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11570825

Larry J. WHITEHEAD, Appellant, v. STATE of Alaska, Appellee

Whitehead v. State

1999-07-30

No. A-6868

1019

1021

985 P.2d 1019

985

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T18:14:24.532101+00:00

CAP

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

Larry J. WHITEHEAD, Appellant, v. STATE of Alaska, Appellee.

Larry J. WHITEHEAD, Appellant, v. STATE of Alaska, Appellee. No. A-6868. Court of Appeals of Alaska. July 30, 1999. Sidney K. Billingslea, Anchorage, for Appellant. Marcelle K. McDannel, 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.

1096

7027

0 PINION STEWART, Judge. When Superior Court Judge Milton M. Souter sentenced Larry J. Whitehead on his conviction for coercion, he imposed a special condition of probation that ordered Whitehead to register as a sex offender during his probation. Whitehead contends that Judge Souter could not impose that special condition because Whitehead was not convicted of a "sex offense" within the meaning of AS 12.63.100. We agree and vacate the special condition of probation. Facts and proceedings On December 29, 1996, Whitehead worked as a jailor at the Glenwood Center, a privately-run halfway house operating under a contract with the Department of Corrections. Early that morning, he entered G.M.'s room while she was asleep. Whitehead pulled her t-shirt up over her breasts, began caressing one of G.M.'s breasts with one hand while he digitally penetrated her vagina with the other. G.M. woke up and grabbed Whitehead's hand. Whitehead stopped his fondling and penetration. Before Whitehead left G.M.'s room, he informed her that she could be sent back to jail and he could lose his job if she reported his misconduct. G.M. contacted the police. As part of the investigation, the police obtained authorization to record a telephone call between G.M. and Whitehead. On December 31, 1996, G.M. called Whitehead. During the call, Whitehead admitted his sexual misconduct. The State filed a complaint charging Whitehead with one count each of first-degree, second-degree, and third-degree sexual assault. Pursuant to a plea bargain, Whitehead entered a no contest plea to the single count of coercion, a class C felony. Judge Souter imposed a 3-year term with 1 year suspended. He included a special condition of probation that ordered Whitehead to register as a sex offender during his 6-year probationary period. Discussion As a general rule, conditions of probation must be reasonably related to the probationer's rehabilitation or the protection of the public. Judge Souter concluded that Whitehead should register as a sex offender because of the sexual misconduct underlying Whitehead's conviction for coercion. The record supports Judge Souter's implicit concern that Whitehead's registration as a sex offender was reasonably related to the protection of the public. Nevertheless, we conclude that Judge Souter was not authorized to impose that particular probation condition. When it passed the Alaska Sex Offender Registration Act, the legislature specified the offenses that trigger a defendant's requirement to register as a sex offender. Unlike registration schemes in other states, there is no provision in the Alaska Sex Offender Registration Act that authorizes a judge to order a defendant to register when the defendant is convicted of another offense not specifically listed by the legislature. In a series of cases starting with Boyne v. State, the Alaska Supreme Court and this court have held that sentencing courts must have explicit legislative authorization before imposing conditions of probation that fundamentally alter the nature of the probation. For instance, in Boyne itself, the supreme court held that a sentencing court may not impose imprisonment as a condition of SIS probation. In Whittlesey v. State, the supreme court held that a court may not impose imprisonment as a condition of normal probation. We applied the same reasoning in M.O.W. v. State, where we held that a juvenile court lacked the authority to order a juvenile offender, as a condition of probation, to spend several days in a closed juvenile facility. Sex offender registration is obviously less burdensome than incarceration. We are mindful that probationers have traditionally been required to apprise their probation officers of their place of residence and their place of employment. Nevertheless, sex offender registration entails more than simply informing a probation officer of one's residence and place of employment. Under the sex offender registration law, a defendant must supply this information (as well as other personal information) for dissemination to the public at large. Although we recently held m Patterson v. State that sex offender registration is not "punitive" for purposes of the ex post facto clauses of the federal and state constitutions, we also have recently held in Peterson v. State that a defendant who enters a guilty plea to a sex offense in ignorance of the sex offender registration requirement can attack the plea. Our holding in Peterson rested largely on the fact that the Alaska Legislature specifically amended Criminal Rule 11(c) to require judges to inform defendants about the sex offender registration requirement before accepting a guilty plea to a sex offense. We inferred, from the legislature's action, that the legislature viewed sex offender registration as a serious consequence of conviction and "that the legislature believed it would be unfair to allow defendants to plead guilty to a sex offense without first telling them about the registration requirement." For similar reasons, we conclude that we should not construe AS 12.55.080-.090 to allow sentencing judges to impose sex offender registration as a condition of probation when the legislature has not expressly authorized sentencing courts to exercise this power. Moreover, by ordering Whitehead to register as a sex offender, Judge Souter imposed corresponding obligations on the Alaska Department of Public Safety and the local police agency where Whitehead resides. Absent legislative authorization, the judge had no power to regulate the conduct of these executive agencies. Conclusion Accordingly, we VACATE the contested condition of probation. . AS 11.41.530(a)(4). . AS 11.41.410(a)(1). . AS 11.41.420(a)(3)(B) and/or (C). . AS 11.41.425(a)(2) and/or (3). . See Roman v. State, 570 P.2d 1235, 1240 (Alaska 1977). . See AS 12.63.010-.100. . See, e.g., Cal.Penal Code § 290(a)(2)(E), which provides that the court may order registration "for any offense not included specifically in this section if the court finds at the time of conviction that the person committed the offense as a result of sexual compulsion or for the purposes of sexual gratification." . 586 P.2d 1250 (Alaska 1978). . See id. at 1251. . 626 P.2d 1066, 1067 (Alaska 1980). . 645 P.2d 1229, 1235 (Alaska App.1982). . 985 P.2d 1007 (Alaska App.1999). . - P.2d -, 1999 WL 521696, Opinion No. 1640 (Alaska App., July 23, 1999). . See Peterson, Opinion No. 1640 at 20, at -. . Peterson, Opinion No. 1640 at 21, at -. . See LaBarbera v. State, 598 P.2d 947, 949 (Alaska 1979); Beckman v. State, 689 P.2d 500, 502 n. 5 (Alaska App.1984).

10459215

Annie Bell SLOAN, Individually and as Executrix of the Estate of Moses C. Sloan, Deceased, et al., Appellants, v. ATLANTIC RICHFIELD COMPANY, Appellee

Sloan v. Atlantic Richfield Co.

1976-02-23

No. 2047

568

570

546 P.2d 568

546

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:14:29.992892+00:00

CAP

Before BOOCHEVER, C. J., and RA-BINOWITZ, CONNOR and ERWIN, JJ.

Annie Bell SLOAN, Individually and as Executrix of the Estate of Moses C. Sloan, Deceased, et al., Appellants, v. ATLANTIC RICHFIELD COMPANY, Appellee.

Annie Bell SLOAN, Individually and as Executrix of the Estate of Moses C. Sloan, Deceased, et al., Appellants, v. ATLANTIC RICHFIELD COMPANY, Appellee. No. 2047. Supreme Court of Alaska. Feb. 23, 1976. James R. Blair, Julian C. Rice and Hugh Fleischer, of Rice, Hoppner, Blair & Hedland, Fairbanks, for appellants. Patrick E. Murphy, Fairbanks, and John P. Cook, of Lee, Smart, Cook, Dunlap & Biehl, P.S. Inc., Seattle, Wash., for ap-pellee. Before BOOCHEVER, C. J., and RA-BINOWITZ, CONNOR and ERWIN, JJ.

829

4884

OPINION ON REHEARING CONNOR, Justice. Appellee Atlantic Richfield Company (ARCO) petitions for a rehearing in this case, alleging various oversights in our Opinion No. 1195, dated October 15, 1975, 541 P.2d 717. We grant the petition, and consider each of ARCO's points in turn. First, we reject ARCO's contentions that this court has invaded the province of the jury. We found appellee liable as a matter of law, based on the two jury instructions and the doctrine of res ipsa loquitur. Nor do we find merit in ARCO's assertion that the instructions taken as a whole do not warrant a directed verdict for plaintiffs (appellants). We did not remand this case for a new trial based on any unfairness in the instructions; instead we relied on the law as contained in the two instructions cited to take the matter away from the jury, except as to any issue of decedent's contributory negligence. The remainder of the instructions simply do not have any relevance to that issue. Second, we find no error in requiring decedent Sloan's negligence, if any, to fall under comparative negligence principles on remand. The purpose of our language in Kaatz v. State, 540 P.2d 1037, 1050 (Alaska 1975), was to prevent retrials where contributory negligence had already been found by a jury, and the comparative negligence issue had not been raised and preserved. Here, the jury never reached the issue of contributory negligence, as shown by the verdicts returned. Hence there is no reason to prevent application of the comparative negligence rule by requiring its use on remand under the facts of this case. Finally, ARCO correctly asserts that defense counsel did object to Jury Instructions 29 and 32, contrary to the statement in 541 P.2d at 725. The general rule is that an issue raised at trial but not briefed on appeal will not be considered by this court, and the trial court's ruling becomes the law of the case. In the case of an appellee who raised the issue at trial, however, we decide that this approach is overly technical. Since appellee ARCO was primarily concerned on appeal with defending a jury verdict in its favor, it would be unreasonable to expect it also to have attacked the instructions given to that jury. We have, therefore, decided to consider fully the sole issue of whether Moses Sloan, as the employee of an independent contractor, was an "other" to whom ARCO might be liable for physical harm under the common law as reflected in the Restatement (Second) of Torts § 422. Since appellee must attack the decision of the trial court, it shall serve and file its brief on this issue within 20 days after service of this opinion. Appellant shall serve and file its brief within 20 days after service of appellee's brief. . The first objection, that the two instructions were not combined, does not affect their legal content. The second objection, however, is of considerable legal importance. It has not yet been explicitly decided in Alaska whether employees of an independent contractor are "others" and can recover damages from the general contractor or site owner under various sections of the Restatement (Second) of Torts, including § 422 on which Instruction 32 was based. . Weaver v. O'Meara Motors Co., 452 P.2d 87, 93 (Alaska 1969) ; Thomson v. Wheeler Constr. Co., 385 P.2d 111, 114 (Alaska 1963) ; see e. g., Fioke v. Alaska Airlines, Inc., 524 P.2d 271, 286 n. 18 (Alaska 1974) ; Whaley v. State, 438 P.2d 718, 724 (Alaska 1968) ; Alaska Appellate Rule 11(b) (l)[g], formerly Alaska Supr.Ct. Rule 11(a)(8). . In Austin v. Fulton Ins. Co., 498 P.2d 702, 704 (Alaska 1972) we stated that a failure to dispute a trial court's holding on appeal results in that holding becoming the law of the case as between the original parties. . Restatement (Second) of Torts § 422 provides : Ҥ 422 AVork on Buildings and Other Structures on Land A possessor of land who entrusts to an independent contractor construction, repair, or other work on the land, or on a building or other structure upon it; is subject to the same liability as though he had retained the work in his own hands to others on or outside the land for physical harm caused to them by the unsafe condition of the structure. (a) while the possessor has retained possession of the land during the progress of the work, or (b) after he has resumed possession of the land upon its completion."

10459109

STATE of Alaska, Appellant, v. Charles BUNDRANT, Appellee; STATE of Alaska, Appellant, v. Konrad S. URI et al., Appellees; STATE of Alaska, Appellant, v. Cory A. KALDESTAD, Appellee

State v. Bundrant

1976-01-19

Nos. 2295, 2435, 2444

530

564

546 P.2d 530

546

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:14:29.992892+00:00

CAP

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

STATE of Alaska, Appellant, v. Charles BUNDRANT, Appellee. STATE of Alaska, Appellant, v. Konrad S. URI et al., Appellees. STATE of Alaska, Appellant, v. Cory A. KALDESTAD, Appellee.

