. Hazel Akerelrea, for example, testified that the impact caused her head to go "way back, just like somebody just hit her and just pushed her head back. And the impact on the [car seat] was really, really hard." The plaintiffs also testified that the accident caused them physical pain: various plaintiffs described pain in their necks, shoulders, arms, and backs. Finally, the plaintiffs testified that the accident has caused them to suffer anxiety associated with driving, intersections, and taxi cabs. This lay testimony, based on personal observation, described a situation easily understood by a jury: a rear-end automobile collision causing relatively common injuries. These injuries manifested symptoms like pain, stiffness, and loss of strength. Although a medical expert might have more precisely described the relationship between the impact and the effects described by the plaintiffs, the jury, using everyday experience, could readily find a causal relationship without this expert assistance. The jury could also find that the injuries resulted in compensable damages. Because the causation and injuries were reasonably related to the impact between the automobiles, there was no need for an expert. In short, where alleged injuries-including purely subjective injuries-are of a common nature and arise from a readily identifiable cause, there is no need for the injured party to produce expert testimony. Requiring expert testimony in all such cases would needlessly increase the cost of litigation, discourage injured persons from bringing small but legitimate claims, and also burden defendants, who might feel compelled to hire their own experts in response. IV. CONCLUSION The judgment of the superior court is AFFIRMED. MATTHEWS, Justice, not participating. . When reviewing the denial of a directed verdict, we "determine whether the evidence, when viewed in the light most favorable to the non-moving party, is such that reasonable [persons] could not differ in their judgment.... [I]f there is room for diversity of opinion among reasonable people, the question is one for the jury." Petersen v. Mutual Life Ins. Co., 803 P.2d 406, 410 (Alaska 1990). We review questions of law de novo adopting "the rule of law that is the most persuasive in the light of precedent, reason, and policy." Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979). . We use the term "subjective injury" to track Choi's argument and to reflect the use of that term in the cases cited by Choi. A subjective injury, according to Choi, is one where there is no observable symptom such as bleeding, swelling, or bruising, but only non-observable symptoms like pain and loss of strength. . Choi's brief cites Doe v. Zedek, 255 Neb. 963, 587 N.W.2d 885 (1999), Eno v. Watkins, 229 Neb. 855, 429 N.W.2d 371 (1988), and Eiting v. Godding, 191 Neb. 88, 214 N.W.2d 241 (1974). At oral argument, Choi retreated from the position that all subjective injuries require expert testimony, opting instead for the argument that some subjective injuries can be proved using only lay testimony, but that an upper monetary limit should define the class of injuries provable without expert testimony. Because Choi did not brief this proposed rule and did not specify the proposed monetary limit that would trigger it, we do not address this proposal separately. See Gates v. City of Tenakee Springs, 822 P.2d 455, 460-61 (Alaska 1991) (noting that this court will not consider new theories on appeal). . See Houger v. Houger, 449 P.2d 766, 769 (Alaska 1969); see also Alaska Rule of Evidence 702(a). . See 449 P.2d at 769. . Id. (citing 2 John H. Wigmore, Evidence § 568(1), at 660 (3d ed.1940)). The 1979 revision of Professor Wigmore's treatise cites numerous cases in which courts have found plaintiffs' and other lay witnesses' testimony to be competent regarding various illnesses and injuries. See 2 Wigmore, Evidence § 568(1), at 780-83 (Chad-bourn rev.1979). . Jakoski v. Holland, 520 P.2d 569, 575 (Alaska 1974). . Eiting, 214 N.W.2d at 244. . See, eg., Roling v. Daily, 596 N.W.2d 72, 74-75 (Iowa 1999); Walton v. Gallbraith, 15 Mich.App. 490, 166 N.W.2d 605, 606 (1969); Burandt v. Clarke, 274 Or. 521, 547 P.2d 89, 89-90 (1976). . Choi's argument that the plaintiffs' actions in leaving the scene of the accident without seeking medical treatment were inconsistent with their claims of injury properly goes to the weight of the plaintiffs' testimony, not to its admissibility or its legal sufficiency. See, eg., Roling, 596 N.W.2d at 74 (truck driver involved in "horrific" accident initially refused medical treatment at scene although subsequent examination showed broken bones, substantial bruising, and other injuries); Eitng, 214 N.W.2d at 242 (pain developed [two or three days after the [automobile] accident"). . Choi does not appeal the amount of damages awarded by the jury; he contends only that the plaintiffs failed to prove the existence of damages. . See Jakoski, 520 P.2d at 575.

11157528

In the Matter of the ADOPTION OF A.F.M. B.F., Appellant, v. D.M., Appellee

B.F. v. D.M.

2001-01-05

Nos. S-9308

258

269

15 P.3d 258

15

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T17:58:20.530558+00:00

CAP

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

In the Matter of the ADOPTION OF A.F.M. B.F., Appellant, v. D.M., Appellee.

In the Matter of the ADOPTION OF A.F.M. B.F., Appellant, v. D.M., Appellee. Nos. S-9308. Supreme Court of Alaska. Jan. 5, 2001. Ernest M. Schlereth, Anchorage, for Appellant. Elizabeth Page Kennedy, Anchorage, for Appellee. Before FABE, Chief Justice, . MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.

5591

34593

OPINION BRYNER, Justice. I. INTRODUCTION The superior court allowed David Muntz to adopt his wife's daughter, A.F.M., without the consent of A.F.M.'s biological father, Bruce Farley. In granting the adoption, the court relied on AS 25.23.180, which authorized it to dispense with Farley's consent if A.F.M.'s conception resulted from a sexual assault. We affirm this ruling, concluding: (1) substantial evidence supports the finding that A.F.M.'s conception resulted from a sexual assault by Farley; (2) AS 25.28.180 did not require a conviction of sexual assault as a prerequisite to waiving Farley's consent; (8) terminating Farley's paternal rights in the adoption proceeding did not trigger the constitutional guarantees that attach to a criminal prosecution; and (4) collateral estoppel did not bar the court from deciding whether AFM. was conceived as a result of Farley's sexual assault, since that issue had not been properly raised or litigated before. II. FACTS AND PROCEEDINGS The underlying facts are largely undisputed and can be summarized briefly. Laura and David Muntz married in 1966 and divoreed in 1990. After divorcing, Laura became involved in a brief relationship with Bruce Farley and became pregnant. She gave birth to a daughter, A.F.M., in Washington in November 1992. In a 1998 paternity action, a Washington court found Farley to be A.F.M.'s father, ordered him to pay child support, and granted limited visitation. Meanwhile, Laura had reunited with David; she remarried him in December 1994 and moved to Alaska with A.E.M. in 1995. The following year David petitioned for adoption of A.F.M. in the superior court in Anchorage. In support of his petition, David contended that Farley's consent to the adoption was unnecessary for two reasons: because Farley had failed to pay child support for more than a year and because A.F.M.'s conception had resulted from a sexual assault by Farley. Relying on David's allegation of non-support, the superior court waived Farley's consent and granted the adoption. Farley appealed. We reversed the superior court's decision, concluding that the court had miscalculated the period of Farley's nonsupport. On remand, David advanced his alternative ground for waiving Farley's consent to adoption: his claim that A.F.M.'s conception resulted from a sexual assault by Farley. In response, Farley claimed that David was collaterally estopped from raising this issue by the Washington court's express finding, during the prior paternity action, that Farley had not sexually assaulted Laura. The superior court rejected Farley's claim of estoppel, however, reasoning that the question of whether A.F.M. had been conceived as a result of sexual assault was not necessary to the Washington court's decision. After hearing Farley's live testimony and Laura's video-taped deposition, the superior court found that A.F.M. was conceived by sexual assault; on that basis, the court terminated Farley's parental rights, waived his consent, and granted David's petition to adopt A.F.M. Farley appeals. III, DISCUSSION A. Standard of Review We will overturn a "trial court's resolution of child custody issues 'only if there has been an abuse of discretion or if the controlling findings of fact are clearly erroneous." We review issues of statutory and constitutional interpretation de novo, and likewise apply our independent judgment to determine if collateral estoppel applies to a particular set of facts. B. The Superior Court Did Not Err as a Matter of Fact or Law in Dispensing with Farley's Consent to Adoption. Under Alaska law, a parent must ordinarily consent to adoption. But consent is not required if the parent's relationship with the child has been terminated by court order in an adoption or child in need of aid proceeding. Alaska Statute 25.23.180(c)(8) expressly authorizes a court to terminate a biological father's parental rights in an adoption proceeding if it finds that his child's conception resulted from an act of sexual assault and that termination is in the child's best interests: (c) The relationship of parent and child may be terminated by a court order issued in connection with a[n] [adoption] proceeding under this chapter or a [child in need of aid] proceeding under AS 47.10 on the grounds (3) that the parent committed an act constituting sexual assault or sexual abuse of a minor under the laws of this state or a comparable offense under the laws of the state where the act occurred that resulted in conception of the child and that termination of the parental rights of the biological parent is in the best interests of the child. A finding under this provision must be made by clear and convincing evidence and, when made, allows the court to dispense with the father's consent to adoption. In the present case, Farley contends that the superior court erred as a matter of fact and law in relying on this provision as a basis for allowing A.F.M. to be adopted without his consent. 1. The court did not err as a matter of fact in finding sufficient evidence to establish that A.F.M.'s conception resulted from a sexual assault by Farley. Farley contends that there was insufficient evidence for the court to conclude that AFM. was conceived as a result of a sexual assault by Farley. He insists that evidence of sexual assault was "shaky" and that, even if a sexual assault occurred, there was insufficient basis to find that it resulted in A.F.M.'s conception. But these arguments are unpersuasive. - When we review a trial court's factual findings, we consider only whether the findings were clearly erroneous. Moreover, we give particular deference to those findings when, as here, "most of the trial evidence consists of oral testimony"; for we recognize that in such eases, "(ilt is the function of the trial court, not of this court, to judge witnesses' credibility and to weigh conflicting evidence." Because A.F.M. was conceived in the State of Washington, AS 25.28 .180(c)(8) required the superior court to determine whether an act of sexual assault occurred under Washington law-"the state where the act occurred." Under Washington law, rape in the third degree occurs when a person engages in sexual intercourse with another person who is not a spouse and who has clearly expressed the lack of consent. Here, the evidence supports a finding that A.F.M.'s conception resulted from Farley's commission of third-degree rape. The evidence presented to the superior court on this issue included a transcript of testimony in the January 1994 Washington custody proceedings, a December 1995 affidavit that Laura submitted in support of David's adoption petition, and testimony that she gave in a May 1996 video deposition. Laura's Washington testimony described an on-and-off again relationship with Farley that was punctuated by bouts of violence, followed by Farley crying and Laura forgiving him. Laura testified that she had not wanted to get pregnant but that Farley had repeatedly forced her to have sex with him after she tried to break off their relationship in January 1992. According to Laura, Farley would "back me into a corner or back me on down to tue bed and, if he wanted sex, and hold me down." Eventually, a month before AF.M.'s birth, Laura obtained an anti-harassment order against Farley. Laura's December 1995 affidavit described the act of rape that allegedly resulted in her daughter's conception: 5, In February of 1992, Mr. [Farley] came to my door, and when I opened it, he pushed open the door. He cornered me and took off my clothes, and then pushed me into the bedroom. 6. I kept insisting to him that I did not want to have sex with him but he persist, ed, forcing me. I had told Mr. [Farley] several times that I had a serious medical condition which might result in my death or the death of a child if I became pregnant. When I had my last child I had internal tearing which required reconstructive surgery. Mr. [Farley] used a condom during his forcible sex with me. 7. After that night I told him again I did not want to see Mr. [Farley]. I did not report him to the police because I did not want to get him in trouble. 8. I found out I was pregnant, and confronted Mr. [Farley], who told me that he had poked holes in the condom he used in order to get me pregnant and force me to marry him. 9. When I was pregnant, I became very ill. I was unable to get to the courthouse, but finally, in the eighth month I got a restraining order preventing Mr. [Farley] from contacting me. Laura described this assault again in her 1996 deposition, but said that Farley had not used a condom. Laura also testified in her deposition that she learned of her pregnancy "probably about a month and a half later. Farley provided a very different version of events. He denied that he had ever sexually assaulted Laura and insisted that in January 1992 Laura was "willing and wanting to get pregnant." After considering the evidence, the superi- or court accepted Laura's version of events, finding that Farley had sexually assaulted Laura and that A.F.M.'s conception had resulted from his commission of this offense: I find that based on the testimony of the late mother of this child, I find her believable, credible. And I find the testimony of Mr. [Farley] to be incredible and I find him to not be telling the truth on these issues. Farley vigorously disputes this finding. Pointing to various discrepancies in Laura's account of their relationship, he insists that her version of events "should have left the trier of fact with a reasonable doubt as to whether the particular incident resulting in conception, was indeed a rape." But Farley fails to recognize that his own testimony gave the trial court ample basis for disbelief. While insisting that his relations with Laura had always been consensual and that she had wanted to become pregnant, Farley acknowledged that he had used condoms when having sex with Laura and had "pinched" one of those condoms. He conceded that Laura had not agreed to marry him. He admitted knowing that, even before becoming pregnant, Laura was trying to reunite with David. And he offered an implausible account of his separation from Laura: according to Farley, after Laura got pregnant "she just stopped seeing me. She just said it's done, it's over with and went running back to [David Muntz]." Farley also emphasizes that Laura acknowledged having consensual relations with him on a number of occasions. Pointing to the conclusory and uncorroborated nature of Laura's assertion that she became pregnant as a result of an incident of sexual assault, rather than an incident involving consensual sex, he criticizes her for failing to explain "how she knew this." But in advancing this argument, Farley overlooks that he failed to ask Laura for an explanation, that Laura's testimony on this point was unequivocal, and that it stands uncontradicted except by his own conflicting assertions. Here, our review of the record convinces us that the superior court was not clearly erroneous in finding that A.F.M.'s conception resulted from a sexual assault by Farley. 2. The court correctly determined as a matter of law that AS 25.28.180(c)(3) does not require a prior sexual assault conviction. Farley argues that even if the evidence supported a factual finding that A.F.M.'s conception resulted from a sexual assault, the superior court erred as a matter of law by dispensing with his consent on this basis. Specifically, Farley contends that AS 25.283.180(c)(8) must be construed to dispense with parental consent to adoption based on sexual assault only when a parent has been formally convicted of the offense. This contention cuts against the grain of AS 25.23.180(c)(8)'s plain language, which does not require a conviction for sexual assault. The statute permits the court to terminate parental rights and waive consent to adoption if the parent "committed an act constituting sexual assault or sexual abuse of a minor under the laws of this state or a comparable offense under the laws of the state where the act occurred that resulted in conception of the child." Alaska does not follow the plain meaning rule of statutory interpretation, applying, instead, a sliding seale approach that allows us to depart even from plainly worded statutory language if its history convincingly shows a legislative intent to adopt a different meaning. But the legislative history of AS 25.23.180(c)(8) establishes that the legislature intended to adopt the statute's plain meaning. The statute was enacted in 1987 in response to this court's decision in S.J. v. L.T. S.J. began sexually abusing his stepdaughter when she was eight years old, fathered a child by her when she was fifteen, and was convicted of sexually abusing her for an incident that occurred two years later. In a custody action between S.J. and his stepdaughter, the superior court terminated S.J.'s parental rights, concluding that the termination was warranted on public policy grounds because S.J. had "father[ed] a child by means of a criminal relationship." In reversing this termination order, we ruled that "(involuntary termination of parental rights may not be accomplished absent some statutorily mandated procedure." But we expressly invited the legislature to "consider issues such as those raised in this case in order to provide courts with necessary guidance in resolving sensitive questions." The legislature answered this invitation the following year by enacting the current version AS 25.23.180(c)(8). Since the legislature acted specifically to cover the situation of S.J., whose sexual assault conviction was not for the assault that resulted in the birth of his child, it seems obvious that the legislature did not intend the provision to require a formal conviction for sexual assault as a prerequisite to a finding of conception by sexual assault. Despite this apparent unity of plain meaning and legislative intent, Farley maintains that AS 25.23.180(c)(8) would be unconstitutional if it permitted parental rights to be terminated based on a finding of sexual assault in the absence of a formal conviction. Emphasizing that "statutes should be construed where possible to avoid unconstitutionality," he urges us to avoid an unconstitutional result by interpreting the statute to require a criminal conviction. As we explain below in Part IIILC., however, Farley's constitutional argument lacks merit. Accordingly, it provides no occasion to alter AS 25,.23.180's plain meaning. Given the plain meaning of the statute and its legislative history, we conclude that the superior court properly interpreted AS 25.23.180(c)(8) as not requiring a prior conviction. C. Alaska Statute 25.28.180 Is Constitutional. Farley next argues that AS 25.283.180 violates the due process and equal protection clauses of the state and federal constitutions. Relying on Baker v. City of Fairbanks, where we held that eriminal prosecutions "include offenses which, even if in-earceration is not a possible punishment, connote criminal conduct in the traditional sense of the term," Farley reasons that AS 25.23.180 amounts to a eriminal provision. He emphasizes that the statute "requires the trial court to render a judgment against the non-custodial birth parent . that that parent is guilty of a heinous eriminal act, and prescribes a punishment far greater than any prison term; namely the loss of one's child." Farley thus proposes that "[the facts of this case call for the same constitutional protection{s]" that apply in eriminal proceedings, namely, the right to a jury trial and the requirement of proof beyond a reasonable doubt. But this reasoning is faulty for several reasons. Because adoption hearings are not proceedings brought by the state to punish offenders for acts of misconduct, an adoption order that terminates parental rights under AS 25.23.180 does not, realistically speaking, amount to an "offense"; neither does it "connote criminal conduct in the traditional sense of the term." And since adoption proceedings are confidential, a father whose parental rights are terminated faces neither the "moral opprobrium" that normally accompanies a sexual assault conviction nor the "collateral consequences of a formally 'eriminal convietion-ie., the stigma of being labeled a 'criminal? " As we recently observed, "punishment for past misconduct" is the "implicit sine quo non of a 'criminal prosecution. " Yet even when questions of conception by sexual assault arise under AS 25.23.180(c)(8), punitive purpose plays no role in adoption proceedings. The purpose of A.F.M.'s adoption hearing was not to punish Farley for his past misconduct; it was to determine AF.M.'s future custody in accordance with her best interests. Thus, in the analogous procedural setting of an appeal arising from child-in-need-of-aid adjudication, we have refused to characterize termination of parental rights as a criminal proceeding, relying on the termination's non-punitive purpose." Despite the state's participation as the prosecuting party in such cases, we have reasoned that a termination order is non-criminal because "the parent is neither charged with criminal behavior nor subject to incarceration as a direct consequence of the proceeding." Farley attempts to distinguish his case from a termination occurring in a CINA proceeding. He argues that under AS 25.23.180(c)(8), "the birth father is charged with very serious criminal behavior," that "the court is called upon to . [make] a determination that he is guilty," and that "[t]he direct result of such a judgment is the loss of the cherished constitutional right to bear and raise children." This argument is unpersuasive. The "right to direct the upbringing of one's child" is undeniably "one of the most basic of all civil liberties." As we noted in extending the right to court-appointed counsel to a biological parent who faced termination of parental rights in an adoption proceeding, "loss of custody is often recognized as 'punishment more severe than many criminal sanctions' But neither the fundamental nature of the rights at stake nor the criminal nature of the conduct that place those rights in jeopardy alters an adoption proceeding's essentially non-punitive purpose. And because the proceeding's basic purpose remains unchanged, a claim of conception by sexual assault does not convert the adoption into a criminal trial. Admittedly, an order terminating parental rights in such a case is, in Farley's words, a "direct result" of the father's sexual misconduct. Yet the termination is not an automatic consequence of the misconduct, and, more importantly, the father's rights are not the only rights at issue. By asserting his paren tal right to resist A.F.M.'s adoption, Farley necessarily implicated the equally vital rights of A.F.M. and her mother. Alaska Statute 25.23.180(c)(8) implicitly recognizes the need to balance these competing rights by authorizing termination only upon a finding that sexual assault "resulted in conception of the child and that termination of the parental rights of the biological parent is in the best interests of the child." Thus, while Farley's sexual assault of Laura was unquestionably important, it by no means was the only, or even the determining, factor in the court's decision to terminate his rights. Because AS 25.28.180(c)(8) required the court to evaluate Farley's sexual assault in relation to A.F.M.'s best interests, the statute gave his illegal actions significance not as past conduct that deserved punitive sanction, but as a present cireumstance that promised lasting damage to A.F.M.'s ability to form a healthy bond with Farley. In so doing, the statute simply recognized the practical reality that "[lt is not the brute biological fact of parentage, but the existence of an actual or potential relationship that society recognizes as worthy of respect and protection, that activates the constitutional claim." In short, because proceedings under AS 25.28.180(c)@@) serve important non-punitive ends, we uphold the statute's constitutionality as a non-criminal measure. D. - Collateral Estoppel Did Not Bar Reliance on AS 25.23.180. Farley's last contention is that the doctrine of collateral estoppel barred the court from considering whether A.F.M. was conceived by rape. This argument calls for a brief explanation. When Farley filed the Washington action to establish that he had fathered AF.M., Laura resisted his request for visitation and custody by contending that Farley had a manipulative and abusive personality, and that he had selfishly duped her into becoming pregnant. Laura further asserted that visitation would be detrimental to AFM. The record in this case does not demonstrate that Laura's pleadings in Washington claimed that she had been sexually assaulted by Farley or that she asked the court to deny visitation for this reason. The Washington transcript contained in the record makes clear that Laura did not report any incidents of sexual assault to the guardian ad litem. The first mention of sexual assault in the Washington proceedings evidently occurred when Laura testified before a court commissioner at the custody hearing. During her testimony, in describing Farley's manipulative behavior, Laura disclosed that at times he had physically coerced her into having sexual relations: I felt threatened.... [Wlhat he would do, instead of hitting, he's so big, that he would prevent me from moving. He would put his body in front of mine and back me into a corner or back me on down to the bed and, if he wanted sex, and hold me down. It was Farley's attorney who, while cross-examining Laura, first labeled this allegation "rape": To be perfectly honest, I'm stunned hearing you say that Mr. [Farley] was very, very violent, very threatening, he intimidated you, he raped you by holding you down, pushing you down. When did all this start? Laura testified that she and Farley had an on-and-off again relationship:; "When he forced me it was rape. When I consented I don't feel it was rape." In closing argument to the Washington court, Laura's attorney never mentioned rape. Neither did Farley's attorney, who argued that "conception was not the issue in [the Washington] case." Nevertheless, in addressing Laura's request to prohibit all contact between Farley and AFM., the court commissioner addressed the issue of rape, commenting, "We don't have a rape here. You know, we really don't. We might have a different situation altogether if we did." Although the commissioner found Farley's manipulative conduct deplorable and selfish, the commissioner declined to bar Farley from seeing his daughter altogether. When David later raised the issue of A.F.M.'s conception by sexual assault in the Alaska adoption proceeding, Farley responded by moving for summary judgment on the ground of collateral estoppel, asserting that the issue had been fully litigated in Washington and was decided in Farley's favor. The superior court rejected this assertion, de-seribing the Washington court's references to the absence of rape as "musings." The superior court further concluded that the question of A.F.M.'s conception by sexual assault "was not litigated and judgment did not issue on the question" in the Washington case. Accordingly, the court denied Farley's summary judgment motion. We agree that Farley's reliance on collateral estoppel must fail because the question of sexual assault was not actually litigated in the Washington proceeding. Restatement (Second) of Judgments § 27 requires an issue to be "actually litigated" before a ruling on it becomes conclusive in subsequent actions: When an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim. Our cases have adopted this Restatement standard: "The doctrine of collateral estop-pel 'bars relitigation, even in an action on a different claim, of all issues of fact or law that were actually litigated and necessarily decided in [a] prior proceeding." And in applying the standard, we have said that an issue is "actually litigated" when it "is properly raised by the pleadings or otherwise, is submitted for determination, and is determined." As is apparent from our summary of the Washington proceedings, the issue of sexual assault was not "actually litigated" in this sense. While the issue undeniably cropped up in Laura's Washington testimony and was decided by the commissioner, the parties never "properly raised" it, "by the pleadings or otherwise"; nor did they "submit[ I[it] for determination." Because the issue was not "actually litigated," the Washington court's finding on sexual assault did not preclude David from litigating the issue in the Alaska adoption proceeding. IV. CONCLUSION The superior court properly construed and applied AS 25.28.180(c)(8); the evidence supports the court's findings under this statute; the statute is not unconstitutional; and the court's findings are not barred by collateral estoppel. For these reasons, we AFFIRM the decree of adoption. . We covered the facts in greater detail in In re Adoption of A.F.M., 960 P.2d 602, 603-04 (Alaska 1998). . We use the same pseudonyms here that we used in In re Adoption of A.F.M., 960 P.2d at 602. . See id. at 603. . See id. at 603-04. . Laura died of cancer in August 1996, several months after the adoption proceeding was filed. . Todd v. Todd, 989 P.2d 141, 142-43 (Alaska 1999) (quoting J.W. v. R.J., 951 P.2d 1206, 1209 (Alaska 1998)). . See Turney v. State, 936 P.2d 533, 538 (Alaska 1997). . See Wilson v. Municipality of Anchorage, 977 P.2d 713, 726 (Alaska 1999). . See AS 25.23.040(a)(1) and (2). . See AS 25.23.050(a)(5). . Adoption Rule 11(Ff); of. D.L.J. v. W.D.R., 635 P.2d 834, 838 (Alaska 1981) (applying clear and convincing standard to finding that natural parent's consent to adoption proceeding was not required because the parent failed to communicate with or support child); In re Adoption of K.S., 543 P.2d 1191, 1195 (Alaska 1975) (upholding trial court's application of clear and convincing standard of proof to finding that natural mother was unfit and that her consent to adoption was not required). . AS 25.23.180(d)(1) provides: (d) For the purpose of an adoption proceeding under this chapter, a decree issued by a court of competent jurisdiction in this or another state terminating all rights of a parent with reference to a child or the relationship of parent and child dispenses with the required (1) consent by that parent to an adoption of that child{.] . See Todd v. Todd, 989 P.2d 141, 142-43 (Alaska 1999). . Silvers v. Silvers, 999 P.2d 786, 792-93 (Alaska 2000) (citing Martens v. Metzgar, 591 P.2d 541 544 (Alaska 1979)). . Knutson v. Knutson, 973 P.2d 596, 599-600 (Alaska 1999). . AS 25,23.180(c)(3). . RCW 9A.44.060(1)(a) provides: (1) A person is guilty of rape in the third degree when, under circumstances not constituting rape in the first or second degrees, such person engages in sexual intercourse with another person, not married to the perpetrator: (a) Where the victim did not consent as defined in RCW 9A.44.010(7), to sexual intercourse with the perpetrator and such lack of consent was clearly expressed by the victim's words or conduct{.] . Laura was deposed in May 1996; she died that August. . At the deposition, Laura further testified regarding charges that Farley had sexually assaulted young girls in his family. She said she had contacted Child Protection Services because she believed Farley had molested A.F.M. . (Emphasis added.) - Under Washington's criminal code a person commits rape in the second degree by engaging in sexual intercourse by _ forcible compulsion. See RCW 9A.44.050(1)(a). A person commits rape in the third degree by engaging in sexual intercourse with a non-spouse without consent, where that lack of consent is clearly expressed by words or conduct. See RCW 94.44.060(1)(a). . See Romann v. State, Dep't of Transp. & Pub. Facilities, 991 P.2d 186, 190-91 (Alaska 1999). . 727 P.2d 789 (Alaska 1986). . See id. at 791-92. . Id. at 792. . Id. at 795. . Id. at 795 n. 8. . House committee testimony indicates that the bill was "written to address one specific case" "involving people in Fairbanks" "in which there is wide spread agreement about the answer." Minutes of House Health, Education and Social Services Standing Committee hearing on Senate Bill 30 (May 17, 1987). . See S.J., 727 P.2d at 791-92, 795. . This conclusion is bolstered by the testimony of Senator Paul Fischer, the bill's prime sponsor, who, when asked if the bill "relates only to termination of parental rights for persons who have been convicted and incarcerated," responded: "that was not the intent." Minutes of Senate Health, Education & Social Services Committee Hearing on Senate Bill 30 (March 25, 1987). . State v. Guest, 583 P.2d 836, 839 (Alaska 1978) (citations omitted). . See U.S. Const. amend. V (due process); Alaska Const. art. I, § 7 (due process); U.S. Const. Amend. XIV, § I (due process and equal protection); and Alaska Const. art. I, § 1 (equal protection). Farley also cites state and federal constitutional provisions guaranteeing a speedy and public trial by an impartial jury in all criminal prosecutions. See U.S. Const. amend. VI; Alaska Const. art. I, § 11. . Baker v. City of Fairbanks, 471 P.2d 386, 402 (Alaska 1970); see also R.L.R. v. State, 487 P.2d 27, 33 (Alaska 1971) (extending Baker to a juvenile delinquency case involving sale of LSD because of "the moral opprobrium attached" to the offense). . Baker, 471 P.2d at 402. . R.L.R., 487 P.2d at 33. . State, Dep't of Revenue, Child Support Enforcement Div. v. Beans, 965 P.2d 725, 730 (Alaska 1998). . Id. at 730 n. 8. . See In re C.L.T., 597 P.2d 518, 525 (Alaska 1979) (approving use of clear and convincing standard in proceedings to terminate parental rights). . Id.; see also A.A. v. State, Dep't of Family and Youth Servs. ., 982 P.2d 256, 260 (Alaska 1999) (affirming termination of parental rights after father's murder conviction was overturned because termination was not based on conviction but on extensive history of assaultive behavior); cf. Nelson v. Jones, 781 P.2d 964, 969-70 (Alaska 1989) (affirming decree of divorce establishing conditional supervised visitation based on clear and convincing evidence that father had sexually abused daughter). We note that other courts have reached similar conclusions in adoption proceedings. See, eg., In re Shane T., 544 A.2d 1295, 1296-98 (Me.1988) (rejecting argument that parent whose rights would be terminated was entitled to a jury trial); In re Colon, 144 Mich.App. 805, 377 N.W.2d 321, 327-28 (1985). . Flores v. Flores, 598 P.2d 893, 895 (Alaska 1979); see also Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 2060, 147 L.Ed.2d 49 (2000). . In re K.L.J., 813 P.2d 276, 283 (Alaska 1991). . See, e.g., Minutes of House Health, Education and Social Services Standing Committee hearing on Senate Bill 30 (May 17, 1987) (testimony, without elaboration, that statute serves interests of mother and child); see also Mullis v. Kinder, 568 N.E.2d 1087, 1091 (Ind.App.1991) (noting that statute waiving father's consent to adoption where the child was conceived as a result of rape was enacted to protect the victims of sex crimes who bear children); Christian Child Placement Serv. v. Vestal, 125 N.M. 426, 962 P.2d 1261, 1266 (N.M.App.1998) (recognizing that statute waiving father's consent to adoption where the child was conceived as a result of rape or incest is rationally related to the state's interest in protecting children and preventing their exploitation); In re Termination of Parental Rights to SueAnn A.M., 176 Wis.2d 673, 500 N.W.2d 649, 653 (1993) (noting that purpose of statute denying father of child conceived as a result of rape standing to contest termination of parental rights was to "relieve sexual assault victims from having to face their assailants at termination proceedings," protect victims, and facilitate adoptions). . AS 25.23.180(c)(3) (emphasis added). . Pena v. Mattox, 84 F.3d 894, 899 (7th Cir.1996). . Farley also cites the constitutional privilege against self-incrimination, U.S. Const., amend. V, Alaska Const. art. I, § 9, and suggests that AS 25.23.180 violates this right by exposing him to future incarceration "because the evidence clicited and his own testimony may be used as the basis for the later institution of a criminal prosecution against him." - But on its face, AS 25.23.180(c)(3) did not prevent Farley from invoking the privilege or compel him to testify. Nor do the circumstances of Farley's case suggest an actual danger of compulsion. Cf. McCracken v. Corey, 612 P.2d 990, 996 (Alaska 1980); In re P.N., 533 P.2d 13, 18-20 (Alaska 1975); In re Jessica B., 207 Cal.App.3d 504, 254 Cal.Rptr. 883, 893 (1989). The privilege against self-incrimination is normally lost if it is not asserted. See Williams v. State, 928 P.2d 600, 605 (Alaska App.1996). Farley simply chose not to assert this right. . Restatement (Second) of Judgments § 27 (1982). . Wilson v. Municipality of Anchorage, 977 P.2d 713, 726 (Alaska 1999) (quoting Campion v. State, Dep't of Community & Reg'l Affairs, 876 P.2d 1096, 1098 (Alaska 1994)). We ordinarily recognize that four factors must be met for the doctrine to apply: (1) the party against whom the preclusion is employed was a party to or in privity with a party to the first action; (2) the issue precluded from relitigation is identical to the issue decided in the first action; (3) the issue was resolved in the first action by a final judgment on the merits; and (4) the determination of the issue was essential to the final judgment. Wilson, 977 P.2d at 726 (citing Jackinsky v. Jackinsky, 894 P.2d 650, 654 (Alaska 1995)). Factor (3) encompasses the requirement that an issue actually be litigated. . Bignell v. Wise Mechanical Contractors, 720 P.2d 490, 494 (Alaska 1986) (citing Restatement (Second) of Judgments § 27); see also Jackinsky, 894 P.2d at 655 (citing Restatement (Second) of Judgments § 27 emt. d).

9095792

Brenda GENARO, Appellant, v. MUNICIPALITY OF ANCHORAGE, Officer K. Ehm, and Officer Brock, Appellees

Genaro v. Municipality of Anchorage

2003-09-05

No. S-10681

844

847

76 P.3d 844

76

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T18:37:27.170735+00:00

CAP

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

Brenda GENARO, Appellant, v. MUNICIPALITY OF ANCHORAGE, Officer K. Ehm, and Officer Brock, Appellees.

Brenda GENARO, Appellant, v. MUNICIPALITY OF ANCHORAGE, Officer K. Ehm, and Officer Brock, Appellees. No. S-10681. Supreme Court of Alaska. Sept. 5, 2003. Thomas A. Dosik, Law Office of Thomas A. Dogsik, Anchorage, for Appellant. Joyce Weaver Johnson, Assistant Municipal Attorney, and William A. Greene, Municipal Attorney, Anchorage, for Appellees. Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.

2281

14223

OPINION FABE, Chief Justice. I. INTRODUCTION The superior court granted summary judgment to the Municipality of Anchorage on claims filed by pro se litigant Brenda Genaro, based on her deemed admissions stemming from her failure to respond to the Municipality's requests for admissions. Genaro had opposed summary judgment on the ground that she believed the Municipality had already received the requested information from the bankruptcy trustee who had briefly been substituted for her as the real party in interest in the case. Because we conclude that it was an abuse of discretion not to give Genaro the opportunity to withdraw her deemed admissions under Alaska Civil Rule 86(b), we reverse the grant of summary judgment. II. FACTS AND PROCEEDINGS Brenda Genaro, acting pro se, filed a lawsuit in December 1999 against the Municipality of Anchorage and two Anchorage police officers, alleging that the two officers had beaten her. Genaro did not pursue the lawsuit, and a notice and order of dismissal was issued in May 2001 declaring that the case would be dismissed pursuant to Civil Rule 4l(e){1)(A) unless good cause to the contrary was shown. Genaro responded that medical and financial difficulties and a "lack of resources to formally accomplish pre-trial proceedings" had prevented her from pursuing the suit. Before she could comply with the court's order to further explain these difficulties, she filed for bankruptcy. She then filed a response explaining the difficulties. In August 2001 the bankruptey trustee was substituted for Genaro as the real party in interest and the case was restored to the active civil case list. Shortly thereafter, the trustee wrote Genaro a letter requesting that she forward "all documents related to the incident forming the basis for the lawsuit and the injuries suffered." The trustee and the Municipality met to discuss pretrial scheduling, including a plan for discovery. On March 1, 2002, the trustee abandoned the case and Genaro was reinstated as the plaintiff. On April 18, 2002, the Municipality sent Genaro requests for admissions. Genaro failed to respond to the requests by the due date of May 21, 2002. Nine days later, on May 30, 2002, the Municipality moved for summary judgment, arguing that the court should dismiss all of Genaro's claims because her failure to respond to the requests for admissions meant that the requests were . deemed admitted and conclusively established the Municipality's entitlement to summary judgment. Genaro opposed this motion, arguing that the bankruptcy trustee had complied with the Municipality's requests while the case was in his hands. The court, noting that the requests were sent after the trustee withdrew, granted the Municipality's motion and dismissed Genaro's complaint with prejudice. Genaro, now represented by counsel, appeals, claiming that the court erred in granting the Municipality summary judgment and dismissing the case. She argues that the court abused its discretion by not informing her of her right to move to withdraw the admissions and by not giving her the opportunity to do so. III. DISCUSSION A. - Standard of Review We review for abuse of discretion a trial court's decisions concerning whether to inform a pro se litigant of the specific defects in a pleading and whether to provide an opportunity to remedy those defects. "We will find an abuse of discretion if our review of the record leaves us with a definite and firm conviction that the [trial court] made a mistake[.]" B. The Superior Court Had an Obligation To Assist Genaro with the Procedure for Withdrawing Her Admissions and Should Have Permitted Her To Withdraw Them. Genaro argues that the superior court had a duty to inform her, a pro se litigant, of the option of moving to withdraw her deemed admissions under Civil Rule 36(b). Civil Rule 36(a) provides that failure to respond within thirty days to requests for admissions will result in the matters in the requests being deemed admitted. Rule 36(b) provides that matters admitted are "conclusively established unless the court on motion permits withdrawal or amendment of the admission." The superior court may allow amendment or withdrawal "when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice the party in maintaining the action or defense on the merits." We have made clear that "a trial judge has an obligation to inform a pro se litigant of the proper procedure for the action he or she is obviously attempting to accomplish." In Breck v. Ulmer, we held that the pro se litigant "should have been advised of the necessity of submitting affidavits to preclude summary judgment, and of the possibility of amending her complaint." In Bauman v. State, Division of Family & Youth Services, we declined "to extend Breck to require judges to warn pro se litigants on aspects of procedure when the pro se litigant has failed to at least file a defective pleading." Similarly, in Coffland v. Coffland, we held that because "[a] pro se litigant must make some attempt to comply with the court's procedures before receiving the benefit of the court's leniency," the trial court had no obligation to be lenient with a pro se litigant who had made "no effort to cooperate with the trial court or to request assistance in complying with its orders." Although Genaro never made an express request for help from the court on how to undo her deemed admissions or how to rescue her case, she did file a timely opposition to the summary judgment motion. Genaro's "objection" to the Municipality's motion made it apparent that she was attempting to defeat the motion by contesting her deemed admissions. In her "objection," Genaro stated that she believed the Municipality already had the information it was seeking because the bankruptcy trustee had complied with the discovery requests while the case was in his hands. Additionally, she offered to resubmit the information. Genaro's "objection" may have been a "defective pleading" in that it did not mention Rule 86(b), but its purpose was clear. Even clearer than her "objection" are Ce-naro's numerous statements at the pretrial conference when the court informed her that the requests for admissions were deemed admitted because she had not responded to them. When the court stated that none of the requests for admissions had been answered by Genaro, she interrupted with "But they were, your Honor" and explained that she had submitted the documents to the bankruptey trustee. She explained repeatedly that "[the bankruptey trustee] had already answered his requests for admission," that she had answered the requests for admission "through [the trustee]," that the bankruptcy trustee took over the case and "showed them the evidence that they needed to know," and that the Municipality already "know[s] the information" and "hals] the evidence." She also clearly declared that "if you want requests for admission, the admission is no, I do believe that the cop attacked me, that's the admission, what else do you want?" While Genaro did not expressly move to withdraw her admissions and did not mention Rule 86(b), we have acknowledged that the rules of court "may be models of clarity to one schooled in the law, [but] a pro se litigant might not find them so." Although we recognize that it is often difficult for a trial court to find the correct balance between the need to remain neutral and impartial and the need to inform pro se litigants of the proper procedures for their attempted actions, we conclude that in this instance it was an abuse of discretion not to inform Genaro of "the proper procedure for the action . she [was] obviously attempting to accomplish, namely, using a Rule 36(b) motion to preclude summary judgment." Because this would not require "open-ended participation by the court [that] would be difficult to contain," informing Genaro of "the technical defects in [her] pro se pleadings [would not] compromise the superior court's impartiality." Genaro's situation is one in which withdrawal of her deemed admissions is wholly appropriate. Because "the disputed admission[s] plainly concerned . key factual issue[s]," as the Municipality's summary judgment motion - essentially | acknowledges, withdrawal of the admissions would subserve the merits of the action. Given the procedural confusion caused by the temporary substitution of the bankruptey trustee as the real party in interest, the fact that the Municipality filed its summary judgment motion only nine days after the deadline for responses to its requests for admissions had passed, and Genaro's stated willingness to submit the information, the Municipality could not show that it would be prejudiced by withdrawal of the deemed admissions. Thus, under Rule 36(b), Genaro should be permitted to withdraw her deemed admissions. IV. CONCLUSION Because the superior court had an obligation to inform a pro se litigant clearly indicating that she wanted to withdraw her deemed admissions of the proper procedures for doing so and should have permitted her to withdraw those admissions, we REVERSE the grant of summary judgment and REMAND to the superior court with direction to permit Genaro to withdraw her deemed admissions under Rule 86(b). . Genaro had thirty days to respond under Alaska Rule of Civil Procedure 36(a), plus an additional three days under Rule 6(c) because the Municipality mailed the requests to Genaro. . Collins v. Arctic Builders, 957 P.2d 980, 982 (Alaska 1998); Hughes v. Bobich, 875 P.2d 749, 755 (Alaska 1994). . Hughes, 875 P.2d at 755 (quoting City of Kenai v. Ferguson, 732 P.2d 184, 190 (Alaska 1987)). . The Municipality contends that this issue and several others raised by Genaro go beyond Genaro's list of points on appeal. However, Genaro's points on appeal encompass the claims she actually made, her arguments are adequately briefed, and we can address her arguments "effectively without reviewing untranscribed portions of the electronic record." Alaska Rule of Appellate Procedure 204(e). The Municipality further argues that some of Genaro's claims were not raised below. As explained later in this opinion, the issue whether the trial court should have given Genaro an opportunity to withdraw her admissions was adequately raised below. Because of our resolution of this case, we need not address the other two Genaro claims challenged by the Municipality and therefore need not address the Municipality's contention. . Alaska R. Civ. P. 36(b). . Coffland v. Coffland, 4 P.3d 317, 321 (Alaska 2000) (internal quotations omitted). . 745 P.2d 66, 75 (Alaska 1987). . 768 P.2d 1097, 1099 (Alaska 1989). . 4 P.3d at 321; see also Kaiser v. Sakata, 40 P.3d 800, 803 (Alaska 2002) (reiterating that pro se litigant "is expected to make a good faith attempt to comply with judicial procedures and to acquire general familiarity with and attempt to comply with the rules of procedure-absent this effort, he or she may be denied the leniency otherwise afforded pro se litigants") (footnotes omitted). . Collins v. Arctic Builders, 957 P.2d 980, 982 (Alaska 1998). But see Bauman, 768 P.2d at 1099 (asserting that Civil Rules were "promulgated for the specific purpose of giving fair and reasonable notice to all parties of the appropriate procedural standards that should be uniformly applied when any party, including a pro se litigant, seeks relief in [civil litigation]," and advising that [a) pro se litigant who wants to initiate such an action should familiarize himself or herself with the rules of procedure"). . Breck, 745 P.2d at 75. The Municipality maintains that Genaro did not need the superior court to inform her of the opportunity under Rule 36(b) to move or withdraw her admissions because the Municipality pointed Genaro to Rule 36 in the instructions accompanying its first discovery request and warned her of the consequences of failing to respond. See Willoya v. State, Dep't of Corrections, 53 P.3d 1115, 1123 (Alaska 2002) (holding that court had no obligation to inform pro se litigant of procedural requirements due to clear evidence in record, including inter alia defendant's mention of requirements in summary judgment motion, that litigant knew requirements). The instructions did not describe the option of withdrawing any deemed admissions, however, and unlike Willo-ya, Genaro made no statements indicating her knowledge of the requirements. Therefore, there is not "clear evidence in the record that [slhe knew the requirements." Id. . Bauman, 768 P.2d at 1099. . Collins, 957 P.2d at 982. . "Each admission either negates an essential element of one or more cause of action alleged in her complaint, establishes that no damages resulted therefrom, or else establishes one or more affirmative defense thereto. There remain, therefore, no genuine issues of material fact necessary to be litigated. ." . See Hughes v. Bobich, 875 P.2d 749, 755-56 (Alaska 1994). . Genaro raises two other arguments on appeal. First, Genaro contends that the superior court erred by dismissing the entire case instead of the case against only the Municipality. Genaro notes that only the Municipality moved for summary judgment and only on its own behalf, The Municipality argues that this point was never raised below and that the police officers were not properly served. We need not address this issue because our decision reinstates the case against all defendants. Second, Genaro asserts that the Municipality presented no evidence upon which the superior court could have based its grant of summary judgment. Because we are reversing the grant of summary judgment, we need not consider this argument either.

10395984

PAN ALASKA TRUCKING, INC. and Alaska National Insurance Company, Appellants, v. Damon E. CROUCH, and State of Alaska, Workers' Compensation Board, Appellee

Pan Alaska Trucking, Inc. v. Crouch

1989-05-05

No. S-2417

947

952

773 P.2d 947

773

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

PAN ALASKA TRUCKING, INC. and Alaska National Insurance Company, Appellants, v. Damon E. CROUCH, and State of Alaska, Workers’ Compensation Board, Appellee.