STATE of Alaska, Appellant, v. Charles BUNDRANT, Appellee. STATE of Alaska, Appellant, v. Konrad S. URI et al., Appellees. STATE of Alaska, Appellant, v. Cory A. KALDESTAD, Appellee. Nos. 2295, 2435, 2444. Supreme Court of Alaska. Jan. 19, 1976. Rehearing Denied March 26, 1976. Office of Attorney General of Alaska, Juneau, Gerald W. Markham, Asst. Atty. Gen., Anchorage, for appellant. David B. Ruskin, Anchorage, for appel-lee Bundrant. William B. Rozell of Faulkner, Banfield, Doogan & Holmes, Juneau, Douglas M. Fryer of Moriarty, Long, Mik-kelborg & Broz, Seattle, Wash., for ap-pellees Uri, Kaldestad and others. Edward H. Levi, Atty. Gen. of the U. S., Wallace H. Johnson, Asst. Atty. Gen., and Bruce C. Rashkow and Michael W. Reed, Dept, of Justice, Washington, D. C., as amicus curiae for U. S. Evelle J. Younger, Atty. Gen. of Cal., Carl Boronkay, Asst. Atty. Gen., and Roderick Walston, Deputy Atty. Gen., as ami-cus curiae for Cal. Before RABINOWITZ, C. J., and CONNOR and ERWIN, JJ.

20077

123797

OPINION ERWIN, Justice. King crab occur in harvestable numbers in several areas of the Bering Sea off the coast of Alaska. Beginning in the late 1960's, the number of fishermen taking crabs from the Bering Sea increased significantly. As a result, in 1969 the Alaska Board of Fish and Game began efforts to regulate crabbing in that area, with the promulgation of 5 AAC 07.100, which created the "Bering Sea Shellfish Area" (BSSA), described as: . . . all waters of the Bering Sea including all tributary bays except Bechev-in Bay and Isanotski Strait north of 54° 36' N. lat., (the latitude of Cape Sarichef), south of 60° N. lat., and east of the U. S. — Russia convention line of 1867. In 1973, in an effort to avoid the eventual depletion of this resource and to preserve the fishery at sustained yield levels, the Board established a maximum quota of 23 million pounds of crab for this area for the 1973-74 season (5 AAC 07.760). It also prohibited possession or sale of crab taken "in violation of the rules and regulations promulgated by the board" if such crabs were taken in waters seaward of the state's territorial waters (5 AAC 36.040). The Bering Sea Shellfish Area quota of 23 million pounds was reached on September 9, 1973, whereupon by field order the area was closed to crabbing until June 15, 1974. In December, 1973, several crab fishermen brought suit in Federal Court, asking for a preliminary injunction against enforcement of 5 AAC 07.760 and 5 AAC 36.040. A three-judge District Court heard the case, Hjelle v. Brooks, and on April 30, 1974, enjoined the state from enforcing those regulations. Following this decision, the Board repealed the enjoined regulations and took alternative steps to govern crabbing in the Bering Sea in the season due to begin July 1, 1974. On May 9, 1974, the Board issued a stopgap regulation prohibiting possession of red king crab in the state until June 30, 1974 (5 AAC 39.690). On June 15, the Board repealed all previous king crab regulations (except the definition and gear limitation sections, 5 AAC 39.105, and 5 AAC 39.975) and issued a comprehensive set of emergency regulations (5 AAC 34.-005-.940, 5 AAC 03.710, 5 AAC 06.710, 5 AAC 21.910). These regulations basically prohibited the taking- and possession of crabs in a closed area. A system of designation of closures was created by 5 AAC 34.005, whereby "statistical areas" were created, consisting of (1) a registration area, comprised of all the waters within the statistical area which are waters subject to the jurisdiction of the state; and (2) an adjacent seaward biological influence zone, comprised of all the waters within the statistical area which are not part of the registration area. The acts giving rise to this appeal occurred in Statistical Area Q, defined in 5 AAC 34.900 as "the waters of the Bering Sea and Chuckchi Sea including all tributary bays except Bechein Bay and Isanotski Strait . •. . north of 54° 36' N. lat., (the latitude of Cape Sarichef)." 5 AAC 34.910, provided that the crabbing season for this area was to open on July 1, 1974. Prior to July 1, an organization of Bering Sea crab fishermen (according to news accounts, based in Seattle), called the "Shellfish Conservation Institute," promulgated their own rules for the upcoming Bering Sea season. This group's rules called for the season to open on June 26. Even before that date surveillance flights showed a large number of vessels engaged in crab fishing in the Bering Sea. In response, on June 25 the board issued emergency regulations 5 AAC 07.710(b), 5 AAC 34.035(c)(5), 5 AAC 34.045, 5 AAC 34.095(c), and 5 AAC 34.910. These regulations basically put off the opening of the season and gave the Commissioner of Fish and Game discretion to open the season when "general order can be restored a. i the state can be assured that fishing will be conducted in a manner which will not jeopardize the rights of law abiding fishermen." The Commissioner also issued notices that the season would not open until all illegal crab pots were removed from the area. The fishermen who had been successful in the earlier Hjelle case asked the federal district court for a temporary restraining order against the new regulations, but it was denied. All of the individual cases consolidated in this appeal arise from alleged violations of these closures or related regulations. THE INDIVIDUAL CASES A. In No. 2295, defendant Bundrant was charged in superior court with seven counts of possession of migratory shellfish near St. Paul Island (within the three-mile limit) on various dates in October, 1973, which shellfish were taken "upon the high seas and the Bering Sea shellfish area" during a closed period under fish and game board regulations. The statutory reference in the complaint is to AS 16.10.200, which reads: It is unlawful for a person taking migratory fish and migratory shellfish in high sea areas designated by the board or in violation of the rules and regulations promulgated by the board governing the taking of migratory fish and migratory shellfish in the designated areas to possess, sell, offer to sell, barter, offer to barter, give or transport in the state, including the waters of the state, migratory fish or migratory shellfish. Bundrant moved to dismiss for lack of jurisdiction, asserting the invalidity of the Board's regulations. The motion was denied on March 27, 1974, but on September 10, after the federal court in Hjelle had enjoined enforcement of 5 AAC 36.040, the trial judge reconsidered and granted the motion to dismiss. Bundrant is a legal resident of Washington state and is not a resident of Alaska. He held commercial fishing licenses in Alaska in 1965-70 and in 1973. His vessel, the F. V. Billikin, was registered in Alaska along with its gear. During the 1973 season he had fished within the three-mile limit (although during the period of the violations, October 6-20, 1973, he fished only-outside the three-mile zone). He had anchored and processed crabs within the zone every night during this period. He maintained in Dutch Harbor, Alaska, a warehouse for use in processing his catch. He received fuel, food, water, repairs, and emergency aid from Alaskans, and used fisheries data from the Alaska Department of Fish and Game. B. In No. 2435, the defendants Uri, et ah, were charged with numerous counts of possession of king crab on several dates between June 30, 1974, and July 24, 1974, within a closed area; with possession of crab pots in a closed area; and with having taken crab in a closed area. These activities all took place from 16 to 60 miles from the Alaska coast. (Actually only one defendant, Perovich, is charged with fishing before July 1, the original opening date for the area.) The statutory references in the complaints are to AS 16.05.920 (unlawful possession), AS 16.10.200 (unlawful taking), 5 AAC 34.900, 5 AAC 34.910, 5 AAC 34.098, and 5 AAC 34.090(c). With the exception of Emil Vinberg, all of the defendants in this group are residents of states other than Alaska. The conduct cited here as criminal all took place outside the three-mile limit (in distinction to Bundrant, who is charged with possession within territorial waters of shellfish illegally taken outside of it). The state offered proof that after setting their pots outside the three-mile limit, the defendants returned to territorial waters. Although the Uri record has no stipulations like those in Btmdrant regarding ongoing contacts with Alaska while operating in the Bering Sea, there was testimony in Uri to the effect that American crabbers in the Bering Sea always use processing facilities in Alaskan ports because the fragility of king crab rules out travel to more distant ports. The Uri defendants moved to dismiss on a number of grounds, including lack of jurisdiction, the unconstitutional vagueness of the regulations, and the illegality of the search of defendants' crab pots. The motion was granted by the trial judge, who adopted the defendants' argument that these regulations had intruded upon and were in conflict with an area of exclusive federal jurisdiction established by the Outer Continental Shelf Lands Act and were consequently prohibited by Article VI of the Constitution of the United States. C. In No. 2444, defendant Kaldestad was charged with four counts, the first three of which are identical to the charges against the Uri defendants. The fourth count, however, charged possession within the three-mile limit of shellfish taken illegally outside of it (this being basically the same charge as that made against Bun-drant, the distinction being that Bundrant was charged under the old regulations while Kaldestad was charged under the emergency regulations). The statutory references in the fourth count of the complaint are to AS 16.10.-200, 5 AAC 34.910, 5 AAC 34.098, and 5 AAC 34.090(c). Kaldestad's case was handled below together with the Uri cases, and trial court's dismissal applied to it as well. In his memorandum, the judge noted that "these cases do not involve the state's jurisdiction to enact and enforce so-called 'landing laws.' The charges in these cases specifically relate to conduct wholly occurring outside of Alaska's territorial waters." Somehow, the fourth count against Kaldes-tad escaped the judge's attention. In summary, the Uri defendants are charged with wholly extra-territorial activity prohibited by the emergency regula tions. Bundrant is charged with possession in the state's waters of shellfish taken outside it in contravention of the old regulations. Kaldestad is charged with both prohibited extra-territorial activity and with possession in the state's waters of shellfish taken outside of it in contravention of the emergency regulations. Of all the defendants, only Emil Vin-berg, of the Uri group, appears on the record to be an Alaskan citizen. GENERAL LEGAL SETTING It has long been held that for most purposes, the nation's territorial limits are set at a point three miles distant from the low water line on the coast. Although the United States and international law have historically recognized some limited exercise of sovereign authority beyond this point (e. g., for control of smuggling), the three-mile territorial boundary has enjoyed continued and general favor for a great many years. For the United States, the first significant departure from this policy came in 1945, when President Truman issued a proclamation stating that the United States regards the natural resources of the subsoil and seabed of the continental shelf beneath the high seas but contiguous to the coasts of the United States as appertaining to the United States, subject to its jurisdiction and control. This proclamation explicitly referred only to the mineral resources of the continental shelf. At the same time, the President issued a separate proclamation expressing this nation's concern with inadequate management of the fisheries resources near our coasts, and announcing that the Government of the United States regards it as proper to establish conservation zones in those areas of the high seas contiguous to the coasts of the United States wherein fishing activities have been or in the future may be developed and maintained on a substantial scale. This proclamation merely announced this principle, however, and did not establish any such fisheries conservation zones. It was not until 1966 that any step of this sort was taken. In that year Congress passed the Contiguous Fisheries Zone Act, 16 U.S.C. § 1091-94, which established a 12-mile zone within which the United States exercises "the same exclusive rights in respect to fisheries in the zone as it has in its territorial sea . . . ." Except as modified by treaty, the Urtited States' jurisdiction over fisheries remains at this point today, despite increasing calls for establishment of a 200-mile fisheries zone. Meanwhile, before 1947, there had been a general assumption that the seaward boundaries of the coastal states extended to the outer edges of the three-mile limit. In 1947, the United States Supreme Court, in United States v. California (First California), reversed this assumption by ruling that the states' authority ends at the low-water mark, and that from that point to the three-mile limit the "territorial sea" was an area of exclusive federal jurisdiction. (The dispute in that case centered upon the issue of the proprietary exploitation of undersea oil reserves, but the court's opinion was essentially premised upon a recognition of th^need for a unified national authority in an area so inextricably subject to defense and international relations considerations} it was concluded that the United States' paramount responsibilities thereto gave rise to its paramount authority in the area.) The result of the First California case was reversed by Congress in 1953 when it passed the Submerged Lands Act (SLA), 43 U.S.C. § 1301-15. This act confirmed proprietary title in each state to the lands and resources, including fish, beneath and within the navigable waters of the state, and placed the outer boundaries of the coastal states at the seaward edge of the three-mile limit. In the same session,.Congress also passed the Outer Continental Shelf Lands Act (OCSLA), 43 U.S.C. § 1331-43, which began as an amendment to the Submerged Lands Act but was ultimately separated from it before its passage as a separate act. For purposes of this appeal, the heart of the OCSLA is § 1332, which reads: (a) It is declared to be the policy of the United States that the subsoil and seabed of the outer Continental Shelf appertain to the United States and are subject to its jurisdiction, control, and power of disposition as provided in this subchap-ter. (b) This subchapter shall be construed in such manner that the character as high seas of the waters above the outer Continental Shelf and the right to navigation and fishing therein shall not be affected. Just exactly what the phrase "subsoil and seabed" includes is a major question in this case. The Submerged Lands Act uses the phrase "lands beneath navigable waters . . . and the natural resources within such lands and waters" (43 U.S.C. § 1311(a) ), and the term "natural resources" is defined to include fish and crabs (43 U. S.C. § 1301(e)). The Outer Continental Shelf Lands Act, however, does not refer to organic resources, nor does it define' clearly its scope with respect to such resources. Also of relevance in this case are the numerous treaties regarding North Pacific fisheries. We take note of the fact that there are now eleven such treaties, affecting species which account for 96 per cent of the value of the manufactured products of Alaska's commercial fisheries. The two treaties which are most relevant here are the United States — U.S.S.R. King Crab Agreement and the United States Japan Coniguous Fishery Zone Agreement. Both of these regulate crabbing by Japan and the Soviet Union in that portion of the Bering Sea east of the United States — Russia Convention Line of 1867. Although the Russians are not now exercising their rights to a limited crab season under the agreement, the Japanese apparently do. Although a number of bills have been introduced in Congress to create a comprehensive fisheries management scheme for the Outer Continental Shelf, none has passed to date. FEDERAL EXCLUSIVITY AND FEDERAL PRE-EMPTION The appellees' first legal contention, broadly stated, is that fishery regulation in the sea beyond the three-mile limit is constitutionally an area of exclusive federal authority, thus Alaska is barred from legislating therein. This contention subsumes two quite distinct constitutional theories: federal exclusivity and federal preemption. According to former doctrine, certain provisions of the federal constitution which delegate powers to the central government implicitly restrict the police powers of the states and thereby carve out areas which can be regulated, if at all, only by the federal government. The concept is one of exclusive federal domains. The doctrine of federal pre-emption also deals with the allocation of state and federal responsibilities, but it speaks to those situations where there is recognized concurrent state and federal authority. It holds that when Congress has exercised its regulatory authority over a particular subject in manner to indicate an intention to deal fully and exclusively therewith, all state regulation in that particular field must yield. The basic premise is the supremacy of federal law. A. Federal Exclusivity Appellees' contention that fishery regulation beyond traditional territorial waters is an exclusive federal domain derives principally from the federal government's authority to regulate interstate and foreign commerce and to manage foreign relations. It is quite well established that the commerce clause of the federal constitution serves two distinct functions : to confer on the national government authority concurrent with the states over matters of interstate and foreign commerce, and, even in the absence of federal legislation, to prohibit state regulation in certain areas of commerce that are "national" in nature. The prohibitory force of the commerce clause was established in the great "Cooley compromise" and has been reaffirmed countless times since that historic decision. Of course, it is today evident that not all that Congress can reach under the sweeping authority of the commerce clause is forbidden to the states. In delineating the smaller arena of exclusive federal concern, the Supreme Court has built upon the touchstone suggested in Cooley : Whatever subjects of this power are in their nature national, or admit only of one uniform system, or plan of regulations, may justly be said to be of such a nature as to require exclusive legislation by Congress. The difficulty with the criterion has been in its application, for few aspects of commerce are inherently either wholly "national" or wholly "local" in character. Although it has used a variety of