PAN ALASKA TRUCKING, INC. and Alaska National Insurance Company, Appellants, v. Damon E. CROUCH, and State of Alaska, Workers’ Compensation Board, Appellee. No. S-2417. Supreme Court of Alaska. May 5, 1989. Rehearing Denied June 30,1989. Richard L. Waller, Trena L. Heikes and Alex Vasauskas, Stone, Waller & Jenicek, Anchorage, for appellants. Chancy Croft, Anchorage, for appellee. Before MATTHEWS, C.J., and RABINOWITZ, BURKE, COMPTON and MOORE, JJ.

2782

17077

OPINION COMPTON, Justice. The Alaska Workers' Compensation Board (Board) awarded disability benefits to Damon Crouch. His employer, Pan Alaska Trucking, Inc., and its insurance carrier, Alaska National Insurance Company (collectively referred to herein as "Pan Alaska") appealed the award to the superi- or court, which affirmed. Pan Alaska appeals. I. FACTS AND PROCEEDINGS In February 1981 Damon Crouch was injured while driving a truck for Pan Alaska Trucking. In January 1983 he filed an Application for Adjustment of Claim with the Board. Two days later, Pan Alaska controverted the claim. In August 1985 Crouch filed a second application and requested a hearing on his claim. Pan Alaska petitioned the Board to dismiss Crouch's claim on the ground that he had failed to request a hearing within two years of the date of controversion. The petition was denied. A hearing was held before the Board on October 7, 1986. In a written decision, the Board found that Crouch was permanently totally disabled as a result of his employment and awarded him disability benefits, costs, and attorney's fees. Pan Alaska filed a notice of appeal in superior court and requested that the court stay enforcement of the award pending appeal. The superior court denied this request, and Pan Alaska paid past benefits to Crouch. Pan Alaska then sought a stay of that portion of the Board's order awarding Crouch costs and attorney's fees. That motion too was denied. The superior court affirmed the Board's decision and awarded Crouch additional attorney's fees. II. DISCUSSION The Board Erred in Failing to Apply AS 23.30.110(c) to Crouch's Claim Pan Alaska contends that the Board should have denied Crouch's claim pursuant to AS 23.30.110(c). Section 110(c), as amended July 1,1982, provides in part: "If a claim is controverted by the employer and the employee does not request a hearing for a period of two years following the date of controversion, the claim is denied." Crouch does not deny that more than two years passed between Pan Alaska's contr-oversion of his claim and his request for a hearing. Instead Crouch contends that because he was injured prior to the effective date of the amendment grafting the two-year limit onto AS 23.30.110(c), the limit does not apply to his claim. The sequence of relevant events is as follows: February 1981: Crouch suffers heart attack at Prudhoe Bay. July 1982: Amendment takes effect, requiring claimants to request a hearing within two years of controversion. January 1983: Crouch files claim and two days later the claim is controverted. August 1985: Crouch requests a hearing on his claim. Because the facts are not in dispute and the issue to be resolved is one of statutory interpretation, and because deference to agency expertise is not appropriate here, the court will apply its independent judgment to this issue. Hood v. State, Workmen's Compensation Board, 574 P.2d 811, 813 (Alaska 1978). As a general rule, statutes are presumed to operate prospectively only, and will not be applied to causes of action arising prior to their enactment unless a contrary legislative intent appears by express terms or necessary implication. See Hood v. State, 574 P.2d at 813-814. This court has held, however, that the presumption against retroactive application does not apply to procedural statutes. Matanuska Maid, Inc. v. State, 620 P.2d 182, 187 (Alaska 1980). Because procedural statutes often alter only the legal effects of events occurring during the legal process, courts have treated as irrelevant the date of the events giving rise to the cause of action: [Procedural statutes may become operative when and if the procedure or remedy is invoked, and if the trial postdates the enactment, the statute operates in the future regardless of the time of the occurrence of the events giving rise to the cause of action. Matanuska Maid, 620 P.2d at 187 (quoting Aetna Casualty & Surety Co. v. Industri al Accident Commission, 30 Cal.2d 388, 182 P.2d 159, 161 (1947)). Alaska Statute 23.30.110, entitled "Procedure on Claims," does not grant or define a substantive right, but instead sets up the legal machinery through which a right is processed. There can be little doubt that it usually would be described as a "procedural" statute. Applied in this case, the amendment could fairly be said to operate only prospectively: it merely directs the claimant to take certain action following controversion — here, controversion occurred after enactment. This court has recognized that some "procedural" statutes demand special treatment: Where a change in a procedural statute significantly alters the legal consequences of the events giving rise to a cause of action, it is treated as substantive in character. See Matanuska Maid, 620 P.2d at 187. Crouch argues here that because the change in AS 23.30.110(c) "results in the absence of any effective remedy to enforce a substantive right," the change should be treated as substantive. But in deciding whether a change is substantive in character, it will hardly suffice that a new rule has proved dispositive in a particular case: if ignored, nearly any procedural rule can play a role in the disposition of a case. Rather, a change in a procedural rule is substantive in character where the change makes it appear to one just starting down the road to vindication of his cause that the road has become more difficult to travel or the goal less to be desired. For example, a change in the burden of proof to be borne by a party, though clearly a change in procedure, may make it less likely from the outset that the party will arrive at a favorable resolution of his claim. The same clearly cannot be said of the amendment in this case. It is only in retrospect that the obstacle posed by the two-year limit appears imposing. This claim has faltered on the two-year limit not because it was a significant obstacle, but because Crouch failed to pay it any heed. The amendment to AS 23.30.-110(c) merely effects a change in procedure and does not alter the legal consequences of events giving rise to the cause of action. Therefore, the presumption against re-troactivity has no application in this case. The Board erred in failing to apply AS 23.30.110(c) to Crouch's claim. III. CONCLUSION Crouch's claim is barred by AS 23.30.-110(c). The holding of the superior court is REVERSED and the case is REMANDED for proceedings consistent with this opinion. . Prior to July 1, 1982, AS 23.30.110(c) provided in part: The board shall . upon application of an interested party . order a hearing on [the claim].... If no hearing is ordered within 20 áis after [the board has notified the employer that a claim has been filed], the board shall by order reject the claim or make an award with respect to it. . Pan Alaska also contends that the superior court erred in denying its motion for a stay of the Board's compensation order pending appeal. Pan Alaska's payment of compensation and attorney's fees has rendered this issue moot. The public interest exception to the mootness doctrine is limited to issues of "grave public concern" which are capable of repetition, yet evade review. Etheredge v. Bradley, 502 P.2d 146, 153 (Alaska 1972). Because the issue raised is not one of grave public concern, we do not reach it.

10385385

Barry R. GILBREATH, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee

Gilbreath v. Municipality of Anchorage

1989-04-21

No. A-2485

218

226

773 P.2d 218

773

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

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

CAP

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

Barry R. GILBREATH, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee.

Barry R. GILBREATH, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee. No. A-2485. Court of Appeals of Alaska. April 21, 1989. William D. Cook, Anchorage, for appellant. James Hopper, Certified Legal Intern, John E. McConnaughy, III, Asst. Mun. Prosecutor, James Wolf, Mun. Prosecutor, and Richard D. Kibby, Mun. Atty., Anchorage, for appellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

4668

29073

OPINION SINGLETON, Judge. FACTS Barry R. Gilbreath was convicted by a jury of driving while intoxicated (DWI). Anchorage Municipal Code (AMC) 09.28.-020. He appeals his conviction. We affirm. Anchorage Police Department (APD) Officers Plummer and Nix encountered Gil-breath as they drove to the APD substation at Fourth Avenue and D Street in Anchorage on November 30,1987. Gilbreath's car was stuck in the snow in the driving lane at the intersection of D Street and Fifth Avenue and was apparently blocking traffic. It appears that Gilbreath had been stopped for some time and at one point put a rug down to aid in obtaining traction. The officers were unsure as to whether Gilbreath was in his car attempting to drive it or standing beside the car when they first approached him. The officers told Gilbreath to drive the car and they attempted to help him by pushing the rear of the car and giving instructions to Gilbreath on which way to turn the wheels. Gilbreath's failure to follow instructions led Officer Plummer to request that Gilbreath get out of the car. After smelling an odor of alcohol, Plummer had Gilbreath perform several field sobriety tests. According to Plummer, Gilbreath failed to perform the tests satisfactorily and Plummer pláced him under arrest for DWI. Officer Nix then switched places with Gil-breath and drove the car while Gilbreath, Officer Plummer, and another police officer pushed. The vehicle was successfully extricated from its predicament and legally parked. Gilbreath subsequently walked to the nearby police substation with the officers and was given a breath test. Gil-breath produced a .215 blood alcohol reading. The test was administered on the Intoximeter Model 3000. Additional facts will be set out where necessary to explain our decision. DISCUSSION Gilbreath's first claim of error concerns the denial of his pretrial motion to suppress the breath test for failure to comply with 7 Alaska Administrative Code (AAC) 30.-020(1). In order to place Gilbreath's, argument in context, it is necessary to briefly discuss the foundational requirements before the results of an Intoximeter test may be admitted into evidence. Alaska Rule of Evidence 901 deals generally with foundation for the admission of evidence. This rule is satisfied "by evidence sufficient to support a finding that the matter in question is what its proponent claims" subject to a significant qualification: (a) Whenever the prosecution in a criminal trial offers (1) real evidence which is of such a nature as not to be readily identifiable, or as to be susceptible to adulteration, contamination, modification, tampering, or other changes in form attributable to accident, carelessness, error or fraud, or (2) testimony describing real evidence of the type set forth in (1) if the information on which thé description is based was acquired while the evidence was in the custody or control of the prosecution, the prosecution must first demonstrate as a matter of reasonable certainty that the evidence is at the time of trial or was at the time it was observed properly identified and free of the possible taints identified by this paragraph. A.R.E. 901(a). The rule also provides that the trial court may, in an appropriate case, "require additional proof before deciding whether to admit or exclude evidence under Rule 403." A.R.E. 901(b). This rule is qualified somewhat by Alaska Rule of Evidence 902, which provides that extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following: (10) Presumptions created by law. Any signature, document, or other matter declared by enactment of the Alaska Legislature or rule prescribed by the Alaska Supreme Court to be presumptively or prima facie genuine or authentic. Alaska Statute 28.35.033(d) provides: (d) To be considered valid under the provisions of this section the chemical analysis of the person's breath or blood shall have been performed according to methods approved by the Department of Health and Social Services. The Department of Health and Social Services is authorized to approve satisfactory tech-ñiques, methods, and standards of training necessary to ascertain the qualifications of individuals to conduct the analysis. If it is established at trial that a chemical analysis of breath or blood was performed according to approved methods by a person trained according to techniques, methods and standards of training approved by the Department of Health and Social Services, there is a presumption that the test results are valid and further foundation for introduction of the evidence is unnecessary. The Commissioner of Health and Social Services is authorized to adopt regulations necessary to carry out the business of the department and the provisions of the law relating to public health. AS 18.05.-040(a)(6). Pursuant to AS 28.35.033(d), the Commissioner enacted 7 Alaska Administrative Code (AAC) 30.005-.080 for safeguarding the scientific integrity of the breath test procedure. See 7 AAC 30.005. Among the relevant regulations is 7 AAC 30.010, which "approves the Intoximeter breath test instrument Model 3000 series, for use in ascertaining the alcohol content of a breath sample by chemical analysis of the breath." Also relevant to this case is 7 AAC 30.020, which provides in relevant part: The following procedures must be used to obtain and analyze breath samples on the Intoximeter 3000 (1) Observe the person to be tested, for at least 20 minutes immediately before testing, to ensure that the person does not regurgitate or place anything in his or her mouth during that period[.] We have addressed the Commissioner's regulations as they pertain to foundation for the admissibility of Intoximeter results in Ahsogaek v. State, 652 P.2d 505, 506 (Alaska App.1982). In that case, we said: AS 28.35.033(d) essentially establishes foundational requirements for the admission of breathalyzer test results. If the state can show that the regulations of the Department of Health and Social Services have been followed, then a sufficient foundation has been established and the breathalyzer test is admissible. If the state does not strictly comply with the regulations, then it can still show that it has substantially complied with the regulations in order to establish a sufficient foundation to admit the breathalyzer examination. Whether the police complied with the requirements set out in the regulations is a question of fact. On appeal, we examine the trial court's fact findings in criminal cases, other than on the ultimate issue of guilt, under the "clearly erroneous" test. See Esmailka v. State, 740 P.2d 466, 470 (Alaska App.1987). We have also applied the "clearly erroneous" test to the mixed question of fact and law of whether the municipality has "substantially complied" with the applicable regulations. Macauly v. State, 734 P.2d 1020, 1026 (Alaska App. 1987). Gilbreath alleges that Officer Plum-mer failed to observe him for the required twenty-minute period prior to administering the breath test. District Court Judge David C. Stewart denied the motion after listening to testimony from Plummer and to the tape cassette made at the police substation that night. Plummer testified that he had observed Gilbreath for twenty minutes. Part of the twenty minutes included the time spent pushing the vehicle out of the snow (after Gilbreath failed the field sobriety test and was placed under arrest). Judge Stewart found that, as a matter of law, the Municipality of Anchorage (MOA) had substantially complied with the twenty-minute observation period. Gilbreath objects to the court's finding of substantial compliance. Gilbreath contends that the time he spent pushing the car alongside the officer should not have been included in computing the twenty-minute period. Gilbreath points out that, although the officer testified that he was observing Gilbreath's face during that period, circumstances indicate that the officer could not rule out the possibility that Gil-breath may have regurgitated or placed something in his mouth. Gilbreath did not testify and does not argue that he, in fact, did regurgitate or put something in his mouth during that time. Further, Gil-breath points out that the tape of his activities at the police station that was made in connection with the administration of the Intoximeter examination lasted only about 10½ minutes. He contends that the court's conclusion that it took more than 9V2 minutes to push the car out of the street, go to the police station, and start the cassette tape was based on pure speculation. The municipality disputes that the 9½ minute time frame was speculation. It points to Plummer's testimony that he looked at his watch when he placed Gilbreath under arrest and it read 2:35 a.m. Later, when Plummer gave Gilbreath the breath test, the watch read 2:56 a.m. The municipality also points out that Officer Plummer testified that he watched Gilbreath closely and did not see him place anything in his mouth or regurgitate. Given Plummer's testimony, the trial court's finding that he had observed Gil-breath for twenty minutes is not clearly erroneous. Such a finding supports the legal conclusion that the municipality strictly complied with the regulation. Therefore, Judge Stewart was not clearly erroneous in reaching the lesser conclusion that the municipality had substantially complied with the regulation. See Ahsogaek, 652 P.2d at 506. In any event, any dispute concerning strict compliance with the twenty-minute observation period went to the weight of the evidence. Gilbreath was not precluded from arguing about the weight the jury should give the breathalyzer result. See Lawrence, 715 P.2d at 1217. Gilbreath's second claim of error concerns the admission, over objection, of the breath test results at trial. Gilbreath contends that there was a separate foundational defect regarding the admission of the breath test because the municipality failed to introduce evidence regarding the alcohol content of the "nalco" bottle, which was used as an external standard in connection with the Intoximeter 3000. In his arguments before Judge Stewart, Gilbreath appears to have conceded that, except with regard to the twenty-minute observation period, the municipality complied with the letter of 7 AAC 30.010-.080. He argued that, nevertheless, the accuracy of the breathalyzer result depended, in part, on the accuracy of the external standard. According to Gilbreath, in order to verify the external standard, it was necessary to test the content of the bottle to determine its alcohol content. Gilbreath notes that the operator testified that, as part of the operation procedure, he took a number from the nalco bottle and programmed it into the Intoximeter 3000. See 7 AAC 30.020(2) ("The following procedures must be used to obtain and analyze breath samples on the Intoximeter 3000 . respond to the visual display on the instrument by entering the data requested."). The Intoximeter apparently requested the number from the nalco bottle. We are satisfied that the trial court did not err in rejecting Gilbreath's objection. The administrative code does not require evidence of the ethanol value of the external standard. Consequently, once the statutory foundation was established, the In-toximeter result was admissible and no further foundation was required. See AS 28.-35.033(d). If Gilbreath wished to attack the accuracy of the Intoximeter result by showing that the external standard was inaccurate, he was obligated to do so by introducing evidence. See Lawrence, 715 P.2d at 1217; Pears v. State, 672 P.2d 903, 909 (Alaska App.1983), rev'd on other grounds, 698 P.2d 1198 (Alaska 1985); Cooley v. Anchorage, 649 P.2d 251, 254-55 (Alaska App.1982); Denison v. Anchorage, 630 P.2d 1001, 1004 (Alaska App.1981). There is nothing in the record to suggest that Gilbreath was limited in introducing evidence challenging the Intoximeter result, but Gilbreath did not present any evidence on this point. Specifically, he did not present testimony that the current method of labeling and using the external ethanol value standard results in Intoximeter malfunctioning. Such evidence, if it existed, should have been presented during Gil-breath's case-in-chief. Gilbreath's objection was therefore insufficient to prevent admission of the test results. Gilbreath's final claim of error concerns the court's response to the jury question, "Is it a violation of the law for Gil-braith [sic] to drive the vehicle at the police officer's direction if he was under the influence of alcohol?" After consulting with counsel, Judge Ralph Stemp, responded, "If he were under arrest the answer is no. Otherwise the answer is yes." Gilbréath originally argued that the court should have answered with a simple no. Gilbreath also argued that the municipality improperly referred in closing argument to Gil-breath's unsuccessful attempts to extricate his vehicle from the snow bank while the officers were assisting him. According to Gilbreath, this confused the jury by implying that the officer was giving Gilbreath a driving test, i.e., implying that the officer believed Gilbreath was intoxicated and tested this belief by having him operate the vehicle during the attempt to extricate it. In Gilbreath's view, the municipalities closing arguments prompted the question from the jury. In his motion for a new trial, Gilbreath expanded on his argument, contending that the language from the Alaska Pattern Jury Instructions on "Justification — Performance of a Public Duty," should have been given in response to the jury's question. In his memorandum in support of his motion for a new trial, Gilbreath argued that the police had a duty to keep D street clear of traffic by moving Gilbreath's vehicle from the middle of the street. Gilbreath did not testify or put on any evidence. Nevertheless, he contends that the jury could have inferred that he had a reasonable belief that his conduct was authorized or justified when he attempted to drive the car at the police officer's direction. Gilbreath never indicated an intent to rely on this justification defense at any time before the jury began deliberations. He made no opening statement and presented no witnesses. In closing argument, defense counsel argued that Gil-breath was not intoxicated. Defense counsel pointed out how well Gilbreath performed the field sobriety test. In addition, defense counsel pointed to the evidence which cast doubt on whether the required twenty-minute waiting period was met. Gilbreath also pointed out that he was not given a preliminary breath test (PBT) or the heel-to-toe test. Counsel contended that Gilbreath's ability to control himself while performing field sobriety tests conflicted with the breathalyzer result of .215. Gilbreath's argument about whether he was driving was confined to comments that the police directed him to drive when they first contacted him, and that the officers never asked him if he had been driving or how his car became stuck. It appears Gil-breath was arguing that because the police allowed him to drive while attempting to extricate his vehicle from the snow, they impliedly believed he was not intoxicated. Under the circumstances, we do not believe that Gilbreath suffered prejudicial error when the trial court answered the jury's question in the manner it did. A number of reasons lead us to this conclusion. At the outset, we recognize that there is authority for the proposition that a person may defend against a charge of drunk driving if the person operated the vehicle at the direction of a police officer. See, e.g., State v. Lichti, 219 Neb. 894, 367 N.W.2d 138, 141 (1985); People v. Jensen, 37 Ill. App.3d 1010, 347 N.E.2d 371, 375 (1976). See also Hempstead T-W Corp. v. Hempstead, 13 Misc.2d 1054, 177 N.Y.S.2d 445, 454 (Sup.Ct.), aff'd, 7 A.D.2d 637, 179 N.Y. S.2d 848 (1958) (where the court said that it is a defense to removal of a vehicle in violation of an ordinance if the operator acted in response to police direction). But see State v. Schoenheide, 104 Wis.2d 114, 310 N.W.2d 650, 651 (App.1981) (holding that a firefighter who drove while intoxicated could not rely on a defense that applies when the actor's conduct is in good faith and is an apparently authorized and reasonable fulfillment of any duties of a public office, because no reasonable person could conclude that firefighters are apparently authorized to drive while intoxicated). We also recognize that a trial judge may not direct a verdict against the accused in a criminal case on an element of an offense or defense to be decided by the jury. Connecticut v. Johnson, 460 U.S. 73, 84, 103 S.Ct. 969, 976, 74 L.Ed.2d 823 (1983).. Further, we have held in a number of cases that a defendant is entitled to an instruction on a defense if there is "some evidence" in the record which supports the defense. See, e.g., Paul v. State, 655 P.2d 772, 775 (Alaska App.1982); Folger v. State, 648 P.2d 111, 113 (Alaska App.1982). In Nathaniel v. State, 668 P.2d 851 (Alaska App.1983), we discussed the "some evidence" test, saying: In order to satisfy the "some evidence" test, it is not necessary that the defendant testify or even offer direct evidence in his own behalf. Some evidence establishing a dispute as to a factual issue may arise from a weakness in the prosecution's evidence or from impeachment of its witnesses. Similarly, circumstantial evidence presented as part of the state's case-in-chief may give rise to some evidence of a disputed fact. Nathaniel, 668 P.2d at 855 (citations omitted). However, we have also held that where the trial court is not obligated to give an instruction on a defense, it is permissible to tell the jury in an instruction that the defense is not available; such an instruction does not violate the rule prohibiting directing a verdict against a criminal defendant. See Sparf v. United States, 156 U.S. 51, 105-06, 15 S.Ct. 273, 294-95, 39 L.Ed. 343 (1895); Jordan v. State, 681 P.2d 346, 349-50 (Alaska App.1984). See also Hartley v. State, 653 P.2d 1052, 1055 (Alaska App.1982). If the trial court finds, as a matter of law, that an affirmative defense has no support in the evidence and instructs the jury that the defense is unavailable, then such an instruction does not amount to a directed verdict of guilt. Jordan, 681 P.2d at 350. In this case, there is arguably "some evidence" in support of a justification defense. However, Gilbreath never made an opening statement indicating an intent to rely on the defense. See Alaska R.Crim.P. 27(a)(2)(h) ("If no statement of the defendant's case is made after the statement of the prosecution's case, then after the state has produced its evidence and presented its case in chief, the defendant, or his counsel, if he intends to produce evidence, shall state his defense, and may briefly state the evidence he expects to offer in support of it."). Nor did Gilbreath request a jury instruction regarding the defense of justification. See Alaska R.Crim.P. 30(a). In our view, by failing to make an opening statement or to request a jury instruction or to otherwise introduce this defense, Gilbreath forfeited the right to rely upon the defense of justification or authorization. Therefore, the trial court did not abuse its discretion when it failed sua sponte to instruct on the defense. Because Gilbreath had forfeited the right to rely on the defense, the court would then have been permitted to instruct the jury that the elements of the municipality's case were to (1) prove that Gilbreath was in actual physical control of the vehicle, and (2) prove that Gilbreath was intoxicated. See State Dep't of Public Safety v. Conley, 754 P.2d 232, 233-36 (Alaska 1988); Lathan v. State, 707 P.2d 941, 942-43 (Alaska App.1985). Thus, the court would have been permitted to instruct the jury that, in deciding whether the municipality had proved its case beyond a reasonable doubt, it was not relevant that Gilbreath may have been driving at the police officer's direction. We find support for this conclusion in our recent decision in Rollins v. State, 757 P.2d 601 (Alaska App.1988). Rollins was charged, inter alia, with assault in the third degree. Defense counsel initially submitted a proposed instruction on the lesser-included offense of assault in the fourth degree, but then withdrew it. The state never objected to Rollin's withdrawal of the proposed lesser-included offense instruction. The case was argued on the theory that the jury should either accept or reject the assault in the third degree charge, without consideration of lesser-included offenses. Id. at 602. After deliberating for several hours, the jury sent a written question to the court, stating: "We the jury would like to know if the wording can be changed . to exclude serious (Count II) 3° to a 4° misdemeanor." Id. (emphasis in original). Rollins objected to any instruction on assault in the fourth degree, but the trial judge nevertheless gave an instruction. The jury eventually returned a verdict on count two acquitting Rollins of third degree assault, but convicting him of fourth degree assault. On appeal, Rollins contended that, in making his closing argument to the jury, he reasonably and detrimentally relied on the trial court's willingness to omit the lesser-included offense from the instructions initially given to the jury. We found Rollins argument persuasive and reversed. We said: The instructions that were given to the jury, which were approved prior to final argument in accordance with Criminal Rule 30(a), omitted reference to the lesser-included offense. Under the circumstances, Rollins was entitled to make his jury argument on the assumption that the lesser-included offense would not be submitted to the jury. Nothing in the ABA Standards compels a contrary conclusion. The ABA Standards do require the trial court to "give additional appropriate instructions in response to the jury's request...." Ill Standards for Criminal Justice 15-4.3 (2d ed. 1980). Yet there would have been nothing inaccurate or legally incorrect in responding to the jury's inquiry by an instruction stating that the jury was not entitled to consider the issue of a lesser-included offense and that it was bound to decide the case solely on the charges originally submitted. Id. at 602-03. We believe that the same result is appropriate here. Had the trial, court permitted the jury to consider the public duty defense, it would have had to have permitted further argument. We are particularly troubled because the performance of public duty defense described in AS 11.81.420 is a defense, AS 11.81.300, rather than an affirmative defense. Consequently, AS 11.-81.900(b)(15), which reads as follows, applies: (15) "defense," other than an affirmative defense, means that (A) some evidence must be admitted which places in issue the defense; and (B) the state then has the burden of disproving the existence of the defense beyond a reasonable doubt[.] As Rollins indicates, it is fundamentally unfair to have the jury consider an issue that did not occur to the parties at the time they were introducing evidence and making their arguments. If the justification defense was to be presented to the jury, it would appear that the trial court would have to reopen the evidence to permit the municipality to directly address the defense. It was not an abuse of discretion to decline to do so after the jury had already retired for its deliberation. The judgment of the district court is AFFIRMED. . It is possible that Gilbreath misperceived his remedy. He brought a pretrial motion to suppress evidence based on the assertion that the municipality could not lay a proper foundation for the admission of the Intoximeter evidence. Alaska Criminal Ride 12(b) permits any defense, objection or request which is capable of determination without the trial of the general- issue to be raised before trial by motion. The rule specifically permits motions to suppress evidence on the grounds that the evidence was illegally obtained. See Alaska R.Crim.P. 12(b)(3). This would appear to follow from the fact that questions regarding illegally obtained evidence do not require trial of the "general issue," Le., the facts regarding the elements of the offense and any defense. In contrast, the municipality's ability to lay a foundation for the admissibility of evidence would appear to involve the facts of the case, Le., the quality of the evidence. See, e.g., A.R.E. 104(a) (dealing with foundations). It is possible Gilbreath's pretrial motion was improper and that his remedy was an objection at the time of trial. In this case, Gilbreath went to trial and was convicted. Consequently, the fact that he made the motion before trial, rather than at trial, would not seem significant and we proceed to address the issue. Lawrence v. State, 715 P.2d 1213, 1217 (Alaska App.1986). . This provision is virtually identical to AMC 09.28.023(D) which states: To be considered valid under the provisions of this section, the chemical analysis of the person's breath or blood shall have been performed according to methods approved by the Alaska Department of Health and Social Services. If it is established at trial that a chemical analysis of breath or blood was performed according to approved methods by a person trained according to techniques, methods and standards of training approved by the Department of Health and Social Services, there is a presumption that the test results are valid and further foundation for introduction of the evidence is unnecessary. . Alaska Statute 11.81.420 provides in relevant part: Justification: Performance of public duty, (a) . [CJonduct which would otherwise constitute an offense is justified when it is required or authorized by law or by a judicial decree, judgment, or order. (b) The justification afforded by this section also applies when (2) the person [accused] reasonably believes the conduct to be required or authorized to assist a peace officer in the performance of the officer's duties, notwithstanding that the officer exceeded the officer's authority- . We are not contending that the prosecution has the burden of proving a defendant's guilt on only those elements of the offense that the defendant affirmatively disputes at trial. We do suggest that the prosecution does not have the burden, initially, of disproving justifications that are not presented in a defendant's opening statement or in a jury instruction properly requested pursuant to Alaska Criminal Rule 30(a). Nor are we convinced that the trial court's response to the jury's question was inaccurate. If the use of the justification defense was not proper in this case, then the trial court was not in error in informing the jury of that fact. But even if there was error, given the defendant's prior forfeiture of the defense, the error was harmless. There is authority for the proposition that, where a defendant is precluded from claiming a defense because he failed to meet the prerequisites for introducing it into the case, the defendant cannot be prejudiced by a prosecutor's misstatement of law regarding that defense. People v. Bradley, 73 Ill.App.3d 347, 29 Ill.Dec. 395, 398, 391 N.E.2d 1078, 1081 (1979). We believe the same rule should apply here. Because Gilbreath had forfeited the right to rely on the justification defense, it necessarily follows that the trial court's perhaps erroneous instruction to the jury regarding the scope of that defense was not prejudicial error.

10444313

Donald R. BROOKS and Lois M. Brooks, Appellants, v. R & M CONSULTANTS, INC., an Alaskan Corporation, and Valley Lumber & Building Supply, Inc., an Alaskan Corporation, Appellees

Brooks v. R & M Consultants, Inc.

1980-06-20

No. 4922

268

271

613 P.2d 268

613

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:32:16.801604+00:00

CAP

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

Donald R. BROOKS and Lois M. Brooks, Appellants, v. R & M CONSULTANTS, INC., an Alaskan Corporation, and Valley Lumber & Building Supply, Inc., an Alaskan Corporation, Appellees.

Donald R. BROOKS and Lois M. Brooks, Appellants, v. R & M CONSULTANTS, INC., an Alaskan Corporation, and Valley Lumber & Building Supply, Inc., an Alaskan Corporation, Appellees. No. 4922. Supreme Court of Alaska. June 20, 1980. Bruce Horowitz, Alaska Legal Services Corp., Juneau, for appellants. Shirley F. Kohls and Steve U’Ren, Shirley F. Kohls, Law Offices, Juneau, for appel-lees. Before RABINOWITZ, C. J., CONNOR, BURKE and MATTHEWS, JJ., and DIMOND, Senior Justice.

2200

13259

OPINION DIMOND, Senior Justice. Presented here is this question: When real estate abandoned by the trustee in bankruptcy is sold for more than the value of the encumbrances on it, should the excess go to the bankrupts or to creditors claiming on the basis of unfiled material-men's liens? The bankrupts, Donald and Lois Brooks, owned property in Alaska, subject to a deed of trust executed by them to Title Insurance Agency, Inc., for the benefit of the state veterans' affairs agency. In early 1977, R & M Consultants, Inc., ("R & M") performed engineering services for the Brooks in connection with this property, for which the Brooks owed almost $7,000. Shortly thereafter, Valley Lumber Company, Inc., ("Valley") furnished the Brooks with building supplies worth almost $17,000. R & M and Valley filed suit against the Brooks in August, 1977, after the Brooks had failed to pay their debts. R & M and Valley received court permission to serve the Brooks out of state, but both attempts at service failed. They filed notices of lis pendens on the Brooks' property, under AS 09.45.790. On October 26, 1977, the Brooks filed a petition of bankruptcy in the United States District Court in Idaho, and the petition was granted in January, 1978. R & M and Valley both filed claims with the bankruptcy court as general unsecured creditors. On February 10, 1978, that court ordered the property at issue here abandoned as an asset of the Brooks' estate, because the court believed it was encumbered in excess of its value. R & M and Valley did not object to the report of the trustee in bankruptcy which recommended abandonment. When the property was sold, in July, 1978, an amount of $25,992.70 in excess of the veterans' affairs agency's encumbrance was unexpectedly realized. Title Insurance Agency paid this sum into the superior court registry and brought an action in interpleader against all the claimants. After judgment was granted to the state on its tax liens and to other creditors with judgment liens on the property, $10,507.11 remained. This is the sum at issue now. The parties are in agreement on most of the basic principles of law relevant here. Under 11 U.S.C. § 35, the law in effect at the time of this action, unsecured debts are discharged in bankruptcy, with exceptions not important here. The trustee is empowered to abandon property which he or she perceives as burdensome to the bankrupt estate. See Brown v. O'Keefe, 300 U.S. 598, 602-03, 57 S.Ct. 543, 546, 81 L.Ed. 827, 832 (1937). After encumbrances on such property have been cleared, the debtor is entitled to "make what he can out of [the property], for himself, not for his creditors, if there is anything to be salvaged." 2 H. Remington, Bankruptcy Law § 1147, at 629 (rev.ed.1956) (footnote omitted). R & M and Valley claim that they, rather than the Brooks, are entitled to the $10,507 realized from the sale of the property. The basis for this contention is that R & M and Valley had liens on the Brooks' property with respect to which R & M had performed engineering services and Valley had furnished building materials. It is true that under AS 34.35.070, one in the position of R & M and Valley literally "has a lien" on the property with respect to which the services were rendered and the supplies furnished at the land owners' request. But such a lien is not effective or valid until another provision of the lien statute has been complied with, e. g., that a written claim of lien has been filed for record with the recorder of the recording district in which the property is situated, within ninety days from completion of the service or delivery of supplies. R & M and Valley argue that such recording requirements are relevant and required only if there are competing liens, and since other lienholders who perfected their liens have been paid, there is no necessity for recording formal claims of lien as required by law. Such an argument has no merit. First of all, AS 34.35.070 states that one in R & M's and Valley's position, if they wish to make their lien effective, "shall" file a claim of lien within the designated period of ninety days. [Emphasis added.] Secondly, R & M's and Valley's position cannot be squared with our opinion in H.A. M.S. Co. v. Electrical Contractors of Alaska, Inc., 563 P.2d 258 (Alaska 1977). In that case we reversed a superior court order foreclosing mechanic's and materialmen's liens because of the lienholders' failure to verify their lien claims by oath, as required by AS 34.35.070(c)(5). There, as here, the invalid liens were the only ones at issue; there was no competition with properly perfected liens. The issue in H.A.M.S. was whether substantial compliance with subsection (c)(5) of AS 34.35.070 was sufficient to create a valid lien, 563 P.2d at 260, and neither the majority opinion nor the dissent suggested that the lien would be enforceable without compliance with that section. H.A.M.S. must govern here as well, where the noncompliance was more flagrant. Hence, we conclude that R & M and Valley did not have valid liens. The requirement that one shall file for record his claim of lien before the lien becomes effective has reason to support it. Our discussion in H.A.M.S. reflects the need for this. There we said: We think the requirement of verification is reflective of the legislature's awareness that a claim of lien adversely affects the title to the property and its alienability; that the claim of lien can have an injurious impact on the credit of the owner of the property which is subjected to the lien; and that the claim of lien can be used as a vehicle to coerce settlement from the owner of the property. In light of these important policy considerations there exists a reasonable basis for the legislature's determination that the significance of filing a lien claim be made clear to the lien claimant through the requirement of verification and the possibility of perjury prosecution for verifying a false lien claim. Similarly, we believe that "the significance of filing of a lien [must] be made clear to the lien claimant" through the requirement that a written claim of lien be recorded within ninety days after rendition of the services or furnishing of the supplies for which the liens are claimed. We conclude that R & M and Valley did not have valid and effective liens on the Brooks' property involved here. We also find untenable R & M's and Valley's argument that their filing of actions against the Brooks and the filing of notices of lis pendens should be accorded the status of liens. AS 09.45.790 states only that a notice of lis pendens gives constructive notice to subsequent purchasers and encumbrancers that their interests may be affected by a pending action. The language of the statute simply cannot be stretched to support the position urged by R & M and Valley. R & M and Valley also argue that principles of equity were properly applied by the superior court in deciding this case in their favor. They state in their appellate brief: This action, unique as it is, requires the Court to look for guidance in all areas of creditor-debtor relationships in order to determine state law priority between these claimants under these facts but, not being a lien foreclosure action, the Court is not bound by lien statutes and decisions. This is not a case to foreclose a lien; this is a case to decide priority to specific property between an appellant debtor and appellee creditors. They dismiss the Brooks' defense of discharge in bankruptcy by claiming that such a defense is inappropriate to a quasi-in-rem proceeding like interpleader. We find this argument unpersuasive. A quasi-in-rem action depends on a valid underlying personal claim. F. James, Civil Procedure § 12.1, at 613 (1965). And in light of our determination that R & M and Valley were not lienholders, we must find that their claims were solely personal and were therefore discharged by the Brooks' bankruptcy. It may well be, as R & M and Valley assert, that after the referee's abandonment the Alaska court acquired jurisdiction over the property as though the property had never been before the bankruptcy judge. But such jurisdiction can extend only to claims directly against the property and not discharged by bankruptcy, i. e., valid liens. We held in White v. State ex rel. Block, 597 P.2d 172 (Alaska 1979), that the superior court erred in setting creditor priorities on an equitable rather than statutory basis in the liquidation of an insolvent insurer. We wrote: The purpose of the federal Bankruptcy Act is to bring about an equitable distribution of the bankrupt's estate. . But equitable principles play a limited role in adjusting claims among creditors who have no statutory priority entitlement to liquidation assets. Subordination of claims of one general creditor to those asserted by other general creditors is within the general equity power of a court only where the claim to be subordinated is acquired or asserted contrary to established equitable principles. . Fraud, unfairness, or breach of the rules of "fair play" is essential to a decision to subordinate. . A perceived inequity resulting from the valid claim of an innocent party against the assets of a bankrupt will not suffice. . . . Absent inequitable conduct of a claimant, a court is without power to consider the general requirements of equity in setting priorities among creditors . Id. at 175-76 (footnote omitted). R & M and Valley argue that this language is irrelevant here, where the dispute is between creditors and bankrupts. We cannot agree. We see no valid reason not to apply here our rationale in Block, that, absent inequitable conduct, equitable considerations should play no part in bankruptcy proceedings. No allegations of inequitable conduct are made here. Therefore, "equitable principles" may not be used in this case to override the rule that property abandoned by the trustee returns to the debtor free of unsecured claims. The judgment of the superior court is REVERSED, and the case REMANDED for entry of judgment in favor of Donald and Lois Brooks. BOOCHEVER, J., not participating. .AS 09.45.790 provides: Lis pendens. In an action affecting the title to or the right of possession of real property, the plaintiff at the time of filing the complaint, or afterwards, and the defendant, when affirmative relief is claimed, at the time of filing the answer, or afterwards, may record in the office of the recorder of the recording district in which the property is situated a notice of the pendency of the action, containing the names of the parties, and the object of the action or defense, and a description of the property affected in that district. From the time of filing the notice for record, a purchaser, holder of a contract or option to purchase, or encumbrancer of the property affected has constructive notice of the pend-ency of the action and of its pendency against parties designated by their real names. . The apparent cause of the Brooks' financial problems was a serious injury to Donald Brooks' back. . R & M and Valley submitted their claims to the trustee. Presumably they were compensated in part. . AS 34.35.070. This statute has since been revised to some extent. See Title 34, ch. 35, art. 2, in the 1979 Cumulative Supplement to the Alaska Statutes. . H.A.M.S. Co. v. Electrical Contractors of Alaska, 563 P.2d 258, 263-64 (Alaska 1977). See also Frontier Rock and Sand, Inc. v. Heritage Ventures, Inc., 607 P.2d 364 (Alaska 1980), where we stated: Moreover, the general philosophy of lien statutes is consistent with the system of distinct deadlines for lien filings and inconsistent with open-ended ones. That philosophy is that a materialman or workman may reach the property which he has benefited to satisfy his claim for the benefit even when there is no direct contractual relationship between him and the owner of the property, and regardless of who the owner might be. However, because of the extensive uncertainty to titles that this broad remedy entails it has been thought necessary to construe time limitations for its exercise rather narrowly. 607 P.2d at 367. . The judgment lien statute, AS 09.30.010, is of no assistance to R & M and Valley. It clearly speaks of a court judgment or decree, and none was ever entered in either R & M's or Valley's civil action against the Brooks. . R & M and Valley cite Block, 597 P.2d 175 n.13, which quotes some broad language from Remington's bankruptcy treatise about a bankruptcy court's, power to apply considerations of equity in order to avoid unjust enrichment. But the following sections of the treatise indicate that the court's power is narrowly defined. See 6 H. Remington, Bankruptcy Law § 2875-2887 (5th ed. 1952).

10444500

STATE of Alaska, DEPARTMENT OF TRANSPORTATION AND PUBLIC FACILITIES, Petitioners, v. 0.644 ACRES, MORE OR LESS, Robert E. Cooper, Virginia G. Cooper, Respondents

State, Department of Transportation & Public Facilities v. 0.644 Acres, More or Less

1980-06-27

No. 4861

829

833

613 P.2d 829

613

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:32:16.801604+00:00

CAP

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

STATE of Alaska, DEPARTMENT OF TRANSPORTATION AND PUBLIC FACILITIES, Petitioners, v. 0.644 ACRES, MORE OR LESS, Robert E. Cooper, Virginia G. Cooper, Respondents.

STATE of Alaska, DEPARTMENT OF TRANSPORTATION AND PUBLIC FACILITIES, Petitioners, v. 0.644 ACRES, MORE OR LESS, Robert E. Cooper, Virginia G. Cooper, Respondents. No. 4861. Supreme Court of Alaska. June 27, 1980. Martha T. Mills, Asst. Atty. Gen., Anchorage, and Avrum M. Gross, Atty. Gen., Juneau, for petitioners. John R. Strachan, and Leroy J. Barker, Anchorage, for respondents. Before RABINOWITZ, C. J., and CON-NOR, BOOCHEVER, BURKE, and MATTHEWS, JJ.