catchphrases and labels, the Supreme Court in modern times has recognized that the issue is essentially a reconciliation of conflicting claims of state and national power, which can be attained only by an appraisal of the competing state and national interests at stake. f' Absent congressional action, the familiar test is that of uniformity versus locality : if a case falls within an area in / commerce thought to demand a uniform / national rule, State action is struck _^down. If the activity is one of predominantly local interest, State action is sustained. More accurately, the question is whether the State interest is outweighed by a national interest in the unhampered operation of interstate commerce. The national interest has consistently been held to predominate in two instances: when a state regulates in an area where nationally uniform regulations are truly necessary, and when state regulations discriminate against out-of-state goods or manufacturers, threatening to provoke retaliatory restrictions inimical to national commerce. Under these circumstances, the commerce clause invalidates the purported state legislation. The Supreme Court has expressly declined to distinguish between state regulations of interstate commerce and regulation dealing with foreign commerce. In either case the prohibitory reach of the commerce clause is determined by the same analysis of competing state and federal claims. Applying these principles, this court must decide whether the commerce clause renders the states powerless to regulate fisheries in waters beyond-the three-mile limit. The potential national interest at stake appears multi-faceted. As to the need for national uniformity of regulation, it would appear doubtful that crabbing in the Bering Sea is of such a nature as to jjequire such uniformity. In its brief as Amicus Curiae in this case, the United States government makes no claim for the exigency of federal regulation. Indeed, other federal documents indicate that local regulation might in fact be more efficacious. Specifically, a 1974 report commissioned and distributed by the Department of Commerce evaluates the prospect of federal regulation of fishing beyond state territorial waters. It concludes: A basic assumption about fisheries regulation is that the substantial differences in both the kinds of fish caught and the fishing effort itself among the several states render a uniform approach to fisheries regulation throughout the United States inadvisable and self-defeating. . [A] single regulatory body with jurisdiction over the [territorial and extraterritorial seas] would provide the most efficient and effective regulation and management of the fisheries resources of the area. It is submitted that either the states or regional commissions, with their substantial experience in regulating coastal fishing in virtually all its aspects and with their superior knowledge of the problems peculiar to fisheries resources off their own coasts should be that single regulatory body. The continued abstention from federal regulation of fishing in territorial waters, despite constitutional power to do so, confirms the wisdom of the traditional approach of local, non-uniform management of fisheries resources. The Supreme Court has held that a problem may be national in scope if an attempted local solution will invite retalia tion by sister states. Moreover, a problem may be national if it directly and significantly affects more than one state. While it is clear that Alaska is the state most directly affected by the conduct of Bering Sea fishermen, there are large numbers of Washington crab fishermen and processors, for example — like most of the appellees here — who depend on the resources of this area. It may consequently be recognized that at least some other states have an interest in that fishery. However, the mere fact that crabbing in the Bering Sea represents commerce among and between several states does not preclude Alaska from acting. It is clear that " . . . there is a residuum of power in the state to make laws governing matters of local concern which nevertheless in some measure affect interstate commerce or even, to some extent, regulate it. . . . " Moreover, there is absolutely nothing to suggest that these regulations are either by their terms or in their enforcement discriminatory against non-Alaskans. Assuming for the moment that the state does have jurisdiction over the entire crabbing field, there is no reason to think that exercise of this jurisdiction in a patently neutral fashion will provoke retaliatory restrictions by Alaska's sister states. Appellees also contend that the national interest in unfettered international commerce may be jeopardized by Alaska's regulations. On their face, these regulations apply to all fishermen, not just Americans. Thus, there is a potential for conflict with United States agreements with foreign nations concerning fishing practices on the high seas, for example the Soviet Bilateral agreements with the United States. The federal government is also currently concerned with the unilateral extension to 200 miles of maritime boundaries by nations such as Peru, thus restricting access by United States fishermen to traditional anchovy and tuna grounds. Enforcement of the Alaskan regulations against foreign nationals could be taken as just such a unilateral step by the United States, inviting reciprocal moves by other nations. The state's response is that these regulations, being aimed at United States fishermen, will not be enforced against foreign nationals. See Hjelle v. Brooks. Indeed, to the extent these regulations are inconsistent with fishing rights granted to foreign nations pursuant to the treaty power, the Supremacy Clause dictates that they must yield. The state does not dispute this, but urges that no conflict is apparent or even probable in view of the fact that these regulations were promulgated at the urging of federal agencies to implement their treaties. The possible ramifications of these regulations on international commerce appear ^extremely speculative at this point. We feel that, absent some further showing of impact, this aspect of the national interest should be given minimal weight. The threat of conflict with international agreements or foreign rights is " . . . so remote that it is hardly more than conceivable." Bob-Lo Excursion Co. v. Michigan. The court turns next to a consideration of the state interest in regulating the harvesting of crab in the Bering Sea. Fishing now constitutes the largest single industry in Alaska and crabbing is a substantial portion of that activity. Most of the services which support the crabbing fleet are provided in Alaskan harbors, and much of the processing and canning of the harvested resource is done in factories throughout the state/ Exhaustion of this marine resource would have a devastating impact on employment in this state which still has a relatively narrow industrial base. Particularly crippled would be those villages along our shores whose sole livelihood comes from the sea. Moreover, Alaskan king crab is an important food source for the people of this state. The commerce clause has consistently been interpreted to permit state regulations which safeguard local food sources, for example, quarantine laws. In sustaining a California regulation governing the harvesting of avocados, the Supreme Court said: Specifically, the supervision of the readying of foodstuffs for market has always been deemed a matter of peculiarly local concern. This court concludes that these regulations deal with a problem particularly local in import and in a way fully compatible with the commerce clause. We derive support for this conclusion from the Supreme Court decision in Alaska v. Arctic Maid, in which the court considered the constitutionality of an Alaskan occupation tax on freezer ships stationed beyond territorial waters but receiving catches taken within the three-mile limit. The issue there was whether the state was attempting to tax an integral link of interstate commerce, in violation of the implicit restrictions of the commerce clause. In holding that the territorial tax did not contravene the constitution, Justice Douglas spoke with language of continuing force: The process of gathering fish either through the catcher boats that are part of respondents' fleet or through independent operators is a "local activity" . . in a vivid sense of the term. Here . . . the market for the product obtained locally is interstate, the taking being a step in a process leading to an interstate market. . . . [T]he local product is promptly loaded for interstate shipment. But . . . there is a preliminary local business being conducted . . . an occupation made up of a series of local activities which the State can constitutionally reach. We conclude that the commerce clause does not render regulation of fishery ies in the Bering Sea the exclusive domain of the federal government. We turn next to the contention that the challenged fishery regulations represent state intrusion into the field of foreign affairs, an exclusive federal domain. The Constitution does not in so many words entrust to the national government the power to conduct external relations. Instead, it parcels out certain aspects of the foreign affairs power among the political departments and imposed certain prohibitions on the states. From these constitutional references and from the fundamental premises of our system of federalism flows one of our most basic principles of government: Governmental power over external affairs is not distributed, but is vested exclusively in the national government. A concomitant principle is that a state cannot enact legislation which constitutes " . . .an intrusion by the State into the field of foreign affairs which the Constitution entrusts to the President and the Congress," and the Supreme Court has invalidated an Oregon statute on that ground. However, the states in the management of their affairs must necessarily impinge on foreign relations in a myriad of ways; the. precise delineation of this arena of exclusive federal domain remains largely unexplored. In Zschernig v. Miller, the Supreme Court gave great weight to the fact that the challenged statute had more than " . . . some incidental or indirect effect in foreign countries. . . .," it had " . . . great potential for disruption or embarrassment" of our foreign policies. This suggests to us that an analysis not unlike that under the commerce clause is appropriate. Certain state infringements on foreign affairs are forbidden because national uniformity is required or because they discriminate against or unduly burden our foreign relations. /Generally, the inquiry will balance the state's interest in the regulation against its impact on United States foreign relation's. / Under this analysis^the crabbing regulations at issue cannot be said to intrude upon the nation's foreign relations?) Alaska does not seek to discriminate against foreign fishing fleets; indeed, if anything, it favors foreign nationals by refraining from enforcing the regulations against such parties. The potential conflict is at best only speculative and indirect at the present time. Our analysis of the state's jurisdiction, infra, suggests that the state may never possess authority over foreign fleets in the crabbing area, hence the threat of international imbroglio appears quite attenuated. For' these reasons this court concludes that the crabbing regulations are not violative of the national government's exclusive prerogatives in the field of foreign affairs. Finally, in considering the issue of federal exclusivity, this court must consider the "submerged land cases," relied on by appellees Uri, et al., and Kaldestad. The Supreme Court in United States v. Calif or- nia (First California) held that the submerged lands within the three-mile belt were an area of paramount federal authority. The decision was in large part based upon the rationale that concerns of national defense, foreign affairs, and international commerce required that result. The court observed that . . . insofar as the nation asserts its rights under international law, whatever of value may be discovered in the seas next to its shores and within its protective belt, will most naturally be appropriated for its use. But whatever any nation does in the open sea, which detracts from its common usefulness to nations, or which another nation may charge detracts from it, is a question for consideration among nations as such, and not their separate governmental units. In 1950, in response to a claim by Louisiana of territorial jurisdiction as far as 27 miles from shore, the Court in United States v. Louisiana held that First California controlled and noted that . . . If, as we held in California's case, the three-mile belt is in the domain of the nation rather than that of the separate States, it follows a fortiori that the ocean beyond that limit also is. The ocean seaward of the marginal belt is perhaps even more directly related to the national defense, the conduct of foreign affairs, and world commerce than is the marginal sea. Certainly it is not less so. As mentioned, the result in First California was negatived by the Submerged Lands Act, but that act did not purport to effect rights beyond the three-mile limit of the territorial sea. Consequently, the rationale of the First California and Louisiana cases is still valid as applied to areas seaward of the territorial belt. And while those decisions never explicitly refer to the living resources of the oceans (the motivation behind both cases lay in control of exploitation of mineral resources, particularly oil), appellees argue that the logic applies with equal force to the use of the surface and waters for fishing purposes as to use of the seabed and subsoil for mineral exploitation: in both instances, regulation by individual states could conflict with federal activities in the areas of national defense, foreign affairs, and international commerce. The First California and Louisiana decisions therefore stand among other things for the principle that the federal government has paramount authority over the seas and submerged lands on both sides of the traditional three-mile limit; with this the state does not contest. However, these decisions do not establish that the federal government has exclusive authority-in these seas. This much is made clear by Toomer v. Witsell, wherein the court said that state regulation of fishing within territorial waters in the absence of conflicting federal legislation was valid so long as it comported with the applicable constitutional provisions. In Skiriotes v. Florida; certain Florida regulations governing the taking of sponges beyond territorial waters were also upheld. Thus, it is clear that in the absence of an exercise of the federal government's paramount powers over fishing, the states enjoy some regulatory prerogatives. It is the question whether the federal government has in fact exercised those powers to which we next turn. B. Federal Pre-emption Generally state laws must yield when they are in conflict with federal law or when Congress has indicated an intent to occupy a particular field exclusively. In the case of crabbing in the Bering Sea, we are persuaded that there is no direct conflict (other than the potential problems noted supra) with federal regulation, because there is simply no material federal regulation of this activity; there is no evidence of federal regulatory efforts indicative of federal intent to pre-empt. We must consequently look to whether there is elsewhere any indication of congressional intent that only the federal government should regulate this activity. The fact that federal law occupies only a part of a field ordinarily leaves the states free to cover the other aspects of it. A partial occupation of the field by the federal government should not give rise to an inference of congressional intent to pre-empt; such an inference from a partial occupation is permissible only if the federal law is in actual conflict with the law of the state. Absent actual direct conflict, there must be clear evidence of congressional intent to pre-empt the field. In this case appellees primarily base their argument of federal pre-emption of crabbing regulation beyond the three-mile limit on the terms of the Outer Continental Shelf Lands Act, as elucidated by its legislative, history and by several other federal acts and international agreements. OC-SLA extended federal jurisdiction over the "subsoil and seabed" of the continental shelf beyond the three-mile territorial zone. In its relevant provision the Act provides : It is declared to be the policy of the United States that the subsoil and seabed of the outer Continental Shelf appertain to the United States and are subject to its jurisdiction, control, and power of disposition as provided in this subchap-ter. (Emphasis added) In 43 U.S.C. § 1333(e)(2), the Act also provides for the adoption of state law as "surrogate federal law" to govern the Outer Continental Shelf when not in conflict with other federal measures. However, an important qualification was appended to this provision-: The provisions of this section for adoption of State law as the law of the United States shall never be interpreted as a basis for claiming any interest in or jurisdiction on behalf of any State for any purpose over the seabed and subsoil of the outer Continental Shelf, or the property and natural resources thereof or the revenues therefrom. (Emphasis added) Appellee contends that in the OCSLA Congress intended to establish federal preemption of all the natural resources of the outer shelf, including crab. As noted earlier, while the Submerged Lands Act refers to and provides a definition of the "natural resources" which explicitly includes crabs, the OCSLA lacks any similar definitional identification of the natural resources of the subsoil and seabed. It is urged that we refer to the definition in the Submerged Lands Act as evidence that Congress intended to include crabs within the terms of the OCSLA. It is unquestioned that, although they were closely related in time and origin, the SLA and the OCSLA constitute separate acts of Congress. Thus, one cannot argue that the SLA definition of "natural resources" is directly applicable to the terms of the OCSLA. However, the general rule is that a statute in pari mater-ia with a subsequent, but approximately contemporaneous, measure is a proper source of evidence of legislative intent in that second measure. In the words of one authority, . . . [I] f it is natural and reasonable to think that members of the legislature . . . would think about another statute and have their impressions derived from it influence their understanding of the act whose effect is in question, then a court called upon to construe the act in question should also allow its understanding of it to be influenced by impressions derived from the statute. We are not convinced that the SLA would never be of assistance in construing the provisions of the OCSLA. In this case, however, the SLA definition of natural resource is of no help. We may assume, as the appellees claim, that crab and other fish are part of the natural resources which lie beyond the state's territorial waters. The OCSLA does not by its terms preclude the state from asserting jurisdiction over all the natural resources which are beyond its boundaries. Rather, the act merely provides that no state shall have jurisdiction over the "subsoil" and "seabed" of the outer continental shelf, and the "natural resources thereof." 