2261

13506

OPINION RABINOWITZ, Chief Justice. The State of Alaska brings this petition for review from a judgment of dismissal in which the superior court vacated the state's declaration of taking and divested the state of the title it had acquired in the subject condemnation action as it pertained to respondents. Review has been granted because of the significance of the legal issues involved. The central issue in this petition involves interpretation of the 1976 amendment to Alaska's statutory provisions relating to declarations of taking. These amendments followed in the wake of our decision in ARCO Pipeline Co. v. 3.60 Acres, 539 P.2d 64 (Alaska 1975) and had as their purpose to add to the existing declaration of taking provisions the requirement of necessity— that the project be located in a manner which is most compatible with the greatest public good and the least private injury. More specifically the 1976 amendment to AS 09.55.430, .450(a) and .460(b) provided that: (1) a declaration of taking must include a statement that the taking is "by necessity for a project located in a manner which is most compatible with the greatest public good and the least private injury"; (2) the right to possession of the land did not pass until after a hearing on the con-demnee's objections; and (3) the condemn- or may be divested of title "where the court finds that the property was not taken by necessity for a public use or purpose in a manner compatible with the greatest public good and the least private injury." The relevant facts are as follows. The state is planning expansion of the Homer airport. It originally planned to take land extending back to 900 feet from the center-line of the Homer airport runway for expansion of an aircraft parking apron, an access road, and a security fence. In appraising the various parcels of land within the strip to be condemned, the state discovered that the Coopers had constructed a helipad and a building on their lot. As a result, the state changed its plan, reducing the condemned strip to 780 feet from the centerline. The present plan includes construction of a nine by nine and one-half foot fence, parallel to the access road edging the aircraft parking apron, some twenty-five feet from the Coopers' helipad. The superior court in its ruling determined that: The Coopers have shown the court by clear and convincing evidence that the State failed to consider the effect of the fence and the road on the operation of the Coopers' heliport, which is just adjacent to the airport . . . At a very minimum the State must ascertain and consider what private injury will be occasioned by a particular project in order to perform its further responsibility of judging compatibility in accordance with the statutory mandate. Specifically, they failed to do so in this present case and it is my conclusion that to so fail . is necessarily to act arbitrarily and capriciously. Thus, the superior court concluded that the state had failed to consider facts which must be taken into account as a part of a rational determination of the greatest public good and the least private injury. In this petition the state advances several arguments in support of its primary contention that: Given the 1976 amendments to the statute, the question now is to what extent is the state required to investigate each individual private injury and what is the proper role for the court in reviewing the State's determination that a project has been located in a manner consistent with the greatest public good and the least private injury. First, the state asserts that it did in fact consider the impact of the project taking upon the Coopers' property. Thus, the state claims that the superior court erroneously substituted its own judgment for that of the condemning agencies and the state. Second, the state contends that in designing and planning a project "it must consider the project as a whole and the private injury as a whole." Third, the state takes the position that the Coopers waived their right to object to the taking. Fourth, the state contends that a factual hearing is not required in the circumstance where the con-demnee presents no affidavit in support of a motion to vacate the declaration of taking. We turn first to the state's contention that it introduced evidence which "clearly" indicated that it did consider the impact of the taking on the Coopers' use of the property and reduced the amount of the taking of the Coopers' property by 120 feet. Our study of the record indicates that testimony from the state's own witnesses not only undercuts this assertion but furnishes ample support for the superior court's conclusion, set forth earlier, that the Coopers had shown by "clear and convincing evidence that the state failed to consider the effect of the fence and the road on the operation of the Coopers' heliport. This brings us to the state's major contention in this review proceeding. The state's argument is that "in designing and planning a project, it must consider the project as a whole and the private injury as a whole." As so stated, this position is unobjectionable, but this does not mean that individualized consideration of the private injury to be suffered by each landholder may be dispensed with. The mandate of AS 09.55.460(b) is that "private injury" be considered with reference to the particular properties involved. In our view the statute contemplates that the injury suffered by each individual should be minimized to the extent that it is reasonably possible to do so without impairing the integrity and function of the project and without adding unreasonable costs to the project. Striking the ultimate balance is, of course, a decision to be made by the con-demnor. A court should not substitute its judgment for that of the condemnor, but may set aside the condemnor's decision if it is "arbitrary, capricious, and abuse of discretion, or otherwise not in accordance with law." Moore v. State, 553 P.2d 8, 34 n.12 (Alaska 1976), quoting Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 415-16, 91 S.Ct. 814, 823, 28 L.Ed.2d 136, 153 (1971). The standard of arbitrariness was clearly satisfied in this case, since critical information concerning the injury which the landholder would suffer was not considered. Since the state in the case at bar failed to consider the impact of the taking on the Coopers' property, we affirm the superior court's order vacating, pursuant to AS 09.-55.460(b), the declaration of taking in the case at bar. AFFIRMED. . AS 09.55.460(b) provides in part: The plaintiff may not be divested of a title or possession acquired except where the court finds that the property was not taken by necessity for a public use or purpose in a manner compatible with the greatest public good and the least private injury. The superior court's judgment of dismissal decreed in part: That the Declaration of Taking filed herein is vacated and title is re-vested in the defendants, where defendants refund the monies as hereinafter provided. . On December 6, 1979, this court entered an order which granted review and further provided that: The oral order of the superior court . . and the written order of . . . August 31, 1979, setting aside the declaration of taking, are affirmed. . AS 09.55.430(7). . AS 09.55.450(a). . See note 1 supra. . The state brought an eminent domain action in the superior court pursuant to AS 09.55.290. In order to obtain immediate possession of the land, the state filed a declaration of taking as authorized by AS 09.55.420. .We find no merit in the state's waiver argument. The state's waiver theory is premised upon the Coopers' withdrawal from the registry of the court of the monies which were deposited by the state in conjunction with its filing of a declaration of taking against the Coopers' property. See AS 09.55.-440(a), .450(a), .450(c); Alaska R.Civ.P. 72(j). The monies deposited in the registry were withdrawn, pursuant to stipulation, after the Coo pers had objected to the declaration of taking. No express provision for a waiver of objections to the taking was made part of the stipulation for withdrawal. AS 09.55.460(b) provides in part, that when the court finds that the property was not taken by necessity for a public use or purpose in a manner compatible with the greatest public good and least private injury: the court shall enter the judgment necessary to (1) compensate the persons entitled to it for the period during which the property was in the possession of the plaintiff, (2) recover for the plaintiff any award paid to any person, and (3) order the plaintiff to restore the property to the condition in which it existed at the time of the filing of the declaration of taking unless such restoration is impossible . . . [emphasis furnished] Given the foregoing we think it clear that AS 09.55.460(b) militates against a finding of implied waiver from the withdrawal of money deposited in the registry of the court. Thus in the absence of an express waiver in the stipulation for withdrawal we conclude that the state should not prevail on its waiver argument. .This contention can be disposed of rather summarily. AS 09.55.450 states in pertinent part that: the right of entry shall not be granted the plaintiff until after the running of the time for the defendant to file an objection to the declaration of taking or until after the hearing on any objection to the declaration of taking if the objection is made in the time allowed by law. Thus, pursuant to AS 09.55.450 it is the objection which calls for the hearing. A motion for hearing with supporting affidavits is not required. See also paragraph X of the Notice of Filing Complaint in the case at bar in which the state informed the Coopers that: If you file an objection to the State of Alaska's authority to take your property, or claim that the taking of your property is unnecessary, or that the taking is not for a public use, then the court will conduct a hearing to determine the authority and necessity for the taking. . In this regard the state argues, "It is clear from the testimony that when the State's appraiser learned of the building and helipad on the Coopers' property, it then notified the airport design staff, which reduced the project in order to avoid the helipad." . John Schultz, a designer employed by the Division of Aviation, admitted that he gave no consideration to the private injury resulting from the construction of the fence across the landing pattern for the helipad. (There was evidence that the Bell 212 helicopters using the helipad operated out of the helipad toward the runway at a low altitude when fully loaded.) Similarly the chief of airport design for the State Division of Aviation, James Rhode, stated that he did not consider the impact of the fence and airport access road on the property. . The state further argues that: One of the dangers from the type of decision that has been made in this case is that projects will lose their integrity as each individual property owner can attack and adjust the project to suit the injury to each particular piece of property. .Both the Arizona and California eminent domain statutes contain provisions requiring that the proposed project be located in the manner that will be most compatible with the greatest public good and the least private injury. See Cal.Civ.Proc. Code § 1240.030 (West Supp. 1980); Ariz.Rev.Stat. § 12-1115. In construing this language the Arizona Supreme Court stated: This provision of our eminent domain statute was adopted from California and has been interpreted by the courts of that state to require a balancing of the greatest public good and the least private injury in locating land for condemnation. . It therefore follows that evidence on the part of [the condemnee], relative to the 'uses' she had made and intended to make of the land in question may have been material on the question of her 'private injury' in the ultimate balancing of the greatest public good and the least private injury. Chambers v. State, 82 Ariz. 279, 312 P.2d 155, 159 (1957) (citations omitted). .It is well established that where an agency fails to consider an important factor in making its decision, the decision will be regarded as arbitrary. See Hanlay v. Mitchell, 460 F.2d 640, 646 (2d Cir. 1972) ("it is 'arbitrary and capricious' for an agency not to take into account all relevant factors in making its determination"); Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823-24, 28 L.Ed.2d 136, 153 (1971) ("to make this finding [whether an administrative decision is arbitrary, capricious, etc.] the court must consider whether the decision was based on a consideration of the relevant factors . . ."). .Implicit in this holding is our rejection of the state's argument that divestiture is an inappropriate remedy in the circumstances and that the appropriate remedy would be for the court to reduce the size of the property taken pursuant to AS 09.55.300.

10444316

James MANGOLD, Appellant, v. STATE of Alaska, Appellee

Mangold v. State

1980-06-27

No. 4678

272

277

613 P.2d 272

613

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:32:16.801604+00:00

CAP

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

James MANGOLD, Appellant, v. STATE of Alaska, Appellee.

James MANGOLD, Appellant, v. STATE of Alaska, Appellee. No. 4678 Supreme Court of Alaska. June 27, 1980. Joseph A. Kalamarides, Anchorage, for appellant. Charles M. Merriner, Asst. Dist. Atty., Larry R. Weeks, Dist. Atty., Anchorage, and Avrum M. Gross, Atty. Gen., Juneau, for appellee. Before RABINOWITZ, C. J., and CON-NOR, BOOCHEVER, BURKE and MATTHEWS, JJ.

2888

17705

OPINION BURKE, Justice. James Mangold was charged by grand jury indictment with two counts of selling cocaine in violation of AS 17.10.010. The sales allegedly occurred on July 25 and September 1, 1978; the buyer in each case paid $100 for a gram of cocaine. The sales were made to undercover police officers, who stated in attachments to the presentence report that they bought one more gram on September 6 and set up a buy of one-half pound of cocaine for September 13, 1978. On that day, Mangold supplied only one-fourth pound of the drug which he admitted selling to the officers for approximately $8,000. He was immediately arrested. The charge arising out of the one gram sale on July 25 was dismissed at sentencing, after Mangold entered a plea of guilty to the September 1 sale of one gram. An additional charge, for the quarter pound sale on September 13, was also dismissed at that time. The superior court sentenced Mangold to a five year term of imprisonment, suspending the execution of a two year portion thereof. Mangold appeals claiming that the sentence is excessive, that it was based on unverified and prejudicial information in the presentence report, and that the sentencing judge improperly categorized him as being within the worst class of drug offenders. A. Characterization as Worst Type of Drug Offender In Waters v. State, 483 P.2d 199, 201 (Alaska 1971), we established the following categories for use in the sentencing of drug offenders: 1. Smuggling, sale, or possession for sale of large quantities of narcotics; 2. Smuggling, sale, or possession for sale of small quantities of narcotics; 3. Possession of narcotics without intent to sell; 4. Marijuana offenses. Mangold claims he fell into category 2. The superior court, relying on Mangold's admission at the time of sentencing, found that he had made the quarter pound sale. The court then concluded that he fell into category 1, the most serious of the four categories in Waters. Relying on Galaktionoff v. State, 486 P.2d 919 (Alaska 1971), Mangold claims that the court's consideration of the one-fourth pound transaction, for which the charge was dismissed, was error. In Galaktionoff we reviewed a decision rendered in an appeal to the superior court, wherein the superior court affirmed a district court sentence of one year for the crime of petty larceny. The record revealed that a major factor in the superior court's decision to affirm the sentence was its "belief that Galaktionoff was probably guilty of more serious offenses than the one charged." 486 P.2d at 923-24. We reversed, stating: We recognize, of course, that in the circumstances of this case the petty larceny which was committed would support a charge of larceny in a building or burglary not in a dwelling. Nevertheless we feel that such possible greater offenses should not be considered by the reviewing court. Id. at 924. Galaktionoff, however, was "not intended to restrict the trial court from using verified information concerning additional crimes where the defendant is informed of the information and given an opportunity to explain or admit it." Hixon v. State, 508 P.2d 526, 527 n. 1 (Alaska 1973) (citation omitted). Thus, in Hixon v. State, we held that the superior court did not err in sentencing the defendant on charges of robbery and burglary not in a dwelling when it considered additional felony charges that were admitted by the defendant at the time of sentencing even though those additional charges were later dismissed. Unlike the situation in Galaktionoff, where an unrepresented defendant's "explanation of the crime was not solicited or heard." 486 P.2d at 923, the defendant in Hixon, at the time of sentencing, "acknowledged the commission of two [additional] burglaries and the felony of receiving stolen property, all of which were dismissed after a plea of guilty to the charges [upon which he was being sentenced]." 508 P.2d at 527. Mangold's reliance upon Galaktio-noff is, therefore, misplaced. Since Man-gold admitted making the quarter pound sale, the superior court was entitled, under our holding in Hixon, to consider his commission of that additional felony offense in sentencing him on the charge upon which he was convicted. Given Mangold's admission that in addition to the sale for which he was convicted, he later sold the officers a quarter pound of cocaine, for approximately $8,000, we believe that the superior court was enti-tied to classify him as coming within the most serious category of drug offenders described in Waters. There is nothing in our opinion in Waters that requires the sentencing court to classify a drug offender solely on the basis of the facts underlying the particular offense leading to his conviction. Waters stresses differentiation among offenders, not among the particular facts of a given charge. 483 P.2d at 201. B. Use of Unverified Information in the Presentence Report Mangold next contends that he is entitled to a reduction in his sentence, or resentencing by the superior court, because of the inclusion of improper material in the presentence report prepared by the probation officer prior to sentencing. Specifically, Mangold complains of the following: 1. A statement prepared by one of the undercover officers, Dennis Hubble, "contains accounts of police contacts prior to the offense for which appellant was being sentenced." 2. A statement prepared by another officer, Charles Adams, contained "statements concerning the arrest and indictment of Wayne Fulton, who is termed 'closely associated' with appellant, for threatening a state's witness." 3. In addition, such statements contained "unsubstantiated allegations which would not have been sufficient for obtaining a mere search warrant." 4. The probation officer's report "contained unfounded assumptions of the length and depth of appellant's involvement in the drug scene, alleging that it has been continuous since defendant's . . . conviction [for possession of a small quantity of marijuana in 1972]." 5. The presentence report contained "material factual mistakes and omissions," relating to Mangold's employment history and educational background. 6. The fact that his 1972 conviction for possession of marijuana resulted in a suspended imposition of sentence was omitted from the report. A copy of the presentence report was furnished to Mangold prior to sentencing. At the sentencing hearing Mangold testified that his earlier conviction for possession of marijuana had resulted in a $125 fine and that, according to his understanding, he was entitled, after one year, to have the conviction set aside. In addition, Mangold testified as to the details of his educational background and employment history, thus correcting the "factual mistakes" and supplying the information necessary to cure the "omissions" which he alleges were contained in the presentence report. He further testified that he "had absolutely no knowledge" of the alleged threatening of a witness. As to these matters, the state presented no contrary evidence, nor did it argue to the contrary in making its sentence recommendation to the court. In addition, Mangold called three witnesses to the stand who testified, generally, that they had known him for a considerable length of time, that they believed him to be trustworthy, and that, prior to his arrest, they had no knowledge that he was involved in the drug trade or that he ever used drugs. Mangold also testified that he only sold cocaine to help an injured friend, that he did not do so to make a profit for himself, that he was sorry that he had become involved with cocaine, and that he would never again engage in such activities. Otherwise, Mangold made no effort to challenge the accuracy of any of the statements contained in the presentence report. He failed to object to the contents of the report at the time of sentencing; failed to ask for the opportunity to examine, under oath, the author of the report, or any other person whose statement was included in the report; made no motion to strike any portion of the report; and, except as already noted, failed to offer any evidence to contradict, explain or otherwise rebut the materials contained in the report. Such being the case, "he is now foreclosed from raising such issues." Nukapigak v. State, 576 P.2d 982, 984 (Alaska 1978), quoting People v. Chi Ko Wong, 18 Cal.3d 698, 135 Cal.Rptr. 392, 557 P.2d 976, 993 (1976). C. Length of Sentence Mangold's final contention is that the sentence imposed is overly severe, in light of the nature of the crime, his past record and character, and society's need to protect itself. He argues that a substantially lesser sentence would adequately fulfill the goals of sentencing. In selecting its sentence, the superior court carefully weighed the appropriate sentencing criteria, and gave explicit reasons for its decision. See State v. Chaney, 477 P.2d 441, 444 (Alaska 1970). On the whole, we are unable to say that the court was clearly mistaken in imposing the sentence that it did. Accordingly, its sentence must be affirmed. McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974). We note, however, that in imposing sentence thej trial court emphasized that if the alternative of imprisonment as a condition of suspending the imposition of sentence, pursuant to AS 12.55.085(a), were available, it would "examine very closely the advisability" of that disposition. But the court correctly determined that that alternative was not available to it under our holding in Boyne v. State, 586 P.2d 1250 (Alaska 1978). Subsequent to the sentencing hearing, the state legislature added to the statutory scheme a new provision, AS 12.55.086, authorizing imprisonment as a condition of probation granted under a suspended imposition of sentence. The legislation became effective May 2, 1979. Mangold was sentenced on March 8, 1979. Because Man-gold's attorney specifically requested that his client be given a suspended imposition of sentence and because the trial court indicated it would have a favorable attitude toward that approach, if prison time could be imposed as a condition of probation, we believe that the case should be remanded for the trial court to consider that alternative in light of the subsequent legislative action. Mangold's case is therefore remanded for that purpose. REMANDED for the purpose stated. Otherwise, the judgment is AFFIRMED. . The "statement" referred to was Officer Hubble's written response to various questions contained in a Department of Corrections form sent to him by the probation officer that prepared the presentence report. Those portions of the statement that Mangold deems objectionable apparently consist of the following questions and answers: 9. Do you think that subject would be a menace or would endanger society if he were released on probation? Yes. If your answer is yes, why? I believe that Mangold will continue to sell cocaine as he was a supplier for other areas within the state. 10. We would appreciate your writing a short summary of the present offense. Please use the bottom of this shee[t]. Reply by: DENNIS D. HUBBLE Title: SPECIAL OFFICER (METRO UNiTj A total of four separate cocaine buys were made from Mangold by this officer. The last buy (9-13-78) was to be for ⅛ pound. A decision was made to effect an arrest before the second 'A pound could be delivered. On 9-12-78 Mangold advised me that he was the supplier for the Kodiak area, that he delivered 4 ounces of cocaine to Kodiak at a time. Subject did not state how often deliveries were made. On 9-6-78, I purchased one gram of cocaine from Mangold and at that time Man-gold stated he had seventeen (17) grams and one 'A ounce to sell. On 9-8-78 Mangold advised me that he had sold all 17 grams and the 'A oz. ($2,300.00-2,400.00 in two days time.) . Those portions of Officer Adams' statement deemed objectionable are apparently the following: 7. Have any items come to light since you completed your investigation which you believe should bear further investigation by our office? One of the primary witnesses for the state was threatened with injury if he testified. The individual arrested for making the threats is a friend and possible accomplice of Mangold. 9. Do you think that subject would be a menace or would endanger society if he were released on probation? Yes. If your answer is yes, why? Mangold appears to be part of a cocaine distribution ring which is not afraid to threaten witnesses that might be willing to testify against them. 10. We would appreciate your writing a short summary of the present offense. Please use the bottom of this sheet. Reply by: CHARLES ADAMS Title: METRO INVESTIGATOR Three cocaine transactions involving approximately one gram each took place between an undercover officer working with an informant and Mangold. Mangold encouraged the officer to buy much larger quantities and after extensive negotiations a one half pound cocaine transaction was scheduled between the officer and Mangold. A total price of approximately $16,000.00 was arrived at between Mangold and the officer. On 9/6/78 the officer met with Mangold while under surveillance by other Metro Officers and Mangold agreed to sell only lA pound at a time. After ⅝ pound of cocaine exchanged hands Mangold was arrested. When a witness, Kevin Miller, returned to Anchorage to testify against Mangold in court, he received telephone threats threatening to 1st cripple him, then kill him and his family. An individual closely associated with Mangold, Wayne Fulton, who was suspected of being a participant in the 'h lb. cocaine transaction, was arrested and subsequently indicted for threatening a state's witness. . Here, Mangold is apparently referring to the various allegations already quoted in notes 1 and 2 supra. . In his presentence report, the probation officer stated: The defendant appears to be a young adult, who has been involved in the drug scene for some time; with his first criminal charge for Possession of Marijuana occurring six years ago. Apparently he has continued to be involved with drugs as he was involved in four incidents leading to his arrest on the present offense. . The "factual mistakes and omissions" referred to were the presentence report's failure to mention that Mangold had completed one year of college; the report's failure to indicate that Mangold had "been continuously employed since he left high school until the time of his arrest; that these jobs were often positions of authority and trust; that his vocational skill and trustworthiness have been attested to by his friends and co-workers; and that, in fact, he ha[d] a job open to him at the . time [of sentencing]." . At his sentencing hearing Mangold testified as follows: A. As — as I understood, I was told by the judge that after a period of a year that I could enter an [sic] SIS which is a written from to more or less — 1 get — from what I understand, just to take it off my record. Q. 1 see. And did you in fact get a — fill out a document — for an SIS? A. I did, but as — when I was talking to Loy I found out that it had not gone through or something. Actually, from the foregoing testimony, it is not at all clear that the 1972 conviction in fact resulted in a suspended imposition of sentence. In any event, the superior court stated at the time of sentencing: "I'm not placing any emphasis whatever [sic] on Mr. Mangold's 1972 marijuana conviction." . AS 12.55.085(a) provides: Suspending imposition of sentence, (a) If it appears that there are circumstances in mitigation of the punishment, or that the ends of justice will be served, the court may, in its discretion, suspend the imposition of sentence and may direct that the suspension continue for a period of time, not exceeding the maximum term of sentence which may be imposed, and upon the terms and conditions which the court determines, and shall place the person on probation, under the charge and supervision of the probation officer of the court during the suspension. . In Boyne we held that since the statute did not expressly authorize such action, the superi- or court, in its order suspending the imposition of sentence pursuant to AS 12.55.085, was without authority to order imprisonment as a condition of probation. .AS 12.55.086 provides: Imprisonment as a condition of suspended imposition of sentence, (a) When the imposition of sentence is suspended under AS 12.55.085, the court may require, as a special condition of probation, that the defendant serve a definite term of continuous or periodic imprisonment, not to exceed the maximum term of imprisonment that could have been imposed. (b) A defendant imprisoned under this section is entitled to a deduction from his term of imprisonment for good conduct under AS 33.20.010. Unless otherwise specified in the order of suspension of imposition of sentence, a defendant imprisoned under this section is eligible for parole if his term of impris onment exceeds one year and is eligible for any work furlough, rehabilitation furlough, or similar program available to other state prisoners. (c) If probation is revoked and the defendant is sentenced to imprisonment, he shall receive credit for time served under this section. Deductions for good conduct under AS 33.20.010 do not constitute "time served".

10444614

Ernesto Sella RODRIGUEZ, Appellant, v. STATE of Alaska, Appellee

Rodriguez v. State

1980-07-18

No. 5032

1255

1257

613 P.2d 1255

613

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:32:16.801604+00:00

CAP

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

Ernesto Sella RODRIGUEZ, Appellant, v. STATE of Alaska, Appellee.

Ernesto Sella RODRIGUEZ, Appellant, v. STATE of Alaska, Appellee. No. 5032. Supreme Court of Alaska. July 18, 1980. James D. Oswald, Asst. Public Defender, and Brian Shortell, Public Defender, Anchorage, for appellant. Eugene P. Murphy, Asst. Dist. Atty., Anchorage, and Avrum M. Gross, Atty. Gen., Juneau, for appellee. Before RABINOWITZ, C. J., CONNOR, BURKE, and MATTHEWS, JJ., and DIMOND, Senior Justice.

844

5321

OPINION PER CURIAM. A 22-year-old Army enlisted man named Ernesto Sella Rodriguez was driving home to Fort Richardson in late August, 1978, when he stopped to pick up a 16-year-old female hitchhiker. The girl was allegedly a prostitute. She made advances to Rodriguez and at her direction Rodriguez, who had been drinking, drove to a secluded area where they engaged in sexual intercourse. Afterwards, Rodriguez became violent. The girl may have demanded more money than the agreed price, may have insulted Rodriguez, and may have kicked him in the testicles; Rodriguez's memory is unclear. He hit her on the head with a piece of wood which was lying on the ground, dragged her into some woods, and drove off. The girl died of a broken skull. Rodriguez was indicted for first degree murder and after a jury trial he was convicted of manslaughter. He was sentenced to twelve years in prison, with five years suspended. He appeals the sentence. The sentencing court was persuaded that rehabilitation must be the central focus of Rodriguez's sentence. The court was of the view that it was essential that Rodriguez receive psychological counseling in order to prevent future criminal conduct. The court also thought that until treated, Rodriguez would remain a dangerous man who should be isolated from society. The sentencing court gave a lengthy sentence to ensure that Rodriguez would receive the necessary long-term psychological treatment. Rodriguez argues that the sentence is too long because the psychological problems the superior court emphasized may possibly be eliminated in a lesser period, and because he has no criminal record and has other favorable characteristics. We believe that there is no inconsistency between the superior court's emphasis upon rehabilitation and the length of the sentence it imposed. In State v. Lancaster, 550 P.2d 1257, 1259 (Alaska 1976), we said: The fact that a criminal should be rehabilitated . . . does not mean that he should escape punishment for his misdeeds. The very opposite may be true. Penalties must be imputed in most instances in order to make rehabilitation effective, as well as to protect the public and deter others from engaging in criminal conduct. It may be that Rodriguez is dangerous because of his mental problems, but his problems were found insufficient to relieve him of criminal responsibility. An unjustified death occurred as a result of Rodriguez's deliberate act, and he must bear responsibility for the consequences. When his own culpability is combined with the apparent psychological roots of the crime, the sentence is not clearly mistaken. The parole board, aided by psychiatric advice and correctional information, is the proper authority to determine if Rodriguez's response to treatment and correctional efforts are such as to warrant release in less than seven years. Viewed from the perspective of the sentencing court, there is ample support for the conclusion that Rodriguez is a dangerous man who must be incarcerated for a significant period. We thus conclude that the superior court was not clearly mistaken in imposing the sentence it did in the case at bar. The sentence is AFFIRMED. BOOCHEVER, J., not participating. . The superior court stated in part: I place rehabilitation as the most important goal of the court in fashioning a sentence for the reason that, quite frankly, if the defendant is not rehabilitated, if he's not treated effectively, he will emerge from whatever institution I send him to as a dangerous person . Rodriguez was interviewed by three psychiatrists. They found him chronically depressed, and harboring sexual conflicts and anxieties. Two of the three agreed that his mental state makes him dangerous, and requires treatment. His drinking problem exacerbates his potential for future violence. There is some indication that Rodriguez may have organic brain damage as the result of an automobile accident which occurred in 1975 or 1976. . In part, appellant argues: In the absence of an affirmative showing that in-patient and out-patient treatment for a period in excess of a decade was warranted, a sentence totalling ten years or less, with at least half suspended, would appear to be the maximum supported by the record or by the Chaney criteria. . See note two supra. . We note that the sentencing court made a special effort to ensure that Rodriguez receive adequate psychological counseling while incarcerated. While the sentencing court could not designate the facility in which the sentence was to be served, it strongly advised that Rodriguez be placed in a particular institution where adequate psychological care is available, specifical ly recommending an out of state facility recommended to it at the sentencing hearing. . See McClain v. State, 519 P.2d 811 (Alaska 1974). See generally Wertz v. State, 611 P.2d 8 (Alaska 1980); Ferreira v. State, 602 P.2d 803 (Alaska 1979).

10444615

Constance L. GAUSE, Petitioner, v. Thomas L. GAUSE, Respondent

Gause v. Gause

1980-07-18

No. 5210

1257

1258

613 P.2d 1257

613

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:32:16.801604+00:00

CAP

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

Constance L. GAUSE, Petitioner, v. Thomas L. GAUSE, Respondent.

Constance L. GAUSE, Petitioner, v. Thomas L. GAUSE, Respondent. No. 5210. Supreme Court of Alaska. July 18, 1980. George E. Weiss, Anchorage, for petitioner. Linda K. Wilson, Kay, Christie, Fuld, Sa-ville & Coffey, Anchorage, for respondent.

689

4229

OPINION Before RABINOWITZ, C. J., and CON-NOR, BOOCHEVER, BURKE and MATTHEWS, JJ. PER CURIAM. Constance Gause filed a petition for review from Judge Carlson's order denying her motion to disqualify the law firm of Kay, Christie, Fuld, Saville & Coffey, on the ground of an alleged conflict of interest, from representing Thomas Gause in a divorce suit. Because postponement of review until normal appeal may be taken from a final judgment could result in an injustice to Mrs. Gause, we granted review. We have concluded, however, that the trial court did not err in denying the motion to disqualify. The Kay law firm represented Mr. and Mrs. Gause in a suit to collect a debt, the file being closed in September, 1979. The firm also represented Mr. Gause in the defense of a small claims action in 1978. In January, 1980, Mrs. Gause filed a divorce action. Upon Mr. Gause being represented by the Kay firm, she filed her motion for disqualification, which was denied. In Aleut Corp. v. McGarvey, 573 P.2d 473 (Alaska 1978), we set forth the standard to be applied in determining a conflict of interest: We believe that an attorney may not represent a third party against a former client where there exists a substantial possibility that knowledge gained by him in the earlier professional relationship can be used against the former client, or where the subject matter of his present undertaking has a substantial relationship to that of his prior representation. These principles have been expressed by many authorities. Id. at 474-75 (footnote omitted). Here the Kay firm's only representation of Mrs. Gause was in the suit brought by the Gauses to collect a debt. We fail to find any substantial possibility that knowledge gained in such representation could be used against Mrs. Gause in the divorce suit, nor do we find that the subject matter of the divorce case has a substantial relationship to that prior representation. In the prior representation of Mr. Gause in defense of a small claims action, the firm was not, strictly speaking, representing Mrs. Gause. Nevertheless, if there were something in the nature of that action which would present a substantial possibility that Mrs. Gause was required to furnish information that could be used to her disadvantage in the divorce suit, we would be inclined to regard the representation as joint for the purposes of considering whether a conflict exists. It is almost inconceivable, however, that the representation of a husband in defense of a small claims action could lead to such a result. In McGarvey, we quoted with approval from T. C. Theatre Corp. v. Warner Bros. Pictures, 113 F.Supp. 265 (S.D.N.Y.1953), as follows: [T]he former client need show no more than that the matters embraced within the pending suit wherein his former attorney appears on behalf of his adversary are substantially related to the matters or cause of action wherein the attorney previously represented him, the former client. We have previously indicated that the earlier law suits would not, by their nature, normally lead to information substantially related to the divorce suit. If the nature of the litigation indicates such a relationship, no further evidence would be necessary for a movant to prevail. It is still possible, however, that, despite the lack of apparent relationship, confidences creating a conflict may have been revealed to counsel. Here the only evidence presented is Mrs. Gause's affidavit in which she states, "[Financial disclosure was required for the representation mentioned, although I cannot at this time recall specific financial facts which I may have disclosed." In the absence of a more persuasive showing, we hold that Judge Carlson did not err in denying the motion to disqualify. AFFIRMED. . Alaska R.App.P. 23(e). . On May 6, 1980, we entered an order affirming the trial court's denial of the motion and indicated that an opinion would follow. . Aleut Corp. v. McGarvey, 573 P.2d 473, 475 (Alaska 1978).

9094159

HAWKEN NORTHWEST, INC. and ADEC, J.V., Appellants, v. STATE of Alaska, DEPARTMENT OF ADMINISTRATION, Appellee

Hawken Northwest, Inc. v. State, Department of Administration

2003-08-22

No. S-10455

371

383

76 P.3d 371

76

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T18:37:27.170735+00:00

CAP

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

HAWKEN NORTHWEST, INC. and ADEC, J.V., Appellants, v. STATE of Alaska, DEPARTMENT OF ADMINISTRATION, Appellee.

HAWKEN NORTHWEST, INC. and ADEC, J.V., Appellants, v. STATE of Alaska, DEPARTMENT OF ADMINISTRATION, Appellee. No. S-10455. Supreme Court of Alaska. Aug. 22, 2003. Robert C. Erwin and Roberta C. Erwin, Erwin & Erwin, LLC, Anchorage, for Appellants. William F. Cummings, Assistant Attorney General, and Bruce M. Botelho, Attorney General, Juneau, for Appellee. Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, and BRYNER, Justices.

5636

37218

OPINION BRYNER, Justice. I. INTRODUCTION Dale Young/Hawken Northwest, Inc., and ADEC, JV., (collectively, Hawken) appeal the Department of Administration's decision awarding Hawken $194,097.09 in damages for breach of contract against the State of Alaska. Hawken asserts that it is entitled to significantly greater damages because the two releases it signed were invalid as a result of economic duress; the construction specifications were ambiguous; the department breached the implied covenant of good faith and fair dealing; and the department erroneously denied prejudgment interest. Because the hearing officer's findings and conclusions are supported by substantial evidence and are correct as a matter of law, we affirm the department's decision. II FACTS AND PROCEEDINGS A. Facts In November 1988 the Department of Administration issued an invitation to bid for a lease of laboratory space in Juneau for the Department of Environmental Conservation. The invitation to bid provided for an initial ten-year lease term with options for the department to renew the lease for two additional five-year terms. Because no existing facility in Juneau met the specifications for laboratory space, the invitation effectively required construction of a new building. Hawken submitted the lowest bid for the laboratory lease, but the department canceled the invitation to bid in March 1989, determining that it was in the department's best interests to reject all bids without an award. Hawken protested, its protest was ultimately upheld, and Hawken was eventually awarded the contract. On July 24, 1989, state contracting officer Walt Harvey issued a formal notice of the award to Hawken. Two days later, a letter from Harvey advised Hawken that the occu-paney date for the new building would be extended in light of the delay in awarding the contract and that the department would sign a lease agreement with Hawken when the laboratory was ready for occupancy. Harvey's letter also reminded Hawken of its obligation to submit a floor plan within forty-five days and evidence of a financial commitment within sixty days. Harvey noted that failure to comply with these deadlines would be cause for default. Hawken's first financing proposal was a lease-purchase arrangement under which the department would own the building at the end of the lease. The department rejected this proposal as not complying with the invitation to bid requirements and gave Hawken an extension of its sixty-day financing deadline. Hawken next submitted a series of proposals for financing through tax-exempt bonds issued by various parties. The department was concerned about the potentially adverse consequences for the department's credit rating posed by this kind of arrangement and retained special bond counsel to review the financing proposals. On October 2, 1989, Hawken requested an extension for the laboratory completion date based on what it saw as the department's delay in reviewing the proposed financing documents. Hawken pointed out that the delay meant that it was now facing a fall start date and winter construction. The department denied the extension, asserting that any delays resulted from Hawken's failure to arrange financing that complied with the invitation to bid. Contracting officer Harvey also stated that Hawken should have anticipated increased costs associated with winter when it submitted its bid. During this period of financing negotiations, a controversy arose over whether Alaska's Little Davis-Bacon Act would apply to the laboratory construction project. Two Juneau labor unions filed a declaratory judgment action against the department to establish that the project amounted to "public construction" subject to Little Davis-Bacon prevailing wage requirements. The department advised Hawken of the suit and asked whether its bid included sufficient amounts to pay prevailing wages. Hawken responded that its bid was not calculated based on payment of Little Davis-Bacon wages but included sufficient funds to pay them. At about the same time-October 1989-Hawken requested that the department sign the laboratory lease so that Hawken could pursue tax-exempt financing. The department indicated its reluctance to sign before the building was ready for occupancy but offered to do so in exchange for including lease provisions requiring Hawken to indemnify the department against liability for payment of Little Davis-Bacon Act prevailing wages and to release the department from all claims arising from alleged defects in the invitation to bid specifications. A lease containing these provisions was executed on November 18, 1989. Numerous construction disputes regarding deadlines, delay, modifications, and increased costs occurred during the year following the lease's signing. An especially thorny controversy arose over the building's heating, ventilation, and air-conditioning (HVAC) system-particularly the ventilation system for the laboratory's fume hoods. Hawken hired an engineering firm, USKH, to prepare the mechanical design plans for the laboratory but initially failed to provide USKH with an amendment to the contract specifications that required a variable air volume fume hood system; Hawken sent USKH the amended specifications only after USKH completed a mechanical design plan specifying a constant volume ventilation system. Hawken proposed USKH's initial plan to the department, maintaining that the constant volume system was an improvement over the variable air volume system specified in the amended invitation to bid and proposing, alternatively, that the constant volume system could be modified to work with variable air volume fume hoods. After consulting with an engineer, the department rejected these proposed alternatives. USKH later redesigned the mechanical plans to provide a variable air volume system, as required by the amended specifications. Meanwhile, in November 1989, Hawken was still attempting to secure tax-exempt financing for the laboratory project by issuing bonds through a public or non-profit entity. Hawken began negotiating with the City of Kasaan and determined that an assignment of the department lease from Hawken to the city would be required. On January 31, 1990, Hawken requested the department's approval of the proposed assignment. The department's special bond counsel reviewed the proposed financing and raised concerns regarding the department's potential liability on the bonds. The Commissioner of Revenue, a member of the state bond committee, subsequently advised against approving the assignment until these wrinkles could be froned out. Hawken requested an additional extension to complete the laboratory, expressing frustration over the department's delay in approving the proposed bond arrangement; the department denied the request, responding that any delays concerning financing were the result of Hawken's proposal of alternative financing approaches that conflicted with the invitation to bid. To resolve the department's remaining concerns regarding the proposed bond financing, Hawken obtained an irrevocable letter of credit from Sumitomo Trust & Banking Company acknowledging that the department had no liability on the bonds to be issued by the City of Kasaan. On September 14, 1990, the department offered to consent to the assignment of the lease to the City of Kasaan and to extend the occupancy date for the laboratory until April 30, 1991, if Hawken released the department from any claims arising from the delays caused by its review of the lease financing proposals. Hawken agreed to these terms and, on September 27, 1990, executed a release in return for the department's consent to the assignment of the lease to the City of Kasaan. Although some preliminary construction work had been done before these financing arrangements were completed, most of the construction work occurred between October 1990 and October 1991. The department accepted occupancy of the laboratory on October 26, 1991. B. Proceedings Hawken filed claims for breach of contract under the state procurement code on August 27, 1998, asserting financing and construction damages in excess of seven million dollars. After contracting officer Harvey denied all claims, Hawken appealed to the Commissioner of the Department of Administration. A fifteen-day administrative hearing was conducted before a hearing officer. In a 106-page decision, the hearing officer found that a number of factors had delayed construction: Hawken's inability to arrange financing that conformed to the original invitation to bid specifications and the time consumed by Hawken's efforts to arrange alternative financing that met with the department's approval; the need to implement revised mechanical plans for the laboratory's fume hood system; the need to clarify the mechanical, electrical, and equipment specifications in the original invitation to bid; severe winter weather conditions; Hawken's deficient project management; and Hawk-en's installation of a sprinkler system instead of the originally specified Halon fire suppression system. The hearing officer also found that both the releases signed by Hawken were valid and that they effectively released all construction claims against the department through September of 1990. Based on these findings, the hearing officer recommended - awarding - Hawken - only $194,097.09 in damages, plus prejudgment interest on its award. On remand from the commissioner, however, the hearing officer reconsidered the award of prejudgment interest and concluded that it was not legally permissible. The commissioner adopted the hearing officer's amended recommendations, and the superior court affirmed the department's decision in all respects. Hawken appeals. III. DISCUSSION A. - Standard of Review We independently review decisions made by the superior court as an intermediate court of appeal. When reviewing an administrative decision, we apply our independent judgment to resolve questions of law not involving agency expertise. We review agency factfinding under the substantial evi dence test, upholding the findings when they are supported by "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." If the agency's findings are supported by substantial evidence, we "do not choose between competing inferences or evaluate the strength of the evidence." B. Hawken's Releases Hawken signed two releases: the first was incorporated into the November 18, 1989, Standard Lease Form, and the second was the September 27, 1990, Agreement and Mutual Release. Hawken argues that both are void because they were signed under economic duress. A signed release agreement may only be invalidated for economic duress when (1) one party involuntarily accepted the terms of another, (2) cireumstances permitted no other alternative, and (8) the civeum-stances were the result of coercive acts by the other party. The party claiming economic duress must prove all three prongs by clear and convincing evidence. The test for the first prong simply requires an assertion of subjectively involuntary acceptance. Hawken's claim of economic duress satisfied this prong. The second prong's determination of whether an alternative to accepting the release terms was available is objective. It required Hawken to show that it had "no reasonable alternative to agreeing" to the department's terms or "no adequate remedy if the [department's] threat were to be carried out." Whether a reasonable alternative existed is a question of fact that depends on the circumstances of the case. "An available legal remedy, such as an action for breach of contract, may provide such an alternative," but may be inadequate "where the delay involved in pursuing that remedy would cause immediate and irreparable loss to one's economic or business interest." Under the third prong, Hawken was required to show that the department intentionally caused it to enter into the releases through "wrongful acts or threats." Wrongfulness depends on the circumstances of the case but may be proved by conduct that is criminal, tortious, or morally reprehensible. In addition to proof of coercive acts by the other party, the third prong requires a causal link between those acts and the circumstances of the releasing party's economic duress. 1. November 1989 release In November 1989 Hawken agreed to sign a release in exchange for the department's agreement to sign a lease on the new laboratory building in advance of its construction. The release, which was incorporated into the lease agreement, required that Hawken indemnify the department for Little Davis-Bacon wage claims and released the department from any and all claims by Hawken related to the department's actions or omissions in soliciting bids under its invitation to bid. The hearing officer found that the 1989 release was valid and not the product of economic duress, ruling that Hawken had failed to satisfy prongs two and three of the economic duress test, because Hawken had other reasonable alternatives and the department did not engage in coercive conduct or cause Hawken's financial instability. As to the second prong, the hearing officer noted that construction had not yet begun when Hawken signed the release and that Hawken had not yet entered into any major subcontractor agreements. Because Hawken had made no binding financial commitments at this early stage, the hearing officer reasoned, the company had failed to prove that executing the release was its only reasonable alternative. In addition, the officer found that Hawken had confirmed that its original bid included enough to pay the Little Davis, Bacon wages. The officer decided that "[ujn-der these circumstances, Hawken has not persuasively demonstrated that pursuing a contract claim or lawsuit would have caused immediate and irreparable loss to Hawken's economic interests." With regard to the third prong, the hearing officer determined that the department's conduct did not amount to "a wrongful exploitation of Hawken's financial and bargaining position." The officer found that Hawken derived a significant benefit from the release agreement because the agreement required the department to execute a premature lease, which entitled Hawken to pursue tax-exempt financing. Thus, in the hearing officer's view, Hawken received ample consideration for the release and indemnification. - Moreover, the hearing officer found no evidence of improper conduct on the department's part and noted, "(elven if [the department's] conduct [was] considered to be coercive or wrongful, there was no causal link between such conduct and [Hawken's] financial condition." - Instead, the hearing officer attributed Hawken's troubled finances to a stagnant local economy and difficulties with other projects and investments. Hawken contends that the hearing officer's findings are not supported by substantial evidence. Hawken asserts that it was in a severe financial condition, on the verge of bankruptcy, and that its desperate situation was communicated to the department. The company argues that it would have lost everything if it did not agree to sign the release because it could not build the laboratory without the financing, which it could not obtain without the signed lease. Thus, Hawken claims, it was forced to accept the department's terms. According to Hawken, pursuit of a contract claim under these cireum-stances, which the hearing officer found to be a reasonable alternative, would have resulted in bankruptey for the company. But substantial evidence supports the hearing officer's findings on the existence of reasonable alternatives. As the hearing officer noted, Hawken had not begun construction, had not signed any major subeon-tracts, and had not yet managed to obtain approved financing. Although Hawken insists that the financing it desperately needed depended on the department's willingness to sign a long-term lease for the laboratory, the terms of Hawken's contract obligated the department to lease the building only upon its completion. The release agreement thus required important concessions by both parties: in return for Hawken's release of potential claims, the department gave up its right to wait for the laboratory's completion before entering into a binding lease. Moreover, while Hawken's available alternatives may well have resulted in further delay, the record supports the hearing officer's finding that Hawken failed to establish that the delay would have caused immediate and irreparable loss. Hawken repeatedly asserts that it would have been forced into bankruptey if it had not agreed to the release, but it fails to identify any substantial evidence to support these assertions. Because the hearing officer's finding that Hawken failed to prove economic duress is not clearly erroneous, we affirm his conclusion that the November 1989 release was validly executed. Our holding on this point makes it unnee-essary to consider whether Hawken met its burden of establishing that the department engaged in the coercive conduct that caused its financial duress. 2. September 1990 release Hawken signed the second release in exchange for the department's consent to Hawken's assignment of the laboratory lease to the City of Kasaan. The language of this release agreement explicitly acknowledged that Hawken had a potential claim against the department for failing to promptly consent to the assignment and that the department had a potential claim against Hawken for its failure to deliver the laboratory building on deadline. Under the agreement, the occupancy deadlines were extended and the parties released each other from "any and all claims" related to the assignment and lease amendment dispute referred to in the agreement. The hearing officer upheld this release, finding that Hawken had met its burden of proving involuntariness and the lack of a reasonable alternative but had failed to prove that its situation was caused by the department's misconduct. The hearing officer found that "by September 1990 Hawken's financial and contractual commitments to the laboratory project were so substantial that the delay involved in pursuing a legal remedy would likely have caused immediate and irreparable economic harm, potentially including bankruptcy." Moreover, the hearing officer noted, Hawken had spent considerable time and expense in preparation for the bond sale. Given these cireumstances, the hearing officer was convinced that "by the time the bond closing occurred in September 1990, Hawken's economic cireumstances did not permit a reasonable alternative or adequate remedy at law to signing the mutual release." But the hearing officer remained unconvinced that the department coerced Hawken into signing the release by engaging in wrongful actions. The officer found that Hawken's decision to pursue tax-exempt financing was the primary cause of its strained financial condition and, consequently, that "the circumstances of Hawken's duress were largely of its own making, not the result of the [department's] improper or coercive con-duet." Moreover, the hearing officer found, the release was not exploitive; it entailed a compromise of substantial and genuinely disputed claims by both sides: Hawken released its potential claims relating to the department's delay in approving Hawken's lease assignment; and by extending the deadline for completion, the department relinquished its potential claims for Hawken's delay in delivering a completed building. Thus, the hearing officer found insufficient evidence of misconduct and causation. Hawken challenges these findings as unsupported and clearly erroneous, contending that the release was tantamount to a threat because it was executed on the eve of the bond sale and the department knew that Hawken would be forced into bankruptcy if the bond sale failed. The department disputes Hawken's characterization of the events preceding the release, contending that Hawken had the opportunity to consult with counsel before agreeing to the release and could have changed its mind during the thirteen-day period between the date Hawken notified the department of its agreement and the date of the release's execution. According to the department, the release was simply a reasonable business decision by both parties. In our view, the record supports the department's position on this point, which is in accord with the hearing officer's findings. Although Hawken presented evidence to support its position, the hearing officer could properly weigh the conflicting evidence and decide that its evidence was less credible. Hawken also maintains that the department's conduct was wrongful because the department knew that the bond sale would collapse unless the lease was assigned and took unfair advantage of the situation by demanding the release. But it is unclear whether the department's contract with Hawken obliged it to consent to the proposed lease assignment. More important, as already noted, the release was mutual, involving a relinquishment of substantial claims by both parties. Given these circumstances, the hearing officer could properly find that Hawken failed to prove any conduct by the department that was eriminal, tortious, or even ethically wrongful. More fundamentally, the hearing officer could properly find that Hawken failed to prove a clear causal link between the department's opportunistic conduct and the circumstances that left Hawken with no choice but to agree to the release. Although Hawken insists that the department took unfair advantage of Hawken's financial instability, it fails to explain how the department's alleged misconduct caused those financial difficulties. As we have held, "economic necessity-very often the primary motivation for compromise-is not enough, by itself, to void an otherwise valid release." The facts in this case are analogous to those in Northern Fabrication Co., Inc. v. UNOCAL, where we stated that a party "is not allowed to use its financial weakness as a sword to negate a properly executed release." There, the plaintiff seeking to void the release agreement, Northern Fabrication, attributed problems that led to significant cost overruns and delays to the defendant, UNOCAL. UNOCAL offered to compromise by paying half of the cost overrun; after six weeks, Northern Fabrication accepted UNOCAT's offer and signed a general release." Alleging that UNOCAL knew of Northern Fabrication's bankruptcy history, Northern Fabrication argued that the company exploited Northern Fabrication's distressed financial condition by offering only half of what UNOCAL owed. We nevertheless upheld the release, finding that Northern Fabrication had failed to establish the third prong of the economic duress test because it had not produced clear and convincing evidence of either a coercive act on UNOCAL's part or a causal link between UNOCAL's conduct and Northern Fabrication's shaky finances. We concluded, under those circumstances, that "[ellearly the dispute with UNOCAL contributed to Northern Fabrication's financial instability. However, without evidence that UNOCAL did anything eriminal, tortious or even merely wrongful in the moral sense, there is no factual dispute on the third prong of the test for economic duress." Our holding in Northern Fabrication governs this case. Like Northern Fabrication, Hawken "may not use the courts to re-examine the dispute simply because its financial situation limited its options at the time the release was signed." Because the record supports the hearing officer's finding that Hawken failed to establish either coercive misconduct or a causal connection, we uphold the hearing officer's conclusion that the September 1990 release was valid. Our affirmance of the hearing officer's findings that Hawken failed to prove misconduct or bad faith by the department in connection with the 1989 and 1990 releases nee-essarily forecloses Hawken's separate claims that the department violated the covenant of good faith and fair dealing in obtaining these releases. C. Ambiguity of the HVAC Specifications Hawken claims various damages in connection with the department's insistence that the HVAC system be redesigned to use a variable air volume system rather than a constant volume system, as required by the amended specifications. Hawken claims that the original construction specifications were "performance specifications," rather than "design specifications." According to Hawk-en, this gave it sole discretion to design and construct any type of HVAC system that would meet the performance specifications. Because its constant flow system met the specified performance standards, Hawken alleges that the department should bear the cost of requiring Hawken to change to a variable air volume system. But the hearing officer concluded that this claim would be barred under Hawken's 1989 release, even assuming that it had legal merit. We agree. The November 1989 lease release covered all claims "directly or indirectly" related to the department's "actions or omissions in soliciting bids for laboratory and office space under [the invitation to bid)." Since the plain language of the release applies to the HVAC claim, our decision that the release is valid disposes of the claim. Our conclusion on this point also disposes of Hawken's related argument that the department's rejection of its HVAC design violated the covenant of good faith and fair dealing. D. Implied Covenant Claim Hawken claims that the department used its superior bargaining position to impose numerous roadblocks and unreasonable demands and maintains that the department's lack of cooperation doubled the cost of construction and cost Hawken ownership of both the building and the lease. According to Hawken, this conduct amounted to a breach of the covenant of good faith and fair dealing. The covenant of good faith and fair dealing is implied in every contract to give effect to the reasonable expectations of the parties, preventing each party from interfering with another party's right to receive the benefits of the agreement. The implied covenant has both a subjective and an objective prong. The subjective prong prohibits one party from acting to deprive the other of the benefits of the contract. The objective prong requires both parties to act in a way that a reasonable person would consider fair. 1. - Cancellation of bids During the interim period between the department's cancellation of the invitation to bid and its reinstatement after Hawk-en's protest, the department was engaged in discussions with the University of Alaska and the U.S. Forest Service regarding a joint laboratory facility - construction - project. Hawken asserts that the department breached the covenant of good faith and fair dealing by rejecting all bids and secretly using Hawken's bid as a benchmark for negotiations regarding the joint laboratory. The hearing officer found this claim to be meritless, ruling that the department's decision to cancel all bids was not made in bad faith and that, in any event, Hawken was estopped from asserting this claim by its successful renewal of its bid. Although we believe that substantial evidence supports the hearing officer's findings, we need not decide the point on its merits, since it is barred by the November 1989 release, which covers all claims directly or indirectly related to the department's conduct in soliciting bids. 2. Imposition of deadlines Hawken next claims that the department breached the covenant of good faith and fair dealing by stalling its award of the contract and then threatening Hawken with immediate default unless it submitted scale drawings in forty-five days and proof of financing in sixty days. The department responds that it merely reminded Hawken of applicable contractual deadlines-deadlines that Hawken had chosen to accept. The hearing officer rejected Hawken's claim, finding that "the [department's] notification of potential default in the event of noncompliance with the [invitation to bid] was consistent with the contract, was not a threat to breach the contract, and was not done in bad faith." We agree. Substantial evidence supports the finding of a lack of subjective bad faith, and it was not objectively unfair for the department to remind Hawken of its contractual obligations. 3. Financing delays Hawken also maintains that the department breached the covenant of good faith and fair dealing by delaying its approval of Hawken's proposal to arrange financing through tax-exempt bonds. The hearing officer found the department's delay reasonable in light of the bonding proposal's novelty and complexity. But we need not reach the merits of this claim, since it is barred by the 1990 release. After recognizing that Hawken had potential claims against the department for failing to promptly consent to its bond proposal, the 1990 release agreement expressly released the department from "any and all claims" related to this delay. Our decision upholding the release thus disposes of this claim. E. Prejudgment Interest on Hawken's Award of Damages The hearing officer initially recommended that interest be awarded on Hawk-en's damages from the date of the department's occupancy of the laboratory until paid. The Commissioner of Administration remanded the matter, directing the hearing officer to reconsider whether the commissioner had authority to award interest on a claim under the state procurement code. The hearing officer concluded on reconsideration that Hawken was not entitled to prejudgment interest on the damages awarded. Hawken challenges this conclusion. We have consistently stated that prejudgment interest may not be assessed against the state unless specifically authorized by legislation. "In other words, only the legislature can waive the state's sovereign immunity and authorize an award of prejudgment interest against the state." Hawken filed its claims under the state procurement code," the claims are "contract controversies" under AS 36.30.620, and they were appealed under AS 36.30.625. The procurement code does not specifically authorize prejudgment interest on awards under these provisions. A provision allowing prejudgment interest on awards against the Department of Transportation and Public Facilities was added to the procurement code after Hawken filed this suit. Hawken asserts that this provision applies to all cases pending on the provision's effective date. But the legislature specified that the prejudgment interest provision would apply only to "[clontroversies for which a claim 1s filed with an ageney . on or after the effective date of this act." Because Hawken did not file its action on or after the statute's effective date, the new provision does not apply. Since the procurement code does not provide a basis for Hawken's prejudgment interest claim, its claim could only be granted if it fell under AS 09.50.280. We have recently interpreted this statute in cases similar to Hawken's, concluding that it does not authorize awards of prejudgment interest against the state in administrative appeals. These decisions directly control Hawken's claim and preclude an award of prejudgment interest. IV. CONCLUSION We AFFIRM the department's award. CARPENETI, Justice, not participating. . AS 36.05. This act requires that workers on public construction projects receive at least the current prevailing wage. AS 36.05.010. . AS 36.05.010; AS 36.95.010. . Amendment 1 to the invitation to bid, which the department issued on December 6, 1988, described numerous changes and additions to the specifications in the original invitation to bid and stated, "All fume hoods shall be variable air volume type." . Anderson v. State, Dep't of Revenue, 26 P.3d 1106, 1108-09 (Alaska 2001); Handley v. State, Dep't of Revenue, 838 P.2d 1231, 1233 (Alaska 1992). . E.g., Anderson, 26 P.3d at 1109. . E.g. id. . Handley, 838 P.2d at 1233 (quotation marks omitted) (quoting Keiner v. City of Anchorage, 378 P.2d 406, 411 (Alaska 1963)). . Lopez v. Adm'r, Pub. Employees' Ret. Sys., 20 P.3d 568, 570 (Alaska 2001); see also Anderson, 26 P.3d at 1109. . Totem Marine Tug & Barge, Inc. v. Alyeska Pipeline Serv. Co., 584 P.2d 15, 21 (Alaska 1978). . Helstrom v. N. Slope Borough, 797 P.2d 1192, 1197 (Alaska 1990). . Zeilinger v. SOHIO Alaska Petroleum Co., 823 P.2d 653, 657 (Alaska 1992). . See N. Fabrication Co., Inc. v. UNOCAL, 980 P.2d 958, 960 (Alaska 1999) (describing first prong requirement as "almost meaningless"). . Zeilinger, 823 P.2d at 658. . - Totem Marine, 584 P.2d at 22. . Id. . Id. . Id. . Id. . Zeilinger v. SOHIO Alaska Petroleum Co., 823 P.2d 653, 658 (Alaska 1992). . - The record citations in Hawken's brief refer to the following: testimony that Hawken's owner, Dale Young, was worried about the company's finances on an unspecified date; Young's testimony that his real estate holdings were in danger sometime during the period between December 1988 and March of 1989; and testimony that at the time of the release, there was concern about Hawken's possible exposure for the difference in bids if the department canceled the award and went with the next lowest bidder. This testimony provides only weak support for Hawken's assertion that bankruptcy was certain if the signed lease was not obtained. These after-the-fact expressions of subjective concern are not substantial evidence sufficient to establish clear and convincing proof of immediate and irreparable economic loss. . See Totem Marine, 584 P.2d at 22. . Zeilinger, 823 P.2d at 658 (holding no economic duress by employer where inducement to release claims was employee's burdensome financial circumstances that were of her own making). . 980 P.2d 958, 962 (Alaska 1999). . Id. at 960. . Id. . Id. . Id. at 961. . Id. (quotation marks omitted) (quoting Helstrom v. N. Slope Borough, 797 P.2d 1192, 1198 (Alaska 1990)). . Id. . McConnell v. State, Dep't of Health & Soc. Servs., 991 P.2d 178, 184 (Alaska 1999); accord Restatement (Second) or Contracts § 205 (1981) ("Every contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement."). . McConnell, 991 P.2d at 184. . Id. . Id. . Our decision upholding the releases and rejecting Hawken's implied covenant claims makes it unnecessary to decide any aspect of Hawken's arguments on damages except prejudgment interest. Hawken acknowledges that the damages issue is "somewhat murky," but asserts that "if thiis] court decides that there is bad faith or the releases are invalid," we should require a hearing to reconsider damages. Although Hawken devotes numerous pages to a discussion of the specific aspects of damages that it claims were incorrectly awarded, its arguments appear to be offered to establish the need for a remand in the event that Hawken prevails on either the economic duress or the covenant claims. . Samissa Anchorage, Inc. v. State, Dep't of Health & Soc. Servs., 57 P.3d 676, 679 (Alaska 2002); Danco Exploration, Inc. v. State, Dep't of Natural Res., 924 P.2d 432, 434 (Alaska 1996); Stewart & Grindle, Inc. v. State, 524 P.2d 1242, 1245 (Alaska 1974). . Samissa, 57 P.3d at 679. . AS 36.30. . AS 36.30.620 provides, in part "Contract controversies. (a) A contractor shall file a claim concerning a contract awarded under this chapter with the procurement officer." . AS 36.30.625 provides, in part: "Appeal on a contract controversy. (a) An appeal from a decision of the procurement officer on a contract controversy may be filed by the contractor with the commissioner of administration...." . AS 36.30.623 provides, in part: "Interest on certain controversies. 'The amount ultimately determined to be due . accrues interest at the [statutory] rate applicable to judgments.... In this section, "department" means the Department of Transportation and Public Facilities." We assume for present purposes that this provision would extend to de facto construction contract claims filed against agencies other than the Department of Transportation and Public Facilities. Our conclusion that the statute did not apply retroactively to Hawken's claim makes it unnecessary to decide the issue here. . Ch. 98, § 4, SLA 2001 (emphasis added). . AS 09.50.280 authorizes prejudgment interest against the state for certain contract, quasi-contract, and tort claims covered by AS 09.50.250. . See Quality Asphalt Paving, Inc. v. State, Dep't of Transp. & Pub. Facilities, 71 P.3d 865, 878-80 (Alaska 2003); Samissa Anchorage, Inc. v. State, Dep't of Health & Soc. Servs., 57 P.3d 676, 680 (Alaska 2002); Danco Exploration, Inc. v. State, Dep't of Natural Res., 924 P.2d 432, 434 (Alaska 1996).

10396030

Reuben C. SUBLETT, Appellant, v. STATE of Alaska, COMMERCIAL FISHERIES ENTRY COMMISSION, Appellee

Sublett v. State, Commercial Fisheries Entry Commission

1989-05-05

No. S-2560

952

955

773 P.2d 952

773

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

Reuben C. SUBLETT, Appellant, v. STATE of Alaska, COMMERCIAL FISHERIES ENTRY COMMISSION, Appellee.

Reuben C. SUBLETT, Appellant, v. STATE of Alaska, COMMERCIAL FISHERIES ENTRY COMMISSION, Appellee. No. S-2560. Supreme Court of Alaska. May 5, 1989. Arthur S. Robinson, Robinson, Beiswen-ger & Ehrhardt, Soldotna, for appellant. Madeleine Levy, Asst. Atty. Gen., Anchorage, Grace Berg Schaible, Atty. Gen., Juneau, for appellee. Before MATTHEWS, C.J., and RABINOWITZ, BURKE, COMPTON and MOORE, JJ.

1952

12386

OPINION COMPTON, Justice. This appeal arises out of a decision by the Commercial Fisheries Entry Commission (CFEC) denying Reuben Sublett a limited entry permit. The CFEC refused to credit Sublett with past participation points for the year he was a partner of the named gear license holder. The superior court, sitting as an appellate court, AS 22.10.020, Alaska Rule of Appellate Procedure 601, affirmed the CFEC's decision. Sublett appeals. We affirm. I. FACTUAL AND PROCEDURAL BACKGROUND In 1971 Reuben Sublett fished commercially in the Cook Inlet drift gill net fishery as a partner of William McClintock. The gear license was in McClintock's name. After the 1971 season ended, Sublett purchased the boat from McClintock. He purchased his own gear license in 1972 and fished commercially by himself during that season. The Limited Entry Act (the Act) was enacted in 1973. AS 16.43.010-.990. The Act requires a permit to commercially fish in designated distressed fisheries. Id. The Cook Inlet drift gill net fishery was designated a distressed fishery. 20 AAC 05.300. Sublett applied for a Cook Inlet drift gill net permit in March 1975. He claimed 15 points, including 3 as a gear license holder in 1971 under the gear license issued in McClintock's name. The CFEC classified Sublett with 12 points, awarding him one crewman's point for the 1971 season. His application was initially denied in September 1975. Sublett timely contested his classification and requested a hearing. He contended that he was entitled to three past participation points as the partner of McClintock, not one point as a crewman. He pointed out that McClintock only provided the boat and that he, Sublett, had provided the gear, motors, other equipment and footed all the expenses. Alternatively, Sublett claimed under 20 AAC 05.630(a)(5) that unavoidable circumstances prevented him from obtaining a gear license in his own name, and thus his level of past participation was not adequately reflected by the points he had been awarded. A hearing was held on February 5,1976, at which Sublett was asked to substantiate his claim that unavoidable circumstances prevented him from participating as a gear license holder. The hearing officer recommended that Sublett's application be denied. In December 1976 the CFEC adopted the hearing officer's recommendation and denied Sublett's claims for additional past participation points. Sublett requested reconsideration of the CFEC's decision. After a new hearing in December 1977, the CFEC again relied on the hearing officer's recommendations and denied Sublett's claims for additional past participation points based on his partnership status and unavoidable circumstances. Sublett's application was finally denied by the CFEC on January 26, 1978. He failed to appeal that decision. In October 1984 the CFEC received a letter from Sublett in which he sought to reopen his application in light of our decisions in Commercial Fisheries Entry Commission v. Byayuk, 684 P.2d 114 (Alaska 1984) and Commercial Fisheries Entry Commission. v. Templeton, 598 P.2d 77 (Alaska 1979). He claimed he was entitled to income dependence points, gear investment points and past participation points. In July 1985 the hearing officer advised Sublett that he was not entitled to past participation points, but was entitled to two additional alternative occupation points. Additionally, Sublett was advised that he might be eligible for economic dependence points. Sublett then conceded that he was not entitled to economic dependence points, and he had already been awarded the maximum number of gear investment points. Sublett's request to reopen his application was denied in November 1985. The hearing officer observed that Sublett's claim for past participation points was the same claim finally adjudicated against him in' 1978, and that without those points, he still did not have enough points for a permit. Sublett petitioned the CFEC for administrative review of the hearing officer's refusal to reopen his application; the petition was denied on January 29, 1986. Sublett sought reconsideration; this was denied in March 1986. Sublett appealed to the superior court. The superior court affirmed the CFEC. In affirming the CFEC the superior court concluded that Sublett's appeal was untimely because he was appealing the CFEC's original decision denying him past participation points. Sublett timely appealed to this court. II. DISCUSSION Observing that Sublett was raising the same issue that had been finally adjudicated against him in 1978, the superior court dismissed Sublett's appeal as untimely. Sublett argues that the court erred in concluding that his appeal was untimely. Initially Sublett argues that he is appealing the CFEC's decision not to reopen his application. The CFEC denied Sublett's request to reopen his application in January 1986 and denied his petition for reconsideration in March 1986. He then timely appealed to the superior court. However, as the hearing officer stated, this was the same claim finally adjudicated against him in 1978. Principles of res judi-cata and collateral estoppel preclude collateral attack of a final agency decision made in an adjudicatory hearing. Jeffries v. Glacier State Tel. Co., 604 P.2d 4, 8-9 (Alaska 1979) (citations omitted). Because Sublett's claim for past participation points was precluded, his application did not raise substantial and material issues. Thus, no further consideration of the application was required. Cf. Estate of Miner v. Commercial Fisheries Entry Comm'n, 635 P.2d 827, 834 (Alaska 1981) (no hearing necessary in absence of substantial and material issues crucial to the determination). Sublett also seems to argue that the instant appeal is a timely appeal of the CFEC's 1978 decision denying Sublett a permit. He failed to appeal that decision within the limits prescribed in Appellate Rule 602. Alaska R.App.P. 602(a)(2). Sublett argues that this court's decisions in Templeton and Byayuk, which created a new legal theory on which to proceed, breathed new life into his case. He argues that in 1978 he could not anticipate that this court would decide Templeton and By-ayuk the way it did and that he should not suffer for failing to make the argument accepted in those cases. Sublett's argument is without merit. Like Templeton and Byayuk, Sublett could have presented his argument in a timely appeal. Further, the rationale of Templeton and Byayuk was, in any case, limited to claims for economic dependence points by partners of gear license holders. See Application of Bozho Deranja, CFEC File No. 75-211 (December 1984). Sublett's other arguments are similarly without merit. Dismissal of his appeal does not necessarily leave a major policy decision of the CFEC unreviewed. We have indirectly approved of the differential treatment of partners in this context. Cf. Commercial Fisheries Entry Comm'n v. Apokedak, 680 P.2d 486, 488 (Alaska 1984) (partner of gear license holder not entitled to apply for limited entry permit, classification "gear license holder" does not include partner of gear license holder). A recent superior court decision holding that the CFEC's partnership policy resulted in differential treatment of partners, thereby violating AS 16.43.010(a), has no bearing on Sublett's case. Deranja v. Commercial Fisheries Entry Comm'n, No. 1 JU-80-574 Ci. (Alaska Super., May 16, 1988). As a result of the CFEC's failure to appeal this decision, Deranja is treated differently from others similarly situated. However, when a trial court decision is not appealed, there is a possibility that similarly situated persons will be treated differently. This is not a valid basis for reviving a stale appeal. III. CONCLUSION Based on the above we conclude that Sublett's appeal is untimely. Therefore, the decision of the superior court is AFFIRMED. .The purpose and history of the Limited Entry Act are explained in Johns v. Commercial Fisheries Entry Commission, 758 P.2d 1256 (Alaska 1988), Commercial Fisheries Entry Commission v. Apokedak, 606 P.2d 1255 (Alaska 1980), and Isakson v. Rickey, 550 P.2d 359 (Alaska 1976). .In order to be granted a permit 16 points were necessary. .20 AAC 05.630(a) provides in part: Past Participation. Up to a maximum of 20 points will be awarded an applicant for past participation in the fishery applied for based on the following schedule: (4) one point for each year of actual participation as a crewman from 1965 through 1972 in the fishery applied for; points for crewman participation and points for participation as a gear license holder may not be claimed in the same year; (5) if unavoidable circumstances exist such that an applicant's past participation in the fishery is not realistically reflected by points awarded for past participation for the years 1960 through 1972, the commission may award an applicant up to a maximum of 16 points upon a special showing of past participation during the years 1960 through 1972; (6) to receive credit for past participation as a gear license holder, an applicant must have harvested the resource commercially while participating as a gear license holder in a given year. . Sublett was entitled to two additional alternative occupation points based on this court's decision in Deubelbeiss v. Commercial Fisheries Entry Commission, 689 P.2d 487 (Alaska 1984). Thus, he would have 14 points; two points less than required for a permit. . Sublett cites Moore v. Commercial Fisheries Entry Commission, 688 P.2d 582 (Alaska 1984), for the proposition that a thorough review by an administrative agency is a judicially reviewable final determination. He reasons that the CFEC thoroughly reviewed his application in order to determine that he fell within its partnership policy. Thus, he concludes this appeal is timely. Sublett's reliance on Moore is misplaced. Clearly, Moore does not stand for the proposition that a thorough review of an agency decision revives an otherwise stale claim. Moore, 688 P.2d at 585, n. 4. As discussed above, Sub-lett is precluded from attacking the CFEC's 1978 decision, and the CFEC did not abuse its discretion in refusing to reopen his application. .Alaska Rule of Appellate Procedure 602(a)(2) states in part: "The time within which an appeal may be taken to the superior court from an administrative agency shall be 30 days from the date the order appealed from is mailed or delivered to the appellant." Alaska R.App.P. 602(a)(2). . The CFEC decided in December 1984 not to extend the rationale of Templeton and Byayuk to claims for past participation points by partners of gear license holders. Sublett was not newly aggrieved when this decision was applied to his request to reopen his application. . Sublett maintains that if his appeal is untimely, then no appeal on this issue will be timely because the application deadline was 1975. The state maintains that timely appeal of this issue is likely as a result of the settlement in Wassillie v. Commercial Fisheries Entry Commission, 3AN-75-506 (Alaska Super., 3d dist., Ci. Anchorage, May 4, 1988). Neither party points to any evidence supporting its position. Their speculation merits no response. . AS 16.43.010(a) mandates that entry into commercial fisheries be regulated without unjust discrimination. . Sublett also cites Alaska Rule of Appellate Procedure 521 for the proposition that the 30-day appeal period can be relaxed. The 30-day period can be relaxed "where 'a strict adherence to [the rules] will work a surprise or injustice.' " Anderson v. Commercial Fisheries Entry Comm'n, 654 P.2d 1320, 1322 (Alaska 1982) (citations omitted). Relaxation of the rules is within the trial court's discretion. Id. In this case we do not believe the trial court abused its discretion. This is not a case where the agency confused Sublett as to the appeal process. Anderson, 654 P.2d at 1322 (citing McCarrey v. Commissioner of Natural Resources, 526 P.2d 1353, 1355 (Alaska 1974)).

10385295

STANDARD ALASKA PRODUCTION COMPANY, Appellant, v. STATE of Alaska, DEPARTMENT OF REVENUE, Appellee

Standard Alaska Production Co. v. State, Department of Revenue

1989-04-21

No. S-2445

201

211

773 P.2d 201

773

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

STANDARD ALASKA PRODUCTION COMPANY, Appellant, v. STATE of Alaska, DEPARTMENT OF REVENUE, Appellee.

STANDARD ALASKA PRODUCTION COMPANY, Appellant, v. STATE of Alaska, DEPARTMENT OF REVENUE, Appellee. No. S-2445. Supreme Court of Alaska. April 21, 1989. Joseph M. Wilson and Louis R. Veerman, Guess & Rudd, Anchorage, and James P. Murphy, Squire, Sanders, Dempsey, Washington, D.C., for appellant. Michael G. Hotchkin, Asst. Atty. Gen. and Grace Berg Schaible, Atty. Gen., for appellee. Before MATTHEWS, C.J., and RABINO WITZ, BURKE, COMPTON and MOORE, JJ.

5441

35661

RABINOWITZ, Justice. Standard Alaska Production Company ("Standard") filed a complaint in superior court seeking a declaration that the Alaska Department of Revenue ("Department") lacks authority to increase disputed tax assessments after three years have passed from the date the tax return was filed. The superior court dismissed the declaratory judgment action on the ground that Standard would first have to exhaust available administrative grievance procedures before seeking a judicial remedy. This appeal followed. I. FACTS AND PROCEEDINGS. Standard timely filed its 1978 oil and gas corporate income tax return on June 15, 1979. The Department timely issued a deficiency assessment for 1978 in the amount of $11,454,618 (plus interest) on December 31, 1981. On March 1,1982, Standard formally disputed the assessment and requested an informal administrative conference pursuant to AS 43.05.240(a). Standard also reiterated its previously stated view that Alaska's oil and gas corporate income tax, AS 43.21.010-.120, was unconstitutional under the Alaska and United States Constitutions, and that it was submitting to the administrative process under protest. Several informal conferences were subsequently held through February of 1984. However, these conferences did not result in a resolution of the parties' dispute. On February 4, 1985, the Department issued an amended notice of tax liability which imposed an additional deficiency of $36,377,824 (plus interest) for 1978. Standard timely appealed this amended assessment and requested a formal administrative hearing pursuant to AS 43.05.240(b). The requested hearing had not yet been held when Standard filed the instant declaratory judgment action on January 23, 1987. In March 1987, the parties stipulated to postpone further administrative proceedings "pending resolution of the declaratory judgment action." Standard's complaint alleges that the 1985 assessment "is invalid because it purports to amend the [1981] Assessment after expiration of either of the periods provided under 15 AAC 21.700(e) and 15 AAC 21.-810(1) . [and] because [it is] barred by the three-year limitation period of AS 43.-05.260(a) ." It is also contended in the complaint that the allegedly untimely 1985 assessment unconstitutionally violated state and federal due process. Standard challenges only the additional $36 million assessed in 1985, reserving its substantive challenges to the $11 million deficiency assessed in 1981 until the completion of this declaratory judgment action. The Department moved to dismiss Standard's complaint on the ground that Standard "ha[d] not yet exhausted its administrative remedies." It argued that no official Department view as to Standard's limitations claims had yet been formulated, and that it would address all of Standard's substantive and procedural arguments regarding all of the Department's assessments for the 1978 tax year during the normal administrative appeals process. After a hearing, the superior court granted the Department's motion, stating: "Regardless of how the issues are phrased, Standard is challenging administrative agency action, policy and procedure." The dismissal was without prejudice, and the final judgment explicitly preserved Standard's right "to seek judicial relief following the conclusion of the administrative appeal process under AS 43.05.240." We affirm the superior court's dismissal of this declaratory judgment action. The superior court properly ordered Standard to exhaust available administrative remedies before seeking judicial review of the Department's actions. Standard presents several arguments in this appeal. Standard first contends that it is not required to exhaust administrative remedies prior to seeking a judicial declaration on issues of constitutionality and statutory interpretation. Standard alternatively argues that attempts to exhaust administrative grievance procedures would be "futile" and cause "irreparable harm." Finally, Standard argues that the superior court was required by statutory declaratory judgment provisions to entertain this action regardless of whether administrative remedies had been exhausted. The Department argues that the superior court lacks jurisdiction over Standard's action because "AS 43.05.240 constitutes the exclusive method by which a taxpayer may challenge an assessment." Alternatively, the Department argues that the superior court properly dismissed Standard's action pursuant to the judicially created doctrine of administrative exhaustion. II. STANDARD'S RIGHT TO APPEAL. As a preliminary matter, we must decide whether the superior court's order dismissing Standard's complaint for declaratory relief was a final, and therefore ap-pealable, order. See Alaska R.App.P. 202(a). A dismissal of a complaint is ap-pealable "where it is clear that the trial court determined that the complaint could not be amended so as to prevent future dismissals" on the same ground. Clary v. Stack Steel and Supply Co., 611 P.2d 80, 82-83 (Alaska 1980) (quoting Nizinski v. Currington, 517 P.2d 754, 755 (Alaska 1974)). In the case at bar the superior court clearly indicated that Standard could not avoid dismissal without first exhausting available Department grievance procedures in order to obtain a final Department determination of what taxes were owed. The Eighth Circuit holds that the dismissal of a complaint is deemed final unless leave to amend is explicitly granted. Quartana v. Utterback, 789 F.2d 1297, 1299-1300 (8th Cir.1986); accord Weisman v. LeLandais, 532 F.2d 308, 309 (2d Cir.1976). The Eighth Circuit adopted this rule because "it avoids confusion over when a plaintiff's right to amend a dismissed complaint terminates, the order becomes final, and the time for appeal begins to run." 789 F.2d at 1300. We find the approach of the Eighth Circuit persuasive and adopt that court's rule for determining questions regarding finality when a complaint has been dismissed. Therefore, we hold that the superior court's order was final for purposes of appellate review. III. DO ANY OF ALASKA'S DECLARATORY JUDGMENT PROVISIONS GIVE THE SUPERIOR COURT JURISDICTION OVER STANDARD'S CLAIMS? Standard claims that superior court jurisdiction is conferred in this case by 1) Rule 57(a) of the Alaska Rules of Civil Procedure; 2) the Administrative Procedure Act's declaratory judgment provision, AS 44.62.300; and/or 3) the Declaratory Judgment Act, AS 22.10.020(g). We begin our analysis by noting that the issues raised by Standard in this case are subject to the doctrine of administrative exhaustion. A party cannot avoid statutorily or judicially imposed exhaustion requirements merely by framing a grievance as a "declaratory judgment" action. Indiana Hosp. Ass'n v. Schweiker, 544 F.Supp. 1167, 1173 (S.D.Ind.1982), aff'd sub nom. St. Francis Hosp. Center v. Heckler, 714 F.2d 872 (7th Cir.1983), cert. denied, 465 U.S. 1022, 104 S.Ct. 1274, 79 L.Ed.2d 679 (1984) ("The declaratory judgment provision may not be used to evade a failure of jurisdiction or to avoid exhausting administrative remedies."); Mutual of Enumclaw Ins. Co. v. Washington State Human Rights Comm'n, 39 Wash.App. 213, 692 P.2d 882, 884 (1984) ("[A] party seeking declaratory relief must show that its administrative remedies have been exhausted."); State ex rel. J.S. Alberici, Inc. v. City of Fenton, 576 S.W.2d 574, 577 (Mo.App.1979); see also McGrath v. Kristensen, 340 U.S. 162, 169, 71 S.Ct. 224, 229, 95 L.Ed. 173, 181 (1950) ("declaratory judgment . [action may be brought] after the exhaustion of administrative remedies"). The superior court's decision on whether to hear a case must be based "not . [upon] the label but from the substantive gravamen of the complaint." Walsh v. City of Brewer, 315 A.2d 200, 210 (Me.1974). A. Rule 57(a). Standard argues that Rule 57(a) of the Alaska Rules of Civil Procedure provides that declaratory relief may be awarded even where another adequate remedy exists.. This rule "established] . the general rules of pleading and civil procedure [that] apply to actions for declaratory relief." Alaska Airlines, Inc. v. Red Dodge Aviation, Inc., 475 P.2d 229, 232 (Alaska 1970). The rule does not independently give a court jurisdiction to hear declaratory judgment actions, but only governs such actions when they are otherwise properly brought before that court. Rule 57(a) therefore has no bearing on the outcome of this case. B. AS 44-62.010-.6W. Standard further argues that this case was properly brought pursuant to the declaratory judgment provisions of Alaska's Administrative Procedure Act, AS 44.-62.010-.650. This Act in relevant part provides that "[a]n interested person may get a judicial declaration on the validity of a regulation by bringing an action for declaratory relief in the superior court." AS 44.62.300. Standard contends that the Department's "decision" that AS 43.05.260(a) does not bar the 1985 assessment as untimely constitutes a "regulation." However, an agency's position on an issue will only be considered a "regulation" if it has been "adopted by [that] agency." AS 44.- 62.640(a)(3). The Department has not issued its definitive position on the interpretation of AS 43.05.260(a). The interpretation of this statute in its non-final 1985 assessment cannot be considered an "adoption" of a regulation. Accordingly, we hold that AS 44.62.300 is not applicable in the instant case. C. AS 22.10.020(g). Standard argues that jurisdiction is conferred by Alaska's Declaratory judgment Act, AS 22.10.020(g), which provides in part: In case of an actual controversy in the state, the superior court, upon the filing of an appropriate pleading, may declare the rights and legal relations of an interested party seeking the declaration, whether or not further relief is or could be sought. (Emphasis added.) The Declaratory Judgment Act "does not provide the plaintiff with a separate jurisdictional basis." Indiana Hosp. Ass'n, 544 F.Supp. at 1173 (interpreting the federal act, the model for Alaska's act). The superior court will only hear an action brought under the Act where the case is otherwise properly before the court. For reasons which will be explained below, we have concluded that in light of the allegations pled by Standard the superior court did not abuse its discretion in declining to declare the parties' rights until Standard had exhausted available administrative remedies. IV. DECLARATORY JUDGMENT ACTIONS AND THE EXHAUSTION OF ADMINISTRATIVE. REMEDIES REQUIREMENT AS IT RELATES TO PURELY CONSTITUTIONAL OR LEGAL ISSUES. A. Does the Doctrine of Administrative Exhaustion Bar Standard's Declaratory Judgment Action? The superior court may dismiss an action over which it has jurisdiction where the plaintiff has improperly bypassed available administrative remedies. See Reid v. Engen, 765 F.2d 1457, 1462 (9th Cir.1985) (courts can require that administrative remedies be exhausted before exercising jurisdiction over case). A dismissal may be predicated on a party's failure to comply with exhaustion requirements that have been "judicially created," though not mandated by statute. See id. We recently explained in Ben Lomond, Inc. v. Municipality of Anchorage, 761 P.2d 119 (Alaska 1988), that: "The doctrine of exhaustion of administrative remedies is an expression of administrative autonomy and a rule of sound judicial administration." Whether a court will require exhaustion of remedies turns on an assessment of the benefits obtained through affording an agency an opportunity to review the particular action in dispute. In particular we have observed that "the basic purpose of the exhaustion doctrine is to allow an administrative agency to perform functions within its special competence — to make a factual record, to apply its expertise, and to correct its own errors so as to moot judicial controversies." We have not articulated a principle governing when a regulatory scheme's constitutionality may be challenged without exhausting administrative remedies. According to Professor Davis, exhaustion, generally, is not required when the constitutionality of the statute is the only issue raised in a case. See 4 K. Davis, Administrative Law Treatise, § 26:6 (2d ed. 1983). Davis concludes that exhaustion may be required when non-constitutional issues are present or when a factual context is needed for deciding the constitutional issue. Id. at 121-22 (citations and brackets omitted). Standard contends that since the questions raised involve the interpretation of statutory and regulatory provisions, as well as potential constitutional violations, the requirement that administrative remedies be exhausted prior to judicial review is inappropriate. More particularly, Standard asserts it is raising legal questions as to the issue of whether the Department's 1985 amendment of its 1981 assessment is untimely under AS 43.05.260(a), 15 AAC 21.-700(e), and 15 AAC 21.810(1), or violative of due process under the federal and Alaska constitutions. It argues that the Department possesses no special expertise in interpreting regulatory, statutory and constitutional provisions, and that such questions are particularly appropriate for judicial resolution. We have previously addressed Standard's argument. In Eidelson v. Archer, 645 P.2d 171 (Alaska 1982), we held that the doctrine of administrative exhaustion applied to the internal peer review and disciplinary procedures of a privately owned hospital in the same way that it applied to grievances arising from state administrative actions. Id. at 179. The plaintiff physician, whose staff privileges had been summarily suspended, argued that exhaustion was not required because he was challenging his suspension as viola-tive of the hospital's bylaws. Id. at 180-81. We concluded that the grievance procedures provided by the hospital would have to be exhausted before the superior court could properly exercise its jurisdiction. Id. Cautioning that the requirement of exhaustion should not be discarded every time someone severs "legal issues" from the factual portion of his controversy, we wrote: If we take [plaintiff's] argument to its logical conclusion, the exhaustion of remedies doctrine could be disregarded whenever the hospital's actions are found to be improper.... One of the primary purposes of the exhaustion of remedies doctrine is to promote judicial economy by affording an institution the opportunity to correct its own errors, so as to render judicial action unnecessary. Van Hyning v. University of Alaska, 621 P.2d 1354, 1356 (Alaska 1981) [, cert. denied, 454 U.S. 958 [102 S.Ct. 495], 70 L.Ed.2d 373 (1981)]. If a party could obviate the exhaustion requirement simply by claiming that the hospital's action was improper, the doctrine would effectively be emasculated. Id. at 181. In Ben Lomond, we similarly cautioned against allowing parties to tailor their claims to avoid the requirement of administrative exhaustion. There the plaintiff framed his claim for relief in terms of "constitutional" issues, and argued as does Standard that these issues were inappropriate for agency resolution. We held that the plaintiffs complaint should be dismissed for failure to exhaust administrative remedies, and stated: We believe that requiring exhaustion is particularly appropriate where a complainant raises both constitutional and non-constitutional issues. This is because successful pursuit of a claim through the administrative process could obviate the need for judicial review of the constitutional issues. We further believe that it is axiomatic to our system of justice that we have a factual context within which to review a case. Applying these principles to the instant case we conclude that the benefits that could have been obtained from allowing the agency to review this case justify application of the exhaustion doctrine. 761 P.2d at 122. See also Owsichek v. State, Guide Licensing and Control Board, 627 P.2d 616, 620 (Alaska 1981). Ben Lomond and Eidelson both instruct the superior court not to entertain "legal" or "constitutional" claims which have been severed from the remainder of a controversy otherwise subject to the doctrine of administrative exhaustion. As we have indicated in the past, where a controversy involves only constitutional, and no factual issues, the exhaustion doctrine may be held not to apply. Ben Lomond, 761 P.2d at 122 (citing 4 K. Davis, Administrative Law Treatise § 26:6 (2d ed. 1983)). But cases of mixed questions of law and fact are "particularly" appropriate for ad ministrative resolution prior to judicial review since 1) a ruling on the legal issues will not necessarily be dispositive of the whole controversy, and 2) an administrative ruling on the factual issues may moot the legal issues. The potential benefits of this rule become apparent in this case. The Department presents various scenarios which, if they transpire, will obviate the need for the superior court, and possibly this court, to consider the "legal" issues raised in Standard's declaratory judgment action. The process of administrative review might result in the abatements Standard seeks, or in an abatement which would reduce the assessed tax liability to the amount requested by the Department in the admittedly timely 1981 audit. If the assessment is reduced to the 1981 level, then the current controversy will be mooted, as Standard admits that the taxes imposed by the 1981 assessment are not barred by any limitations period. The Department also hypothesizes that evidence of fraudulently withheld information may surface during administrative proceedings. Taxpayers who fraudulently withhold information cannot benefit from the limitations period in AS 43.05.260. This, too, would moot the issues presented by Standard in its present action. Additionally, even if judicial review were permitted at this point, it is unlikely that Standard's grievances with the Department would be fully satisfied. The current action merely challenges a portion of the allegedly untimely 1985 assessment as procedurally invalid. Even if a portion is declared invalid as untimely, Standard's substantive grievances over timely portions of the assessment will remain to be considered by the Department. The facts of this case demonstrate the benefits to be obtained by requiring Standard to exhaust its administrative remedies prior to seeking judicial review. Unless Standard is able to show that exceptions to the doctrine of administrative exhaustion apply in this case, we hold that it was not an abuse of discretion on the superior court's part to require that it first submit all of its grievances relating to the 1985 assessment to the Department for a final, single agency decision. If grievances remain after Standard obtains a final agency decision, then a single appeal to the superi- or court can be filed to challenge any agency determinations. See McKart v. United States, 395 U.S. 185, 194, 89 S.Ct. 1657, 1662, 23 L.Ed.2d 194, 203 (1969) ("of course it is generally more efficient for the administrative process to go forward without interruption than it is to permit the parties to seek aid from the courts at various intermediate stages"). A ruling allowing parties to interrupt administrative proceedings by merely presenting legal or constitutional claims would too severely hamper an agency's ability to perform the work assigned to it by the legislature. An agency must be left with some degree of "autonomy" so that its delegated functions can be performed. Thus we hold that the superior court did not err in declining to hear Standard's claims for declaratory relief. B. Do Exceptions to the Doctrine of Administrative Exhaustion Apply in this Case? To guard against injustice, this court has recognized certain exceptions to the doctrine of administrative exhaustion. See Eidelson, 645 P.2d at 179 (citing authorities). Arguing in the alternative, Standard contends that two of these exceptions apply. Standard's first argument is that since the agency has issued a de facto final decision that the 1985 assessment was timely, further administrative proceedings will be "futile." Standard also argues that "irreparable harm" will result if it is forced to await a final agency decision prior to obtaining judicial review. Standard claims that the "futility" exception to the exhaustion doctrine should be applied. Standard asserts that because the Department has already made a final decision that the 1985 assessment was not barred as untimely under AS 43.05.260, any formal hearing on the issue will be a waste of time, i.e., "futile." Where exhaustion of administrative remedies will be futile because of the certainty of an adverse decision, a party need not obtain a final agency ruling before seeking judicial review. See Eidelson, 645 P.2d at 181-83 (since tribunal not biased against plaintiff, "futility" exception not applicable). The basis for Standard's assertion is that the Department requested an opinion from the Attorney General regarding a proper interpretation of AS 43.05.260. According to that opinion, 1984 Formal Op.Att'y Gen. No. 2 (Oct. 16,1984), an assessment may be increased on appeal notwithstanding the limitations provision of AS 43.05.260(a). Standard argues that the Department's position on the statute's interpretation is "entrenched." In support of this contention, Standard cites a letter written by then-Department Commissioner Nordale to Standard regarding the amount of deference the Department would pay to the Attorney General's opinion. The letter reads in part: "From a practical standpoint, the Attorney General is the legal counsel of the State of Alaska. It would take a rare and unusual situation to disregard a requested opinion directly responding to a question we raised." The letter also states: [I]t would be premature, and inappropriate, for me to review and decide the legal issues underscored in the opinion and addressed in your letter. The Department has well established procedures firmly in place for the resolution of such matters. . It certainly would be inappropriate to even consider such action without the benefit of the formal review process. It appears highly possible that the Department will find the 1985 assessment valid under AS 43.05.260. But absent any proof in the record that then-Commissioner Nordale was not being candid, it also appears that the Department is willing to seriously consider all of Standard's legal and factual contentions at a formal hearing. On the record before us, a decision adverse to Standard's interests does not appear to be a "certainty." See Municipality of Anchorage v. Higgins, 754 P.2d 745, 747-48 (Alaska 1988) (absent a showing that exhaustion "would so certainly result in an adverse decision as to render the remedy 'futile,' " an exception to the rule would be unwarranted). We therefore hold that the "futility" exception to the doctrine of administrative exhaustion does not apply here. Standard also argues that the delay caused by administrative review of the issues presented will cause it "irreparable harm." Such harm will result, according to Standard, "[bjecause uncertainty about taxes can create difficulties for taxpayers in their relations with creditors, shareholders and governmental agencies . [causing them to] waive the constitu tional and statutory right to a hearing and be forced to pay initial assessments without protest to avoid the potential of ever-increasing assessments, even though the initial assessments may be unjust and unwarranted." Standard has not been "forced to pay an initial assessment without protest." In fact, Standard has been formally protesting its 1978 tax liabilities since 1981. We will therefore only consider Standard's argument that delay in the administrative process makes the company's financial status unclear. Courts have declined to require administrative exhaustion "[wjhere irreparable injury will result unless judicial review is permitted." Aleknagik Natives Ltd. v. Andrus, 648 F.2d 496, 499 (9th Cir.1980) (footnotes omitted). If Standard's irreparable harm claim were accepted, then exhaustion could always be bypassed in tax cases, since a challenged tax assessment will by definition make one's financial status uncertain. The "irreparable harm" alleged by Standard is not serious enough to justify an exception to the requirements of the exhaustion doctrine. See Renegotiation Board v. Bannercraft Clothing Co., 415 U.S. 1, 23-24, 94 S.Ct. 1028, 1040-1041, 39 L.Ed.2d 123, 139 (1974) (neither the risk of being unsuccessful in the administrative appeals process, nor the costs of litigation, constitutes "irreparable" injury). We therefore decline to hold that the "irreparable harm" exception applies in this case. Therefore, since no exceptions to the doctrine of administrative exhaustion apply in this case, we hold that the superior court did not err in declining to hear Standard's claims for declaratory relief. V. AS 43.05.240 PROVIDES AN ADDITIONAL BASIS FOR SUSTAINING THE SUPERIOR COURT'S DISMISSAL. Courts are without jurisdiction over a case where statutory exhaustion requirements have not beén complied with. Marathon Oil Co. v. United States, 807 F.2d 759, 768 (9th Cir.1986), cert. denied, 480 U.S. 940,107 S.Ct. 1593, 94 L.Ed.2d 782 (1987). The Department argues that AS 43.05.240 is a statutory exhaustion requirement, thereby making administrative proceedings an aggrieved taxpayer's exclusive remedy, and depriving the superior court of jurisdiction until the completion of that process. That statute provides that a taxpayer aggrieved by the Department "in fixing the amount of a tax or in imposing a penalty" may apply for an informal conference or formal hearing. AS 43.05.240(a), (b). A taxpayer selecting an informal conference may request a formal hearing if unhappy with the conference decision. AS 43.05.240(b)(2). A taxpayer still dissatisfied with the assessment after exhausting these grievance procedures may appeal the Department's decision to the superior court. AS 43.05.240(d). In Fedpac International, Inc. v. State, Department of Revenue, 646 P.2d 240 (Alaska 1982), the aggrieved taxpayer sought simultaneously to prosecute in superior court both an original action and an appeal of an unfavorable administrative hearing decision to recover an assessment which the taxpayer had paid under protest. Id. at 240. This court affirmed the superi- or court's dismissal of the original action and in so doing said: We conclude that in enacting AS 43.05.-240, the legislature intended to prescribe the proper and exclusive means of chal lenging a tax assessment, i.e., by appeal [of an administrative hearing decision] to the superior court. Id. at 241. Standard admits that judicial review of a "tax assessment" must be postponed until after Department grievance procedures have been exhausted. However, as previously discussed, it argues that it is not challenging a "tax assessment." Rather, Standard argues that it is raising legal questions as to whether the Department's 1985 amendment of its 1981 assessment is untimely under AS 43.05.260(a), 15 AAC 21.700(e), and 15 AAC 21.810(1), or viola-tive of federal and state constitutional due process. In short, Standard has styled this declaratory judgment action as a challenge to the legal basis of the Department's tax assessments, and not the assessments themselves. On the other hand the Department argues that a review of Standard's complaint demonstrates Standard is challenging the Department's decision to issue a particular assessment as violative of Alaska statutes, regulations, and the Alaska and federal constitutions. The state concludes that "Standard is, therefore, challenging an adjudicatory decision or action by the Division relating to a specific tax assessment." We think there is considerable merit in the Department's argument that despite Standard's characterization of this action, in essence Standard is "challenging a tax assessment." Acceptance of the Department's argument leads to the conclusion that Fedpac is controlling. Thus, if Standard's pleadings are construed as challenging the 1985 tax assessment, then Standard is required to exhaust its administrative remedies under AS 43.05.240 before bringing suit in superior court. VI. CONCLUSION. Standard's claims for declaratory relief can be characterized as raising both constitutional and non-constitutional issues, as well as mixed questions of law and fact. Thus, Ben Lomond, Inc. v. Municipality of Anchorage, 761 P.2d 119 (Alaska 1988), controls and mandates the conclusion that the superior court did not err in dismissing Standard's complaint under Alaska's Declaratory Judgment Act. Further, if the essence of Standard's complaint for declaratory relief is viewed as a challenge to the 1985 assessment, then AS 43.05.240, as construed in Fedpac International, Inc. v. State, Department of Revenue, 646 P.2d 240 (Alaska 1982), also requires that Standard first exhaust its administrative remedies before instituting a claim for declaratory relief in the superior court. AFFIRMED. . The original order granted the Department's motion to dismiss only in part. On reconsideration, the superior court dismissed the complaint in its entirety, explaining that its earlier decision that "issue[sj of law" could properly be reviewed prior to a final agency decision on the other issues had been incorrect. . Ch. 110, § 3, SLA 1978; amended ch. 113, § 28-33, SLA 1980; amended ch. 116, § 6-11, 17, SLA 1981; repealed ch. 116, § 19, SLA 1981. . Standard and other oil companies were then engaged in litigation challenging the validity of the statute, which this court ultimately upheld. Atlantic Richfield Co. v. State, 705 P.2d 418, 420 (Alaska 1985), appeal dismissed, 474 U.S. 1043, 106 S.Ct. 774, 88 L.Ed.2d 754 (1986). . 15 AAC 21.700(e) provides: On or before August 15 (for fiscal-year taxpayers, the 15th day of the eighth month after the month in which the taxpayer's fiscal year ends), the department will assess the taxpayer and send the taxpayer a notice of assessment showing the amount of net taxable income under this chapter for that taxpayer during the previous year, the total amount of tax due under this chapter, and the amount (if any) of that tax remaining unpaid or overpaid. Returns and assessments under this section are subject to amendment for three years from the date of the original notice of assessment. .15 AAC 21.810 states in part: "Except as otherwise provided in AS 43.05.260 or AS 43.05.270, the department will, in its discretion (1) amend an assessment under this chapter no later than three years from the date a return is due or filed under this chapter, whichever is later." . Alaska Statute 43.05.260(a) provides: Except as provided in (c) of this section and AS 43.20.200(b), the amount of a tax imposed by this title must be assessed within three years after the return was filed, whether or not a return was filed on or after the date prescribed by law. If the tax is not assessed before the expiration of the three-year period, no proceedings may be instituted in court for the collection of the tax. . Standard argues that taxpayers will be unconstitutionally deterred from appealing erroneous assessments if the filing of an administrative appeal tolls the limitations period of AS 43.05.-260(a) and "puts [the taxpayer] in jeopardy of receiving increased assessments into the indefinite future." See also 1984 Formal. Op.Att'y Gen. No. 2, at 35-36 (Oct. 16, 1984) (concluding that the statute of limitations is suspended for the duration of administrative appeal proceedings and that the administrative hearing officer can increase the assessment on appeal), discussed infra at 208-09. . Rule 57(a) reads in relevant part: The procedure for obtaining a declaratory judgment pursuant to statute shall be in accordance with these rules.... The existence of another adequate remedy does not preclude a judgment for declaratory relief in cases where it is appropriate. . We express no opinion as to whether the Department's interpretation of AS 43.05.260(a) upon completion of a final administrative hearing would constitute a "regulation" under AS 44.62.640(a)(3). . In Alaska Airlines, Inc. v. Red Dodge Avia . "[E]xceptions . to the limitations period . [include] case[s] of . false or fraudulent return[s] with the intent to evade tax_" AS 43.05.260(c)(1). . Standard asserts that this case resembles Aleknagik Natives Ltd. v. Andrus, 648 F.2d 496 (9th Cir.1980). In Aleknagik, native Alaskan villages challenged the Secretary of the Interi- or's interpretation of a statute that would allow non-natives to occupy lands within their villages. The plaintiffs argued, and the court agreed, that the Secretary's position was "established", and that administrative appeals would be "futile." Id. at 500. The Secretary had "made clear" his position on the issue. Id. As an example of his position, the court quoted a memorandum, approved by the Secretary, espousing the legal position the natives contested. Id. Furthermore, the administrative boards which provided hearings were "foreclosed" from "overruling the Secretary's position," either by regulation or by self-imposed policy. Id. That case is clearly distinguishable from the case at bar. Courts in other jurisdictions have only applied the futility exception where agencies have been much more firmly entrenched in their positions than the Department. See 4 K. Davis, Administrative Law Treatise § 26:11 (2d ed. 1983) (citing Cafferello v. United States Civil Service Comm'n, 625 F.2d 285, 287 (9th Cir.1980) (agency review board's earlier decision on plaintiffs case made it "apparent" that any subsequent decision would be adverse): Continental Can Co. v. Marshall, 603 F.2d 590, 595-96 (7th Cir.1979) (agency proceeding futile since earlier ruling on same issue, regarding similar manufacturing plants also owned by plaintiff, was adverse); Porter County Chapter of the Izaak Walton League v. Costle, 571 F.2d 359, 363-64 (7th Cir.) (exhaustion not required where administrative appeal would be to administrator who had already stated a definitive position), cert. denied, 439 U.S. 834, 99 S.Ct. 115, 58 L.Ed.2d 130 (1978)). . See also State v. Dupere, 709 P.2d 493, 497 (Alaska 1985), modified on reh'g, 721 P.2d 638 (1986); State, Dep't of Labor v. University of Alaska, 664 P.2d 575, 582-83 (Alaska 1983) (Rabinowitz, J., dissenting) (citing 3 K. Davis, Administrative Law Treatise § 20.03, at 69-70 (1st ed. 1958)). . The Department also argues that the controversy is not yet "ripe." But the Department has already taken action against Standard by levying a tax which Standard must either pay or appeal. The ripeness doctrine forbids judicial review of "abstract disagreements over administrative policies." Abbott Laboratories v. Gardner, 387 U.S. 136, 148-49, 87 S.Ct. 1507, 1515-16, 18 L.Ed.2d 681, 691 (1967). This controversy is hardly abstract, since a payable tax has already been levied. The relevant issue, therefore, is whether administrative remedies must first be exhausted prior to judicial review.