43 U.S.C. § 1333(a)(3). (Emphasis added) The "thereof" reference limits the act's scope to the natural resources which are part and parcel of the outer shelf. Thus, the issue properly before us is whether crabs are a resource of the subsoil and seabed, as opposed to a resource of the superadjacent waters. Appellees contend that federal legislation and international agreements subsequent to passage of the OCSLA evidence Congress' intent that sedentary species of marine life, such as crabs, were among the resources of the seabed over which it was assuming exclusive jurisdiction. The 1958 Convention on the Continental Shelf, of which the United States is a signatory, considers "sedentary species" to be resources of the continental shelf, thus giving to the coastal nation "sovereign rights" for the exploitation of that natural resource. That crabs were intended to be in this category is confirmed by the 1973 Agreement between the United States and the USSR on king and tanner crabs, which explicitly lists crabs as "natural resources of the continental shelf" for purposes of the 1958 Convention's placement of sovereign rights in the coastal nation. As evidence of Congressional intent, however, these documents are of little persuative force. The Convention was drafted by parties other than Congress and only establishes a claim of United States jurisdiction over sedentary species; it says nothing with respect to whether in our internal structure of government that jurisdiction is exercised at the federal or the state level. The 1973 Agreement was an executive agreement not reviewed by Congress. Appellees also point to the Bartlett Act, passed eleven years after the OC-SLA. This legislation was the means by which the United States brought into force against foreign nationals the rights it obtained pursuant to the 1958 Convention, particularly the right to control or prohibit the taking of fishery resources of the continental shelf. In 16 U.S.C. § 1081 (1970), Congress has forbidden foreign nationals from taking crabs and other sedentary shelf resources except pursuant to international agreement. This foreign policy measure is hardly indicative that a decade earlier Congress had intended to realign domestic responsibilities so to pre-empt further state regulation of sedentary marine life. Our review of appellees' arguments does not persuade us that the OC-SLA was intended as an exercise of federal pre-emption over both seabed mineral resources and sedentary marine species. Rather, this court is of the view that the actual distinction intended was between the inorganic resources of the subsoil and seabed (principally oil), which were thenceforth to be the exclusive domain of the federal government, and organic marine life resources, which were not affected by the act. We draw support for this conclusion from a variety of sources. First, though not totally unambiguous, the legislative history of OCSLA evidences Congress' true concern: The purposes of S. 1901, as amended, is to assert the exclusive jurisdiction and control of the Federal Government of the United States over the seabed and subsoil of the outer Continental Shelf, and to provide for the development of its vast mineral resources.' [Emphasis added] Second, the Act expressly disclaims any effect on fishing and navigation rights. This subchapter shall be construed in such manner that the character as high seas of the waters above the outer Continental Shelf and the right to navigation and fishing therein shall not be affected. [Emphasis added] The origins of this disclaimer reveal exactly what it was intended to encompass. Senator Cordon, the floor manager of the OCSLA, remarked with reference to this provision ". . . that we are excepting from the operation of this act all marine life above the land itself beneath the seas." [Emphasis added] "Fishing" in this context has traditionally been understood to include the taking of both free swimming and sedentary forms of marine life. Third, we must recall that this legislation was passed only a decade after the Supreme Court decision on Skiriotes v. Florida, If appellees are correct in asserting that the act precludes a state from regulating extra-territorial fishing for sedentary marine life, the act would then preclude a state from regulating fishing by its own citizens on the high seas. In that event, the act would have to be considered to have overruled the Skiriotes decision. However, nothing whatever in the act or its legislative history suggests such a Congressional design, and we are unwilling to infer that Congress would have acted to that end without making its intention known. A far more plausible interpretation is that Congress did not believe that the OCSLA in any manner affected the state's rights to regulate the taking of sponges, crabs, and other forms of sedentary and nonsedentary marine life. Fourth, the few authorities which have considered the reach of OCSLA in extraterritorial waters seem to confirm that the distinction between mineral and marine resources is central to the statutory scheme. In Guess v. Read,' for example, the court dealt with the question of whether a Louisiana statute could be applied in an action resulting from a death after a helicopter crashed in the sea beyond that state's territorial limits. The court said the OCSLA did not apply because [t]he Continental Shelf Act was enacted for the purpose, primarily, of asserting ownership of and jurisdiction over the minerals in and under the Continental Shelf. Jurisdiction was asserted over "the subsoil and seabed" of the outer Continental Shelf. 43 U.S.C.A. § 1332(a). It is only for "that portion of the subsoil and seabed of the outer Continental Shelf, and artificial islands and fixed structures erected thereon" that the State law applies. 43 U.S.C.A. § 1333(a)(2). This does not include the sea above the subsoil and seabed and does not include the air above the sea. Somewhat more troublesome is United States v. Ray, a case in which two private developers planned to build on coral reefs four and one-half miles off the coast of Florida and maintain their projects as separate nations. The United States sued for an injunction, claiming control over the reefs, and the Court of Appeals for the Fifth Circuit agreed. It affirmed the lower court's finding that the skeletal coral remains constituted part of the "seabed," as that term is used in the OCSLA. However, the court also relied on terms in the Geneva Convention on the Continental Shelf and the Submerged Lands Act to support its claims. As we have explained, those provisions are not germane to the question on whether Congress has exercised its constitutional power to exclude the states from management of sedentary marine life beyond the three-mile limit. While we are in agreement with the result in Ray, we do not subscribe to the method of legislative analysis employed therein. There is a final indication that Congress did not by the OCSLA intend to pre-empt ocean fisheries regulations by the states. Currently pending in Congress are bills to enact the "High Seas Fisheries Conservation Act of 1973." These measures explicitly authorize agencies of the federal government to regulate activities of American citizens in ocean fisheries. Proponents are of the view that this is the first occasion on which it has attempted to exercise federal control over the taking of fishery resources. This strongly suggests to us that OCSLA did not have the preemptive intent which is ascribed to it by appellees. In any event, we are ultimately persuaded that under the circumstances the absence of any clear indication the federal exclusivity or pre-emption in this area is significant. The issue as raised in this appeal is unquestionably of crucial import, for other states as well as our own, and in view of the closeness of the question — of the considerable, merit we find in the arguments presented on both sides — this is a case uniquely appropriate for honoring the presumption of constitutionality and validity which adheres to the acts of our legislature. This court acknowledges its duty not to declare statutes unconstitutional unless such repugnancy clearly appears. We moreover acknowledge that our decision today may provide the most effective vehi'cle for assuring that this matter will at last receive the prompt and definitive attention by the final arbiters of such questions — the Congress -or the Supreme Court of the United States. STATE FISHERIES JURISDICTION Having concluded that the doctrines of federal exclusivity and pre-emption are not applicable, and that these regulations are not invalid under Supremacy clause of the Constitution of the United States, we turn now to the question of the extent to which Alaska may extend the reach of its laws and police power beyond the confines of its territorial borders. The appellees and the United States (appearing as amicus curiae) argue that a state has no legal authority to extend its control over fisheries over any area outside the three-mile limit. They take the position that the cases of Manchester v. Massachusetts and Toomer v. Witsell relied upon by appellants must be read restrictively to provide that a state may exercise power to regulate fisheries only to the limits of its territorial sovereignty. The appellant and the State of California, as amicus, urge strongly on the other hand that such cases must be construed liberally in order to permit effective fishery management. They propose a theory that the state's "imperium," or "political" jurisdiction, can extend to activities beyond the boundaries of its territory, or "dominium," when there is sufficient nexus between the activities and legitimate state interests— particularly in the area of the management of migratory fish and game. They argue that not only must the State be able to regulate fishing of all within the three-mile limit, it must be permitted to regulate the fishing of all outside the three-mile limit in those zones where there is a definite impact or an integral relationship between control of the fishery resource outside the three-mile limit and inside the three-mile limit. They argue that fishing management is meaningless if fishermen may wait until the particular fishery resource migrates outside the three-miles limit and then may fish without restraint. While the position of appellant is appealing from a standpoint of effective resource management, the question becomes whether this factor has been recognized by the United States Supreme Court as permitting the extension of state political control. Each party cites the same cases and draws differing conclusions from the language thereof. We find, however, the language of several to be particularly helpful. Skiriotes v. Florida is the touchstone for much of the dispute in this area. In Skiriotes, a sponge fisherman, a citizen of Florida, was charged with taking sponges with diving equipment, as prohibited by state law. There was controversy over whether the incident occurred within or without Florida's territorial waters, however; but the United States Supreme Court said that that question was of no concern, because the state had power to proscribe defendant's activity inside or outside the territorial waters. Specifically, it found that Florida had a legitimate interest in this exercise of the police power, at least as far as it was applied to the territorial waters in the absence of conflicting federal legislation. Then, reasoning by analogy to the principle that a nation may control the activities of its own citizens on the high seas, the court said: If the United States may control the conduct of its citizens upon the high seas, we see no reason why the State of Florida may not likewise govern the conduct of its citizens upon the high seas with respect to matters in which the State has a legitimate interest and where there is no conflict with acts of Congress. (313 U.S. at 77, 61 S.Ct. at 929). A recent development in the Skiriotes line of cases came after Florida passed a statute permitting regulation of fishing activities both within and without the state boundaries. In Felton v. Hodges, Florida conservation officials arrested the appellant for operating crawfish traps outside the state's territorial limits during the closed season for crawfishing in that state. Felton brought a federal civil rights action, claiming the state had no authority to regulate crawfishing beyond its territorial waters and so was denying him due process. The appeals court affirmed a dismissal of his federal court action on the basis of Skiriotes. It said: Following the approach dictated by Skiriotes. we must inquire whether Florida has a legitimate interest in controlling the activities which it sought to regulate here. It appears . . . that appellant's crawfish traps were located in a group of reefs adjacent to the Florida Keys, and that the crawfish in this area move freely in and out of Florida's territorial waters, so that any taking of them would clearly have an effect upon the State's conservation efforts. Under these circumstances, we think it apparent that the State has an interest sufficient to enable it to subject appellant, one of its own citizens, to the conservation regulations which it sought to enforce here. The Court also found valid the arrest of Felton beyond the three-mile limit, concluding that this' was solely a matter between the state and one of its own citizens: "The arrests to which appellant alleges he was subjected were an integral part of the efforts of the State of Florida to regulate the conduct of one of its own citizens in a manner in which the State clearly had a legitimate interest." The fact that some arrests may have occurred just beyond the three-mile limit did not transmute these enforcement efforts into constitutional violations. In People v. Foretich the court dealt with a charge of taking fish with illegal gear. Defendants, who were California citizens, claimed to be outside the territorial waters; the State of California said they were within state waters. The court made a ruling on the boundary dispute such that defendants were within the line, but also noted that the statute clearly intended the law to operate in the area of dispute, and held that by Skiriotes it was fully capable of prosecuting its own citizens beyond the territorial limits. There was held to be no conflict with 16 U.S.C. § 1094, because that section was part of the 12-mile Contiguous Fisheries Zone Act, 16 U.S.C. § 1091-94, which was not itself a regulation of the fisheries in that zone. Another case discussing this issue is Gherra v. California Fish and Game Dep't. Certain shrimp fishermen, citizens of California, fished in California shrimp beds until the regular yearly closure, then fished in a shrimp bed beyond the three-mile limit, partly beyond the 12-mile contiguous fisheries zone. During this latter period they operated with Oregon fishing permits, and without reentering California waters. California's closing laws specifically apply to this bed beyond the three-mile limit, and some fishermen were prosecuted for violating the closure (it was enforced only against California citizens). The three-judge fedéral court upheld the statute under Skiriotes. It stated: California does have a legitimate interest in regulating the taking of shrimp from the ocean off its coast. The shrimp bed in question was discovered and developed by California officials. It is- adjacent to California territorial waters and, shrimp being migrating fish, some of them undoubtedly enter California during their migration. The ability of California to control the shrimp within its territorial waters is dependent, to some extent, upon its ability to limit the extraction of shrimp from the bed beyond. The court also found no federal preemption, since no federal law actually conflicted with the state regulations. The law applies only to Californians, the court noted, and this was the basis of the state's jurisdiction, not the situs of the regulated activities. We must confess at this point that the various interpretations of the case law in this area as urged by able counsel are clearly within the language of the opinions, and we would have an extremely difficult time favoring one approach over the other were it not for a recent