10388236

TACHICK FREIGHT LINES, INC. and R.W. McKenzie, Appellants, v. STATE of Alaska, DEPARTMENT OF LABOR, EMPLOYMENT SECURITY DIVISION, Appellee

Tachick Freight Lines, Inc. v. State, Department of Labor, Employment Security Division

1989-05-12

No. S-2739

451

454

773 P.2d 451

773

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

TACHICK FREIGHT LINES, INC. and R.W. McKenzie, Appellants, v. STATE of Alaska, DEPARTMENT OF LABOR, EMPLOYMENT SECURITY DIVISION, Appellee.

TACHICK FREIGHT LINES, INC. and R.W. McKenzie, Appellants, v. STATE of Alaska, DEPARTMENT OF LABOR, EMPLOYMENT SECURITY DIVISION, Appellee. No. S-2739. Supreme Court of Alaska. May 12, 1989. Rehearing Denied June 29,1989. M. Ashley Dickerson, M. Ashley Dickerson, Inc., Anchorage, for appellants. Grace Berg Schaible, Atty. Gen., Juneau, and Julia Coster, Asst. Atty. Gen., Anchorage, for appellee. Before MATTHEWS, C.J., and RABINO WITZ, BURKE, COMPTON and MOORE, JJ.

1506

9664

OPINION PER CURIAM. This case presents the question of whether the Commissioner of Labor of Alaska erred by concluding that certain individuals performing services for Tachick Freight Lines, Inc. ("Tachick") were employees rather than independent contractors. Ta-chick and its chairman, Mr. R.W. McKenzie ("McKenzie"), argue that the hearing before the Department of Labor was procedurally inadequate, that the Labor Department's decision was erroneous, and that the decision is unconstitutional. I. On January 28, 1977, the officers of Ta-chick resolved that from that day on all persons working for Tachick would be independent contractors rather than employees. Tachick thus sought to avoid liability for employees' unemployment insurance premiums required of an employer by the Alaska Employment Security Act, AS 23.20.005-23.20.535 ("the Act"). In January of 1985, the Employment Security Division of the Alaska Department of Labor ("ESD") received an anonymous tip that Tachick was not complying with the Act. After an investigation, ESD determined that Tachick was an employer and was liable for back unemployment insurance premiums. Tachick was informed but did not respond or appeal. Assessment and Tax Liens were filed and mailed to Tachick. Correspondence between Tachick and ESD ensued, resulting ultimately in a hearing before an ESD hearing officer in Juneau on July 2, 1986. At the hearing, McKenzie represented Tachick without aid of counsel. Apparently not appreciating that the burden of proof was upon him (see AS 23.20.525(a)(10)), McKenzie was not entirely cooperative, and did not present convincing evidence of the independent contractor status of any of Tachick's workers. The Commissioner of Labor found after the hearing that Tachick was an employer and was thus liable for unemployment insurance premiums. Tachick appealed to superior court, but Judge James C. Homaday, pro tem, affirmed the Commissioner. Tachick appeals. II. Tachick's initial argument is that the hearing before the Department of Labor was procedurally inadequate due to inade quate notice of the scope of the hearing and the Hearing Officer's lack of impartiality. Concerning the adequacy of notice, Tachick points to the notice of hearing sent it which stated that the status of the "drivers" would be the subject of the hearing. The hearing actually addressed the status of all of Tachick's workers. The Commissioner found that Tachick was not "prejudicially harmed" by the "typographical error." Significantly, Tachick did not raise the notice issue in superior court, stressing instead lack of impartiality and ESD's incomplete investigation. It also appears that the correspondence between Ta-chick and ESD prior to the hearing reflects an awareness by McKenzie that the status of all workers was at issue. We thus find no merit to Tachick's argument on this point. See Matter of L.A.M., 727 P.2d 1057, 1059 (Alaska 1986); Zeman v. Lufthansa German Airlines, 699 P.2d 1274, 1280 (Alaska 1985). Concerning the hearing officer's alleged lack of impartiality, Tachick objects to the officer's pointed questioning of McKenzie. We find no merit in this contention. The hearing officer's job is to "inquire into and develop all facts bearing on the issues." AS 23.20.420(a). McKenzie's evasiveness made pointed questioning necessary. Tachick "has not shown that the [hearing officer's] questioning demonstrated any predisposition to find against [Ta-chick] or that it otherwise interfered with the orderly presentation of evidence." In re Cornelius, 520 P.2d 76, 83 (Alaska 1974); see also Black v. Corporation Division, 54 Or.App. 432, 634 P.2d 1383, 1384 (1981). III. Tachick claims that the Commissioner erred in finding that Tachick's workers were employees and not independent contractors. Tachick does not, however, discuss the standard of review to be applied. "[I]t is evident from the statutory requirement of a showing 'to the satisfaction of the department' that the Department of Labor is vested with broad discretion in deciding whether an 'employment' relationship exists. We can only reverse the commissioner's decision if we find that he abused this discretion." Clayton v. State, 598 P.2d 84, 86 (Alaska 1979). See Alaska Placer Co. v. Lee, 502 P.2d 128, 132 (Alaska 1972). After a review of the record, we are not convinced that the Commissioner abused his discretion here. McKenzie was under the mistaken impression that merely by showing that several of his employees had business licenses he had borne his burden. This is not the case. See AS 23.20.-525(a)(10). The statutory definition is controlling, and the employer must show that all three prongs of the "ABC test" in that statute are met. Employment Security Comm'n. v. Wilson, 461 P.2d 425, 428 (Alaska 1969). McKenzie did not produce clear evidence that all three prongs of AS 23.20.-525(a)(10)'s "ABC test" were met as to any of Tachick's workers. The Commission er's finding was thus not an abuse of discretion. IV. Tachick also contends that the Commissioner's decision effects an unconstitutional impairment of its "freedom to contract" and has resulted in a denial of equal protection to Tachick. These claims lack merit. Article I, section 10, clause 1 of the U.S. Constitution prohibits the impairment of prior, existing contracts, not those made after a law's effective date. See Murray v. Charleston, 96 U.S. 432, 24 L.Ed. 760 (1878); 16A Am.Jur.2d Constitutional Law § 695 (1979). An equal protection claimant must show "a deliberate and intentional plan to discriminate based on some unjustifiable or arbitrary classification." North Slope Borough v. Puget Sound Tug & Barge, 598 P.2d 924, 928 (Alaska 1979). Tachick has made no adequate showing of a violation of either provision. No preexisting contracts have been impaired, and it has not been shown that the Department of Labor has treated Tachick any differently than it would any employer who had not paid unemployment insurance premiums. The decision of the superior court is AFFIRMED. .AS 23.20.270(a) states: The department shall begin action for the collection of contributions, including interest and penalties, imposed by this chapter by assessment or suit within five years after a return is filed. A proceeding for the collection of these amounts may not be begun after the expiration of this period. In case of a false or fraudulent return with intent to evade contributions, or in the event of a failure to file a return, the contributions may be assessed, or a proceeding in court for the collection of the contributions may be begun, at any time. (Emphasis added). Because Tachick had never filed a return, the five-year limitation did not apply, so the Department of Labor assessed Ta-chick for premiums Tachick owed beginning in 1978. . The Commissioner of Labor concluded that McKenzie was "extremely evasive in response to questions put to him both by the State's representative and by the Hearing Officer." This conclusion is supported by the record. . Tachick owed the State $93,505.58 as of December 6, 1986. . McKenzie relied in part on our decision in Clayton, in which we related that the superior court had *'accept[ed] the commissioner's concession that Clayton's payments to the three contractors who had business licenses were indeed exempt." 598 P.2d at 86. The superior court's acceptance of the commissioner's concession was not at issue on appeal, so we expressed no opinion as to whether it was correct. Consequently, McKenzie's reliance was erroneous. . See, e.g., Jeffcoat v. State, 732 P.2d 1073, 1075 (Alaska 1987) (club dancer held employee, not independent contractor, for purposes of labor laws. Distinction varies "depending upon the context of the dispute.... For the remedial purposes of the FLSA to be effectuated, there should be a broad interpretation of the term 'employer' "); Asia, Employment Relation: Common-Law Concept and Legislative Definition, 55 Yale LJ. 76 (1945); Annotation, Unemployment Compensation: Trucker as Employee or Independent Contractor, 2 A.L.R.4th 1219, 1220 (1980) ("in making the determination of whether a trucker is an employee or independent contractor, the statutory unemployment compensation provisions control rather than common law rules"). .AS 23.20.525(a)(10) states: "Employment" defined, (a) In this chapter, unless the context otherwise requires, "employment" means (10) service performed by an individual whether or not the common-law relationship of master and servant exists, unless and until it is shown to the satisfaction of the department that (A)the individual has been and will continue to be free from control and direction in connection with the performance of the service, both under the individual's contract for the performance of service and in fact; (B) the service is performed either outside the usual course of the business for which the service is performed or is performed outside of all the places of business of the enterprise for which the service is performed; and (C) the individual is customarily engaged in an independently established trade, occupation, profession, or business of the same nature as that involved in the service performed.

10394450

Tammy REEVE, Appellant, v. STATE of Alaska, Appellee

Reeve v. State

1988-11-25

No. A-2425

324

326

764 P.2d 324

764

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

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

CAP

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

Tammy REEVE, Appellant, v. STATE of Alaska, Appellee.

Tammy REEVE, Appellant, v. STATE of Alaska, Appellee. No. A-2425. Court of Appeals of Alaska. Nov. 25, 1988. Carol A. Brenckle, Asst. Public Defender, Kenai, and Dana Fabe, Public Defender, Anchorage, for appellant. Nathan A. Callahan, Asst. Dist. Atty., James L. Hanley, Dist. Atty., Kenai, and Grace Berg Schaible, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

1721

10351

OPINION SINGLETON, Judge. Tammy Reeve was convicted by a jury of driving while intoxicated in violation of AS 28.35.030, and driving without a valid license in violation of AS 28.15.011(b). She appeals, contending that the trial court erred in failing to instruct the jury on the defense of necessity. We affirm. The trial court considered Reeve's necessity defense as an offer of proof pursuant to Alaska Evidence Rule 103(a)(2) ("Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected; and.... [i]n case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.") Reeve's offer of proof conceded that she was intoxicated at the time she was stopped. It indicated that she spent the evening of October 30, 1987, with her father at bars in Kenai where Reeve and her father both drank heavily. Later the following morning, they returned to her father's home where he became extremely abusive, grabbed her by the throat, and left marks on her neck. Reeve was prepared to testify that her father's actions, coupled with the fact that he was despondent over a discovery that he had a serious illness,' caused her to fear for her life. She initially telephoned her roommate to obtain a ride back to her home in Soldotna, but her roommate was unable to assist her. Reeve would also testify that she could not afford a taxi. At approximately 9:00 a.m. on October 31, 1987, Reeve took her father's car and proceeded toward her home in Soldotna, a route which took her through the middle of Kenai. Officer Watson of the Kenai Police Department stopped Reeve outside of Ke-nai, approximately eight miles from her father's home. Thefe was evidence that at the time of the stop, she was traveling approximately 70 m.p.h. and that she initially failed to heed the officer's warnings to stop. An Intoximeter 3000 breath test indicated a .216 breath alcohol content. It was agreed that Reeve did not have a valid operator's license. The trial court considered Reeve's offer of proof and concluded that while Reeve was legitimately in fear of her father's violence, justifying her attempts to leave, there were adequate alternatives available to her, such as calling 911 for police assistance. Additionally, the court found that even if the immediate flight in the vehicle was justified to avoid the threat of physical harm, Reeve could have found sanctuary in Kenai either at the police station, at a shopping mall, or at one of the open business establishments that she passed, rather than driving eight miles on the highway toward her home in Soldot-na. The court noted that Reeve was stopped at approximately 9:00 a.m., when many businesses were open. In the court's view, Reeve's driving while intoxicated, at least from the time she had escaped her father, was disproportionate to any foreseeable harm she avoided by attempting to drive to her home in Soldotna. DISCUSSION Alaska Statute 11.81.320 provides in relevant part: Justification: Necessity. (a) Conduct which would otherwise be an offense is justified by reason of necessity to the extent permitted by common law when (1) neither this title nor any other statute defining the offense provides exemptions or defenses dealing with the justification of necessity in the specific situation involved; and (2) a legislative intent to exclude the justification of necessity does not otherwise plainly appear. (b) The justification specified in (a) of this section is an affirmative defense. The appellate courts of the state of Alaska have considered the defense of necessity under the common law and under AS 11.-81.320 on a number of occasions. See, e.g., Cleveland v. Anchorage, 631 P.2d 1073 (Alaska 1981); Nelson v. State, 597 P.2d 977 (Alaska 1979); Degler v. State, 741 P.2d 659 (Alaska App.1987); Gerlach v. State, 699 P.2d 358 (Alaska App.1985); Nelson v. State, 691 P.2d 1056 (Alaska App.1984); Wells v. State, 687 P.2d 346 (Alaska App.1984); Jordan v. State, 681 P.2d 346 (Alaska App.1984); Schnabel v. State, 663 P.2d 960 (Alaska App.1983). Reeve argues that the trial court usurped the jury's function by essentially finding the facts against her. She notes that the necessity defense under Alaska law has three elements: (1) that the act charged must have been done to prevent a significant evil; (2) that there must have been no adequate alternative to violating the law; and (3) that the harm caused must not have been disproportionate to the harm avoided. Cleveland, 631 P.2d at 1078. She notes that the first two elements, the significance of the evil to be avoided and the adequacy of available alternatives to avoid the evil, are judged by a subjective test: if the defendant reasonably believed those elements to be present, then the defendant has satisfied the test even if the belief is mistaken. In Reeve's opinion, her proposed testimony would be sufficient to take these issues to the jury. However, Reeve concedes that her subjective belief would not suffice for the third element. An objective determination must be made as to whether her value judgment was correct given the facts as she reasonably perceived them. Id. Reeve notes that the trial court found that her father's violence established a significant evil, initially justifying her conduct. She further notes that the trial court also found that Reeve believed she had no reasonable alternatives to driving her father's car despite her intoxication because Reeve's roommate would not come to Kenai to give her a ride home and Reeve could not afford a taxi. Reeve argues that the reasonableness of her beliefs has to be determined in light of her condition at the time. She was in a panic having being assaulted by her father and shé was severely intoxicated. Her judgment was therefore not at its best. Reeve stresses that the issue before the court is not whether she should have prevailed on her defense, but whether she should have had an opportunity to have a jury consider the defense. In her view, so long as she presented "some evidence" in support of each of the three elements of the test, she was entitled to have a jury determine the defense under an appropriate instruction. She stresses that the trial court should err on the side of giving instructions on defenses of justification in order to avoid needless appellate issues in cases where a weak justification case exists. David v. State, 698 P.2d 1233, 1236 n. 2 (Alaska App.1985) (quoting Folger v. State, 648 P.2d 111, 114 n. 3 (Alaska App.1982)). In David, we held that the question of whether the defendant produced "some evidence," placing a defense at issue, was equivalent to the question: "Could the evidence presented at trial, viewed in the light most favorable to the defendant, arguably lead a juror to entertain, on the theory set forth in the proposed instruction, a reasonable doubt as to the defendant's guilt?" Id. at 1235. In David, we were considering a "defense," which, if supported by evidence, casts upon the state the burden of disproving the defense beyond a reasonable doubt. See, e.g., AS 11.81.900(b)(15) (" 'defense', other than an affirmative defense, means that (A) some evidence must be admitted which places in issue the defense, and (B) the state then has the burden of disproving the existence of the defense beyond a reasonable doubt"). In contrast, necessity is an "affirmative defense." See, e.g., AS 11.81.900(b)(1) (" 'affirmative defense' means that (A) some evidence must be admitted which places in issue the defense; and (B) the defendant has the burden of establishing the defense by a preponderance of the evidence"). We have never decided whether a defendant relying on an "affirmative defense" has an equal or greater burden than a defendant relying on a "defense" when attempting to create a jury issue. See Jordan, 681 P.2d at 349 (discussing the necessity defense). This question masks an even more difficult issue which has not been briefed by the parties: What is the proper division of responsibility between the court and the jury in evaluating a necessity defense? See, e.g., Nelson, 597 P.2d at 980 n. 6 (suggesting that the determination of whether the reasonably foreseeable harm resulting from the violation would be less than the harm resulting from compliance with the law is a question to be determined, at least initially, by the court) (quoting Tiffany and Anderson, Legislating the Necessity Defense in Criminal Law, 52 Den.L.J. 839, 871-72 (1975)). However, it is not necessary for us to decide this issue because we believe that Reeve's case is governed by Gerlach and Wells. In those cases, we concluded that in order to satisfy the "some evidence" test, a person claiming necessity in justification of a "continuing offense" must offer some evidence that the continued violation of the law—as well as the initial violation— was justified. Wells, 687 P.2d at 350-51 (escape); Gerlach, 699 P.2d at 362 (parental kidnapping). It seems clear that the legislature considers driving while intoxicated a continuing offense, i.e., a defendant can only be prosecuted once for a continuous period of drunk driving. Under these circumstances, we interpret the trial court's holding to be that Reeve failed to produce "some evidence" that she brought her conduct into compliance with the law as soon as the necessity ended—when she escaped from her father's residence. It does not appear that there was any evidence that he pursued her after she left. Under these circumstances, the trial court could decline to instruct on the necessity defense. Such a decision did not deny Reeve a jury trial and did not amount to a directed verdict on an element of the offense or an element of the defense which is properly a jury decision. Jordan, 681 P.2d at 349-50. The judgment of the district court is AFFIRMED.

10394430

George N. BROWN, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee

Brown v. Municipality of Anchorage

1988-11-25

No. A-2405

322

323

764 P.2d 322

764

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

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

CAP

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

George N. BROWN, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee.

George N. BROWN, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee. No. A-2405. Court of Appeals of Alaska. Nov. 25, 1988. William B. Oberly, Gorton & Oberly, Anchorage, for appellant. John E. McConnaughy, III, Asst. Mun. Prosecutor, and Richard D. Kibby, Mun. Atty., Anchorage, for appellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

494

3072

OPINION COATS, Judge. George N. Brown pled no contest to driving while intoxicated (DWI) Anchorage Municipal Code (AMC) § 09.28.020. District Court Judge Ralph Stemp, sentenced Brown to 360 days with 240 days suspended, placed Brown on probation for three years, revoked Brown's license for one year, directed Brown to pay a fine of $250.00 and to pay restitution in the amount of $2,000.00, and ordered Brown to attend alcohol screening. Brown appeals his sentence as excessive. We affirm. On the evening of September 30, 1987, Brown was traveling southbound on McRae Street in Anchorage when he struck James King, a blind pedestrian. King suffers from tunnel vision and is legally blind, but can observe movement and can distinguish light and dark. King testified that Brown was driving without his headlights on at the time of the accident. Brown's testimony vigorously disputes this contention. The police determined that Brown's blood alcohol level at the time of the accident was approximately .112. Skid marks at the scene revealed that Brown had been traveling 40 m.p.h. in a 25 m.p.h. zone. King suffered a broken left wrist, a broken left leg, and several cuts as a result of the accident. At sentencing, Brown expressed remorse for the incident and pointed out that this was his first DWI offense. The sentencing court agreed that Brown's prospect for rehabilitation was favorable in light of Brown's lack of a prior criminal record and his sincere expression of remorse. Nonetheless, the court concluded that four months of jail time was needed to deter both Brown and others from the future commission of DWI offenses. Brown subsequently moved to modify the sentence on the ground that it exceeded the terms imposed on similarly situated defendants. The court denied the motion. On appeal, Brown raises essentially the same argument he presented below. We reject Brown's argument. We note that King received substantial injuries from the accident. Although causing injury to another person is not an element of the offense of driving while intoxicated, it is a foreseeable result of this conduct and aggravates the offense. See generally State v. Dunlop, 721 P.2d 604, 609-10 (Alaska 1986). In concluding that this was a particularly serious DWI offense, the court properly considered the fact that Brown struck and injured King while Brown was driving while intoxicated. Given these circumstances, we do not believe the sentence is clearly mistaken. Nor do we find that the court erred when it declined to modify the sentence. McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974). Accordingly, the sentence is AFFIRMED. . A charge of reckless driving, AMC § 09.28.010A, was dismissed as part of the plea agreement.

10480046

LeRoy HUNNICUTT, Appellant, v. STATE of Alaska, Appellee

Hunnicutt v. State

1974-11-15

No. 2051

1292

1295

527 P.2d 1292

527

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:28:42.330390+00:00

CAP

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

LeRoy HUNNICUTT, Appellant, v. STATE of Alaska, Appellee.

LeRoy HUNNICUTT, Appellant, v. STATE of Alaska, Appellee. No. 2051. Supreme Court of Alaska. Nov. 15, 1974. Herbert D. Soil, Public Defender, Ben Esch, Asst. Public Defender, Anchorage, for appellant. Norman C. Gorsuch, Atty. Gen., Juneau, Joseph D. Balfe, Dist. Atty., Stephen G. Dunning, Asst. Dist. Atty., Anchorage, for appellee. Before RABINOWITZ, C. J., and CONNOR, ERWIN, BOOCHEVER and FITZGERALD, JJ.

2305

14136

OPINION ERWIN, Justice. Appellant, LeRoy Hunnicutt, appeals from an order of the superior court revoking his probation. On August 2, 1972, appellant pleaded guilty to the offense of possession of a narcotic drug in violation qf AS 17.10.010. On August 14 he received a suspended sentence of three years subject to the usual general conditions imposed upon probationers. On June 5, 1973, a petition to revoke appellant's probation was filed in the superi- or court. The petition contained two counts. The first count charged a violation of condition 9 of appellant's probation based upon an incident on May 26, 1973, during which appellant was found to be in possession of a hypodermic needle and a spoon containing a heroin residue. The second count charged appellant with failure to secure his probation officer's permission to return from Kodiak to Anchorage on May 26, 1973, in violation of condition 2 of his probation. A probation revocation hearing was held on July 31, 1973. Testimony at the hearing revealed that on May 8, 1973, appellant sought permission from his Anchorage probation officer to travel to Kodiak to secure employment at a local cannery. Permission was granted and appellant's case was transferred to Kodiak. Upon arriving in Kodiak appellant reported to the Kodiak probation officer as directed. He was instructed that he was to change neither his residence nor his employment without first obtaining prior written permission. On May 25 appellant abruptly quit his job in Kodiak and returned to Anchorage by plane. Prior to departing he made no attempt to either notify his probation officer that he had become unemployed or seek his permission to leave Kodiak. Following his arrival in Anchorage, appellant and his wife had dinner at the home of Jack Rickey and his wife, who is the sister of appellant's wife. After dinner appellant and Jack went to play pool at the Cinema I theater on west Fourth Avenue. Later that evening, while routinely checking the Cinema I, patrolman Lawrence Goldstein recognized appellant as being "familiar," so he asked him to produce some identification. Appellant replied that he had none, but did give his name upon request. At this point Gold-stein and his partner, auxiliary officer John Krieger, returned to their patrol vehicle and called the dispatcher at the police station. The dispatcher informed them that there was an outstanding bench warrant for appellant's arrest, but apparently gave them no further details. Goldstein and Krieger then returned to the Cinema I and advised appellant that he was under arrest for the bench warrant. Goldstein performed a "pat down" search for weapons. However, he apparently did not do a thorough check because a crowd had gathered and he feared a disturbance.Appellant was then taken to the police station in the patrol vehicle. Upon arriving at the station, appellant was taken directly to an interview room by the patrolmen and ordered to empty his pockets. Goldstein then proceeded to search appellant's pockets. Feeling "something" in his coat pocket, Goldstein reached in and extracted a hypodermic needle and a spoon with a caked-on residue, which was later discovered to contain heroin. Appellant immediately volunteered that he was holding the needle for a friend and that the residue on the spoon was left over from dinner. Leaving Krieger in the room to watch appellant, Goldstein went to the dispatcher's office to obtain a copy of the arrest warrant. After securing the warrant, Goldstein proceeded to the front counter and informed Rickey, who was waiting to bail out appellant, as to the amount of the bail for the traffic offense. He also notified Rickey that a felony charge arising out of the search at the station would probably be filed against appellant; conse--quently, appellant could not be released until bail was set on the latter charge. When questioned on direct examination about usual police procedures for executing traffic warrants, Goldstein replied that it was common to immediately place the suspect in an interview room and search him. Furthermore, he retorted, in this particular case a second weapons search at the police station was necessary for the patrolmen's protection because the first search at the scene of the arrest had been of limited intensity due to the gathering crowd. Goldstein also testified that he was concerned with appellant's safety. According to him, the police "have had people split their wrists in interview rooms" as an emotional reaction to being taken into custody, and police procedures stipulate that no suspect is to be left alone in an interview room without a prior weapons check. When Goldstein was reminded that the arrest was for only a minor traffic offense and that Krieger had remained in the room to watch the suspect, he simply replied: "[H]e could have watched him slit his wrists too." Appellant's attorney made a timely motion to suppress the evidence of the needle and spoon. The written papers supporting the motion asserted the search was illegal based on the grounds (1) that the search was a pretext search, and (2) that the search was impermissibly broad under McCoy v. State, 491 P.2d 127, 139 (Alaska 1972). The oral argument was based solely on the idea of a pretext search. The motion was denied. He also moved to suppress appellant's statement regarding the needle and spoon on the ground that no Miranda warnings had been given. This motion was also denied. The court found that appellant's unlawful possession of the needle and spoon constituted a violation of condition 9 of his probation, which required that he "[c]omply with all municipal, .state and federal laws and ordinances." The court also found that appellant's failure to promptly notify his Kodiak probation officer that he had quit his job in Kodiak constituted a violation of condition 6 of his probation, which required him to notify his probation officer as soon as he became unemployed. Appellant's attorney objected in particular to the finding concerning condition 6 on the ground that the probation revocation petition contained no notice that a violation of this particular condition was being charged. In reply the court stated: When a hearing for revocation of suspensions under a petition is had, any grounds that may show up which may indicate a violation of probationary terms can be utilized in the discretion of the court to revoke that suspension. Appellant's probation was then revoked and he was ordered to serve the balance of the three-year sentence imposed on August 14, 1972. Appellant thereupon proceeded to file a timely notice of appeal to this court. He has expressly abandoned his earlier claim of a "pretext search" and concedes that the arrest was valid and that' the search, while not made at the scene of the arrest, was not too remote from the arrest in terms of time or space. He has also abandoned his earlier objection to the lack of Miranda warnings. Appellant argues three basic points on this appeal: (1) The trial trial court erred in refusing to suppress the items seized from him during the search in the interrogation room, because (a) an evidentiary search incident to a mere traffic arrest is impermissible and (b) the interrogation room search exceeded the permissible scope of a weapons search incident to the arrest. Appellant urges that the rule authorizing a full search incident to any valid traffic arrest, adopted by the United States Supreme Court in United States v. Robinson and Gustafson v. Florida violates article I, section 14 of the Alaska Constitution. (2) Assuming that the interrogation room search was illegal, the exclusionary rule should have been applied to bar consideration of the illegally seized evidence at appellant's probation revocation hearing. (3) The finding of a violation of condition 6 of appellant's probation at the revocation hearing without prior notification that a violation of this condition had been charged constituted a denial of procedural due process. We, however, are unable to rule on the claims of error concerning illegal search and seizure, for we note that the trial court did not consider these particular -legal arguments. We thus agree with the position advanced by the state in its brief that this case must be remanded for further consideration in the trial court to resolve the alternate claims made by appellant. Since a remand is necessary, the question concerning notice of violation of conditions of probation must be considered in light of the opinion of Martin v. State, 517 P.2d 1399, 1402 (Alaska 1974), which was decided after the date of the initial hearing herein. Remanded for further proceedings. . Three of the general conditions were: 2. Secure the prior written permission of a probation officer of the Division of Corrections before changing employment or residence, or leaving the region of residence, or leaving the region of residence to which assigned. 6. Make proper effort to secure and maintain steady employment. If unemployed, notify a probation officer of the Division of Corrections at once. 9. Comply with all municipal, state and federal laws and ordinances. . Patrolman Goldstein testified that he had become acquainted with appellant through his past "criminal activities," including an "armed robbery" and various "family disturbances." . See note 4 infra. . Up to this point, appellant had been given no Miranda warnings, apparently because the arresting officers had made no attempt to interrogate him. . It is not clear from the testimony whether Goldstein knew at the time of the arrest that the warrant was for a minor traffic offense. However, this may be reasonably inferred from his responses to questioning concerning police procedures for arrests on traffic warrants. Also, Rickey testified that at the time of his arrest appellant informed those present that the warrant was for "traffic tickets." . Immediately following the search at the Cinema I, Rickey asked the patrolmen if he could bail out appellant and, if so, what the amount of the bail would be. Goldstein replied that he could but would have to go to the police station to learn the amount. .Rickey testified to the contrary in several material respects regarding his efforts to bail appellant out of jail. According to Rickey, following appellant's arrest, he picked up appellant's wife at a nearby cafe and drove to the police station. They arrived at the police station before appellant and the patrolmen; the patrolmen parked their vehicle beside his car; and they walked into the station just ahead of appellant and the patrolmen. Once inside, Rickey claimed, the patrolmen took appellant directly to the interrogation room while he spoke with a Lieutenant Duley concerning the amount of the bail. According to Rickey, Duley indicated that appellant could be bailed out as soon as he was booked, but declined to state the amount of the bail until the arresting officers could check on it. We note, however, that neither appellant's wife nor Duley appeared as a witness at the hearing in support of Rickey's recollection of the events at the police station, and that the court below necessarily resolved the facts in favor of Goldstein's version of the events that transpired at the station. .On cross-examination, however, Goldstein stated that under normal police procedure a defendant can avoid the booking pr-ocess provided he can immediately pay bail at the police station. But he also testified that ar-restees with "more serious criminal records" are commonly brought back to an interview room rather than being left at the front counter. . Appellant's attorney relied upon Taglavore v. United States, 291 F.2d 262 (9th Cir. 1961) (appeal from D. Alaska). . See note 1 supra. .414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973). In summing up the Robinson rule, the court stated: The authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect. A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of- the Fourth Amendment, but is also a "reasonable" search under that Amendment. 414 U.S. at 235, 94 S.Ct. at 477, 38 L.Ed.2d at 440-441. . 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973). . Alaska Const, art. I, § 14, provides: The right of the people to be secure in their persons, houses and other property, papers, and effects, against unreasonable searches and seizures, shall not he violated. No warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. Appellant presumably is relying upon Baker v. City of Fairbanks, 471 P.2d 386, 402 (Alaska 1970), in which this court noted that in interpreting the Alaska Constitution we are not bound by other courts' interpretations of federal constitutional provisions concurrently found in the Alaska Constitution, but rather are free to develop and expound upon our own interpretations of these provisions. . Appellee's brief at 20. . Nothing herein precludes such further hearings and the taking of evidence as the court decides are necessary.

9020016

Il Seung YANG, Appellant, v. STATE of Alaska, Appellee

Il Seung Yang v. State

2005-02-11

No. A-8516

302

314

107 P.3d 302

107

Pacific Reporter 3d

Alaska Court of Appeals

Alaska

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

CAP

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

Il Seung YANG, Appellant, v. STATE of Alaska, Appellee.

Il Seung YANG, Appellant, v. STATE of Alaska, Appellee. No. A-8516. Court of Appeals of Alaska. Feb. 11, 2005. Deborah Burlinksi, Anchorage, for the Appellant. Windy O. East, Assistant District Attorney, Kotzebue, and Gregg D. Renkes, Attorney General, Juneau, for the Appellee. Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.

6808

41561

OPINION MANNHEIMER, Judge. II Seung Yang appeals his conviction for refusing to submit to a breath test following his arrest for driving while intoxicated. Yang argues that his proficiency in English was so poor that he did not understand the offer of the breath test or his legal obligation to take the test. He argues in the alternative that the police failed to adequately advise him of the consequences of refusing the breath test. Yang also challenges the trial judge's decision to allow the State to rebut these contentions by presenting evidence that Yang had taken the breath test on a prior occasion. And Yang argues that the prosecutor made statements to the jury implying that Yang had a prior conviction for driving while intoxicated, and that the trial judge should therefore have declared a mistrial. Finally, Yang argues that the sentencing judge misconstrued the record when he concluded that Yang had engaged in bad driving in this ease, and when he used this purported bad driving to justify an increase in the length of Yang's driver's license suspension. For the reasons explained here, we reject all of Yang's contentions and we affirm his conviction and his sentence. Underlying facts Early on the morning of June 23, 2002, two off-duty corrections officers went to the Kot-zebue police station and reported that they had seen an Asian male driving a Toyota pickup truck very fast on Airport Way. According to the corrections officers, the pickup truck was weaving across the road, and they suspected that the driver might be intoxicated. While they were in the police station making their report, the corrections officers happened to see the same pickup truck speed by the police station. Shortly afterward, the officers located this pickup truck parked in front of a hotel, and they radioed the truck's location to the police. Kotzebue Police Officer Peter Steen contacted the truck's owner, Yang, in the lobby of the hotel. Yang confirmed that the .truck was his, and he acknowledged that he had been driving the truck. Yang smelled of alcoholic beverages; he swayed as he stood, and he had red, watery eyes. Yang agreed to perform field sobriety tests; at the conclusion of these tests, Steen arrested him for driving while intoxicated. Yang was initially cooperative, but after he was transported to the Kotzebue jail for a breath test, he became less so. At the jail, Steen read Yang the "implied consent" form — warning Yang that, if he refused to take the breath test, he would be charged with a crime and would lose his driver's license, and also warning Yang that his refusal to take the test could be used against him in other proceedings. Yang responded, "I don't care," and he refused to take the test. Based on these events, Yang was charged with driving while intoxicated and breath test refusal. Following a jury trial, Yang was acquitted of driving while intoxicated, but he was convicted of refusing to submit to the breath test. The trial judge's ruling that the State could introduce evidence of a prior occasion tvhen Yang took the breath test Yang's defense to the breath test refusal charge was that his command of English was so poor that he had not understood Officer Steen's request to take the test or the warnings concerning the consequences of refusing the test. Yang took the stand at his trial and testified (through an interpreter) that, because of his poor comprehension of English, he had not undei'stood that he had been arrested for driving while intoxicated, nor had he understood that he would be charged with another crime for refusing to take a breath test. Yang asserted that he had not understood what Officer Steen said to him at the police station — that, in particular, he did not know the meanings of the words "charge" and "refusal". Yang testified that he did not understand that he was entitled to an independent test, nor that he would be charged with a separate crime if he did not take the breath test. Following this testimony, the trial judge (Superior Court Judge Richard H. Erlich, sitting in the district court) permitted the prosecutor to cross-examine Yang regarding the fact that he had submitted to a breath test on a prior occasion. (Apparently, Yang's prior experience with the breath test arose from Yang's 1999 prosecution and conviction for driving while intoxicated. Judge Erlich allowed the prosecutor to question Yang about the prior breath test, but he forbade the prosecutor from mentioning Yang's prior DWI conviction.) On appeal, Yang argues that the State failed to establish that the circumstances surrounding the prior breath test were similar to the circumstances of the present case, and that Judge Erlich therefore abused his discretion by allowing this cross-examination. In particular, Yang contends that the State failed to make an offer of proof concerning (1) whether Yang took the test or refused it on that prior occasion, (2) how the prior breath test was administered, (3) whether the breath test was administered at a police station or at the scene, and (4) whether Yang had a translator on that prior occasion. Yang also argues that, even if the evidence was admissible, it was more prejudicial than probative and should therefore have been excluded under Evidence Rule 403. Here is the disputed cross-examination: Prosecutor: Mr. Yang, you . testified that you didn't understand [the] term "refusal", isn't that right? Mr. Yang: Yes. Prosecutor: [But] this isn't the first time that you heard that term, [is] it? Mr. Yang: It's first time. Prosecutor: You were never asked to take a breath test prior to this incident? Interpreter: He doesn't remember. Prosecutor: Okay, Mr. Yang, isn't it true that, back in 1999, in Anchorage, you were asked to submit to a breath test by the Anchorage Police Department? Interpreter: He doesn't remember whole lot, but what he remembers was the police [were] telling — showing him how to blow the machine, so he just follow and done that. Prosecutor: Okay. So he did provide a breath sample at that time? Interpreter: He didn't know [that] that was a breath test. Yang relies on our decision in Calapp v. State to support his claim that evidence of his prior breath test should have been excluded. The defendant in Calapp was prosecuted for second-degree theft after he took possession of stolen jewelry and participated in selling the jewelry at a pawn shop. The major dispute at Calapp's trial was not whether the jewelry was stolen, but whether Calapp had recklessly disregarded the fact that it was stolen. To rebut Calapp's claim that his receipt and pawning of the stolen jewelry was the result of a mistake or accident, the trial judge allowed the State to present evidence that Calapp had previously been convicted of theft and forgery. This Court held (by a two to one vote) that this evidence should not have been admitted because the State failed to establish that the earlier incidents were relevant to assessing Calapp's knowledge that the jewelry was stolen. Yang relies on language in Judge Coats's lead opinion in Calapp, in which Judge Coats suggested that the test for admissibility of a defendant's prior acts to prove knowledge is whether those acts "bear a relevant factual similarity to the [currently] charged offense". But no other member of the Court joined this statement of law. Judge Bryner dissented from the Court's decision; he concluded that Calapp's prior convictions were relevant even in the absence of proof that they arose from factually similar circumstances. And Judge Mannheimer, in his concurring opinion, expressly agreed with Judge Bryner that, "[t]o the extent that [Judge Coats's] opinion could be read to require strict factual similarity of offenses when the issue is the defendant's knowledge, . this would be a misstatement of the law". According to the concurring opinion, "the question is not the factual similarity of the acts, but whether one could reasonably infer, from the defendant's participation in the prior acts, that the defendant possessed knowledge pertinent to the present case." Judge Erlich could reasonably conclude that this test was satisfied in Yang's case. Yang testified that he did not understand what the police were asking him to do when they offered him the breath test at the police station, nor did he understand that he would be charged with a separate crime if he refused to take the test. To rebut this testimony, the State was entitled to show that Yang had taken a breath test once before. Yang's prior experience was relevant because it tended to show that Yang was familiar with the breath test and that he did understand what Officer Steen was asking him to do. Judge Erlich could also properly conclude that this evidence was not unduly prejudicial. As explained above, Judge Erlich allowed the State to question Yang about the prior breath test, but he did not allow the State to elicit the fact that Yang's prior experience with the breath test arose out of a prosecution and conviction for driving while intoxicated. Moreover, as can be seen from the quoted excerpt of the trial, Yang was permitted to testify (in answer to the prosecutor's questions) that he had not understood the significance of the breath test any better on that prior occasion. Judge Erlich instructed the jurors that they were to consider Yang's testimony about the prior breath test "only as it re-latefd] to his knowledge and understanding." And the prosecutor, in final argument, referred only briefly to this evidence. Finally, we note that the jury acquitted Yang of driving while intoxicated — a strong indication that the jurors were not swayed by any possible suggestion that Yang was a repeat DWI offender. For these reasons, we conclude that Judge Erlich did not abuse his discretion when he allowed the prosecutor to cross-examine Yang concerning the prior episode in which Yang took a breath test. The prosecutor's remarks that purportedly required a mistrial Yang further contends that, when the prosecutor cross-examined him about the earlier breath test, the prosecutor violated the trial judge's protective order by adverting to Yang's prior conviction for driving while intoxicated. The issue arose when the parties were debating whether the prosecutor could elicit testimony about Yang's earlier breath test. At that same time, Judge Erlich granted the prosecutor permission to question Yang about earlier occasions in which Yang had used a translator in court — to show that Yang was aware that he could ask for a translator if he had trouble understanding someone's English. (It appears that Yang did not ask for a translator when he was arraigned on the charges in the present case. The prosecutor wanted to cross-examine Yang on this point, to suggest that Yang's English proficiency was not as bad as Yang claimed.) The prosecutor's cross-examination about Yang's prior use of interpreters prompted Yang's attorney to request a mistrial. Here is the disputed portion of that cross-examination: Prosecutor: Mr. Yang, you do speak some English, isn't that right? Interpreter: Some. He put the words together. He make — yeah. Taking a guess [at] what they are saying. Prosecutor: But . you're telling us that you don't understand difficult legal concepts, for example? Mr. Yang: Yes. Prosecutor: Mr. Yang, do you remember coming to court [on] the day that you were arrested on this DWI? Interpreter: Yes, he remember. Prosecutor: You didn't request a translator at that time, did you? Interpreter: He . Defense Attorney: Your Honor, could we approach? [Bench Conference:] Defense Attorney: You know, I think it needs to be made clear to him when [the prosecutor] is talking about, or when he was arrested on this DWI, is what [the prosecutor] is thinking about. Prosecutor: I said "on this one". Defense Attorney: I don't — I didn't hear that, and I don't think [Mr. Yang] understood that.... Prosecutor: I'll be — [I'll] make it more specific, but . Defense Attorney: The date . Prosecutor: _that's why . [indiscernible simultaneous speech] The Court: Okay. [End of Bench Conference] Prosecutor: Mr. Yang, do you remember coming to court after you were arrested on June 23, 2002, on this DWI? Interpreter: Yes, he does. Prosecutor: You didn't ask for a translator during your arraignment, did you? Mr. Yang: Nobody ever mention . Interpreter: [The prosecutor] wasn't mentioning anything about translating; that's what he was saying. Prosecutor: You knew you could have a translator in court with you, though, didn't you, if you didn't understand? Interpreter: He didn't know that was— is regulation, [is] a choose that he had or not. He didn't know at that time. Prosecutor: Mr. Yang, you had been to court before June 23, 2002, hadn't you? Mr. Yang: Yes. Interpreter: Yes. Prosecutor: And while you were [in] court those times, you had a translator with you, didn't you? Defense Attorney: Objection, Your Hon- or. The Court: Approach [the bench]. [Bench Conference:] Defense Attorney: . What does [the prosecutor] mean by that? I mean, when is [the prosecutor] talking about? Prosecutor: . [I'm] talking about [pri- or] criminal cases. I'm leaving it general so that . The Court: [to the defense attorney] It's your choice. Defense Attorney: What choice do I have? Prosecutor: I said I'm leaving [the reference] general so [that] the jury doesn't hear that [Mr. Yang] went to court specifically on criminal cases. Defense Attorney: Okay; okay. [But] my assertion is that [the prosecutor's question] is leading.... Prosecutor: Well, this is cross-examination. The Court: This is cross-examination. So . the objection is overruled. We, too, desire to keep [the reference] general. [End of Bench Conference] The defense attorney made no motion for a mistrial at this point. Instead, Yang's testimony continued. During Yang's redirect examination, he testified that he was currently involved in a court case with his landlord, and that his wife had been acting as his interpreter in that proceeding. When the parties returned to court the following day, Yang's attorney asked Judge Erlich to declare a mistrial. As the ground for this mistrial, the defense attorney asserted that, "upon reflection", she had come to the conclusion that the prosecutor's reference to "this DWI" was a clear reference to Yang's prior DWI conviction. Judge Erlich denied the requested mistrial. On appeal, Yang renews his argument that the prosecutor's references to "this DWI" constituted clear violations of Judge Erlich's order not to mention Yang's prior DWI conviction. But as can be seen from the above-quoted excerpt, the record simply does not support Yang's contention. Judge Erlich could properly conclude that when the prosecutor asked Yang about coming to court on "this DWI", the prosecutor's questions were exactly what they appeared to be: inquiries about Yang's failure to ask for a translator when he appeared for his arraignment in the case currently being litigated. There was no reference to Yang's prior DWI conviction. Yang also argues on appeal that Judge Erlich should have granted a mistrial because the prosecutor "referred] to [Mr. Yang's] attendance . at prior court hearings over [defense] counsel's objection". But Yang's attorney did not ask for a mistrial based on the prosecutor's reference to other court hearings. As can be seen from the above-quoted excerpt, the defense attorney's only objection to the prosecutor's question was that the question was leading. Judge Erlich properly overruled this objection, since the prosecutor was engaging in cross-examination. Moreover, the prosecutor never specified what these prior court hearings involved. The only other court proceedings that the jury heard about were the proceedings involving Yang and his landlord. Given this record, we reject Yang's implied contention that Judge Erlich was obliged to declare a mistrial sua sponte. The elements of the offense of breath test refusal Yang argues that his trial jury was misinstructed on the elements of breath test refusal. Judge Erlich instructed the jury that the elements of this offense were (1) that Yang was arrested for the offense of driving while intoxicated, (2) that Yang "was fairly advised that the refusal to submit to [the breath test] was a crime", and (3) that Yang "did knowingly refuse to submit to [the breath test]". In a separate jury instruction, Judge Erlich told the jury that, in this context, to "knowingly" refuse the breath test meant to refuse the test "with a fair understanding of the consequences [as to] the misdemeanor charge" that would result from the refusal. Yang contends that Judge Erlich's instructions omitted one essential element of breath test refusal: he asserts that this offense requires proof that the motorist was advised that their refusal to submit to the breath test might be used against them in a civil, criminal, or other proceeding. Yang's argument derives from the wording of AS 28.35.032(a). The pertinent portion of this statute reads: If a person under arrest for operating a motor vehicle . while under the influence of an alcoholic beverage, inhalant, or controlled substance refuses the request of a law enforcement officer to submit to a chemical test authorized under . AS 28.35.031(a), or if a person involved in a motor vehicle accident that causes death or serious physical injury to another person refuses the request of a law enforcement officer to submit to a chemical test author ized under . AS 28.35.031(g), after being advised by the officer that the refusal will result in the denial or revocation of the driver's license, privilege to drive, or privilege to obtain a license, that the refusal may be used against the person in a civil or criminal action or proceeding arising out of an act alleged to have been committed by the person while operating a motor vehicle . while under the influence of an alcoholic beverage, inhalant, or controlled substance, and that the refusal is a crime, a chemical test may not be given, except as provided by AS 28.35.035. As can be seen, this statute seemingly requires the arrested motorist to be warned of three things: (1) "that the refusal [of the breath test] will result in the denial or revocation of [their] driver's license, privilege to drive, or privilege to obtain a license", (2) "that the refusal [of the test] may be used against [them] in a civil or criminal action or proceeding arising out of [their] operating a motor vehicle . while intoxicated of an alcoholic beverage, inhalant, or controlled substance", and (3) "that the refusal [of the test] is a crime". Yang infers that the three warnings listed in the statute are each essential elements of the offense. Indeed, the current Alaska pattern jury instruction on the offense of breath test refusal — Criminal Pattern Instruction No. 28.35.032(a) # 1 (revised 2003) — embodies Yang's viewpoint. This pattern instruction lists the giving of the three statutory warnings as an element of the crime. However, this interpretation of the statute is wrong. As we explain here, the one essential warning — the warning that is an element of the offense — is the warning that the defendant is legally obligated to take the test. Although this warning might be communicated in various ways, the third of the warnings listed in AS 28.35.032(a) — that refusal to take the test is itself a crime — is sufficient to satisfy this requirement. The other two warnings listed in the statute may be a necessary foundation if the State intends to use a motorist's refusal for other purposes (such as circumstantial evidence of guilt in a prosecution for driving while under the influence, or as a basis for administrative revocation of the motorist's driver's license), but those warnings are not essential to proving that the motorist committed the offense of breath test refusal. Breath test refusal is a crime of omission. That is, the gist of the offense is that the defendant failed to do something that the law requires. In crimes of omission, the State must prove that the defendant failed to perform the required act, but the State must also prove that the defendant was aware of the circumstance that created their legal duty to act. More specifically, "when a defendant is prosecuted for failing to act, the State must show that the defendant was aware of the circumstance that triggered the duty to act and that, being aware of this circumstance, the defendant chose to do nothing — i.e., 'knowingly' refrained from acting." An arrested motorist's legal obligation to submit to a chemical test of their breath is not defined in the statute we have been discussing, AS 28.35.032(a). Rather, this duty is defined in AS 28.35.031(a), Alaska "implied consent" law. The pertinent portion of AS 28.35.031(a) declares that any person who operates a motor vehicle in this state "shall be considered to have given consent to a chemical test or tests of [their] breath for the purpose of determining the alcoholic content of [their] blood or breath" if (1) the person has been "lawfully arrested for an offense arising out of acts alleged to have been committed while the person was operating or driving a motor vehicle . while under the influence of an alcoholic beverage, inhalant, or controlled substance", and (2) "[t]he test or tests [are] administered at the direction of a law enforcement officer who has probable cause to believe that the person was operating or driving a motor vehicle . while under the influence of an alcoholic beverage, inhalant, or controlled substance". AS 28.35.031(a) does not itself state that failure to take the breath test is a crime. Rather, a separate statute, AS 28.35.032(f), declares that it is either a misdemeanor or a felony (depending on the motorist's prior record) "[to refuse] to submit to a chemical test authorized under . AS 28.35.031(a)". Twice in the past, this Court has examined the interplay between the warnings listed in AS 28.35.032(a) and the government's required proof in a breath test refusal prosecution. Both times, we held that the specific warnings listed in AS 28.35.032(a) are not elements of the crime of breath test refusal. In Svedlund v. Anchorage, 671 P.2d 378 (Alaska App.1983), a case that was prosecuted under a municipal ordinance governing breath test refusal, we examined the role of the warnings listed in AS 28.35.032(a). We drew a distinction between (1) cases in which a defendant is charged with driving while intoxicated, and the government wishes to introduce evidence of the defendant's refusal to take the breath test as circumstantial evidence of the defendant's consciousness of guilt, as opposed to (2) cases in which a defendant is charged with breath test refusal, and the government wishes to introduce evidence of the defendant's refusal to take the test because that refusal is the actus reus of the offense. With regard to the first category of cases, we followed our supreme court's decision in Copelin v. State and held that, when the government offers the defendant's refusal to take the breath test as circumstantial evi-denee in a prosecution for driving while under the influence (to show the defendant's consciousness of guilt), the warnings listed in AS 28.35.032(a) "establish[ ] a foundation for admitting [the] refusal evidence". We explained, "By requiring that the arrestee be informed of the consequences of his refusal[,] the [supreme] court meant to ensure that the [act of] refusal would in fact support an inference of guilt." But in the second category of eases — i.e., when the defendant is being tried for breath test refusal — "[the defendant's] refusal to take the test is the offense, not merely evidence of the offense". In such cases, we said, "the warnings required by the [statute] . constitute a foundation for admission of the evidence of a defendant's refusal [but they] are not separate elements of the offense to be proved to a jury." We then examined what mens rea was required for the offense of breath test refusal. Noting that the breath test refusal ordinance did not prescribe a culpable mental state, we concluded that, at the least, the ordinance required proof of the motorist's negligence' — i.e., that the motorist "knew or reasonably should have known" of their obligation to take the test. We acknowledged that the motorist's receipt of the warnings specified in AS 28.35.032(a) might be relevant to the issue of whether the motorist acted with negligence (or some higher culpable mental state). But we emphasized that the failure of the police to adhere to the statutory warnings did not entitle the motorist to an acquittal: It is important to understand [that the] mens rea [of the offense] is not [the defendant's] knowledge of his intoxication or [the defendant's knowledge] of the adverse consequences he [would] suffer if he refuse[d] to take the [breath test] ., but [rather] his knowledge of the purpose and the significance of the [breath] test, and his awareness that he [was] required to take the test. Svedlund, 671 P.2d at 385. We explained that evidence that the defendant received the statutory warnings — or other warnings— might be relevant to determining whether the defendant understood the purpose of the breath test and the legal obligation to take the test. But, ultimately, the defendant's guilt hinges on the defendant's awareness that the breath test "was intended to produce material evidence" of the defendant's driving offense and that the defendant "was legally required" to take the test: It is possible that the [government] could establish . that [the defendant] knew or should have known that the [breath test] was intended to produce material evidence of the [driving] offense and that [the defendant] was legally required to take the [breath test], without necessarily showing that the specific penalties for refusal were mentioned. The adequacy of the warning given to a DWI suspect of the consequences flowing from refusal to submit to a [breath test] should be determined on a case-by-ease basis. Merely informing the suspect that refusal is a misdemeanor complies with the letter of the [statute] and does not violate due process as a matter of law. However, evidence of the defendant's knowledge of the consequences may be presented to the jury to consider and weigh to the extent that it is relevant to the mens rea element of the crime. Svedlund, 671 P.2d at 385-86. As noted above, the Svedlund case involved a municipal ordinance rather than the state statutes that are involved in Yang's case. However, in Brown v. State, 739 P.2d 182, 184-85 (Alaska App.1987), we followed Svedlund in construing the corresponding state statutes. In particular, we stressed in Brown that "our prior decisions establish that the warnings required by the statute . are not elements of the offense." Fourteen years later, the Alaska Supreme Court ratified our construction of these statutes in Snyder v. State Division of Motor Vehicles, 31 P.3d 770 (Alaska 2001): The crime of [breath test] refusal has two elements: (1) as mens rea, the defendant "must have known, or should have known, that the chemical test of breath or blood was requested as potential evidence in connection with the investigation of a charge that he or she was driving while intoxicated," and (2) as actus reus, "the state must show the act of refusing to submit to the test." Brown, 739 P.2d at 184-85. Snyder, 31 P.3d at 776 n. 26. Two caveats are in order. First, as the Svedlund decision expressly acknowledges, the parties did not actively litigate the question of the precise culpable mental state that applies to the mens rea element of breath test refusal. Svedlund holds only that this culpable mental state is at least "negligence". Brown and Snyder affirmed the holding in Svedlund, but the litigants in Broum and Snyder did not argue that a higher culpable mental state — "recklessly" or "knowingly" — might apply to the defendant's awareness that the breath test was being requested in connection with the DWI investigation, and that the defendant was legally obligated to take the test. Thus, this issue potentially remains an open question. Second, there is a certain tension between our two assertions in Svedlund: (1) that the three statutory warnings are not elements of the crime of breath test refusal, but yet (2) these warnings remain a necessary evidentia-ry foundation that the State must establish before introducing evidence of a defendant's refusal of the breath test in a prosecution for breath test refusal. If, in fact, the three statutory warnings are unnecessary to prove the crime, and if the crucial question is whether the defendant understood that they were legally obligated to take the test, then it seems incongruous to prohibit the State from introducing evidence of the defendant's refusal to take the test simply because the defendant did not receive warnings that are of no consequence to the decision of the case. For this reason, we are not certain of the continuing vitality of this portion of Sved-lund. However, Yang does not raise either of these issues. Rather, he argues only that the three warnings listed in AS 28.35.032(a) are elements of the State's proof in a prosecution for breath test refusal. Svedlund and Broum clearly hold that these statutory warnings are not elements of the crime. We therefore reject Yang's attack on the jury instructions. Yang's motion for a judgement of acquittal Before trial, Yang asked Judge Erlich to dismiss the breath test refusal charge. Yang argued that, in a prosecution for breath test refusal, the State was obliged to prove that the defendant received and understood the three warnings listed in AS 28.35.032(a). He contended that his lack of proficiency in English prevented him from understanding the three statutory warnings. Judge Erlich declined to decide this issue until he had heard the evidence at trial. (Indeed, it is unclear whether Alaska law allows a defendant to seek pre-trial resolution of a criminal case on a disputed issue of fact. ) At the conclusion of the State's case, Yang raised this issue again, this time in a motion for a judgement of acquittal on the breath test refusal charge. Yang conceded that the State's evidence showed that he received the three warnings listed in AS 28.35.032(a), but Yang again argued that, due to his lack of proficiency in English, the State failed to show that he understood these warnings. As we explained in the preceding section of this opinion, the three statutory warnings are not elements of the crime of breath test refusal. Thus, to prove the breath test refusal charge, the State was not obliged to prove that Yang understood these warnings. Rather, the State was obliged to prove that Yang understood (or reasonably should have understood) the purpose of the breath test, and that Yang understood (or reasonably should have understood) that he was legally required to take the test. Judge Erlich concluded that, viewing the evidence in the light most favorable to the State, the evidence was sufficient to support a reasonable conclusion that Yang understood these things when he decided not to take the breath test. We agree. We note, in particular, that the jury listened to a recording of the police contact with Yang. During the field sobriety tests, when Officer Steen asked Yang to perform a balance test that required Yang to count, Yang indicated that "my problem is English". Officer Steen explained the test again, and demonstrated it. Viewed in the light most favorable to the State, this tape showed that Yang followed Officer Steen's directions in performing the field sobriety tests, and that Yang responded appropriately to Officer Steen's questions by identifying himself and his vehicle, by confirming that he did not wear contact lenses or glasses, by stating that he had driven from Beach Road, and by denying that he had been driving recklessly. Moreover, when Yang testified at trial, he conceded that, after he told Steen that he had difficulty with English, "they kind of communicated smoothly". It is true that Yang testified that he did not know the legal meanings of the terms "charge" and "refusal", and that he did not understand that he would be charged with another crime if he refused to take the breath test. The jury also heard testimony from Yang and another witness that Yang's proficiency in English was limited, and that Yang's wife handled the more complicated telephone orders at their restaurant. But the jury also heard evidence suggesting that Yang knew English well enough to understand what Officer Steen was telling him. Yang testified that he was educated, that he owned his own business, that he had studied English for three years, and that he had lived in the United States for six years. Officer Steen testified that he was able to converse with Yang in English and that, during the DWI processing, Yang's answers were responsive to his questions and Yang never asked for a translator. Steen also testified that he had spoken with Yang in English on earlier occasions — both during police contacts when Yang was the complainant, and when Steen was ordering food at Yang's restaurant. This evidence, viewed in the light most favorable to the State, was sufficient to support a reasonable inference that, when Yang declined to take the breath test, he understood that he was being asked to take the test as part of the DWI investigation, and that he was legally obligated to take the test. Judge Erlich therefore properly denied Yang's motion for judgement of acquittal. Was the jury adequately instructed concerning Yang's defense? We now turn to the issue of whether the jury was adequately instructed concerning Yang's defense to the breath test refusal charge — the defense that his lack of proficiency in English prevented him from understanding the purpose of the test and his obligation to take the test. This Court has previously held that, in prosecutions for breath test refusal, the State must prove that the defendant's refusal to take the test occurred after the defendant was warned of the legal obligation to take the test — that a conviction can not be founded on proof that the defendant refused to take the test and was then warned of the legal obligation to take the test, without being given an opportunity to reconsider the earlier refusal. From this proposition, one can infer that the warning must be given in a manner reasonably calculated to communicate the necessary information to the defendant (i.e the information concerning the purpose of the test and the defendant's legal duty to take the test). And when the warning is given in English, a jury may reasonably consider whether the defendant has difficulty understanding the English language when the jury assesses whether the defendant's refusal to take the breath test was accompanied by the required culpable mental state. As explained earlier in this opinion, Svedlund and Brown hold that this required culpable mental state is at least "negligence". That is, the State must prove, at a minimum, that a reasonable person in the defendant's position would have understood the warnings concerning the defendant's legal obligation to take the test (even if the defendant did not subjectively understand these warnings). Yang's jury was actually instructed to hold the State to a higher standard. As we noted earlier, Judge Erlich instructed the jury that Yang should not be convicted of breath test refusal unless the jurors were convinced beyond a reasonable doubt (1) that Yang was "fairly advised" that his refusal to submit to the breath test was a crime, and (2) that Yang acted "with a fair understanding of the [criminal] consequences" when he refused to take the test. These instructions — particularly the requirement that Yang have a "fair understanding of the . consequences" — -seem to require proof that Yang subjectively understood his legal obligation to take the breath test (and not just that a reasonable person in Yang's position would have understood the obligation). By inserting this element of subjective understanding into the instructions, Judge Erlich apparently required the jury to find that Yang acted "knowingly" or at least "recklessly" regarding his legal obligation to take the breath test, as these culpable mental states are defined in AS 11.81.900(a). In this respect, therefore, the jury instructions arguably required the State to prove more than is required under Sved-lund and Brown. Indeed, when the attorneys argued the case to the jury, both of them focused on the issue of Yang's subjective understanding of his duty to take the breath test. During their summations, both the prosecutor and Yang's defense attorney emphasized that the jury's decision on the breath test refusal charge "[came] down to whether or not . Mr. Yang understood English." We therefore conclude that Yang's jury was adequately instructed on his defense to the charge of breath test refusal. Yang's challenge to Judge Erlich's decision to revoke his driver's license for 18 months In his final point on appeal, Yang challenges one aspect of his sentence for breath test refusal — the revocation of his driver's license. Judge Erlich revoked Yang's driver's license for 18 months, based on Yang's poor driving preceding his arrest. Yang asserts that the record does not support the conclusion that his driving was bad. Yang notes that the jury acquitted him of driving while intoxicated and of the lesser offenses of reckless driving and negligent driving. He argues that there was simply too little evidence of bad driving to support Judge Erlich's finding. We have examined the record, and we conclude that Judge Erlich's finding that Yang drove recklessly is supported by sufficient evidence. James Rea (a corrections sergeant in Kot-zebue) testified that while he was waiting to turn onto Airpox't Way, a Toyota pickup truck driven by an Asian male drifted so far across the road that it almost collided with his vehicle. Rea tried to follow this pickup truck into town, but the truck was being driven so fast that Rea could not keep up. Later, when Rea was at the police station reporting this incident, he heard a vehicle "peel out" and then he saw the same Toyota pickup truck "racing by" in front of the police department. Yang was later identified as the driver of this truck. Given this evidence, Judge Erlich could reasonably conclude by a preponderance of the evidence that Yang was driving recklessly shortly before he was arrested and then refused to take the breath test. Accordingly, we conclude that Judge Erlich was not clearly mistaken when he revoked Yang's license for 18 months as part of Yang's sentence for breath test refusal. Conclusion The judgement of the district court is AFFIRMED. . AS 28.35.032(f). . AS 28.35.030(a). This offense has since been renamed driving "while under the influence''. See SLA 2002, ch. 60 (effective July 1, 2002). . 959 P.2d 385 (Alaska App.1998). . Id. at 386-87. . Id. at 387. . Id. at 388. . Id. at 391-93. . Id. at 389. . Id. at 390 (Mannheimer, J., concurring). .See Alaska Evidence Rule 401, which defines "relevant evidence" as "evidence having any tendency to make the existence of any fact . of consequence to the determination of the action more probable or less probable than it would be without the evidence." . According to Pattern Juiy Instruction No. 28.35.032(a) # 1, "the [government] must prove beyond a reasonable doubt [that] . the defendant was advised that refusal to submit to a chemical test: (a) is a crime; (b) will result in the denial or revocation of the defendant's [driver's] license or privilege to drive or obtain a license; and (c) may be used against the defendant in a civil, criminal, or other proceeding". . Willis v. State, 57 P.3d 688, 694 (Alaska App.2002). See Kimoktoak v. State, 584 P.2d 25, 29-31 (Alaska 1978); Melson v. Anchorage, 60 P.3d 199, 203 (Alaska App.2002) (although the State must prove the defendant's awareness oí the circumstances, the State need not prove that the defendant was aware of the statute or regulation that imposed the legal duty under those circumstances). . Svedlund, 671 P.2d at 384-85. . 659 P.2d 1206, 1212 n. 15 (Alaska 1983). . Svedlund, 671 P.2d at 384. . Id. at 385 (emphasis added). . Id. . Id. . Id. . Brown, 739 P.2d at 185. . See Brown v. State, 739 P.2d 182, 184 n. 2 (Alaska App.1987); State v. Eluska, 698 P.2d 174, 180 n. 9 (Alaska App.1985), reversed on other grounds, 724 P.2d 514 (1986). . See Suiter v. State, 785 P.2d 28, 30-31 (Alaska App.1989). . Cf. Ahtuangaruak v. State, 820 P.2d 310, 311 (Alaska App.1991) (concluding that suppression of the defendant's breath test was warranted because the defendant's English was so poor that he could not make a knowing and intelligent decision regarding his right to an independent chemical test). .See AS 11.81.900(a)(2) (the definition of "knowingly") and AS 11.81.900(a)(3) (the definition of "recklessly"). . See AS 12.55.025(0; Brakes v. State, 796 P.2d 1368, 1372 (Alaska App.1990).

9024344

Dennis DEAVER, Appellant, v. The AUCTION BLOCK COMPANY, Appellee

Deaver v. Auction Block Co.

2005-02-25

No. S-10724

884

892

107 P.3d 884

107

Pacific Reporter 3d

Alaska Supreme Court

Alaska

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

CAP

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

Dennis DEAVER, Appellant, v. The AUCTION BLOCK COMPANY, Appellee.

Dennis DEAVER, Appellant, v. The AUCTION BLOCK COMPANY, Appellee. No. S-10724. Supreme Court of Alaska. Feb. 25, 2005. Rehearing Denied April 22, 2005. Shane C. Carew, Shane Carew, P.S., Seattle, Washington, for Appellant. Steven J. Shamburek, Law Office of Steven J. Shamburek, Anchorage, for Appellee. Before: BRYNER, Chief Justice, MATTHEWS, EASTAUGH, FABE, and CARPENETI, Justices.

5050

30880

OPINION EASTAUGH, Justice. I. INTRODUCTION Dennis Deaver delivered his halibut catch to the Auction Block Company, which issued him an Auction Block fish ticket. Auction Block ultimately paid Deaver less for some of the halibut than the price specified on the fish ticket. Deaver sued Auction Block for the specified price, claiming it was the "buyer" of his fish. Following trial, the superior court found that the parties had agreed Auction Block was an auctioneer, not a buyer. Because it is undisputed that Auction Block gave Deaver an Auction Block fish ticket, we hold that Auction Block was the "primary fish buyer" of Deaver's halibut, within the meaning of AS 44.25.040(a). If the buyer does not fully pay a fisher who delivers fish to the buyer, the fisher can proceed against the buyer and, per AS 44.25.040(e), the buyer's surety bond. Further, Auction Block must be considered a merchant buyer within the meaning of Deaver's claim under the Uniform Commercial Code. We therefore reverse and remand. II. FACTS AND PROCEEDINGS Dennis Deaver is a commercial fisher and owner of a fishing vessel, the F/V Pacific Sun. He fishes commercially in the waters off the State of Alaska. The Auction Block Company is an Alaska corporation that conducts online auctions of fish and provides other services to fishers and fish buyers. Auction Block is bonded and licensed in Alaska as a "primary fish buyer." Between May 1999 and May 2001, it was the principal on a $10,000 surety bond issued by the Continental Casualty Company to Auction Block conditioned upon Auction Block paying commercial fishers "for the price of raw fishery resource purchased from them." Deaver and Auction Block engaged in two transactions relevant here. The dispute before us arises out of the second transaction. In the first transaction, Deaver took a load of fish to Seward on September 28, 1999 and sought to engage Auction Block's services. Deaver and Kevin Hogan, president of Auction Block, met in Seward that evening to discuss Deaver's participation in an online auction of his fish. Hogan explained that if three qualified bidders submitted bids, Deaver would be committed to selling his fish to the highest bidder. Hogan also explained that the bidders would be able to specify sale conditions, such as a condition allowing the bidder to inspect the fish for quality and to reduce the price for "number two" quality fish. Deaver then hired Auction Block to auction his fish. The next morning, Deaver and Hogan watched the online auction of Deaver's fish from Auction Block's Seward office. Icicle Seafoods submitted the highest bid, conditioned on Icicle grading the fish for quality and paying twenty percent less for "number two" quality fish. Deaver delivered the fish directly to Icicle in Seward, where Icicle graded their quality. After receiving the fish, Icicle issued Deaver an Alaska Department of Fish and Game (ADF & G) fish ticket. The fish ticket identified Icicle as the "Company." The "Fish Received by" line on the ticket bore the signature of Larry S. Dalberg. The attached catch receipt identified Dalberg as the "Reg. Buyer Representative." Icicle graded some of the halibut as "number two" quality and consequently reduced the purchase price for those fish. Although Icicle's bid had specified that Icicle would pay twenty percent less for "number two" quality fish, Icicle and Deaver negotiated a modified price reduction of ten percent. The fish ticket Icicle issued to Deaver described the species (halibut) and specified by size the prices per pound and the number of pounds of fish Deaver had delivered to Icicle. It also listed the number of pounds of "number two" quality fish delivered and the reduced price per pound for those fish. It stated the total weight delivered and the total price Icicle agreed to pay Deaver for the halibut. Deaver paid Auction Block a one percent commission for the transaction. There is no dispute that Icicle was the "primary fish buyer" of this load of halibut and that Auction Block was not. The second transaction differed somewhat. Deaver notified Auction Block in early October 1999 that he wanted to market a load of halibut and sablefish (black cod) through Auction Block. Auction Block conducted an online auction of these fish; Seafood Products, of Vancouver, British Columbia, was the high bidder, offering to pay $2.60 per pound for the halibut. Its bid also specified that Seafood Products would inspect the halibut at its plant and that it would pay fifteen percent less for "number two" quality halibut. Snug Harbor Seafoods, a buyer in Ke-nai, ultimately purchased the black cod. Deaver landed his halibut in Seward on October 5 and Auction Block offloaded the fish from Deaver's boat. Auction Block issued Deaver ADF & G HalibuVSablefish Ticket P99008307. The fish ticket listed Auction Block as the "Company." Auction Block does not dispute that the fish ticket "states that Auction Block is the buyer" of the halibut, although it does not concede that it actually was the buyer of the fish. The parties stipulated in the superior court that: "The Alaska Department of Fish & Game HalibuVSablefish Ticket states that the Auction Block Company is the buyer. The Auction Block issued the fish tickets for the second sale discussed above. The Auction Block is listed as the registered buyer on the IFQ/CDQ Shipping Reports." The "fish received by" line on the fish ticket bears the signature of Molly J. O'Leary, an Auction Block employee. The attached catch receipt identified O'Leary as the "Reg. Buyer Representative." The fish ticket specifies the number of pounds of halibut delivered and the price per pound, $2.60, but does not mention any reduction for "number two" quality fish, and does not state a total price for the fish. Auction Block arranged to have the halibut trucked to Seafood Products in Vancouver. Seafood Products paid for the shipping and inspected and graded the fish when they were delivered in Vancouver some days later. It decided that many of the fish that had been stored in refrigerated sea water (RSW) were of lesser quality, requiring downgrade to number two quality; it therefore paid $2.21 per pound for the RSW portion of the halibut, a fifteen percent reduction from the $2.60 specified on the fish ticket delivered to Deaver. The reduction was consistent with the terms of Seafood Products's bid. Seafood Products wired the purchase money to Auction Block, which wrote two checks to Deaver. Some weeks passed between Deaver's delivery of the fish to Auction Block and his receipt of payment from Auction Block, because Auction Block did not pay Deaver until Seafood Products paid Auction Block. Auction Block paid Deaver the total amount bid by Seafood Products, as reduced by Seafood Products by fifteen percent for the RSW halibut graded number two quality, and further reduced by Auction Block's commission. Deaver sued Auction Block to recover the difference between the price listed on the fish ticket Auction Block issued to Deaver on October 5, 1999 when he delivered the halibut to Auction Block and the price Seafood Products paid for the fish. His complaint concerned the reduction from $2.60 per pound to $2.21 per pound for the 19,000 pounds of RSW fish Deaver delivered on October 5. Auction Block responded that it was only the "nominal 'buyer,' " and that Deaver should have sued Seafood Products, which was, according to Auction Block, the real buyer. The superior court conducted a one-day trial. After listening to testimony and reviewing the documentary evidence, the court found with respect to the second transaction that Deaver knew he contracted with Auction Block to auction his fish to the highest bidder. Finding that Auction Block fulfilled its bargain, the court dismissed Deaver's claim against Auction Block. The court reasoned that "the logical flaw" in Deaver's argument was that "the statute [AS 44.25.040] does not provide (nor can it be implied) that only buyers can issue fish tickets. The statute does not establish that [Auction Block] was a buyer." The court also reasoned that the "issuance of the fish ticket is merely some evidence" to be considered in determining the parties' contract. Based on all the evidence, the court rejected Deaver's claim that Auction Block was the buyer of the halibut. The court entered final judgment dismissing Deaver's complaint and awarding Auction Block attorney's fees and costs against Deaver. Deaver appeals the dismissal of his claims against Auction Block. He also appeals the award of attorney's fees to Auction Block. III. DISCUSSION A. Standard of Review On appeal, we review a trial court's factual findings for clear error and its legal rulings de novo. We apply our independent judgment to questions of statutory interpretation and adopt the rule of law that is most persuasive in light of precedent, reason, and policy. Because the facts relevant to the narrow issue before us are undisputed and because Deaver's appeal turns on the meaning and effect of a statute and regulation, we apply our independent judgment. B. Auction Block's Role in the October 5 Transaction On appeal, Deaver advances numerous factual and legal arguments to support his contention that it was error to dismiss his action against Auction Block: (1) the halibut were number one quality when he delivered them to Auction Block; (2) as a matter of fact, the transaction between Deaver and Auction Block was not an auction; (3) as a matter of law, only a buyer may issue fish tickets; (4) as a matter of law, when a fisher receives a fish ticket, the company listed on the fish ticket is the buyer; (5) when a company issues a fish ticket to a fisher and invoices a third party for the price, the company issuing the fish ticket is the buyer; (6) a company that is licensed and bonded by the state to buy fish is a merchant under the Uniform Commercial Code (UCC); and (7) unless there is an effective rejection, a merchant buyer under the UCC must pay according to the terms of the fish ticket. Some of these contentions present legal or factual disputes that were not expressly resolved below. The superior court's finding that Auction Block was an auctioneer and not a buyer rendered it unnecessary to de- eide some of the issues Deaver raises here. We think that a single narrow legal issue controls this appeal: does the undisputed fact that Auction Block issued Deaver an Auction Block fish ticket when Deaver delivered his halibut to Auction Block make Auction Block the primary fish buyer of Deaver's fish? If so, it was error to dismiss Deaver's action against Auction Block. As Auction Block recognized in its superior court brief, the commercial fishing industry in Alaska is highly regulated. This extensive regulation reflects the state's strong interest in the management of a renewable resource. But it also reflects a state social policy of protecting commercial fishers. Thus, AS 44.25.040(a) requires a "primary fish buyer" to post a surety bond for the express purpose of securing payment to fishers for the raw fish they deliver. According to its title, AS 44.25.040 is intended to provide "[security for collection of wages and payment for raw fish." The statute was originally enacted in 1977 and codified as AS 16.10.290, as part of an act "relating to security for the collection of wages and payment for raw fish." In 1993 the governor, by Executive Order No. 85, transferred from the Department of Labor to the Department of Revenue administration of "the bonding program that serves as security for the collection of wages and payment for raw fish." Alaska Statute 16.10.290 then became AS 44.25.040. Alaska Statute 44.25.040 requires a primary fish buyer to file a surety bond running to the state conditioned upon the promise to pay "independent registered commercial fisher[s] for the price of the raw fishery resource purchased from them...." The primary fish buyer must post this surety bond unless the buyer has more than the amount of the bond in lienable property within the state. The statute defines "primary fish buyer" to mean a person "engaging . in the business of originally purchasing or buying any fishery resource...." The legislature amended the statute in 1989 to extend the coverage of the bond to unemployment insurance contributions, but in doing so gave priority to claims of persons furnishing labor and to claims of "independent registered commercial fishermen." Alaska Statute 44.25.041 exempts specified purchasers and entities. Buyers that do not actually purchase fish or hire employees do not have to post a bond, nor do restaurants, grocery stores, and established fish markets. There is no statutory exemption for auctioneers who are primary fish buyers. We read AS 44.25.040 to require a person or firm acting as a "primary fish buyer" to be licensed and to post the specified bond. We also read it as treating the surety bond of the primary fish buyer as security for fulfilling the purchase terms promised to the fisher. It therefore implicitly gives the fisher a claim against the buyer of the fish if the fisher is not fully paid. Also relevant to our inquiry are the state regulations imposing duties on fishers delivering raw fish to processors or buyers and on the persons to whom raw fish are delivered. Per 5 AAC 39.130, when a fisher delivers a load of fish to a buyer not licensed to process fish, the buyer issues a fish ticket. The fish ticket must be imprinted with a permit number and must include the buyer's name. Only a buyer who has posted the required surety bond may obtain these fish tickets from the state; only then can it act as a buyer. The fish ticket regulation, 5 AAC 39.130, states that a person who is the first purchaser of raw fish may operate only after receiving authorization and fish tickets from the department. The regulation also provides that "forms will not be processed and fish tickets will not be issued without certification that surety bonds' as required by [AS 44.25.040] have been posted...." Thus, the statutes and regulations require a primary fish buyer to post the statutory bond before the buyer can issue fish tickets and operate as a buyer. Was Auction Block the primary fish buyer in the October 5 transaction? Auction Block argues that it, per its agreement with Deaver, was merely the auctioneer and not the buyer of Deaver's fish, and that Seafood Products was the primary fish buyer. Auction Block characterized itself below as only the "nominal 'buyer' " in the transaction. Auction Block argues that it provided services to Deaver — offloading the fish, arranging for their shipment, and processing the necessary administrative paperwork and fisheries reporting requirements — but did not buy his fish. Auction Block points to evidence that indicates it was acting as an auctioneer; this evidence includes the submission of bids by Seafood Products and other bidders and the testimony of trial witnesses. The parties' pre-trial stipulation of "uncontested facts" also indicates that the parties intended Auction Block to act as the auctioneer. Those stipulated facts and the trial evidence would reasonably permit a fact finder to find that Auction Block and Deaver had agreed that Auction Block was Deaver's auctioneer of the halibut Deaver delivered on October 5. Indeed, the superior court did not clearly err in making that finding. But the issue whether Auction Block was a "primary fish buyer" under AS 44.25.040 does not depend on disputed facts, for two reasons. First, Auction Block's status as an auctioneer for the October 5 halibut landing is not inconsistent with its status as the primary fish buyer for purposes of the statute and regulation. Auction Block seems to assume that a finding that it was the auctioneer must mean that its conduct in issuing Deaver an Auction Block fish ticket when he delivered the halibut to Auction Block was of no legal significance. We disagree. Treating Auction Block as the buyer to carry out statutory and regulatory purposes does not preclude Auction Block from relying on the parties' contractual intentions for other purposes. Thus, even if Auction Block, as the primary fish buyer, must satisfy the statute by paying Deaver in full for his fish, it may still invoke its contracted-for auctioneer status to defend against any claims not precluded by the statute. For example, Deaver's first amended complaint sought not only a money judgment for the difference in the $2.60 price specified on the fish ticket and the $2.21 reduced price he received for the RSW fish, but also unspecified damages "in an amount to be proven" for Auction Block's alleged breach of the duty of good faith and fair dealing. As to that claim, it seems likely that Auction Block's contracted-for status, rather than its status as a statutory buyer, controls. Second, even assuming the roles of auctioneer and statutory buyer in the same fish-purchase transaction are fundamentally inconsistent, it would not follow that the parties' contractual arrangement surmounts the demands of public policy. Parties cannot by private contract avoid the requirements of this kind of protective statutory and regulatory scheme or thwart its purpose. The statute, by providing some protection against nonpayment or under-payment, was enacted to protect fishers who may be compelled by exigencies to enter into improvident agreements with fish buyers or to deal with buyers whose own finances may be shaky. The remedy the legislature provided would be obviated if a buyer could compel a fisher to contract away this statutory protection. Therefore, if the initial recipient of the fish is deemed the primary fish buyer, its contractual role as auctioneer cannot relieve it of its statutory duties. It is therefore irrelevant that Deaver arguably agreed to contract terms that are inconsistent with the statute. The public policy reflected by the statute must control; to hold otherwise would leave non-parties to the contract without effective recourse. Crew entitled to shares of the catch proceeds could be harmed if unwise agreements defeat statutory protections. An owner's attempt to maximize price could leave crew members no effective recourse if the ultimate recipient of the fish were not amenable to claims in Alaska or were without assets. Auction Block contends that its auction services are beneficial to fishers, and may help them obtain a higher price for their fish. Regardless, Auction Block may not avoid the duties imposed on it by statute and regula tion, or limit the remedy the statute provides. Auction Block is effectively asking us to create an exemption the legislature did not enact. Moreover, even assuming auctions may benefit fishers, this transaction illustrates how an auction format may harm them if a dispute arises. If the auctioneer receives the fish and issues a fish ticket, no other subsequent purchaser would be considered the primary fish buyer. Consequently, the ultimate purchaser would have no obligation to post the statutory surety bond. Auction Block observes that Seafood Products was itself a licensed primary fish buyer and had posted its own statutory surety bond. Auction Block was nevertheless the buyer in this transaction. Seafood Products was not the primary fish buyer nor was it the initial recipient of Deaver's fish. It did not issue its own fish ticket to Deaver. Furthermore, even assuming an ultimate purchaser has posted a bond per AS 44.25.040(a), the briefing before us in this ease does not establish that Seafood Products's bond would apply to a transaction in which the ultimate purchaser was not the primary fish buyer. We decline to reach that issue in this case; two of the entities potentially most interested in that issue, Seafood Products and its surety, are not parties to this appeal. Moreover, efforts of the auctioneer to determine that the successful bidder is financially responsible are not an adequate substitute for the statute's security requirement or for the state's ultimate authority to discipline firms acting as licensed primary fish buyers. Finally, an auction arrangement potentially permits exactly the sort of transaction that led to adoption of the bond requirement in the first place: purchase of the fish by an out-of-state buyer which may resist administrative or judicial jurisdiction in Alaska, and which may not have the means to pay the fisher in full or on time. Because the surety bond statute and fish ticket regulation govern initial sales of raw fish, a factual finding that Deaver and Auction Block intended to enter into a contract for auction services does not dispose of Deaver's claim. The material facts relevant to this appeal are Deaver's delivery of the halibut to Auction Block, and Auction Block's issuance to Deaver of an Auction Block fish ticket listing the halibut Deaver delivered to Auction Block, and listing Auction Block as the buyer. C. Deaver's UCC Claim Deaver also argues that Auction Block was a buyer under the Uniform Commercial Code (UCC) and therefore subject to rules governing buyers. Fish are "goods" as defined by the UCC. The undisputed facts also demonstrate that Auction Block held itself out as a knowledgeable dealer in fish sales. For example, Kevin Hogan, president of Auction Block, stated in his affidavit that the company is the "Home of the Cyber Fish" and "allows prospective buyers and sellers of commercially harvested fish to meet in the cyberspace marketplace." Auction Block was therefore a "merchant" for purposes of the UCC. Because Auction Block was the primary fish buyer in the October 5, 1999 transaction, under the UCC it was also a buyer "who buys or contracts to buy goods." It was therefore subject to UCC rules governing buyers. The UCC provides that acceptance of goods occurs when a buyer fails to make an effective rejection, or "after a reasonable opportunity to inspect the goods, signifies to the seller that the goods are conforming or that the buyer will take or retain them in spite of their nonconformity." Deaver's superior court affidavit stated that he confirmed with Auction Block personnel on site that the fish were in "excellent condition," and also stated that Auction Block accepted the fish for shipment to Seafood Products. Auction Block did not rebut these facts, which establish that it had the opportunity to inspect the fish and that it did not indicate to Deaver that any defects were present. Auction Block therefore "accepted" the goods within the meaning of the UCC. Acceptance imposes on Auction Block the burden of establishing any breach with respect to the accepted goods and, failing that, obligates Auction Block to pay Deaver the contract rate. Because the dismissal of Deaver's complaint was founded on a ruling that Auction Block was not the buyer and because issues of material fact may remain, we remand for consideration of Deaver's claims against Auction Block. We express no opinion about the specific merits of Deaver's claims beyond our conclusion that Auction Block must be deemed the statutory buyer of the halibut under AS 44.25.040, that Deaver may therefore proceed against Auction Block's surety bond, and that Auction Block has the status of a buyer for purposes of a claim against Auction Block under the UCC. Deaver's Alaska Civil Rule 68 and attorney's fees arguments are mooted by our decision reversing the dismissal of Deaver's action, because the award of attorney's fees and costs to Auction Block must be vacated. IV. CONCLUSION Because Auction Block issued its own fish ticket to Deaver when Deaver delivered his fish to Auction Block, we hold that Auction Block was the buyer of the fish under AS 44.25.040. We therefore REVERSE the judgment of dismissal, VACATE the award of attorney's fees and costs, and REMAND for further consideration of Deaver's claims against Auction Block. . We describe these mostly undisputed facts to provide a context for the narrow legal issue of this appeal. We do not intend to preclude the parties from litigating genuine material factual disputes on remand. . Skaflestad v. Huna Totem Corp., 16 P.3d 391, 395 (Alaska 2003). . In re Life Ins. Co. of Alaska, 76 P.3d 366, 368 (Alaska 2003). . State v. Dutch Harbor Seafoods, Ltd., 965 P.2d 738, 742 (Alaska 1998) (evaluating strict liability commercial fishing regulations "in the context of the highly regulated multi-million dollar fishing industry"); State v. Lawler, 919 P.2d 1364, 1366 (Alaska App.1996) (calling commercial fishing "a licensed and heavily regulated commercial activity" and holding that participants in this activity can properly be held to higher standard of compliance than might be appropriate for ordinary citizens); Cole v. State, 828 P.2d 175, 178 (Alaska App.1992) (stating that commercial fishing qualifies as "heavily regulated industry"); see also McNabb v. State, 860 P.2d 1294, 1298 (Alaska App.1993) (noting that court had "upheld the application of large fines in commercial fishing cases" and that "fines reflect the heavily regulated nature of the industry, the large profits which can occur from illegal fishing, and the value of the resource to the citizens of the state"). . We have noted that in conformity with article VIII, section 2 of the Alaska Constitution, the legislature created the Board of Fisheries for purposes of the conservation and development of the fishery resources of the state. Interior Alaska Airboat Ass'n v. State, Bd. of Game, 18 P.3d 686, 690-91 (Alaska 2001) (citing Alaska Fish Spotters Ass'n v. State, Dep't of Fish & Game, 838 P.2d 798, 800 (Alaska 1992)); see also Nathanson v. State, 554 P.2d 456, 458 (Alaska 1976). The court in Nathanson noted that Alaska's fisheries are unquestionably an important resource of this state and, further, that to insure the viability of this resource and the welfare of those dependent upon it, the state has broad powers in the regulation of fisheries. Id. at 458. . AS 44.25.040(a) provides in part: A person applying for a license as a fish processor or primary fish buyer shall file with the commissioner of revenue a surety bond running to the State of Alaska conditioned upon the promise to pay . (2) independent registered commercial fishermen for the price of the raw fishery resource purchased from them.... . A fiscal note attached to House Bill 350 before its enactment as chapter 102, SLA 1977, described the bill's purposes in these terms: This bill will provide needed protection to persons furnishing labor in the business of fish processor or buyers, particularly those enterprises that are not domestic in the state, claims against the latter are difficult if not impossible to collect or require considerable time to resolve, creating a financial hardship to a claimant. . Ch. 102, § 2, SLA 1977. . Executive Order No. 85 § 1 (1993). . Id. at § 3-4. . AS 44.25.040(a) provides: A person applying for a license as a fish processor or primary fish buyer shall file with the commissioner of revenue a surety bond running to the State of Alaska conditioned upon the promise to pay (1) all persons furnishing labor to a fish processor or primary fish buyer, including contractual employee benefits; (2) independent registered commercial fishermen for the price of the raw fishery resource purchased from them; and (3) unemployment insurance contributions. If the surety bond is insufficient to satisfy all obligations under this subsection, the obligations to persons furnishing labor and to independent registered com mercial fishermen shall be paid before unemployment insurance contributions are paid. The surety or sureties must be satisfactoiy, in the determination of the commissioner. . AS 44.25.040(c) ("A bond is not required if the fish processor or primary fish buyer has more than the amount of the bond in lienable property in the state and provides proof of the property satisfactory to the commissioner."). . AS 44.25.048(6). . Ch. 100, § 1, SLA 1989, codified as AS 16.10.290(a) (now codified as AS 44.25.040(a)). . AS 44.25.040(a). . AS 44.25.041 provides: Exemptions from bonding requirement, (a) A fish processor or primary fish buyer that does not purchase fish or hire employees is exempt from the bonding requirements of AS 44.25.040. (b) Restaurants, grocery stores, and established fish markets are exempt from the bonding requirement of AS 44.25.040. . See AS 44.25.041(a)-(b). . 5 AAC 39.130. . 5 AAC 39.130(c) provides in part: "Each buyer of raw fish, each fisherman selling to a buyer not licensed to process fish (a catcher/seller), and each person or company who catches and processes his or her own catch or that has catch processed by another person or company shall record each landing on an ADF & G fish ticket." (Emphasis added.) . 5 AAC 39.130(c)(1), (c)(9). . 5 AAC 39.130(a)(1). . Id. . Id. . See State v. Tyonek Timber, Inc., 680 P.2d 1148, 1156 (Alaska 1984). In Tyonek, we stated that AS 36.25.010-.025 (Alaska's "Little Miller Act") requires primary contractors to post a payment bond to protect persons supplying labor and material; award of a contract is conditioned upon the contractor's furnishing of the bond. The requirement here is analogous; ability to buy fish is conditioned upon the buyer's furnishing of the surety bond. . See Currington v. Johnson, 685 P.2d 73, 78 (Alaska 1984) (stating contract is void if made in violation of constitutional statute, even if statute does not contain express prohibition). See also Hoffman Constr. Co. v. United States Fabrication & Erection, Inc., 32 P.3d 346, 354 (Alaska 2001) (stating that AS 45.45.900 limits enforceability of indemnification clauses in private contracts). . See supra note 7. . AS 45.02.105(a) states that "goods" means "all things . which are movable at the time of identification to the contract for sale other than the money in which the price is to be paid, investment securities (AS 45.08) and things in action." . AS 45.02.104(a) defines "merchant" to be: a person who deals in goods of the kind or otherwise by occupation holds oneself out as having knowledge or skill peculiar to the practices or goods involved in the transaction or to whom this knowledge or skill may be attributed by the person's employment of an agent or broker or other intermediary who by occupation holds oneself out as having this knowledge or skill. . AS 45.02.103(a)(1). . AS 45.02.606(a)(l)-(2). . Id. . AS 45.02.607(a)-(b), (d); AS 45.02.709(a)(1).