decision of the Supreme Court of the United States which appears generally to tip the balance in favor of the appellants herein. In United States v. Alaska; the United States Supreme Court noted a distinction between regulation for the purpose of fish and wildlife and the exercise of historic dominion for the purpose of establishing sovereignty by the United States or a state: Our conclusion that the fact of enforcement of game and fish regulations in Cook Inlet is inadequate, as a matter of law, to establish historic title to the inlet as inland waters is not based on mere technicality. The assertion of national jurisdiction over coastal waters for purposes of fisheries management frequently differs in geographic extent from the boundaries claimed as inland or even territorial waters. See, e. g., Presidential Proclamation No. 2668, 59 Stat. 885 (1945). This limited circumscription or the traditional freedom of fishing on the high seas is based, in part, on a recognition of the special interest that a coastal state has in the preservation of the living resotirces in the high seas adjacent to its territorial sea. Convention on Fishing and Conservation of the Living Resources of the High Seas, Art. 6, If 1, 17 U.S.T. 138, 141, TIAS 5969 (1966). [Emphasis added] This distinction constitutes a basic premise in this opinion and is important herein because it recognizes the simple but inescapable argument of appellant that in the absence of some effective regulatory power, the coastal state is totally unable to protect and preserve what are functionally its fisheries resources. In the instant case, the migratory habit of crab are demonstrated in the record. Most of the developmental stages in a crab's life occurs in territorial waters of the state and little fishing for crab is done in such waters because of the condition of the crab during this period. However, the crab then move into deeper waters for feeding, etc. and the fishing begins. In the absence of any control over these areas, the entire stock of the fishery can be depleted to the point where no crab fishery exists. The detriment to all persons is obvious. We will now turn to analysis of the particular aspects of the problem of extending the state's police power jurisdiction extra-territorially. The state has bolstered its argument by reference to cases from other states in which a "landing law" has been upheld as being within the constitutional power of a state to regulate activity outside the area of its sovereignty. It cites a number of cases which will be discussed in turn. In Silz v. Hesterberg, the Supreme Court upheld New York laws prohibiting the possession of game in New York during a closed season, including game brought in from outside the state. The Court stated that the laws were aimed not at affecting the legality of taking game outside the state, but rather at protecting game located in the state. It concluded on this basis that the laws did not violate the due process clause of the Fourteenth Amendment. The Court also concluded that the laws did not unlawfully regulate interstate commerce because the effect on commerce was only incidental and remote. In Bayside Fish Co. v. Gentry, the Court upheld certain California fish and game laws that regulated the processing of sardines in California, whether the sardines were taken within the waters of the state or outside them. The purpose of the regulation, the Court found, was to conserve for food the fish found in state waters. The provisions regulated only manufacture within the state, and their direct operation, intended and actual, was wholly local. The Court found any effect on in terstate and foreign commerce to be "purely incidental, indirect, and beyond the purposes of legislation." To the extent the laws dealt with the use or treatment of fish brought into the state from outside, the Court stated, their legal justification rested on the ground that they operated "as a shield against the covert depletion of the local supply, and thus tend[ed] to effectuate the policy of the law by rendering evasion of it less easy." Other courts have upheld similar laws on similar bases. In each, the courts found that it was a valid exercise of police power for states to attempt to conserve fish located in state waters. The courts found further that this power includes the right to prohibit possession of fish taken outside the state or, in the case of Santa Crus Oil, supra, to require a permit for any fishing boat operating in state waters, even if the boat caught all of its fish outside the state. Courts have found the effects of these laws on interstate commerce to be incidental and necessary to prevent possible deception by the fishermen: fishermen might otherwise subvert the conservation efforts of the states by fishing in state waters but claiming that they took their catch beyond those waters. The inability to distinguish fish taken within the state from those taken outside would render enforcement of the state laws difficult at best. Appellees counter by asserting, as was posited in Hjelle v. Brooks, that a state may regulate extra-territorial conduct only if the regulations facilitate conservation of a resource clearly within the state. They then take the position that since the majority of all fishing for king crab occurs outside the three-mile limit, and that crab only come inside the limit to mate or molt, there is simply no state fishery to be protected by the regulations. However, the key question is whether Alaska's interest qualifies as one recognized for a legitimate exercise of police power. The answer is clearly yes— there is an established fishery with clear economic impact in the Bering Sea fishery area. The migratory habits of the crab are predictable and fishing outside the three-mile limit depends on growth and development within the limit. If the fishery outside the three-mile limit destroys the resource outside, it will similarly destroy the resource inside the three-mile limit. If the State of Alaska cannot protect this resource under its police power, then such power is far more limited than any recorded case reveals. We do not find that the state's interest in regulation is as limited as the position asserted by appellees and adopted by the three-judge federal court in Hjelle. The Hjelle court based its decision on the conclusion that the purpose of the landing laws was to regulate the crabs beyond the limit, not within it. The court said: This line of cases leads us to conclude that Alaska's proffered nexus between its legitimate state interests and its regulation of certain extraterritorial conduct would pass constitutional muster if its regulations were directed at conserving the crab fishery within Alaska's waters by regulating crabbing in that area, and, in order to facilitate enforcement, by prohibiting the possession of crab in the state during the closed season, even if that crab were caught outside the state. Despite the state's claim that the regulations are on "all fours" with these "landing law" cases, we find, after considering the language of the regulations and the affidavits presented . . . "reasonably certain" to establish that the regulations do not fall within the purview of these cases. We conclude that an analysis of those cases cited demonstrates that in fact these decisions were justified primarily on conservation of the resource. The Silz decision, for example, may well have relied solely on the difficulty of enforcement, but that case is distinguishable on its facts, involving game which clearly did not migrate in and out of the state but with respect to which a difficulty of enforcement did exist due to the identity of the species. In all of the "landing law" cases cited by the Hjelle decision and this court, not one required that an enforcement problem be necessary. While in most of the cases an enforcement problem did exist, it is unquestionable that those courts were apprised of the simple conservation principle which exists in the case at bar. Like the fish in all of the cases in question, crab exist both within and without the territorial waters of the State. It is impossible to quantify the amount of crab within Alaska waters in the BSSA (due in part to the lack of precise boundaries in the Bering Sea), but it is clear from the facts that it is not "very small" as the Hjelle court preliminarily concluded; in fact it is rather significant at some times of the year, and fishable quantities exist during all times of the year. Of those cases cited in Hjelle, the Frach case, supra, is perhaps the most directly analogous. There, a Washington statute requiring a permit for bringing certain fish taken on the high seas into the state was upheld as constitutional. The court found no conflict with the interstate commerce clause, since any burden on interstate commerce was the indirect result of a measure needed to facilitate regulation of instate fishing, because of the impossibility of distinguishing among fish caught different places. That case involved salmon which, like crab, spend the substantial portion of their lives on the high seas and return to state waters for only short periods of time to spawn. In several respects, however, salmon as a migratory resource present a more extreme case than crab in that they spend the majority of their lives in high seas areas far beyond territorial waters, while Alaskan crab do not. Also, there are periods when salmon are totally absent from state waters, whereas crab exist year round in fishable quantities in the territorial waters of the Bering Sea. Since the regulation in question was enacted pursuant to the State's "police power," we also note an Alaska decision on this subject. In Kingery v. Chappie we noted that when a regulation is challenged as a violation of the police power of the state, the issue is whether the regulations bear a reasonable relationship to the purpose sought to be achieved. While this Court in Kingery held that under these circumstances the state is required to come forward with at least prima facie evidence that a reasonable relationship exists, the Hjelle court seemed to be requiring that the state prove conclusively that its system provide the most effective system with the least possible infringement on "extra-terrtiorial conduct." Nor did the Hjelle court give the state the benefit of all doubts in deciding the nature of the purpose behind the state's regulations. Rather, the court in Hjelle assumed that the state sought to directly regulate extra-territorial conduct because the quota was based on fishing in the entire area, because one regulation prohibits the possession in Alaska only of that crab and sea life "taken seaward" of Alaska territorial waters, and because the percentage of king crab taken commercially within Alaska waters is very small. These conclusions run contrary to all authority on the subject regarding the intent to be given state laws. The intent of the state's laws and regulations is clearly not to effect extraterritorial activity to any greater extent than is necessary to preserve the king crab fishery within state waters. If it is not clear from the legislative findings in AS 16.10.180, it is certainly clear from the facts developed in this case — crab are migratory creatures which move offshore, beyond the state's territorial boundary at various times during a given year. If the state is to conserve the crab existing within the state, it must regulate the taking of crab outside the state. If fishermen were allowed to fish the crab beyond the state's border unregulated, the maximum sustained yield of crab both inside and outside the state would decrease. Unlike the situation in Silz, where the extra-territorial taking would not in the least affect the in-state resources stocks, the interdependency of the in-state and extraterritorial resources is determinative. AS 16.10.180(4) (5) makes it clear that the purpose of the application of fisheries laws to the high seas is to conserve shellfish found "inside the waters of the state." The method of accomplishing this purpose is reasonably related to the purpose; it is, therefore, permissible. Kingery v. Chappie, supra. Nor can defendant 'argue that the effect on extra-territorial conduct somehow requires a higher standard of review. Such a requirement is nowhere to be found in any of the extra-territorial conduct cases. Hjelle, while seemingly applying a higher standard, failed to consider either Skiriotes or Toomer v. Witsell, supra. Those cases clearly found sufficient nexus on only minimal proof of "nexus" while extra-territorial regulation was clearly necessary to preserve a migratory resource. Finally, the Hjelle court in fact specifically recognized that other "nexus" might well sustain the regulations in question if developed by competent evidence. In the case in question, such competent evidence exists before this court in the stipulations of the parties, and we conclude that on balance a sufficiently close connection to legitimate state interests has been -'established to validate the state's limited efforts to regulate this resource. We are cognizant of the unfortunate situation created by a restrictive reading of the "landing law" cases. The state which is the fishery breeding ground has no ability to regulate unless it can demonstrate a local fishery resource. Consequently, in undeveloped areas of Alaska such as the northern portions of the Bering Sea and the Arctic Ocean there could simply be no regulation. The subsistence nature of the fishery and the lack of economic development by the aboriginal inhabitants prior to the Alaska Native Settlement Act of 1972 would be the fortuitous circumstance which prevented regulation. We' find such a view to be, in short, unrealistic and unacceptable. We therefore conclude that a state may reasonably extend its jurisdiction to control fish and game resources outside the limited area of its territorial sovereignity, if such an exercise is based on the conservation principles inherent in their migratory characteristics and not based on artificial boundaries or political circumstances. B. People to be Controlled. Almost indistinguishable from the question of the area of control is the extent of control over fishermen, both local and foreign; this is so mainly because the reasoning applied to one area is equally applicable to the other. Appellees urge a restrictive reading of Skiriotes to limit the extra-territorial control over fisheries solely to residents of the State of Alaska. The effect of such a result is obvious from both a conservation and a practical standpoint. If the state has no authority to regulate non-resident fishermen of a migratory fishery species it has no effective authority to regulate the fishery. As noted in the dissenting opinion in Hjelle v. Brooks: The Bering Sea king crab population data obtained by the National Marine Fisheries Service establishes that the present capacity of commercial fishermen to take king crab far exceeds the estimated maximum sustained yield of the Bering Sea Shellfish Area. Biologists generally agree that productivity of this fishery cannot be sustained absent a regulatory scheme such as that which plaintiffs presently attack. . . . Further, if a state is forced to distinguish between its own citizens and citizens of other states in giving extra-territorial effect to its laws, the state's own citizens can easily frustrate the legitimate objectives of these laws by simply tranferring their citizenship to another state. An Alaskan citizen, for example, could easily avoid the effect of Alaska's laws by transferring his citizenship to Washington. This reality is hardly the same as that apparent in international issues since it is considerably more difficult, and less advantageous, for a citizen of one nation to change his citizenship to another nation in order to avoid the effect of his nation's extra-territorial fishing laws. Hence, a narrow reading of the citizenship limitation suggested in Skiriotes could lead to the deliberate frustration of a state's extra-territorial fishing laws. The state suggests, instead, an important and acceptable widening of the usefulness of Skiriotes by its reading of the concept "citizen." If only Alaskan citizens may be restricted in their Bering Sea crabbing, the regulation will not be very efficacious in managing the stock. But the state's theory would broaden the Skiriotes concept of "citizen" to encompass all American nationals, and hence most if not all of the Bering Sea crabbers, because of their numerous nexi with Alaska. The state's theory is based mainly on one case, but it draws on certain general principles of domestic and international law as well. The one case is Jacobson v. Maryland Racing Commission. Jacobson, an owner and trainer of race horses, was licensed as such by the Maryland Racing Commission. A rule of the Commission prohibited resale of a horse claimed in a claiming race for 60 days after that race. Jacobson claimed three horses in a Maryland race and within 60 days sold them in New York. The Commission thereupon suspended his licenses, and Jacobson filed a petition asserting, among other things, that the Maryland rules could not be applied against his out-of-state activities. The court, after pointing out that only by means of a license from the Commission could one engage in racing in Maryland, held Jacobson bound by the Commission's rules. It invoked the very general proposition that acts done outside a jurisdiction which produce detrimental effects inside it justify a state in punishing he who caused the harm as if he had been present at .the place of its effect. It also cited Skiriotes and declared: We think that Jacobson had become a racing citizen of Maryland as far as the purposes and effects of the Rules are concerned and that this State acquired sufficient personal jurisdiction over him in matters of licensed racing to permit it to enjoin him by Rule 80 . . . and to punish him if he disobeyed that rule. As applied to the crab cases, the state points to the Alaska licenses and numerous nexi of the defendants with Alaska, and posits that the defendants have thereby-become "crab fishing citizens" of Alaska. Although we are not persuaded that the state's creation of the concept of a "crab fishing citizen" is particularly helpful — or even appropriate — we do find Jacobson to afford sufficient rational precedent to conclude that Alaska's regulations in this case do not amount to more than a proper and logical extention of the state's police power. Therefore, we find that all of the persons herein were properly charged. In order that there is no confusion with regard to our holding, we reiterate that the difference in status between each offender does not affect Alaska's jurisdiction over him. Whether the appellee was an Alaska resident (as is Vinberg), was arrested within the three-mile limit (as was Bundrant), or was arrested on the high seas in the Bering Sea crab area (as was Uri), the State may proceed to enforce its crab regulations herein against said appellee. These cases are reversed and remanded for further consideration in confomity with this opinion. BOOCHEVER and BURKE, JJ., not participating. . According to a fish and game department biologist, this regulation was promulgated at the request of the National Marine Fisheries Service and "other interested parties." . 