6908073

Sheldon E. SLADE, Petitioner, v. STATE of Alaska, DEPARTMENT OF TRANSPORTATION & PUBLIC FACILITIES, Respondent

Slade v. State, Department of Transportation & Public Facilities

2014-09-26

No. S-15352

699

701

336 P.3d 699

336

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T18:28:38.344178+00:00

CAP

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

Sheldon E. SLADE, Petitioner, v. STATE of Alaska, DEPARTMENT OF TRANSPORTATION & PUBLIC FACILITIES, Respondent.

Sheldon E. SLADE, Petitioner, v. STATE of Alaska, DEPARTMENT OF TRANSPORTATION & PUBLIC FACILITIES, Respondent. No. S-15352. Supreme Court of Alaska. Sept. 26, 2014. Before: FABE, Chief Justice, WINFREE, STOWERS, MAASSEN, and BOLGER, Justices.

989

6239

Order FABE, C.J. Sheldon Slade filed an action against the State of Alaska and Al Gilbert, a state employee. Slade alleged a claim against Gilbert under 42 U.S.C. $ 1981, which forbids "nongovernmental discrimination" that impairs the right "to make and enforce contracts." The Attorney General certified that Gilbert was acting within the seope of his state employment at the time the claim arose, and the superior court substituted the State as a party defendant in Gilbert's place under AS 09.50.258(c). The superior court then granted the State's motion to dismiss Slade's § 1981 claim, reasoning that a § 1981 claim cannot be asserted against the State. We granted Slade's petition for review on the issue of whether dismissal of the § 1981 claim violated the Supremacy Clause of the United States Constitution or Slade's constitutional right to a jury trial. We also invited the United States Department of Justice to file an amicus brief. After Slade and the Department of Justice filed their opening briefs, the Attorney General withdrew his certification that Gilbert was acting within the scope of his employment. The State then filed a motion to dismiss this review proceeding, contending the questions presented in Slade's petition were moot. In response to the State's motion, Slade argued that this proceeding should continue under two exceptions to the mootness doctrine: the "voluntary cessation" exception and the "public interest" exception. In its reply memorandum, the State made a broad promise not to use this certification process on § 1981 claims: "The State acknowledges that Alaska Statute 09.50.258 is inapplicable to claims brought under 42 U.S.C. See.1981 and represents that it is the intention of the Attorney General to no longer certify individual state employee defendants on § 1981 claims." Slade raises some valid reasons to approach this situation with care. In the federal courts, there is a "well settled" rule "that a defendant's voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice." This is because, "[ilf it did, the courts would be compelled to leave the defendant free to return to his old ways." We have not previously applied the voluntary cessation exception, but it has obvious relevance to the case at hand. Under the voluntary cessation exception there is a stringent standard for determining whether a case has been mooted by a defendant's voluntary cessation: "A case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur." But "[tlhe heavy burden of persuading the court that the challenged conduct cannot reasonably be expected to start up again lies with the party asserting mootness." Slade also relies on the "public interest" exception to the mootness doctrine. Under this exeeption, we consider three factors: "(1) whether the disputed issues are capable of repetition, (2) whether the mootness doe-trine, if applied, may cause review of the issues to be repeatedly circumvented, and (8) whether the issues presented are so important to the public interest as to justify overriding the mootness doctrine." We conclude that the Attorney General's unambiguous policy statement in the State's reply memorandum makes it unlikely that the Attorney General will again certify individual state employee defendants on § 1981 claims. The Attorney General's decision will be binding in this case. And the publication of this order will ensure that other litigants will be aware of this commitment. We thus conclude that the Attorney General has made it "absolutely clear" that this conduct cannot reasonably be expected to recur. This commitment ensures this disputed issue will not be repeated and will not evade future review. In summary, the State has acknowledged that AS 09.50.258 is inapplicable to claims brought under 42 U.S.C. § 1981 and that the Attorney General will no longer certify individual state employee defendants on § 1981 claims. Based on this commitment, there is no longer any reason to continue the litigation of this issue in this proceeding. IT IS THEREFORE ORDERED that the State's motion to dismiss is GRANTED. This matter is remanded to the superior court for further proceedings consistent with this order. Slade is entitled to recover his full reasonable attorney fees and costs incurred in connection with this review proceeding. . 42 U.S.C. § 1981(a), (c) (2012). . See Pittman v. Or. Emp't Dep't, 509 F.3d 1065, 1074 (9th Cir.2007). . We appreciate the participation of the Department of Justice, which has materially advanced the resolution of the issue presented in this proceeding. . Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189, 120 S.Ct. 693, 145 LEd2d 610 (2000) (quoting City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 289, 102 S.Ct. 1070, 71 LEd.2d 152 (1982)) (internal quotation marks omitted). . Id. (quoting City of Mesquite, 455 U.S. at 289 n. 10, 102 S.Ct. 1070) (alterations omitted) (internal quotation marks omitted); see also United States v. W.T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 97 L.Ed. 1303 (1953) (noting the concerns underlying voluntary cessation doctrine and stating that these, "together with a public interest in having the legality of the practices settled, militates against a mootness conclusion"). . Friends of the Earth, Inc., 528 U.S. at 189, 120 S.Ct. 693 (quoting United States v. Concentrated Phosphate Exp. Ass'n, 393 U.S. 199, 203, 89 S.Ct. 361, 21 LEd.2d 344 (1968)) (internal quotation marks omitted). . Id. (quoting Concentrated Phosphate, 393 U.S. at 203, 89 S.Ct. 361) (alterations omitted) (internal quotation marks omitted). . Fairbanks Fire Fighters Ass'n, Local 1324 v. City of Fairbanks, 48 P.3d 1165, 1168 (Alaska 2002) (quoting Kodiak Seafood Processors Ass'n v. State, 900 P.2d 1191, 1196 (Alaska 1995)). . See AS 09.60.010(c)(1).

6908196

STATE of Alaska, Appellant, v. Tara LEIGHTON, Appellee

State v. Leighton

2014-10-24

No. A-11389

713

716

336 P.3d 713

336

Pacific Reporter 3d

Alaska Court of Appeals

Alaska

2021-08-10T18:28:38.344178+00:00

CAP

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

STATE of Alaska, Appellant, v. Tara LEIGHTON, Appellee.

STATE of Alaska, Appellant, v. Tara LEIGHTON, Appellee. No. A-11389. Court of Appeals of Alaska. Oct. 24, 2014. Tamara E. de Lucia and Timothy W. Terrell, Assistant Attorneys General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellant. Wendy M. Doxey, Law Offices of William R. Satterberg Jr., Fairbanks, for the Appel-lee. 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).

1444

8901

OPINION HANLEY, Judge. In this appeal, we are asked to decide whether the grand jury clause of the Alaska Constitution (article I, section 8) requires grand juries to be instructed that they have absolute discretion to refuse to return an indictment, even when the State presents sufficient evidence to support the accusation. In this case, the superior court ruled that grand juries must be instructed in this fashion. For the reasons explained here, we reverse that decision. Underlying facts and the superior court's ruling Tara Leighton was indicted on five counts of first-degree sexual abuse of a minor for engaging in sexual penetration with a thirteen-year-old girl who played on a sports team that Leighton coached. Leighton moved to dismiss her indictment, arguing that the grand jurors should have been instructed that they could refuse to return the indictment even though the State's evidence was sufficient to justify the charges. The Alaska Supreme Court has recognized that the grand jury acts "as both a shield and [a] sword of justice." On the one hand, the grand jury is an accusatory and investigative body "tasked with determining whether criminal proceedings against the accused should be instituted." But the grand jury also plays a protective role, "operat[ing] to control abuses by the government and protect[ing] the interests of the accused." In accordance with this law, the presiding judge of the Fourth Judicial District instruct, ed Leighton's grand jury that its duty was two-fold: First, grand jurors have an obligation to the people of the State of Alaska to compel persons charged with serious criminal conduct to answer for that conduct if there are grounds for the charge. At the same time, however, grand jurors have an obligation to every individual to ensure that no one is subjected to criminal prosecution without good cause. The presiding judge then gave the instruction that is at issue in this case. We have italicized the language that Judge Olsen believed was improper: Once you have heard the State's evidence along with any additional evidence presented at the request of the grand jury, you must decide whether that evidence, if unexplained or uncontradicted, would warrant conviction of the defendant. If at least ten of you believe the evidence has met that standard, the indictment should be endorsed "a true bill" and signed by your foreperson. If not, the proposed indictment should be endorsed "not a true bill" and signed by your foreperson. Judge Olsen concluded that the above-quoted three sentences did not properly convey the grand jury's "absolute, unfettered discretion" under the Alaska Constitution to refuse to return a true bill. The judge acknowledged that the word "should" means something different from the word "shall"-that "should" does not convey a command, but rather "an expectation of what ought to be done, with some inherent flexibility as to the actor's ability to depart from the expectation." Nevertheless, Judge Olsen concluded that "should" did not sufficiently convey the grand jury's complete and unfettered diseretion to refuse a proposed indictment. The judge ruled that the presiding judge was required to use the word "may" when describing the grand jury's authority to return a true bill because this was the word used in article I, section 8 of the state constitution: "The grand jury shall consist of at least twelve citizens, a majority of whom concurring may return an indictment." Judge Olsen further concluded that this error in instructing the grand jury could not be harmless because no one could predict how any particular grand jury might exercise this absolute discretion in any particular case. After the superior court denied the State's motion for reconsideration, the State filed this petition for review. Why we conclude that the superior court's ruling is based on a misinterpretation of the grand jury clause of the Alaska Constitution Judge Olsen's ruling that the grand jury should be instructed that it "may" return an indictment was based on a misreading of the grand jury clause of the Alaska Constitution (article I, section 8). This clause provides, in pertinent part: The grand jury shall consist of at least twelve citizens, a majority of whom coneur-ring may return an indictment. As the State points out in its brief, the first part of this sentence fixes the minimum number of citizens required to form a grand jury, while the second part of this sentence defines the minimum number of grand jurors-"a majority" of the entire grand jury-who must concur in an indictment before the grand jury is allowed to indict someone. In this sentence, the phrase "may return an indictment" stands for the concept of "is authorized to return an indictment." This phrase does not refer to the legal test for when an indictment is justified, nor does this phrase refer to the grand jury's power to refuse to endorse a proposed indictment. There is nothing in the language of this sentence, and nothing in the discussions in the Alaska Constitutional Convention pertaining to this sentence, to suggest that the purpose of this language was to create or acknowledge a grand jury right of "nullification"-a right to refuse to indict someone for any reason the grand jurors might see fit. Moreover, to the extent that grand juries in Alaska have a power of nullification (an issue we do not decide), the instruction used by the presiding judge adequately conveyed this concept. As we explained earlier, the presiding judge told the grand jurors that if at least ten of them believed that the State's evidence met the standard for issuing an indictment, "the indictment should be endorsed 'a true bill and signed by your foreperson." Judge Olsen himself acknowledged that the word "should" did not convey a com mand, but only an "expectation of what ought to be done"-and that this word conveyed to the grand jurors "some inherent flexibility . to depart from the expectation." To support his. ruling, Judge Olsen additionally relied on a statute, AS 12.40.050, which provides: "The grand jury may indict or present a person for a crime upon sufficient evidence, whether that person has been held to answer for the crime or not." While this statute uses the word "may," it does not address the grand jury's discretion to refuse to return an indictment. Rather, the statute addresses a different issue: the grand jury's authority to return an indictment on charges that the State has not proposed, if the evidence justifies the charges. Again, the word "may" is being used in the sense of "is authorized to." In sum, neither Judge Olsen nor Leighton has offered us a convincing basis for concluding (1) that grand jurors have absolute discretion to refuse to return an indictment-for any reason, or for no reason at all-and (2) that the superior court is prohibited from instructing grand jurors that they "should" return an indictment if the evidence justifies it. We acknowledge that the assistant district attorney who presented Leighton's case to the grand jury gave the grand jurors additional instructions that arguably contradicted the presiding judge's instructions. But Judge Olsen's ruling in this case was based solely on the wording of the presiding judge's instructions, and that is the only ruling before us. Conclusion 'The superior court's decision is REVERSED, and the indictment against Leigh-ton is REINSTATED. . Cameron v. State, 171 P.3d 1154, 1156 (Alaska 2007). . Id. (citing United States v. Calandra, 414 U.S. 338, 343-44, 94 S.Ct. 613, 38 LEd.2d 561 (1974)). . Id. (alterations in Cameron) (quoting Preston v. State, 615 P.2d 594, 602 (Alaska 1980) (internal quotation marks omitted)). . Emphasis added. . 6 Proceedings of the Alaska Constitutional Convention 63-64, 71 (Dec. 15, 1955). . See United States v. Navarro-Vargas, 408 F.3d 1184, 1204 (9th Cir.2005) (holding that instructing the grand jurors that they "should" indict if they find probable cause did not violate the grand jury's independence because "[als a matter of pure semantics this wording "does not eliminate discretion on the part of the grand jurors" and it "leav{es] room for the grand jury to dismiss even if it finds probable cause"). . See Sleziak v. State, 454 P.2d 252, 261 & n. 30 (Alaska 1969).

6908144

Richard J. VILLARS, Appellant, v. Olga H. VILLARS, Appellee

Villars v. Villars

2014-10-31

No. S-15280

701

713

336 P.3d 701

336

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T18:28:38.344178+00:00

CAP

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

Richard J. VILLARS, Appellant, v. Olga H. VILLARS, Appellee.

Richard J. VILLARS, Appellant, v. Olga H. VILLARS, Appellee. No. S-15280. Supreme Court of Alaska. Oct. 31, 2014. Richard J. Villars, pro se, Marrero, Louisiana, Appellant. No appearance by Appellee. Before: FABE, Chief Justice, WINFREE, STOWERS, MAASSEN, and BOLGER, Justices.

7317

45517

OPINION FABE, Chief Justice. I. INTRODUCTION Richard and Olga Villars were married in Ukraine in 2004. Richard, who is a U.S. citizen, signed a Form 1-864 affidavit of support in which he agreed to maintain Olga and her daughter, Linda, at 125% of the applicable federal poverty rate. Olga and Linda came to Alaska, and Richard and Olga later divorced. For several years Richard and Olga have been litigating Richard's 1-864 support obligation. After a previous appeal by Olga regarding Richard's obligation for the first eleven months of 2010, we remanded the case to the superior court to resolve Richard's obligation for that period, which is no longer at issue. The parties have continued to dispute Richard's 1-864 obligations for 2009, December 2010, and all of 2011, 2012, and 2018. Following a series of hearings and orders in the superior court relating to these years, Richard filed this appeal, alleging a variety of errors by the superior court regarding its calculations of his obligations and potential offsets against those obligations. Because the superior court properly rejected Richard's attempt to relitigate issues resolved in earlier proceedings, we affirm the superior court's orders rejecting those claims. We remand for further factual findings on issues not yet resolved. II. FACTS AND PROCEEDINGS A. Facts And Proceedings Related To The First Appeal Many of the relevant facts in this case are the same as those in the previous case involving the same parties, Villars v. Villars (Villars I ) Our decision in that case provides much of the factual background relevant to the present appeal: Richard and Olga were married in December 2004 in Kiev, Ukraine. Olga moved to Alaska in July 2005 with her minor daughter, Linda, to be with Richard. As Olga's immigration sponsor, Richard filed an INS Form I-864 affidavit of support, in which he agreed to maintain Olga and Linda "at an income that is at least 125 percent of the Federal poverty guidelines."[ ] Richard and Olga divorced on January 12, 2009. Their divorcee decree incorporated Richard's support obligations under his I-864 affidavit and calculated monthly payments based on the federal poverty level for a two-person household in Alaska. On February 22, 2009, Olga and Linda moved to California. There Olga married George Nasif on October 18, 2009. Olga's daughter Linda moved to Louisiana to live with Richard from December 2009 until June 14, 2010, under a temporary guardianship agreement. Olga's home life was unsettled during 2010, the only year at issue here. She and George maintained separate residences for much of the year; at one point George secured a restraining order against her. Olga was evicted from her apartment in April and moved into a motel, where she lived for several months until moving into another apartment with George and Linda. Olga's marriage to George was annulled in November 2010. Richard did not make any support payments to Olga for the first eleven months of 2010. Olga filed a motion in Alaska to enforce the divorce decree, and Richard made payments for December 2010 and January 2011 pursuant to a temporary support order. His obligations for the first eleven months of 2010 were resolved at trial.... Trial was held in superior court in Fairbanks in February 2011; both parties attended telephonically. After hearing from Richard, Olga, and George, the court made written findings of fact and conclusions of law. The court first ruled that Richard's 2010 support payments should be determined by the federal poverty level in California, not Alaska. The court ruled further that the payments would be determined by the federal poverty level for a single-person household, not a two-person household, for the months Linda was living with Richard. Finally, the court ruled that Richard's support obligation would be offset by the amount of support that George provided to Olga and Linda during 2010. With some inconsistencies ., George testified at trial that his 2010 income was approximately $24,000, and that he spent this entire amount to support Olga, Linda, and himself. The trial court credited this testimony and calculated an offset assuming that all of George's income went to pay all of the family's living expenses. Accordingly, the trial court di vided George's income evenly between him and Olga for the months Linda was away and. among the three of them for the months she was there, for a total of $14,202.80 in support from George for Olga and Linda. After a few other minor adjustments-$175 in income that Olga made in a few days of work and $275.90 "at minimum" in qualifying support that Richard paid toward the end of the year-the trial court found that Richard owed no further support for 2010. . On appeal, Olga raise[d] many objections to the trial court's findings.... Olga challenge[d] the trial court's decision to account for California's lower federal poverty rate and for Linda's absence from the household for part of the year when calculating Richard's support obligations. She challenge[d] the trial court's use of George's support to offset Richard's support obligation. She also contest[ed] the trial court's finding as to the amount of support that George provided. Olga also argue[d] that the income she earned in 2010 should not be used to offset Richard's obligations.[ ] We concluded in Villars I that the superior court correctly adjusted Richard's support obligations to account for Olga's move to California, Linda's temporary absence from Olga's household, and Olga's earnings. We noted that the findings of fact and conclusions of law accompanying the couple's 2009 divorce decree "incorporated Richard's support obligations under the INS Form I-864 affidavit and stipulated that this obligation was governed by federal law," which required Richard to maintain Olga and Linda "at an annual income that is not less than 125 percent of the Federal poverty line." Remarking that "a sponsor is required to pay only the difference between the sponsored non-citizen's income and . 125% of [the] poverty threshold, " and citing federal court precedent as indicating that "a sponsor's support obligations must be adjusted downward when a family member leaves the household," we concluded that the superior court properly reduced Richard's support obligations to account for the time Linda lived with Richard instead of with Olga. We also determined in Villars I that the superior court erred in calculating the contributions of support by George, Olga's new husband, to Olga and Linda. We remarked that "George testified, in apparent contradiction, that (1) he contributed $24,000 to the support of Olga and Linda during 2010, and (2) that his entire earnings for 2010 were $24,000, of which some went to his own support." Observing that George's support was "sporadic and variable due to the significant disruptions in their living arrangements during [2010]," we concluded that the superi- or court's approximation of George's contributions was not sufficiently precise and remanded for a more accurate caleulation. On remand, the superior court calculated more precisely the qualifying support that Olga received in 2010. The superior court looked to Olga's wages, the support she received from George for various expenses, and the support she received from Richard. It determined that these resources exceeded the amount that Richard was obligated to provide pursuant to his I-864 affidavit and concluded that Richard had no further obligation to Olga for 2010. Although the parties had begun to litigate Richard's obligations for years other than 2010 before Villars I was decided, that case addressed Richard's obligations only for 2010-indeed only for the first eleven months of that year. The present appeal relates to Richard's obligations for 2009, the last month of 2010, and 2011, 2012, and 2013. B. The Superior Court's March 29, 2011 Order Regarding Richard's Post-2010 Obligations In the superior court's March 29, 2011 order concluding that Richard owed Olga nothing further for 2010, which was the basis for Olga's appeal in Villars I, the superior court also calculated Richard's obligations for 2011 and future years. For 2011 the superior court determined that Richard should provide Olga 125% of the applicable federal poverty guideline for a family of two persons, or $1,582.29 per month. For future years, the superior court directed the parties to ealculate Richard's support obligation on their own, using the applicable federal poverty guidelines minus offsets. C. The Parties Dispute Richard's Post-2010 Obligations; Richard Attempts To Secure Partial Reimbursement Of His 2011 Payments. Throughout 2012 and the spring of 2013, Olga filed various motions asking the superi- or court to order Richard to make support payments to her. Olga framed her motions in terms of enforcement of the divorce decree provisions regarding Richard's 1-864 support obligations, and also in terms of enforcement of the superior court's orders since the divoree. Richard opposed Olga's motions and in April 2013 filed a motion of his own seeking reimbursement of a portion of his support payments for 2011; he alleged that Olga earned income in 2011 but failed to disclose it, causing him to overpay her by $4,163.60. D. The Superior Court's June 20, 2013 Order Attempting To Settle Richard's 2013 Obligation And Rejecting Richard's Request For Partial Reimbursement Of His 2011 Payments The superior court issued various orders regarding Richard's support obligations for years other than 2010, some while Villars I was pending. In May 2018 the superior court held a hearing on the motions filed as of that time and not yet resolved, and on June 20 it issued the order that is the main source of the present appeal. In its June 20 order the superior court recounted the findings of fact incorporated into the divorce decree and noted that the parties stipulated to those findings. The order included the finding that Richard signed an 1-864 affidavit in which he "agree[d] to pay the sponsored immigrant(s) whatever support is necessary to maintain the sponsored immigrant(s) at an income that is at least 125 percent of the Federal Poverty Guidelines." The superior court also observed that in early 2013 Richard unilaterally reduced his 2013 payments based on his assumption of what Olga's household earnings would be for that year. The superior court considered Richard's recalculation to be "an effort to minimize his obligation by imputing a mitigation responsibility to [Olga]," a responsibility that the superior court concluded was incompatible with the purpose of the 1-864 scheme. The superior court determined that based on the 20183 federal poverty guidelines, Richard's annual obligation for 2013 was $19,887.50, or $1,615.68 monthly (before any applicable offsets). To verify Olga's claim that she had no sources of support other than Richard, the superior court ordered Olga to provide the court and Richard with documents that detailed her financial aid package at a college she was attending in California. It also ordered her to provide documentation of any change in her employment or income status. The superior court rejected Richard's argument that his obligation should be reduced in proportion to any public assistance Olga had received. Noting that the purpose of the I-864 scheme is to prevent the admission of an immigrant likely to become a public charge, the superior court concluded that "[ilf [Olga] did receive means-tested public assistance, it is because the support she received [from Richard was] inadequate." With regard to Richard's motion for reimbursement of $4,163.60 to offset income Olga allegedly earned and failed to report in 2011, the superior court determined that permitting Richard to offset his current payments would undermine the purpose of the I-864 affidavit. The court reasoned that reducing Richard's payments by the amount necessary for him to recoup his alleged overpayment would mean reducing Olga's support by approximately 25%, leaving Olga without the minimum financial support necessary to prevent her from becoming a public charge. The superior court therefore rejected Richard's request for reimbursement of a portion of his 2011 support payments. Richard next filed a motion asking the superior court to reconsider its June 20 order and shortly afterward filed a "motion for relief," also in the superior court. He made several overlapping claims in the motions: (1) that he was not obligated to Olga at all, because in fact no I-864 existed; (2) that even if one existed, he could not be liable to her because liability under 1-864 depends on the sponsored immigrant receiving permanent-resident status, and there was no evidence Olga had been granted such status; (3) that the parties' premarital agreement, under which the parties allegedly waived any rights to spousal support, barred Olga's claims; (4) that although the superior court had calculated offsets in detail for 2010, it had not done so (but should) for 2009, 2011, 2012, and 2018; (5) that the superior court's order improperly failed to require Olga's now-adult daughter, Linda, to disclose her resources; and (6) that because Linda had not made a claim in court against Richard, he should not be obligated to provide support to her. The superior court rejected most of the arguments Richard raised in his motions. With regard to Richard's argument that no 1-864 existed, the superior court concluded that because Richard stipulated to the findings of fact in the divorcee decree-which included the finding that he signed an I-864 affidavit-he was estopped from arguing that he did not sign one. The superior court did not address Richard's argument that the I-864 obligation was dependent on Olga's attaining permanent-resident status, presumably because it considered Richard estopped from challenging his obligation after he stipulated to it in the divorcee decree. The superior court rejected Richard's claim that the parties' premarital agreement preempted the I-864 affidavit. It concluded that the affidavit created a contract between Richard and the federal government, from which Olga was not empowered to release Richard. The superior court also concluded that because Richard stipulated to his 1-864 obligation in the divorce decree, he could not now argue that the premarital agreement barred that obligation. With regard to Richard's offsets arguments, the superior court reviewed documentation Olga submitted about college financial aid and concluded that there was no aid that would reduce Richard's obligations. The superior court did not address Richard's broader claim that it should conduct a full review of offsets for 2009, 2011, 2012, and 2018. The superior court accepted the premise of Richard's argument that Linda's resources should be considered, and it invited Richard to make a separate motion on this point. It similarly concluded that it would consider the issue of household size at an October 22, 2018 hearing. E. The Superior Court's December 2013 "Final Judgment" Establishing An Accounting And Reporting System Richard did not adhere to the superior court's June 20, 2013 order, and on September 19 the superior court again ordered Richard to pay Olga $1,615.63 per month to fulfill his 2018 obligation. On November 8 the superior court reduced Richard's arrears to a judgment, awarding costs to Olga pending confirmation of her expenses. Olga waived the award of costs to speed up the execution of the judgment, and on December 9 the superior court issued a "final judgment" in which it "establishe[d] a new accounting and reporting system to administer the duty of support that has been the subject of so many motions and hearings." Noting that the order represented the fifth time since the beginning of 2012 that Richard had been ordered to pay his support obligation to Olga, the superior court evidently intended that-this detailed order would prevent future litigation of Richard's obligation. The new accounting and reporting system had three elements. First, Olga was required to submit reports disclosing all her household income, including any income earned by Linda as long as the two continued to live together; Richard was required to provide a quarterly report of his support payments and was to make those payments by the first day of each month. Second, Olga's wages were to be verified annually. Pursuant to that requirement, Olga was to execute a document authorizing Richard to access her wage information on file at the California Employment Development Department. Third, the superior court would hold quarterly status hearings, after which it would issue a judgment if it determined that Richard had failed to fulfill his support obligation during the period reviewed at the hearing. The superior court cautioned Richard not to deviate from the court's orders in making payments and instructed him to make an appropriate adjustment of his payments as soon as the new federal poverty guideline for 2014 took effect. F. Richard's Appeal Of The Superior Court's June 2013 'Order; The Superior Court's Request For A Limited Remand In the meantime, Richard had appealed the superior court's June 20, 2018 order. During a November status hearing, Richard repeated his argument that the superior court had failed in its June 20 order to provide him with the appropriate offsets against his I-864 obligations for 2011 and 2012. The superior court notified the parties that it was considering requesting a remand of Richard's appeal to resolve Richard's claims of error. Over Richard's objection, in January 2014, the superior court requested a remand. Explaining that "the trial court is a more efficient process for the parties and will provide the Alaska Supreme Court with a more clean record on appeal," the superior court requested a remand so that it could "undertake an accounting of payments and offsets for the years 2011 and 2012 to ensure both that Mr. Villars received every offset to which he was entitled and that Ms. Villars received the annual level of support to which she was entitled." . The superior court indicated in its request for remand that it would calculate offsets only for 2011 and 2012. Interpreting a federal district court case to mean that "federal law requires [that] the sponsor's obligation to the non-citizen be calculated annually," the superior court indicated that it considered years 2009 and 2010 "closed." The superior court noted that Richard stipulated to his 2009 obligation in the divorce decree and that his 2010. obligation was the subject of the remand after this court's decision in Villars I. It further noted that it would not address Richard's 2018 obligation as part of its review of offsets because the parties were still actively litigating that obligation. We granted the superior court's request for a remand while retaining jurisdiction. G. The Superior Court's Evidentiary Hearing And Order On Remand After we granted the superior court's request for remand, the superior court held an evidentiary hearing in May 2014. The superior court heard testimony from Olga, Richard, and George Nasif, and reviewed several exhibits submitted by Richard. In an order issued June 3, 2014, the superior court presented its detailed review of Richard's obligations and payments and any applicable offsets for 2011 and 2012. First, the superior court concluded that for purposes of Richard's I-864 obligation, Olga's daughter, Linda, was a member of Olga's household during 2011 and 2012. In support of this conclusion, the superior court cited the original divorce decree and Richard's stipulation made at the time of that decree to his 1-864 obligation. Second, the superior court determined that the new federal poverty guidelines took effect in February 2011 and February 2012- and not, as Richard claimed, in March of those years. Based on its conclusions regarding Olga's household size and the effective date of the new federal poverty guidelines in 2011 and 2012, the superior court determined that Richard's obligation was $18,370 for 2011 and $18,868 for 2012. The superior court then determined how much Richard paid Olga in each of those years. After examining Richard's exhibits, which consisted of check copies, electronic transfer statements, and money orders, the superior court determined that Richard paid Olga $19,902.15 in 2011 and $11,259.25 in 2012. Noting our conclusion in Villars I that a sponsor must pay only the difference between the immigrant's income and the applicable poverty guideline, the superior court reviewed Olga's other financial resources during those years to determine the amount of any applicable offsets to Richard's obligations. The superior court reversed its earlier determination that Olga's wages in one year could not offset Richard's obligation in a later year, and it accounted for Olga's 2011 wages, finding that she earned $4,163 in 2011 and $3,390 in 2012. The superior court then addressed Richard's claim that his obligation should be offset by the amount of any Earned Income Tax Credit (EITC) that Olga received. It noted that the relevant immigration statute requires the sponsor to provide support sufficient to maintain the sponsored immigrant at a particular annual "income." It also noted that the accompanying regulations define "income" as "an individual's total income . for purposes of the individual's U.S. Federal income tax liability." Citing our decision in Martin v. Martin, and noting that the purpose of the I-864 obligation was "to ensure a minimum level of income so that the state does not take on the sponsor's burden," the superior court concluded that any EITC Olga received was not income for purposes of determining any offset to Richard's 1-864 obligations. The superior court also concluded that any food stamps Olga received did not offset Richard's obligation. It observed that although Olga testified that she received food stamps, she also testified that the government later sought reimbursement of that benefit and retained at least part of her income tax refund to satisfy the debt. The superior court concluded that funds that must be repaid are not income, analogizing the food stamps to a loan. The superior court rejected Richard's argument that he should not owe support for the several months that Olga and Linda spent outside the United States in 2012. It determined that the relevant statute did not indicate that support payments should be terminated or suspended because the immigrant traveled abroad, and that the relevant regulation indicated that the support obligation terminates if the immigrant "[cleases to hold the status of an alien lawfully admitted for permanent residence and departs the United States." Noting that there was no evidence that Olga had lost permanent-resident status, the superior court concluded that Richard should receive no offset for the time Olga and Linda were abroad. Accounting for Olga's income but finding that Richard had not established the existence of any additional offsets, the superior court concluded that Richard overpaid in 2011 by $5,695.15 and underpaid in 2012 by $4,218.75, for a net overpayment of $1,476.40. The superior court therefore amended its December 9, 2018 judgment to account for the overpayment, and indicated that "overpaid amounts [would be] deducted from January and February's obligation." But because of apparent discrepancies in Olga's evidence relating to her wages and Linda's wages-including the fact that Olga consistently reported that she was not working but then filed a Social Security document that revealed that she was-the superior court indicated that it would not lift a stay of execution on the judgment until Olga provided confirmation of her wages and Linda's wages for 2013. In accord with the limited nature of the superior court's request for remand, the superior court's June 8, 2014 order addressed only the 2011 and 2012 obligations. H. Richard's Response To The Superi- or Court's Order On Remand Later in June 2014 Richard requested permission to file a response to the superior court's order on remand; Olga did not oppose Richard's request, and we granted his request on July 10, 2014. In his response to the superior court's order on remand, Richard alleged various errors by the superior court. Because some of these claims of error are inextricable from Richard's claims in his opening brief on appeal, we address both sets of elaims on appeal in this opinion. III. STANDARDS OF REVIEW "The proper interpretation of a statute presents a question of law that we review de novo, adopting the rule of law most persuasive in light of precedent, reason, and policy." "We review factual findings for clear error, and will uphold the superior court's findings unless we are left with a definite and firm conviction on the entire record that a mistake has been made, even though there may be evidence to support the finding." IV. DISCUSSION A. Several of Richard's Arguments Constitute An Improper Collateral Attack on the Divorce Judgment And Are Also Barred By The Rule Against Expanding Issues In Sue-cessive Appeals Of The Same Case. Several of Richard's arguments challenge facts or legal obligations that were settled in the divorce decree. These arguments include the following: (1) that the parties' premarital agreement precludes any claim by Olga for support payments; (2) that Richard did not sign an 1-864 affidavit and therefore has no support obligation; (8) that to trigger his support obligation, Olga was required to achieve permanent-resident status but never did so; (4) that his 2009 support payment was excessive because it was calculated using an incorrect formula; (5) that 1-864 support may not be ordered prospectively but instead may be ordered only if it is proven afterward that the sponsored immigrant's income was below the relevant income threshold; and (6) that Richard has no obligation to make support payments toward Linda's needs unless Linda makes her own claim against him. If Richard believed there were errors in the divorce decree, he could have filed a timely appeal. But he did not. Richard also failed to raise these issues at the time Olga moved to enforee the divorcee decree with respect to Richard's obligations for the first eleven months of 2010. Instead, in the guise of an appeal challenging one of the superior court's recent orders, Richard in effect is collaterally attacking the original divorce decree, which is now more than five years old. As we have said before, "[tlhe remedy for legal error is appeal, not collateral attack." The findings of fact that were incorporated into the divorcee decree-which as noted, Richard could have appealed, but did not-indicate that Richard signed an I-864 affidavit; they also describe in detail his obligations arising from the affidavit. The inclusion of those obligations in the findings of fact presupposes that the obligations were not otherwise barred-for instance, because of the existence of a contrary and controlling premarital agreement, or because Olga had not achieved the required permanent-resident status. Also, the amount of the 2009 support payment was explicitly stated in the findings of fact, along with the formula used to calculate it-125% of the federal poverty guideline for Alaska. The findings of fact also explicitly stated that Richard's obligation was prospective, noting that he had the option of dividing his annual obligation into twelve equal monthly installments, which would be due at the beginning of each month. And the findings of fact explicitly stated that Richard was obligated to support Olga and Linda until the specified date, with no provision for Richard's obligation to Linda being conditional upon Linda making her own claim against Richard. The arguments that Richard now makes relating to these issues were either precisely the issues resolved in the divorcee proceeding or were clearly dependent on those same facts. Permitting Richard to reopen the old case would mean ignoring his decision not to file a timely appeal and would permit him to relitigate these long-resolved issues. Furthermore, introducing these arguments at this stage violates the well-founded rule against expanding the issues in successive appeals of the same case. As we said in State Commercial Fisheries Entry Commission v. Carlson (Carlson III ), [sluccessive appeals should narrow the issues in a case, not expand them.... [Alll matters that were or might have been determined in a former appeal may not be presented in a subsequent appeal of the same case. The basis for this rule is that [jJludicial economy and the parties' interests in the finality of judgments are in no way furthered if parties are allowed to engage in piecemeal appeals. We have expressed a similar rule in the context of res judicata... . [ ] Mindful of our precedents in this area and of the good policy of limiting repetitive and piecemeal litigation, we do not address any argument Richard makes that involves a challenge to a fact or obligation established in the divorce decree that Richard failed to challenge through a timely appeal (or to raise as a defense to Olga's initial motion to enforce the obligation), and that he then declined to address during the first appeal of this case. B. Richard May Be Entitled To Further Offsets. There are two minor offsets to which Richard may be entitled. Richard argues that the superior court erred when, after the December 8, 2010 hearing, it ordered him to pay 1-864 support for December 2010. As Richard notes, the superior court later determined that Olga had received qualifying support in 2010 in excess of Richard's 1-864 obligation for that year. Thus, Richard claims, he should be "recompense[d]" $1,458.33, the amount he was ordered to pay following the December 8 hearing. Because the first appeal in this case related only to the superior court's determination for the first eleven months of that year, Richard has not previously had an opportunity to litigate or appeal his alleged overpayment for December 2010. We therefore consider his claim here. However, it is not clear on the record before us whether Richard in fact overpaid for that month. We therefore remand to the superior court for this factual determination. If Richard did overpay, the superior court should account for that overpayment by providing Richard with an offset applicable to his current or future obligations, following the sensible approach the superior court has used to balance Richard's overpayment in 2011 against his underpayment in 2012. Richard may also be entitled to an offset to account for a period of "several months" in 2012 that he claims Olga and Linda spent visiting relatives in Ukraine, during which time he asserts that those relatives supported Olga and Linda. Richard claims that Olga testified telephonically from Ukraine for an August 9, 2012 hearing; he also claims that she testified during that hearing that her family there was supporting her during her visit. Richard cites no authority for his argument, and we have identified no case in which a court has provided an offset to account for a sponsored immigrant's temporary absence from the United States. The relevant statutes do not specifically provide for such an approach either. But it is clear that the purpose of the support obligation to which an immigrant's sponsor commits is to prevent the admission of any immigrant likely to become dependent on public assistance. And it is well established that a sponsor is obligated to pay only the difference between the sponsored immigrant's resources and the appropriate multiple of the poverty guideline-in other words, only that amount necessary to keep the immigrant from turning to public assistance. Thus it is logical that the sponsor's support obligation should be reduced if the immigrant receives alternate support from other sources, including domestic and international family members, if that support meets the definition of "income" for I-864 support obligations. On the record before us it is unclear whether Olga and Linda received support from family members abroad in 2012 while they were visiting Ukraine. We therefore remand to the superior court for this determination. As with its accounting for any overpayment for December 2010, the superi- or court should follow the same careful and thoughtful approach it used in balancing the under- and over-payments in 2011 and 2012. C. Richard Is Not Entitled To An Offset For Any Earned Income Tax Credit Olga May Have Received. Richard briefly argues that his obligation should be reduced in the amount of any Earned Income Tax Credit (EITC) that Olga received. As the superior court observed, the relevant statute requires the sponsor to provide support adequate to maintain the sponsored immigrant at a particular "income," and the regulations define "income" as "an individual's total income . for purposes of the individual's U.S. Federal income tax liability." But an EITC is not income for federal income tax purposes. The Internal Revenue Code defines "taxable income" as "gross income minus . deductions." Gross income is defined as "all income from whatever source derived," but the Code specifically excludes certain items from the definition, including tax credits." Therefore, an EITC, which is by definition a tax credit, is not "income . for purposes of the individual's U.S. Federal income tax liability" and cannot be used to offset Richard's I-864 obligations. The superior court did not err in concluding that any EITC Olga received was not income. v. CONCLUSION We AFFIRM the superior court's orders rejecting Richard's claims that we have concluded constitute an improper collateral attack on the divorce judgment or are claims that Richard could have raised when Olga first sought enforcement of the divorce judgment or that he could have raised during the first appeal of this case. We also AFFIRM the superior court's order with respect to its conclusion that any EITC Olga received is not income for I-864 obligation offset purposes. We AFFIRM in most respects the remainder of the challenged orders by the superior court but REMAND to the superior court for findings regarding the amount of any offsets to which Richard is entitled as a result of his alleged overpayment for December 2010; any overpayment resulting from support Olga may have received from family members while in Ukraine in 2012; and any offset to account for Linda's income. We do not retain jurisdiction. . 305 P.3d 321 (Alaska 2013). A third case by the same name involved the same former husband but a different former wife. See Villars v. Villars, 277 P.3d 763 (Alaska 2012). Because the 2012 case is of limited relevance here, we denote the 2013 case Villars I. . See 8 U.S.C.§ 1183a (2012). . Villars I, 305 P.3d at 323-24 (footnote omitted). . Id. at 325. . Id. . Id. (quoting 8 U.S.C. § 1183a(a)(1)(A)). . Id. (quoting Barnett v. Barnett, 238 P.3d 594, 598 (Alaska 2010)) (internal quotation marks omitted). . Id. (citing Nasir v. Shah, No. 2:10-cv-01003, 2012 WL 4342986, at *3-4 (S.D.Ohio Sept. 21, 2012) Stump v. Stump, No. 1:04-CV-253-TS, 2005 WL 2757329, at *6 (N.D.Ind. Oct. 25, 2005)). . Id. . Id. at 326. . Id. at 326-27. Olga also argued in Villars I that the superior court erred in its evidentiary rulings and that it denied her due process. Id. at 324. We concluded that Olga's evidentiary claims were moot, id. at 327 n. 15, and rejected her due process arguments. Id. at 327-28. . Villars v. Villars, No. 4FA-07-02606 CI (Alaska Super., June 3, 2014). . See Villars I, 305 P.3d at 323-24. Richard now seeks reimbursement for the amount he paid Olga for December 2010-a matter not addressed in Villars I. . According to the divorce decree, absent a change in the applicable federal law, Richard's support obligation pursuant to his 1-864 affidavit will end on December 18, 2014. . The superior court identified this amount in the section of its June 20, 2013 order in which it presented its calculations, but in the final portion of that order the superior court substituted the number from its March 29, 2011 order-$1,532.29-in place of $1,615.63. Olga alerted the superior court to the error, and in its September 19 order, the superior court corrected the error, harmonizing the two sections of the June 20 order. . In his opposition to the request for remand, Richard argued that our conclusions on several issues might limit or make unnecessary the accounting that the superior court indicated that it would undertake. Among these issues were whether the premarital agreement preempted the 1-864 agreement; whether "the requirements to make an 1-864 claim [were met]"; whether Olga could receive payments while outside the United States; and whether Richard could be obligated to Olga's adult daughter, Linda, given that Linda allegedly made no claim against Richard. . See Shumye v. Felleke, 555 F.Supp.2d 1020, 1024 (N.D.Cal.2008). . See Villars I, 305 P.3d 321, 325 (Alaska 2013) < (quoting Barnett v. Barnett, 238 P.3d 594, 598 (Alaska 2010)). . See 26 U.S.C. § 32 (2012) (providing for a refundable tax credit for qualifying low-income wage earners). . See 8 U.S.C. § 1183a(a)(1)(A) (2012). . 8 C.F.R.§ 213a.1 (2014). . 303 P.3d 421, 427 (Alaska 2013) (concluding that an EITC received by one parent should not be considered "income" for purposes of calculating another parent's child support obligation). . 8 U.S.C. § 1183a(a)(1)(A). . 8 C.F.R. § 213a.2(e)(2)@)(C) (2014). . Richard alleged to the superior court that his obligations should be offset by the amounts of a housing subsidy and educational grant Olga received, but the superior court found that there was no evidence to support the allegations. The superior court also found that although George Nasif paid for Olga and Linda's rent and utilities at some relevant but unspecified time, those amounts were repayments of a loan from Olga to George. Reasoning that Olga "end[ed] up with no more money in her pocket than existed before the loan," the superior court concluded that the repayments from George were not income. . The superior court was presumably referring to January and February 2013. The amended judgment that the superior court indicated would be issued simultaneously with its order might clarify this, but that judgment does not appear in the record or other documents before us. . The superior court evidently agreed with Richard that wages Linda earned after attaining the age of majority reduced Richard's obligation dollar for dollar. . State, Dep't of Commerce, Cmty. & Econ. Dev., Div. of Ins. v. Alyeska Pipeline Serv. Co., 262 P.3d 593, 596 (Alaska 2011) (citation and internal quotation marks omitted). . Simmonds v. Parks, 329 P.3d 995, 1007 (Alaska 2014) (citation and internal quotation marks omitted). . Richard claims that he noticed errors in the divorce decree as soon as he received it. In his brief he indicates that when he received the divorce decree in the mail, he "immediately not{ed] errors and contact{ed] his attorney." Among the alleged errors was the parties' apparent failure to address the potential applicability of their premarital agreement to Richard's 1-864 obligations and an apparent misunderstanding of the formula to be used to calculate those 1-864 obligations. But at no point did Richard appeal the superior court's judgment in the divorce case. . Wall v. Stinson, 983 P.2d 736, 741 (Alaska 1999) (citing Fauntleroy v. Lum, 210 U.S. 230, 237, 28 S.Ct. 641, 52 L.Ed. 1039 (1908)). For example, we have explained that a motion for relief from a judgment or order, see Alaska R. Civ. P. 60(b), "is not a substitute for a party failing to file a timely appeal; nor does it allow relitigation of issues that have been resolved by the judgment." Blaufuss v. Ball, 305 P.3d 281, 285 (Alaska 2013) (quoting Cook v. Cook, 249 P.3d 1070, 1083 (Alaska 2011)) (internal quotation marks omitted); see also Szabo v. Municipality of Anchorage, 320 P.3d 809, 814 (Alaska 2014). . See Blaufuss, 305 P.3d at 285-87. A further reason for rejecting Richard's argument that support payments cannot be ordered prospectively is that the accounting and reporting system that the superior court carefully devised in its December 9, 2013 order provides an adequate procedure to ensure that Richard does not overpay. The system requires Olga to submit reports disclosing all her household income, including any income earned by Linda as long as the two live together; requires periodic verification of Olga's wages; and permits Richard access to Olga's wage information on file at the California Employment Development Department. As we discuss below, Richard is entitled to appropriate offsets if a court determines that he overpaid in a given period. The superior court's quarterly status hearings will permit Richard to address any such overpayment. . 65 P.3d 851, 873-74 (Alaska 2003) (internal citations and quotation marks omitted). The rule against expanding issues in successive appeals applies regardless of which party initiated the earlier appeal. In Carlson III, we concluded that the State was barred from introducing a defense it raised after the second appeal, even though the third appeal was the first one brought by the State. Id. at 874 (declining to address new defense in appeal by the State). . See Villars I, 305 P.3d 321 (Alaska 2013). . According to the superior court's recent accounting for 2011 and 2012, it appears Richard made a payment in the amount of $1,458.33 on December 27, 2010. Based on the amounts and timing of the payments listed after this payment and the fact that the superior court included this payment in its calculation for 2011, it appears the payment on December 27 was made to satisfy Richard's obligation for January 2011. Thus, the December 27 payment is presumably not the payment for December 2010 for which Richard now seeks reimbursement. But the superior court is better positioned to determine these facts. . The statute and regulations together provide several conditions, the occurrence of any one of which terminates the sponsor's support obligation-but none addréss a temporary reduction in the obligation due to travel. See 8 U.S.C. § 1183a(a)(2)-(3) (2012); see also 8 CFR. § 213a.2(e)(2)()(A)-(D), (e)(2)(ii) (2014). One of these conditions for termination depends on whether the immigrant "ceases to hold the status of an alien lawfully admitted for permanent residence and departs the United States," § 213a.2(e)(2)(i)(C), but that language seems to refer to an immigrant's permanent departure, not a temporary visit abroad. . See 8 U.S.C. § 1182(a)(4)(A) (noting that any alien "likely at any time to become a public charge is inadmissible"); id. § 1183a(a)(1)(A)-(C) (stating the required contents of the affidavit that an alien's sponsor must sign to prove that the alien will not become a public charge). . See, eg., Barnett v. Barnett, 238 P.3d 594, 598 (Alaska 2010). . As noted previously, the relevant immigration statute requires the sponsor to provide support sufficient to maintain the sponsored immigrant at a particular annual "income." See 8 U.S.C. § 1183a(a)(1)(A). The accompanying regulations define "income" as "an individual's total income . for purposes of the individual's U.S. Federal income tax liability." 8 C.F.R.§ 2132.1. . We do not separately address Richard's argument that he is entitled to an offset to account for Linda's income, if any. The superior court has explicitly invited Richard to make a motion on this matter, setting out the procedure for him to raise the issue if it is a concern for him. In its June 3, 2014 order, the superior court indicated that it would address Richard's concern by staying its judgment until Olga provides confirmation of her own income and Linda's income for 2013. The superior court's decision to stay its judgment pending receipt of adequate documentation of Olga's and Linda's resources also disposes of Richard's argument that the superior court erred by ordering payments during the time that Olga has failed to document her resources. We therefore do not address Richard's argument on that point. i . See 26 U.S.C. § 32 (2012) (providing for a refundable tax credit for qualifying low-income wage earners). . See 8 U.S.C. § 1183a(a)(1)(A). . 8 C.F.R.§ 213a.1. . See 26 U.S.C. § 63(a) (2012). . See id. § 61(a). . See id. § § 101-140 ("Items Specifically Excluded from Gross Income"). . Seeid.§ 111. . The superior court reached this conclusion by relying on our decision in Martin v. Martin, 303 P.3d 421, 427 (Alaska 2013). But that case has limited relevance here. We held in Martin that an EITC received by one parent should not be considered "income" for purposes of calculating another parent's child support obligation. But the basis for our conclusion in Martin was not that an EITC is not income for purposes of the individual's federal income tax liability-the relevant issue here-but rather that an EITC is not income for purposes of Alaska Civil Rule 90.3, the Alaska court rule governing child support awards.

6911901

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

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

2014-11-07

No. S-15351

1258

1273

336 P.3d 1258

336

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T18:28:38.344178+00:00

CAP

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

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

CHLOE W., Appellant, v. STATE of Alaska, DEPARTMENT OF HEALTH & SOCIAL SERVICES, OFFICE OF CHILDREN'S SERVICES, Appellee. No. S-15351. Supreme Court of Alaska. Nov. 7, 2014. Olena Kalytiak Davis, Anchorage, for Appellant. David T. Jones, Senior Assistant Attorney General, Anchorage, and Michael C. Ger-aghty, Attorney General, Juneau, for Appel-lee. Before: FABE, Chief Justice, WINFREE, STOWERS, MAASSEN, and BOLGER, Justices.

8079

50516

OPINION FABE, Chief Justice. I. INTRODUCTION Chloe W. appeals the termination of parental rights to her three-year-old son Timothy, an "Indian child" under the Indian Child Welfare Act of 1978 (ICWA). She claims the trial court erred by: (1) relying too heavily on a stipulation filed after the close of evidence, which Chloe contends was the result of ineffective assistance of counsel; (2) finding that Chloe had not remedied the conduct that placed Timothy at risk; (8) finding that OCS made active efforts to reunify the family; and (4) finding that terminating Chloe's parental rights was in Timothy's best interests. Because the trial court's findings are amply supported by the record and its legal rulings are correct, we affirm the trial court's order terminating Chloe's parental rights to Timothy. II. FACTS AND PROCEEDINGS Chloe lives in Juneau and is a member of the Tlingit and Haida Tribes of Alaska. As a child she suffered physical, emotional, and sexual abuse, as well as abandonment. Chloe was reported to have learning disabilities at school, and she dropped out in the eleventh grade. She worked sporadically over the years but has been unemployed since 2004. At age 19 Chloe lost her first child shortly after his birth due to a congenital heart defect and premature lung development. She started to take Xanax in 2008, when she was prescribed a high dosage for anxiety, in addition to Abilify and Neurontin for mood stabilization. In August 2009 Chloe began treatment with psychiatrist Dr. Paul Topol, who diagnosed her with depression and substance abuse. Dr. Topol continued the Xanax prescription and, because Chloe told him she was addicted to "pain killers," he prescribed Suboxone, an opiate maintenance drug. When Chloe became pregnant with Timothy, Dr. Topol continued her prescriptions to avoid serious health risks. Dr. Topol treated Chloe monthly until August 2018. Timothy was born prematurely on August 1, 2010, at Alaska Native Medical Health Center in Anchorage. Timothy tested positive at birth for benzodiazepines, consistent with Xanax. When health professionals noticed that Chloe was lethargic and drowsy, they called OCS because they were concerned that she might drop the baby. Chloe signed an OCS Protective Action Plan. OCS contemplated placement of Timothy in a relative's home, and ultimately, Chloe and Timothy moved in with the Campbells, Chloe's aunt and uncle who live in Juneau. On August 17 OCS filed a Petition for Adjudication of Child in Need of Aid and for Temporary Custody, based on reports that Chloe was uncooperative, heavily medicated, and unable to tend to Timothy's basic needs. Meanwhile, Timothy was experiencing symptoms of withdrawal, such as elevated respiration, high temperatures, and a mild increase in muscle tone. The court awarded OCS temporary custody of Timothy and continued his placement with the Campbells. But the relationship between Chloe and the Camp-bells became strained and adversarial, so Chloe moved into public housing. On September 25 Juneau police responded to a report that Chloe was suicidal. Chloe's visitation was reduced due to further reports of drowsiness and impairment from Timothy's doctor, OCS workers, and Juneau police. OCS recommended medical detoxification, working with Dr. Topol on mental health alternatives to medication, and various outpatient counseling. On November 2, due to lack of progress, OCS changed Timothy's permanency plan to adoption. On December 14 Superior Court Judge Patricia A. Collins adjudicated Timothy a child in need of aid under AS 47.10.011(6), (9), and (10) but concluded that adoption would not be appropriate as a permanency goal after only 90 days, so the goal was shifted to reunification. At a disposition hearing on March 30, 2011, OCS stated that it had stopped receiving reports of drowsiness, and Chloe's attorney told the court that Chloe had weaned herself off Xanax and was following her case plan. The court continued the permanency goal of reunification and granted OCS continuing custody for up to two years. But in August and September Chloe again showed signs of being intoxicated or heavily medicated. OCS continued to work with Chloe to comply with her case plan. Concerned that Chloe's home was unsanitary, a social worker drove Chloe to pick up a carpet cleaner and purchased and delivered cleaning supplies to her home. Because Chloe would not allow OCS to inspect her home, OCS would not supervise in-home visits. On April 4, 2012, OCS filed a Petition for Termination of Parental Rights, alleging that Timothy was not safe with Chloe because of her recurrent, severe depression, borderline personality disorder, and pain-pill-seeking behavior. After the termination trial, held in August 2012, Superior Court Judge Louis J. Menendez denied the petition. The superior court found that Timothy remained a child in need of aid under AS 47.10.011(10) and AS 47.10.011(11). But the superior court reasoned that termination was not in Timothy's best interests: Chloe had been a consistent part of Timothy's life, Timothy was a healthy child, and there was reason to believe that Chloe could continue to stabilize and grow as a parent and that with careful planning and counseling, Timothy could transition into Chloe's home. The superior court further found that OCS had not presented evidence beyond a reasonable doubt that Timothy was likely to suffer serious emotional or physical harm, and that "renewing in-home visitation and parenting instruction, continuing mental health therapy for [Chloe,] and a gradual and specific transition plan towards reunification with [Timothy] may obviate the need for termination." The superior court fashioned another plan for the parties and committed to conducting monthly review hearings to monitor Chloe's progress in meeting the requirements of her detailed case plan. In May 2018 OCS social worker Carol Graham filed a Second Petition for Termination of Parental Rights, asserting that despite her sustained and concerted efforts to engage Chloe in the case plan to facilitate reunification, Chloe had not made sufficient progress. The petition alleged that Chloe continued to be evasive about which medications she was taking and to exhibit signs of drug-seeking behavior. OCS submitted evidence that Chloe lacked the skills necessary to parent adequately and had not participated in the recommended parenting classes. OCS submitted to the court a psychological evaluation of Chloe, prepared by clinical psychologist Dr. Elisa Youngblood, based on her meetings with Chloe in March 2018. Dr. Youngblood's report stated that Chloe was "likely to be irresponsible and engage in antisocial behavior" and "to rebel against authority, have turbulent family relationships, and blame others for her problems." It was Dr. Youngblood's impression that Chloe "ha[d] relapsed on taking too much prescribed medication to the point that her parenting would be significantly impaired and the safety of her son would be jeopardized." Dr. Youngblood recommended medical detoxification and then, due to the severity and complexity of Chloe's substance abuse history, full participation in an inpatient or residential treatment program for one year. Chloe did not participate in the recommended treatment. The second termination trial took place in July 2018. The superior court incorporated the prior proceedings and heard additional testimony from a number of witnesses. Chloe testified about her desire to care for her son, her work with parenting coach Martin Tyska of Catholie Community Services, and the efforts she made to improve her life and make sacrifices for her son. She discussed her mental health treatment and medications, explaining that her speech sounds slurred when she is sleep deprived. Dr. Youngblood, Tyska, and OCS representatives Carol Graham and Kristina Weltzin testified about occasions in 2018 when Chloe was inappropriately hostile, appeared intoxicated, or otherwise showed signs of a dependence disorder. Dr. Topol testified that he had treated Chloe continuously since 2009. He discussed Chloe's mental health issues, as well as her treatment and medication management. Dr. Topol stated that, if taken as prescribed, Chloe's medication would not cause someone to be overly sleepy or lethargic or to slur her speech. Dr. Topol testified that while Chloe was continuing to make progress as an outpatient, she still struggled with impulsivity and anxiety, and more intensive therapy would help. In August 2018 OCS filed a motion to reopen the testimony under Alaska Civil Rules 59(a) and 60(b)(2), based on new evidence that Dr. Topol had discharged Chloe from treatment because she had been dishonest with him and was using duplicate prescriptions. Rather than taking live testimony from Dr. Topol, the parties entered a stipulation about Dr. Topol's new information, adding that Chloe denied any wrongdoing. In September 2018 the trial court granted the second petition to terminate Chloe's parental rights to Timothy, based on its determination that Chloe was in relapse and thus presented a serious, substantial risk that Timothy would be exposed to danger. The superior court noted that multiple sources reported that Chloe continued to misuse her medications, missed numerous appointments, refused to attend the recommended treatment, and appeared to be receiving prescriptions from separate sources. The superior court emphasized that Chloe needed but refused inpatient treatment and that her personality disorder likely would interfere with her ability to meet Timothy's needs. The superior court remarked that it had been a close call whether termination would be in Timothy's best interests after the first trial, but it was no longer a close call. The superi- or court issued written findings and conclusions and ordered termination of Chloe's parental rights and responsibilities to Timothy. It found clear and convincing evidence that Timothy was a child in need of aid under AS 47.10.011(10) and AS 47.10.011(11), that Chloe had not remedied the conduct or conditions that put Timothy at substantial risk of harm, and that OCS had made active efforts to provide remedial services and rehabilitative programs designed to prevent the breakup of the family. The superior court further found beyond a reasonable doubt, relying on the testimony of qualified experts under ICWA, that returning Timothy to Chloe likely would result in serious damage to Timothy. The court concluded that Timothy's best interests would be promoted by terminating Chloe's parental rights because there was severe danger in moving him back and forth, and he needed and deserved a permanent and stable placement, which could not be achieved by continuing Chloe's parental rights. Chloe appeals. III. STANDARD OF REVIEW Before terminating parental rights under ICWA and the Child in Need of Aid (CINA) statutes and rules, the superior court must find by clear and convincing evidence that the child has been subjected to conduct or conditions described in AS 47.10.011; that the parent has not remedied, or has not remedied within a reasonable time, the conduct or conditions in the home that place the child at substantial risk of physical or mental injury; and in the case of an Indian child, that active but unsuccessful efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family ICWA also requires that the trial court find, "by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent . is likely to result in serious emotional or physical damage to the child." Finally, the trial court must determine by a preponderance of the evidence that "termination of parental rights is in the best interests of the child." In CINA cases, we review a trial court's factual findings for clear error and questions of law de novo. Factual findings are clearly erroneous if review of the entire record leaves us with "a definite and firm conviction that a mistake has been made." Whether the trial court erred in determining that OCS made active but unsuccessful efforts to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family is a mixed question of fact and law. IV. DISCUSSION A. The Trial Court Did Not Err In Considering The Stipulation Regarding Dr. Topol's Proposed Testimony, And Entering Into The Stipulation Did Not Amount To Ineffective Assistance Of Counsel. After the evidence at the second termination trial closed, Dr. Topol informed OCS that he had discharged Chloe from treatment, and OCS moved to reopen the evidence to present Dr. Topol's testimony. In lieu of requiring that Dr. Topol testify in court, the parties entered into a stipulation providing as follows: Between the close of evidence in the see-ond trial in the above-mentioned case and August 9, 2013, Dr. Paul Topol, MD discharged [Chloe] as a patient and is no longer treating or providing prescriptions to [Chloe]. Dr. Topol sent a letter to the Attorney General's office providing this information and indicating that this action was taken because he received information that duplicate prescriptions were filled in Wasilla, Alaska, rather than destroyed. [Chloe] denies any wrongdoing. The trial court relied in part on this stipulation to find that Chloe had relapsed. Chloe now contends that the trial court gave improper weight to the parties' stipulation to Dr. Topol's proposed testimony and that her attorney's decision to enter the stipulation amounted to ineffective assistance of counsel. OCS responds that the stipulation was properly submitted in lieu of testimony and that any error was harmless because the superior court clearly relied on a broad base of evidence in reaching its decision and not just the statements in the stipulation. The trial court did take note of Dr. Topol's decision not to continue Chloe's treatment, pointing out that Chloe's "greatest champion," Dr. Topol, had learned in August 2013 that Chloe was lying to him about multiple prescriptions and therefore discharged her. But the trial court did not rely exclusively on the parties' stipulation regarding the discharge from treatment and instead considered all of the trial testimony to find that Chloe had relapsed in 2018. The trial court found evidence of relapse from observations of Chloe's behavior, her symptoms of overmedication, a relapse in her use of ben-zodiazepines, pill-seeking behavior, and her persistent issues with addiction to prescription medication. The trial court even observed that "[Ibleyond Dr. Topol, multiple professionals testified regarding their direct observations of [Chloe's] continued substance use." The trial court noted that OCS had presented evidence of Chloe's overmedication, slurred speech, sleepiness, and late or missed appointments, provided by people who knew her, including Tyska, Weltzin, Dr. Youngblood, and Dr. Destiny Sergeant, who provided evidence of Chloe's continued drug use and its detrimental effect on her ability to safely parent Timothy. The trial court concluded that based on this evidence, Chloe could not take care of Timothy and reunification could not be considered. We therefore conclude that, even without the stipulated testimony, the record supports the trial court's finding that Chloe relapsed, putting Timothy at risk of substantial harm. And in any event, the trial court properly considered the information provided in the stipulation because parties may stipulate to any factual or legal matter, even adjudication and disposition. We also reject Chloe's argument that she received ineffective assistance of counsel because her attorney decided to enter the stipulation rather than request a hearing to address the statements Dr. Topol made in his affidavit A parent has a due process right to effective counsel in a termination of parental rights proceeding. When we review the question whether a litigant has raised successfully an ineffective assistance challenge, we apply the two-pronged test established in Risher v. State. Under the first prong, the litigant must show that her attorney's performance was below a level that any reasonably competent attorney would provide, bearing in mind that "reasonable tactical decisions are virtually immune from subsequent challenge even if, in hindsight, better approaches could have been taken." Under the second prong, the litigant must demonstrate that counsel's improved performance would have affected the outcome of the case. It is not necessary to address the first prong of the test when the litigant has not satisfied the second prong. It is hard to fathom how the decision to enter into the stipulation rather than allow Dr. Topol to present live testimony would not have been a reasonable tactic to minimize the impact of the testimony, particularly where the stipulation set out Chloe's denial of any wrongdoing. But we need not address whether Chloe's attorney's decision to stipulate to Dr. Topol's testimony was tactical, because Chloe has failed to demonstrate that an improved performance by her attorney would have made a difference in the outcome of the case. Here, the superior court expressly relied on the other substantial live testimony and evidence presented to demonstrate that Chloe had relapsed. Finally, we turn to the concurring opinion's concern about our decision to review Chloe's ineffective assistance claim without first providing her with "a fair opportunity to develop a record" for her challenge in the superior court. Effective assistance of counsel in parental rights termination proceedings is a constitutional right. But when ineffective assistance of counsel is alleged, "[the knottiest issue presented is the practical application of a post-trial remedy, given the time constraints that apply in a parental termination case because of a child's need for permanency." The two most common approaches to the issue are direct appeal and post-judgment motion to the trial court. As the Hawaii Supreme Court noted not long ago: "A majority of jurisdictions has concluded that direct appeal is the most appropriate method for raising ineffective assistance of counsel in termination proceedings, due to the particular need for expeditious resolution and finality in child custody disputes. The argument in favor of the direct appeal approach is that it generally is faster and minimizes delay. Delaying custody resolution adversely affects the parties' rights, extends uncertainty in the child's life by leaving the child in the limbo of impermanent foster care, and increases the possibility of the child suffering permanent harm. The arguments against the direct appeal approach are that the appellate court may not be able to determine the claim's merits from the record and trial counsel still may be representing the parent. Although it may be preferable to establish a court rule setting out how to raise an ineffective assistance of counsel claim in this context, we have not done so; we instead have resolved claims as presented to us. And we have decided claims on direct appeal when the issue was not raised in the trial court, despite the parent asking for a remand for the trial court to consider the matter, implicitly recognizing that we would remand for an evidentiary hearing if it were appropriate. For example, we recently concluded in Chloe O. v. State, Department of Health & Social Services, Office of Children's Ser vices that it was unnecessary to remand the case to the trial court for consideration of a parent's ineffective-assistance allegations. We recognized that such a remand "would result in a significant additional delay in . attaining permanency." Through its statutory scheme for child protection, the legislature has "mafdle clear that children's proceedings are to be expeditiously resolved." And "[a] remand for potentially lengthy litigation of a claim of ineffective assistance of counsel would contravene the language and spirit of these statutes." Thus in Chloe O., we directly examined the claim of ineffective assistance of counsel and determined that the parent's challenge did not pass either prong of the Risher test. We adopted the same approach when we reviewed the ineffective assistance claims raised in Stanley B. and Julig D. We have also consolidated a parent's concurrent appeals of both a termination judgment and a later decision denying a post-judgment claim for ineffective assistance under Alaska Civil Rule 60(b)(6), issuing a single decision. And we have decided claims on direct appeal when the parent unsuccessfully attempted to replace counsel during the trial court proceedings on the ground of ineffective assistance of counsel. In a recent case where the parent unsuceess-fully attempted to replace counsel during the trial court proceedings and later on direct appeal claimed ineffective assistance of counsel, we recast the issue as an appeal of the trial court's alleged failure to recognize and resolve an ineffective assistance of counsel claim and resolved it with a plain error analysis. In this case, Chloe W. chose to raise her ineffective assistance claim in a direct appeal of the termination of her parental rights. She has new counsel on appeal who had an opportunity to evaluate the ineffective assistance of counsel claim and how it might best be presented. She raised the claim on direct appeal but failed to substantiate it based on the record before us. Even if we accept Chloe's representations regarding her trial lawyer's shortcomings in entering the stipulation regarding Dr. Topol's testimony, Chloe did not "demonstrate that 'an improved . performance would have made a difference in the outcome of [the] case." " B. The Trial Court Did Not Err In Finding That Chloe Failed To Rem- - edy The Conduct That Placed Timothy At Substantial Risk of Harm. Chloe argues that the trial court erred in finding that she failed to remedy the conduct that placed Timothy at risk. She claims that the evidence does not support the trial court's conclusion that she had relapsed, because the accusations of her slurred speech and lethargy could be explained as a combination of dentures and accidental misuse of prescribed Ambien. We conclude that substantial evidence supports the trial court's finding that Chloe failed to remedy the conditions that put Timothy at risk, based on the evidence presented of Chloe's history of mi susing medication, relapse, continuing mental conditions, and resistance to treatment and other help. Alaska Statute 47.10.088(a)(2) requires that before terminating parental rights, a trial court must find by clear and convincing evidence that a parent has not remedied in a timely fashion the conduct or conditions in the home that place the child at substantial risk of harm. In making this determination, the court may take into account any fact relating to the best interests of the child. Whether a parent failed to remedy conduct or conditions that placed the child at substantial risk of harm is a factual finding. Findings of continued substance abuse and refusal to undergo treatment are sufficient to satisfy failure to remedy. "Conflicting evidence is generally insufficient to overturn the superior court, and we will not reweigh evidence when the record provides clear support for the superior court's ruling." Based on the reports and supporting testimony, the trial court found that Chloe failed to remedy the conduct or conditions that endangered Timothy. She had not resolved her substance abuse or addressed her underlying mental health needs, and she was still unable to provide basic care for Timothy. The trial court referred specifically to the testimony of social workers and mental health professionals who had direct contact with Chloe, including Dr. Youngblood, Tyska, and Dr. Sergeant, who were concerned about Chloe's recent slurred speech, sleepiness, and missed appointments, indicating her misuse of pharmacological substances. The trial court expressed particular concern that Chloe's inability to control her medication use remained virtually unchanged since 2010. The trial court also found that Chloe remained untreated for underlying trauma, which continued to have significant impact on her mental health, and three years later she still had not progressed beyond supervised or monitored visits with Timothy. Based on the evidence presented at both trials, the trial court found that Chloe's personality disorder was likely to affect her parenting so that she could not put Timothy's needs ahead of her own. Because the record supports the trial court's finding that Chloe had not remedied the conduct or conditions that placed Timothy at risk of harm, we affirm the finding. C. The Trial Court Did Not Err In Finding That OCS Made Active Efforts To Prevent The Breakup Of The Indian Family. Chloe argues that the trial court erred in finding that OCS made active efforts to prevent the breakup of this Indian family because OCS did not provide Chloe a parenting plan that would work for her and OCS would not allow her to have Timothy in her home to demonstrate her ability to parent Timothy full time. We disagree. Before terminating parental rights to an Indian child, a superior court must find by clear and convincing evidence that OCS made active but unsuccessful efforts to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family. Courts review OCS's reunification efforts on a case-by-case basis because "no pat formula exists for distinguishing between active and passive efforts." Generally, active efforts entail a social worker taking a parent through the steps of a reunification case plan, rather than simply devising a plan and requiring the parent to develop her own resources. In evaluating whether OCS met its active efforts burden, a court may consider a parent's demonstrated lack of willingness to participate in treatment and look to the state's involvement in its entirety. Here, the trial court found by clear and convincing evidence that OCS had met its active efforts burden, noting "remarkable," "extraordinary," and "amazing" efforts on the part of OCS, the Tribe, Southeast Alaska Regional Health Consortium, and Chloe's attorneys, to get Chloe's attention focused on reunification. The trial court pointed to numerous examples, including Graham's tremendous hands-on involvement and her special efforts to develop a working relationship with Chloe to help her succeed in parenting. Graham gave Chloe her personal cell phone number, took Chloe to lunch, and facilitated family gatherings, often on Graham's own time. Graham dug into her own pocket to purchase and deliver cleaning supplies for Chloe, and she transported Chloe herself, provided bus passes, and arranged for other transportation. She even took care of Chloe's dog while Chloe was away from home. Following the trial court's December 2012 order, OCS participated in monthly status hearings held by the court. There were also weekly case-planning meetings, mediation, and coordination between OCS, Catholic Community Services, and the Tribe to remove all obstacles to Chloe's reunification with Timothy, and regular communication with Chloe regarding her case plan. Graham also requested active assistance from OCS mental health clinician Weltzin, to be sure OCS was providing adequate resources for Chloe. Additional examples of OCS's efforts include counseling, other therapy, and financial assistance. OCS social workers met regularly to brainstorm different approaches that might work with Chloe, but Chloe chose not to attend these meetings. OCS placed Timothy with Chloe's immediate family, transported him to and from visits, and arranged assessments of his development. Martin Tyska from Catholic Community Services spent almost 70 hours working with Chloe on parenting and cooking, and they even went together to buy diapers. Timothy's Guardian Ad Litem, Debra Schorr, testified that OCS made "tremendous efforts" toward progress, despite Chloe's limited cooperation. Because of the undeniably excellent efforts OCS made to prevent the breakup of this family, we affirm the trial court's finding. D. The Trial Court Did Not Err In Finding That Returning Timothy To Chloe Likely Would Result In Serious Harm. Chloe argues that the trial court erred in finding that returning Timothy to her likely would result in serious harm to Timothy. She claims that the trial court improperly based its decision upon the testimony of witnesses who paid no attention to Chloe's Tlingit heritage. Chloe maintains that she has demonstrated an ability to care for Timothy and has never hurt him. Chloe's arguments lack merit. Before terminating parental rights, ICWA requires that the trial court find "beyond a reasonable doubt, based on evidence that includes testimony of qualified expert witnesses, that the continued custody of the child by the parent . is likely to result in serious emotional or physical damage to the child. This finding requires proof that "the parent's conduct is likely to harm the child, and proof that it is unlikely the parent will change her conduct." These two elements can be proved through the testimony of a single expert witness or by a combination of expert and lay witnesses. Whether expert testimony in a CINA case satisfies ICWA requirements is a pure legal question reviewed de novo. Serious harm "can be proved through the testimony of a single expert witness, by aggregating the testimony of expert witnesses, or by aggregating the testimony of expert and lay witnesses." Finding beyond a reasonable doubt that Timothy was likely to suffer emotional or physical damage if Chloe's rights were not terminated, the trial court focused on the three-year relationship (since birth) developed between Timothy and his foster parents and the harm that would come if custody were moved to Chloe. The court predicted that based upon the evidence presented at trial, if termination were not granted, Timothy would continue in foster care for several years without resolution and would experience harm stemming from lack of permanence in his life. The trial court's finding was based on the testimony of numerous witnesses, including Graham and qualified ICWA experts Dr. Youngblood and Jeannie Arledge. Dr. Youngblood's reports stated that when intoxicated, Chloe was unable to put Timothy's basic needs ahead of her own, even his basic needs for food and safety. Arledge testified that Chloe's mental health issues would make her emotionally unavailable to Timothy, and her substance abuse issues would put him at risk of harm. The record also contains evidence that the trial court invited input from the Tribe to address any issues that might be particular to Chloe's Alaska Native heritage, and the Tribe expressed concerns about Chloe's failure to take the opportunity to provide OCS with proof of sobriety by urinalysis or the substance abuse assessment done at Rainforest Recovery Center. The Tribe considered tradition and culture and noted that it was in Timothy's best interests to continue living in his current home with the only family he has ever known. Despite its noted grief and sadness at recommending termination of Chloe's parental rights to Timothy, the Tribe recognized that there is "a loving, supportive extended family member that is available and eager to be [Timothy's] life long placement." We conclude that, based on Chloe's untreated substance abuse and underlying emotional issues, as well as Timothy's option for permanency with the family he has lived with since birth, the trial court did not err in finding beyond a reasonable doubt that allowing Chloe custody of Timothy likely would result in serious emotional or physical damage to Timothy. We therefore affirm the trial court's findings. E. The Trial Court Did Not Err In Finding That Termination Of Chloe's Parental Rights Was In Timothy's Best Interests. Chloe argues that the trial court erred in finding that termination of her parental rights was in Timothy's best interests because the trial court did not consider the existing bond between her and Timothy or her consistent demonstration of desire to care for her son. We disagree. Before terminating parental rights to a child, the superior court must find by a preponderance of the evidence that ter mination is in the child's best interests. The court may consider the statutory factors listed in- AS 47.10.088(b) in determining whether termination of parental rights is 'in the best interests of the child, including: (1) the likelihood of returning the child to the parent within a reasonable time based on the child's age or needs; (2) the amount of effort by the parent to remedy the conduct or the conditions in the home; (3) the harm caused to the child; (4) the likelihood that the harmful conduct will continue; and (5) the history of conduct by or conditions created by the parent.![ ] The superior court may also consider any other facts relating to the best interests of the child and need not accord a particular weight to any given factor. The superior court may consider the bonding that has occurred between the child and his foster parents, the need for permanency, and the offending parent's lack of progress. The superior court is not required to consider or give particular weight to any specific factor, including a parent's desire to parent or her love for the child. Recognizing the importance of permanency and considering Timothy's healthy relationship with the Campbells, the trial court found that OCS had established by a preponderance of evidence "quite convincingly" that termination of Chloe's parental rights to Timothy was in his best interests. Despite OCS's and the trial court's clear expectations and regular monitoring of the situation, Chloe showed little change in her life, particularly between the first termination trial in 2010 and the second trial, three years later. Several witnesses with direct knowledge of Timothy's current placement and Chloe's abilities, including Graham, Schorr, and Ar-ledge, testified that Timothy needed perma-nencey and that, because of Chloe's history and the option for Timothy to continue living with the Campbells, reunification would not be in Timothy's best interests. In light of the trial court's discretion in determining which factors to consider in its best interests analysis, we conclude that the court properly took into account factors such as Timothy's need for permanency, his bond with the Campbells, and the likelihood that Chloe would not be ready to provide full-time care for Timothy within a reasonable period of time. We therefore affirm the trial court's best interests finding. v. CONCLUSION We AFFIRM the trial court's decision in all respects. . We use pseudonyms to protect the family's privacy. . See 25 U.S.C. § 1903(4) (2012). . Timothy's father voluntarily relinquished his parental rights on May 30, 2012. . AS 47.10.011 provides in pertinent part that the court may find a child a child in need of aid if it finds by a preponderance of the evidence that the child has been subjected to any of the following: (6) substantial physical harm or risk of harm due to the parent's conduct; (9) conduct by the parent has subjected the child to neglect; or (10) the parent's ability to parent has been substantially impaired by the addictive or habitual use of an intoxicant, which has resulted in a substantial risk of harm to the child. . OCS approved in-home visits supervised by the Tribe for three hours per day, three days per week from May through July 2011 but these visits were discontinued because the Tribe was no longer available to provide services. Chloe did have in-home visits supervised by OCS in 2012 and early 2013. . AS 47.10.011(11) provides that a child may be found in need of aid if the court finds by a preponderance of the evidence that the parent has a mental illness, serious emotional disturbance, or mental deficiency that puts the child at substantial risk of injury. . AS 47.10.088(a)(1); CINA Rule 18(c)(1)(A). . AS 47.10.088(a)(2); CINA Rule 18(c)(1)(A)G)-(i). . 25 U.S.C. § 1912(d) (2012); 18(c)(2)(B). CINA Rule . 25 U.S.C. § 1912; see also CINA Rule 18(c)(4). . CINA Rule 18(c)(3); see also AS 47.10.088(c). . Sherman B. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 290 P.3d 421, 427-28 (Alaska 2012) (citing Christina J. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 254 P.3d 1095, 1103 (Alaska 2011)). . Id. at 428 (citing Christina J., 254 P.3d at 1104). . Id. at 427-28 (quoting Barbara P. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 234 P.3d 1245, 1253 (Alaska 2010)) (internal quotation marks omitted). . Christina J., 254 P.3d at 1104 (citing Ben M. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 204 P.3d 1013, 1018 (Alaska 2009). . Dr. Sergeant was Chloe's treating psychologist. Dr. Sergeant did not testify, but her May 31, 2013 report stated that when Chloe arrived for her bi-monthly appointment, she appeared very drowsy and her speech was slurred. Dr. Sergeant attributed this behavior to Chloe's statement that she took Ambien at 3:00 a.m. and then only slept about 30 minutes, despite warnings not to take Ambien that late and without having a full night of sleep. . See CINA Rule 14. . S.B. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth Servs., 61 P.3d 6, 10 (Alaska 2002) (citing VF. v. State, 666 P.2d 42, 47-48 (Alaska 1983)). . David S. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 270 P.3d 767, 784-86 (Alaska 2012) (quoting Risher v. State, 523 P.2d 421, 425 (Alaska 1974)). . Chloe O. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 309 P.3d 850, 858-59 (Alaska 2013) (citation and internal quotation marks omitted). . David S., 270 P.3d at 784; see also Chloe O., 309 P.3d at 859. . See Stanley B. v. State, DFYS, 93 P.3d 403, 408-09 (Alaska 2004) (stating that where a parent argued that his attorney's various failures amounted to a denial of his due process right to effective assistance of counsel at the termination trial, it was not necessary to address the first prong because the parent had not demonstrated how any of the attorney's alleged errors in performance actually harmed him). . Similarly, in Chloe O., we determined that "it {was] probable that [a mother's] attorney made a reasonable tactical choice in deciding not to call [an expert witness] to testify on remand." 309 P.3d at 859. . Concurrence at 1271. . David S., 270 P.3d at 784 (citing In re KLJ., 813 P.2d 276, 283 n. 6 (Alaska 1991) (right to counsel); V.F. v. State, 666 P.2d 42, 45 (Alaska 1983) (right to effective assistance of counsel)). . N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J. 301, 929 A.2d 1034, 1039 (2007); see also In re RGB, 123 Hawaii 1, 229 P.3d 1066, 1085 (Haw.2010) (noting "state courts have struggled to determine the proper procedural vehicle for raising ineffective assistance of counsel in termination of parental rights proceedings"). . See Susan Calkins, Ineffective Assistance of Counsel in Parental-Rights Termination Cases: The Challenge for Appellate Courts, 6 J.App. Prac. & Process 179, 199-205 (2004). . In re RGB, 229 P.3d at 1085 (citations omitted). . Calkins, supra note 27, at 207, 235. . Id. at 209-10. . See id. at 212 (suggesting court rule so parties know appropriate procedure in advance). . Chloe O. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 309 P.3d 850, 852, 858-59 (Alaska 2013) (rejecting remand request because (1) it would contravene child in need of aid statutes' emphasis on expeditious resolution and (2) parent's proposed claim clearly had no merit under test for ineffective assistance of counsel); see also Julia D. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., Mem. Op. & J. No. 1467, 2013 WL 5314609, at *4-5 (Alaska Sept. 18, 2013) (holding parent's ineffective assistance claim had no merit); Stanley B. v. State, DFYS, 93 P.3d 403, 408-09 (Alaska 2004) (same). . 309 P.3d at 858. . Id. . Id. . Id. . See id. at 858-59. . 93 P.3d 403, 408-09 (Alaska 2004). . Mem. Op. & J. No. 1467, 2013 WL 5314609, at "4-5 (Alaska Sept. 18, 2013). . David S. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 270 P.3d 767, 774, 784-86 (Alaska 2012); see also Dan A. v. State, Dep't of Health & Human Servs., Office of Children's Servs., Mem. Op. & J. No. 1404, 2012 WL 104482, at *6-7 (Alaska Jan. 13, 2012) (resolving both merits appeal and ineffective assistance of counsel claim after staying case at trial court's request for limited remand on parent's Alaska R. Civ. P. Rule 60(b)(6) motion). . S.B. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth Servs., 61 P.3d 6, 15-16 (Alaska 2002); P.M. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth Servs., 42 P.3d 1127, 1131-32 (Alaska 2002). . Grace L. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 329 P.3d 980, 988-89 (Alaska 2014). . Chloe O. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 309 P.3d 850, 859 (Alaska 2013) (quoting David S., 270 P.3d at 786). . See also CINA Rule . AS 47.10.088(b). . Pravat P. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 249 P.3d 264, 270 (Alaska 2011) (citation omitted). . See, eg., Stanley B. v. State, DFYS, 93 P.3d 403, 407 (Alaska 2004). . Sherman B. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 290 P.3d 421, 428 (Alaska 2012) (quoting Maisy W. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 175 P.3d 1263, 1267 (Alaska 2008)). . 25 U.S.C. § 1912(d) (2012); CINA Rule 18(c)(2); see also Christopher C. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 303 P.3d 465, 476 (Alaska 2013). . AA. v. State, Dep't of Family & Youth Servs., 982 P.2d 256, 261 (Alaska 1999) (quoting A.M. v. State, 945 P.2d 296, 306 (Alaska 1997)) (internal quotation marks omitted). . Lucy J. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 244 P.3d 1099, 1114 (Alaska 2010) (citations omitted). . Id. . Maisy W., 175 P.3d at 1268. . We also commend the trial court on its thoughtful approach to this case and its own efforts, scheduling frequent hearings to monitor Chloe's progress, providing encouragement to Chloe, and giving her every opportunity to succeed. . Lucy J., 244 P.3d at 1117 (quoting Marcia V. v. State, Office of Children's Servs., 201 P.3d 496, 503 (Alaska 2009). . Id. (citation and internal quotation marks omitted). . L.G. v. State, Dep't of Health & Soc. Servs., 14 P.3d 946, 950 (Alaska 2000) (citations omitted). , EA. v. State, Div. of Family & Youth Servs., 46 P.3d 986, 989 (Alaska 2002). . L.G., 14 P.3d at 950 (citations omitted). . Dr. Youngblood testified that at the time of trial, she had been practicing for seven years in Ketchikan and had previously been qualified as an expert in psychological evaluations. The trial court qualified her as an expert in clinical psychology. . Arledge is regional staff manager for OCS for the southeast region, with a bachelor's degree in psychology and a master's degree in social work, and 14 years experience with OCS. Arledge testified that she had previously been qualified as an expert in the areas of child protection and permanency. She started receiving ICWA training in 1999 and approximately 80 percent of her cases involve ICWA. . CINA Rule 18(c)(3); see also AS 47.10.088(c). . AS 47.10.088(b). . Hannah B. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 289 P.3d 924, 932 (Alaska 2012) (citations omitted). . See Emma D. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 322 P.3d 842, 853 (Alaska 2014) Amy M. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 320 P.3d 253, 261 (Alaska 2013). . Thea G. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 291 P.3d 957, 968 (Alaska 2013). . See Phoebe S. v. State, Dep't of Health & Soc. Servs., Office of Children's Services, Mem. Op. & J. No. 1495, 2014 WL 1691614, at *7 (Alaska Apr. 23, 2014). . See, eg., Barbara P. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 234 P.3d 1245, 1263-64 (Alaska 2010) (despite testimony that mother and children bonded during their regular and positive visits, and that termination of bond would be traumatic to the children, trial court did not err in determining that termination of parental rights was in children's best interests based on their need for permanency, stability they enjoyed in their foster home, and the fact that neither biological parent would be ready to care for the children on a full-time basis within a reasonable period of time).

9020055

Leonard P. HURD, Appellant, v. STATE of Alaska, Appellee

Hurd v. State

2005-02-11

No. A-8112

314

335

107 P.3d 314

107