377 F.Supp. 430 (D.Alaska 1974). . See "Board of Fish and Game Finding of Emergency" (issued June 25, 1974), Appellant's Brief No. 2435, at 36-37. . Id. . Id. . This information is from stipulations entered in the record. . AS 16.10.200 is the state's "landing law," barring illegal taking on the high seas and subsequent possession in the state. . There are ongoing disputes as to the method of calculating this line, but they are not generally relevant here. In general, see A. Gross, The Maritime Boundaries of the States, 64 Mich.L.Rev. 639 (1966). . Proclamation No. 2667, U.S.Code Cong. Serv. at 1199-1200 (1945). . Proclamation No. 2668, U.S.Code Cong. Serv. at 1200-01 (1945). . Thus by the Bartlett Act, 16 U.S.C. § 1081-86, the exclusion of foreign vessels from our territorial sea was extended to the 12-mile zone as well. . See discussion at p. 537, infra, on the extent to which the Outer Continental Shelf -Lands Act applies to organic resources. 332 U.S. 19, 67 S.Ct. 1658, 91 L.Ed. 1889 (1946). . This act was made applicable to Alaska by the Statehood Act, 72 Stat. 339. . E. Wunnieke, "The Legal Framework Governing Alaska Fisheries", Alaska Fisheries Policy (1972) p. 237. . U.S.Const., art. I, § 8. . U.S.Const., art. I § 8, art. II § 1, art. 6. . Cooley v. Board of Wardens, 53 U.S. (12 How.) 299, 13 L.Ed. 996 (1852). . Bibb v. Navajo Freight Lines, Inc., 359 U.S. 520, 79 S.Ct. 962, 3 L.Ed.2d 1003 (1959) ; H. P. Hood & Sons v. DuMond, 336 U.S. 525, 69 S.Ct. 657, 93 L.Ed. 865 (1949) ; Southern Pacific Co. v. Arizona, 325 U.S. 761, 65 S.Ct. 1515, 89 L.Ed. 1915 (1945) ; Edwards v. California, 314 U.S. 160, 62 S.Ct. 164, 86 L.Ed. 119 (1941). . 53 U.S. (12 How.) 299, 319, 13 L.Ed. 996, 1005 (1852). . E. g., "direct" burdens on interstate commerce are forbidden, while "indirect" burdens are permissible. Hall v. DeCuir, 95 U.S. 485, 24 L.Ed. 547 (1878) ; "undue" burdens are prohibited, Dean Milk Co. v. Madison, 340 U.S. 349, 71 S.Ct. 295, 95 L.Ed. 329 (1951) ; "material" burdens are violative of the commerce clause, Real Silk Hosiery Mills v. Portland, 268 U.S. 325, 45 S.Ct. 525, 69 L.Ed. 982 (1925) ; "unreasonable" burdens are forbidden, International Milling Co. v. Columbia Tramp. Co., 292 U.S. 511, 54 S.Ct. 797, 78 L.Ed. 1396 (1934). . Southern Pacific Co. v. Arizona, 325 U.S. 761, 65 S.Ct. 1515, 89 L.Ed. 1915 (1945). . California v. Zook, 836 U.S. 725, 728, 69 S.Ct. 841, 848, 93 L.Ed. 1005, 1008 (1949). . M. g., Bibb v. Navajo Freight Lines, Inc., 359 U.S. 520, 79 S.Ct. 962, 3 L.Ed. 1003 (1959) ; Southern Pacific Co. v. Arizona, 325 U.S. 761, 65 S.Ct. 1515, 89 L.Ed. 1915 (1945). . E. g., Baldwin v. G. A. F. Seelig, Inc., 29.4 U.S. 511, 55 S.Ct. 497, 79 L.Ed. 1032 (1934). . Bob-Lo Excursion Co. v. Michigan, 333 U.S. 28, 3&40, 68 S.Ct. 358, 363-64, 92 L.Ed. 455, 464 (1948). . Hale v. Bimco Trading, Inc., 306 U.S. 375, 59 S.Ct. 526, 83 L.Ed. 771 (1939) ; Kelly v. Washington, 302 U.S. 1, 58 S.Ct. 87, 82 L.Ed. 3 (1937) ; Bayside Fish Flour Co. v. Gentry, 297 U.S. 422, 56 S.Ct. 513, 80 L.Ed. 772 (1936) ; New York ex rel. Silz v. Eesterberg, 211 U.S. 31, 29 S.Ct. 10, 53 L. Ed. 75 (1908). . North Carolina University, State and Federal Jurisdictional Conflicts in the Regulation of United States Coastal Waters, at 12-13 (1974). . Browning, Some Aspects of State and Federal Jurisdiction in the Marine Environment, at 139-40 (1968). . Morgan v. Virginia, 328 U.S. 373, 66 S.Ct. 1050, 90 L.Ed. 1317 (1946) ; Edwards v. California, 314 U.S. 160, 32 S.Ct. 164, 86 L.Ed. 119 (1941) ; Hall v. DeCuir, 95 U.S. 485, 24 L.Ed. 547 (1878). . Buck v. Kuykendall, 267 U.S. 307, 45 S. Ct. 324, 69 L.Ed. 623 (1925) ; Hall v. DeCuir, 95 U.S. 485, 24 L.Ed. 547 (1878). . Southern Pacific Co. v. Arizona, 325 U.S. 761, 767, 65 S.Ct. 1515, 1519, 89 L.Ed. 1915, 1923 (1945). . 377 F.Supp. 430, 438 (D.Alaska 1974). . Reply Brief of Appellant, No. 2435, at 15. . 333 U.S. 28, 37, 68 S.Ct. 358, 363, 92 L. Ed. 455, 463 (1948). See also Huron Portland Cement Co. v. Detroit, 362 U.S. 440, 447, 80 S.Ct. 813, 818, 4 L.Ed.2d 852, 858 (1960) ; Ghera v. Department of Fish and Game, No. 47823 SAW at 8 n. 1 (N.D.Cal.1973) [unpublished opinion reprinted in Appendix to Appellant's Brief in No. 2435]. . See Hjelle v. Brooks, 377 F.Supp. 430, 443 (D.Alaska 1974) [concurring opinion]. . Rasmussen, v. Idaho, 181 U.S. 198, 21 S. Ct. 594, 45 L.Ed. 820 (1901) ; Morgan's R. R. and Steamship Co. v. Louisiana, 118 U.S. 455, 6 S.Ct. 1114, 30 L.Ed. 237 (1886). . Florida Avocado Growers v. Paul, 373 U.S. 132, 144, 83 S.Ct. 1210, 1218, 10 L.Ed.2d 248, 258 (1963). . 366 U.S. 199, 81 S.Ct. 929, 6 L.Ed.2d 227 (1961). . 366 U.S. 199, 203-04, 81 S.Ct. 929, 931-32, 6 L.Ed.2d 227, 230-31 (1961). See also Toomer v. Witsell, 334 U.S. 385, 68 S.Ct. 1156, 92 L.Ed. 1460 (1948) ; Oliver Iron Min. Co. v. Lord, 262 U.S. 172, 43 S.Ct. 526, 67 L.Ed. 929 (1923). . United States v. Belmont, 301 U.S. 324, 57 S.Ct. 758, 81 L.Ed. 1134 (1937). See also Hines v. Davidowitz, 312 U.S. 52, 61 S.Ct. 399, 85 L.Ed. 581 (1941) ; United States v. Gurtiss-Wright Export Corp., 299 U.S. 304, 57 S.Ct. 216, 81 L.Ed. 255 (1936). One commentator has explained: As a sovereign power possessed by the nation, the ' power over foreign affairs is inherent, exclusive, and plenary. It is inherent, since . it does not depend for its existence upon the affirmative grants of the Constitution. It is exclusive in the Federal Government, both because of express prohibition on the states in this field and because only the Union is vested with the attributes of external sovereignty. For national purposes, embracing our relation with foreign nations, we are but one people, one nation, one power. 2 B. Schwartz, A Commentary on the Constitution of the United States, § 206, at 97-98 (1963). . Zschernig v. Miller, 389 U.S. 429, 432, 88 S.Ct. 664, 666, 19 L.Ed.2d 683, 687 (1968). But see Gorun v. Fall, 393 U.S. 398, 89 S.Ct. 678, 21 L.Ed.2d 628 (1968). See generally, Marer, The Bases and Range of Federal Common Law on Private International Matters, 5 Vand.J.Transnational L. 133 (1971). . E. g., Clark v. Allen, 331 U.S. 503, 67 S.Ct. 1431, 91 L.Ed. 1633 (1947). See generally L. Henken, Foreign Affairs and the Constitution, 238 (1972). . 389 U.S. 429, 88 S.Ct. 664, 19 L.Ed.2d 683 (1968). See also Henderson v. New York, 29 U.S. 259, 23 L.Ed. 543 (1876) ; The Federalist Papers, Nos. 3, 4, 5, 42, and 80; Bethlehem Steel Corp. v. Board of Commissioners, 276 Cal.App.2d 221, 80 Cal.Rptr. 800 (Cal.App.1969). . See L. Henken, supra note 26, at 241. . United States v. Maine, 420 U.S. 515, 95 S.Ct. 1155, 43 L.Ed.2d 363 (1975) ; United States v. California (Second California), 381 U.S. 139, 85 S.Ct. 1401, 14 L.Ed.2d 296 (1965) ; United States v. Florida, 363 U.S. 121, 80 S.Ct. 461, 4 L.Ed.2d 1096 (1960) ; United States v. Louisiana, 363 U.S. 1, 80 S.Ct. 961, 4 L.Ed.2d 1025 (1960) ; United States v. Texas, 339 U.S. 707, 70 S.Ct. 918, 94 L.Ed. 221 (1950) ; United States v. Louisiana, 339 U.S. 699, 70 S.Ct. 914, 94 L.Ed. 1216 (1950) ; United States v. California (First California), 332 U.S. 19, 67 S.Ct. 1658, 91 L.Ed. 1889 (1947). . Brief of appellees Uri et al. and Kaldestad, Nos. 2435, 2444, at 8-10. . 332 U.S. 19, 67 S.Ct. 1658, 91 L.Ed. 1889 (1897). . Id. 332 U.S. at 35, 67 S.Ct. at 1666-67, 91 L.Ed. at 1897. . 339 U.S. 699, 705, 70 S.Ct. 914, 917, 94 L.Ed. 1216, 1220 (1950). . That the logic of these cases is still alive is apparent from the United States Supreme Court's recent decision in United States v. Maine, 420 U.S. 515, 95 S.Ct. 1155, 43 L.Ed. 2d 363 (1975). Maine and the other Atlantic coast states claimed sovereignty rights over the seabed and subsoil to the outer edge of the continental shelf, based on certain colonial grants. The court rejected these claims and affirmed a Master's Report that as a matter of "purely legal principle . . . the Constitution . . . allotted to the federal Government jurisdiction over foreign commerce, foreign affairs and national defense," and that "it necessarily follows, as a matter of constitutional law, that as attributes of these external sovereign powers of the federal government has paramount rights in the marginal sea." 420 U.S. at 522, 95 S.Ct. at 1159, 43 L.Ed.2d at 369. Although this decision specifically related to claims to the "seabed," and the underlying concern was again mineral resources, the court at one point reinterprets First California as establishing "that in our constitutional system paramount rights over the ocean waters and their seabed were vested in the Federal Government." 420 U.S. at 520, 95 S.Ct. at 1158, 43 L.Ed.2d at 368 (emphasis added). While it may be error to assume from this that the court consciously considered the problem of waterborne resources and so applied this logic to them, it may however be taken to indicate that the court did not consciously draw a distinction between seabed and seawaters and apply their logic only to the former. . 334 U.S. 385, 68 S.Ct. 1156, 92 L.Ed. 1460 (1948). . 313 U.S. 69, 61 S.Ct. 924, 85 L.Ed. 1193 (1941). . Cf., Burbank v. Lockheed Air Terminal, 411 U.S. 624, 93 S.Ct. 1854, 36 L.Ed.2d 547 (1973). . Skiriotes v. Florida, 313 U.S. 69, 75, 61 S.Ct. 924, 928, 85 L.Ed. 1193, 1199 (1941) ; Savage v. Jones, 225 U.S. 501, 32 S.Ct. 715, 56 L.Ed. 1182; In Re Squires, 114 Vt. 285, 44 A.2d 133 (1945). . Huron Portland Cement Co. v. Detroit, 362 U.S. 440, 80 S.Ct. 813, 4 L.Ed.2d 852 (1960). . Head v. New Mexico Bd. of Examiners, 374 U.S. 424, 83 S.Ct. 1759, 10 L.Ed.2d 983 (1963) ; Schwartz v. Texas, 344 U.S. 199, 73 S.Ct. 232, 97 L.Ed. 231 (1952) ; Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 83 S.Ct. 1210, 10 L.Ed.2d 248 (1963). See Kelly v. Washington, 302 U.S. 1, 58 S.Ct. 87, 82 L.Ed.2d 3 (1937) ; Lincoln Federal Labor Union v. Northwestern Iron & Metal Co., 149 Neb. 507, 31 N.W.2d 477 (1948) ; California v. Zook, 336 U.S. 725, 69 S.Ct. 841, 93 L.Ed. 1005 (1948) ; Allen-Bradley Local v. Wisconsin Employment Relations Bd., 315 U.S. 740, 62 S.Ct. 820, 86 L.Ed. 1154 (1942). . 43 U.S.C. § 1331-43 (1953). . 43 U.S.C. § 1332(a) (1953). . Rodrigue v. Aetna Gas. Co., 395 U.S. 353, 89 S.Ct. 1835, 23 L.Ed.2d 360 (1969) ; Chevron Oil Co. v. Huson, 404 U.S. 97, 30 L.Ed. 2d 296, 92 S.Ct. 349 (1971). . 43 U.S.C. § 1333(a)(3) (1953). . D. Sands, Sutherland Statutory Construction, § 51.01 (4th Ed. 1972). . Id. at § 51.03. .See also 43 U.S.C. § 1333(a)(1) (1953), which provides in part: The Constitution and laws and civil and political jurisdiction of the United States are extended to the subsoil and seabed of the outer Continental Shelf and to all artificial islands and fixed structures which may be erected thereon for the purpose of exploring for, developing, removing, and transport-,a ing resources therefrom . . . . [Emphasis added] . 16 U.S.C. § 1081-86 (1970). . Sen.Rep.No.411, 83rd Cong., 1st Sess. (1953). See also remarks of Senator Douglas, 99 Cong.Ree. at 2868 (1953) : We are not particularly interested in kelp, or shrimp or oysters, those are sideshows. The question is as to oil and gas. . 43 U.S.C. § 1332(b) (1953). . Sen.Rep.No.411, 83rd Cong., 1st Sess. (1953). .See e. g., the treatment of taking sponges as "fishing" in Skiriotes. That Congress also used the term in the broader sense is evident from the legislative history. See Hearings on H.R. 5991 and 5992 Before a Subcomm. of the House Comm, on the Judiciary, 81st Cong., 1st Sess. at 190 (1949) ; Hearings on S.J.Res. 20 Before the Senate Comm, on Int. and Ins. Affairs, 82d Cong., 1st Sess. at 50-54 (1951) ; Hearings on S. 155 Before the Senate Comm, on Int. and Ins. Affairs, 81st Cong., 1st Sess. at 245, 391, 414 (1949). . 211 U.S. 69, 61 S.Ct. 924, 85 L.Ed. 1193 (1941). . 290 F.2d 622 (5th Cir. 1961), cert. denied 368 U.S. 957, 82 S.Ct. 394, 7 L.Ed.2d 388. . 290 F.2d at 625. See also Employers Mut. Cas. Co. v. Samuels, 407 S.W.2d 839 (Tex.Ct.Civ.App.1966) ; cf. Hjelle v. Brooks, 377 'F.Supp. 430, 439-40 n. 4 (D.Alaska 1974). . 423 F.2d 16 (5th Cir. 1970). . H.R. 4760, H.R. 4756, 93rd Cong., 1st Sess. (1973). . See, e. g., Statement of Dr. Robert M. White, Administrator, National Oceanic and Atmospheric Administration, in Hearings Before the U. S. House Committee on Merchant Marine and Fisheries, Subcommittee on Fisheries and Wildlife Conservation and the Environment, 93rd Cong., 1st Sess. (1973). . E. g., United States v. R. & J. Enterprises, 178 F.Supp. 1 (D.C.Alaska 1959) ; Leege v. Martin, 379 P.2d 447 (Alaska 1963) ; In Re Paul, 17 Alaska 360 (1957). . 139 U.S. 240, 11 S.Ct. 559, 35 L.Ed. 159 (1890). . 334 U.S. 385, 68 S.Ct. 1156, 92 L.Ed. 1460 (1948). . Manchester v. Massachusetts, 139 U.S. 240, 11 S.Ct. 559, 35 L.Ed. 159 (1890) ; Site v. Hesterhurg, 211 U.S. 31, 39 S.Ct. 10, 53 L.Ed. 75. (1908) ; Bay side Fish Co. v. Gentry, 297 U.S. 422, 56 S.Ct. 513, 80 L.Ed. 772 (1936) ; United States v. First California, 332 U.S. 19, 67 S.Ct. 1658, 91 L.Ed. 1889-(1947) ; Skiriotes v. Florida, 313 U.S. 69, 61 S.Ct. 924, 85 L.Ed. 1198 (1941) ; Toomer v. Witsell, 324 U.S. 385, 68 S.Ct. 1156, 92 L.Ed. 1460 (1948) ; United States v. Louisiana, 339 U.S. 699, 70 S.Ct. 914, 94 L.Ed. 1216 (1950) ; United. States v. Second California, 381 U.S. 139, 85 S.Ct. 1401, 14 L.Ed. 296 (1965). . 313 U.S. 69, 61 S.Ct. 924, 85 L.Ed.2d 1193, (1941). . On Florida's attempts at regulation, and fishing jurisdiction problems in general, see D. Cowan, Fra of Militant Fishing Jurisdiction — A Study of the Florida Territorial Waters Act of 1963, 23 Univ. of Miami L. Rev. 160 (1966). . 72 Mich.L.Rev. 1087 (1974) ; Restatement of Foreign Relations § 30 (1965). . 374 F.2d 337 (5th Cir. 1967). . Id. at 339. . 92 Cal.Rptr. 481, 14 Cal.App.3d Supp. 6 (Cal.App.19T0). . No. 47823 SAW (N.D.Cal.1973) [unpublished opinion reprinted in Appendix to appellant's brief in No. 2435], . 422 U.S. 184, 95 S.Ct. 2240, 45 L.Ed. 2d 109 (1975). . As mentioned earlier in this opinion, "landing laws" are laws which prohibit the possession, sales or transportation of fish or game in a state which are taken in violation of state laws or regulations. . 211 U.S. 31, 29 S.Ot. 10, 53 L.Ed. 75 (1908). . Id. at 40-41, 29 S.Ot. at 12, 53 L.Ed. at 79-80. . 297 U.S. 422, 56 S.Ct. 513, 80 L.Ed. 772 (1936). . Id. at 426, 56 S.Ct. at 515, 80 L.Ed. at 775. . Id. at 426, 56 S.Ct. at 515, 80 L.Ed. at 775. . See Frach v. Schoetler, 46 Wash.2d 281, 280 P.2d 1038 (1955) ; Johnson v. Gentry, 220 Cal. 231, 30 P.2d 400 (1934) ; Santa Orne Oil Corp. v. Milnor, 55 Cal.App.2d 56, 130 P.2d 256 (1942). . Hjelle v. Brooks, 377 F.Supp. 430 (D.C.Alaska 1974). . 377 F.Supp. at.441. . Id., at 445. . 504 P.2d 831, 835-36 (Alaska 1972). . Hjelle v. Brooks, 377 F.Supp. 430, 441 (D.C.Alaska 1974). .Id. at 431. . Skiriotes v. Florida, 313 U.S. 69, 61 S.Ct. 924, 85 L.Ed. 1193 (1942). . 377 F.Supp. 430, 444 (D.C.Alaska 1974) (dissenting opinion). . The record does not show a firm breakdown of Alaskan v. non-Alaskan crab taken in the Bering Sea. We are simply assuming that out-of-staters account for at least a substantial amount of the take. . 261 Md. 180, 274 A.2d 102 (1971). . See Strassheim v. Daily, 221 U.S. 280, 31 S.Ot. 558, 55 L.Ed. 735 (1911) ; United States v. Aluminum Co. of America, 148 F.2d 416 (2d Cir. 1945) ; United States v. Pizzarusso, 388 F.2d 8 (2d Cir. 1968) ; Restatement (Second) of Conflict of Laws § 65 (1971) ; Restatement of Foreign Relations § 18 (1965). . The stipulation in Bundrant, No. 2295, and similar facts which the state offers to' prove in the other cases, effectively establish that Bering Sea crabbers daily make use of Alaskan territorial waters and facilities, and probably could not continue to crab in the area without using Alaskan shore-based facilities. . We consequently find ourselves in complete agreement with analysis suggested in United States v. Thompson, an unreported decision by the United States District Court for the District of Alaska (No. A-87-72 Or., Dec. 15, 1972) [see appendix, Ant Br, 2295], where the court concluded that the constitutional propriety of an effort by the State of Alaska to regulate the polar bear hunting "activities of American citizens [who were non-residents of Alaska] • on the high seas adjacent to Alaska is not subject to censure in light of Johnson v. Gentry, 220 Cal. 231, 30 P.2d 400 (1934), and Skiriotes v. Florida, 313 U.S. 69, 61 S.Ct. 924, 85 E.Ed. 1193 (1940)." . By virtue of our decision herein, we did not pass on other legal arguments advanced by appellees. The decision of the trial court was based on the doctrine of federal pre-emption, and he did not consider other grounds for dismissal. Clearly these arguments may be renewed in the trial court.

10459169

James C. YARBOR, Appellant, v. STATE of Alaska, Appellee

Yarbor v. State

1976-02-23

No. 2397

564

568

546 P.2d 564

546

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:14:29.992892+00:00

CAP

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

James C. YARBOR, Appellant, v. STATE of Alaska, Appellee.

James C. YARBOR, Appellant, v. STATE of Alaska, Appellee. No. 2397. Supreme Court of Alaska. Feb. 23, 1976. H. John DeNault, III, of Rice, Hoppner & Hedland, Fairbanks, for appellant. Harry L. Davis, Acting Dist. Atty., Patrick J. Gullufsen, Asst. Dist. Atty., Fairbanks, Avrum M. Gross, Atty. Gen., Juneau, for appellee.

1990

12093

OPINION Before RABINOWITZ, C. J., and CONNOR, ERWIN, BOOCHEVER and BURKE, JJ. CONNOR, Justice. This appeal constitutes a challenge to a criminal conviction on the ground that there was delay in initiating formal proceedings against the defendant. James Yarbor was indicted and subsequently convicted for the offense of lewd and lascivious acts toward a child. Prior to trial Yarbor moved to dismiss the indictment against him because of prejudicial delay in commencing prosecution. The motion was denied. From that ruling Yar-bor appeals. The events giving rise to the indictment occurred on August 11, 1973. Yarbor took J. E., then ten years old, and his seven-year-old daughter to his place of employment, which was unoccupied at the time. After directing his daughter to wait, Yar-bor took J. E. outside to a pickup truck. There, despite J. E.'s resistance, Yarbor unfastended her trousers, attempted to touch her vaginal area, and attempted to induce her into sexual intercourse by promising her money and a cap gun. The incident was first reported to the Fairbanks Police Department on the following Tuesday, August 14, 1973. Yarbor was questioned two days later, after being given a Miranda warning. The police investigation of the incident was completed on August 21, and the case was reviewed by at least three members of the District Attorney's Office between August and December of 1973. In December a formal complaint was prepared for J. E.'s mother to sign. J. E.'s mother was notified "several times a month thereafter" that the complaint was ready for her signature. She finally signed it on March 4, 1974, and Yarbor was served two days later. Yarbor first contends that this delay resulted in a denial of his constitutional right to a speedy trial. We disagree. The United States Supreme Court has held that the federal right to a speedy trial does not attach until a defendant has been formally accused. In United States v. Marion, 404 U.S. 307, 321-22, 92 S.Ct. 455, 464, 30 L.Ed.2d 468 (1971), the court observed: "Invocation of the speedy trial provision . need not await indictment, information or other formal charge. But we decline to extend the reach of the amendment to the period prior to arrest. Until this event occurs, a citizen suffers no restraints on his liberty and is not the subject of public accusations: his situation does not compare with that of a defendant who has been arrested and held to answer. Passage of time, whether before or after arrest, may impair memories, cause evidence to be lost, deprive the defendant of witnesses, and otherwise interfere with his ability to defend himself. But this possibility of prejudice at trial is not itself sufficient reason to wrench the Sixth Amendment from its proper context. Possible prejudice is inherent in any delay, however short; it may also weaken the Government's case." Yarbor would have us interpret the Alaska Constitution as providing a right to a speedy trial that would attach when the state has acquired sufficient evidence to charge an individual with a crime. The difficulties in administering such a test are manifest. An enormous burden would be placed upon the district attorney's office. Moreover, such a test would have an adverse impact on defendants. They have much to lose by a rule which would prompt district attorneys to initiate prosecutions without waiting for more than the minimum evidence to establish probable cause —a quantum of evidence which falls far short of the amount necessary to support a criminal conviction. Exculpatory evidence often follows closely in the footsteps of incriminating evidence. Moreover, it is foreseeable that prosecuting attorneys, in their haste to file charges upon determining that probable cause exists, would act on cases which, given time to carefully reflect on the merits, would not be brought. When the potential harm which results from reasonable delay is weighed against the anxiety and concern accompanying public accusation, it is clearly in the citizens' best interests to allow district attorneys some latitude in filing criminal cases. Each case would have to be reviewed constantly to determine whether a court might subsequently find that "probable cause" had existed at a given instant. To guess wrong might be fatal to the case: an arrest without probable cause, and a further investigation when probable cause exists, could be equally disastrous. We prefer to allow the investigating and prosecuting authorities more time in order to ensure proper arrests, rather than stampeding them into hastily accusing the wrong person, or filing a case on a inadequate factual basis. The case at bar indicates that there may be emotional factors which cause delay even after "probable cause" clearly exists. Especially in rape and in child molestation cases such as the one at bar, the delay may not be due to the procedures in the prosecutor's office but rather to the understandable reluctance of the victim or victim's parents to sign a complaint or otherwise press charges. We note that the legislature has already put certain limitations on pre-accusation delay, in the form of a statute of limitations. Furthermore, any prejudicial delay within the limitations period caused by police misconduct or the like can he attacked on "due process" grounds. See United States v. Marion, supra, 404 U.S. at 324-26, 92 S.Ct. 455. For these reasons, we now join our sister states in holding that the right to a speedy trial does not attach before the defendant becomes formally accused — that is, the subject of a filed complaint or an arrest. Yarbor also asserts that the delay in his case violated his due process rights. We have stated that "both the absence of a valid reason for pre-accusation delay and the fact of prejudice must be established in order to support a due process claim." We conclude that Yarbor has established neither. The total period between the conclusion of the police investigation and service of the signed complaint was from August 1973 to March 1974. The delay between August and December apparently resulted in part from repeated review of the case by various members of the district attorney's office, and a further interview with J. E.'s mother. Because of the particularly inflammatory nature of the charge, it does not appear to us at all unreasonable that the decision to prosecute was carefully weighed and reviewed over this time period; certainly Yarbor has no cause for complaint that this was done. As for the period between December and March, appellant accepts as valid the inference that "the victim's mother had not decided whether or not she wanted the state to prosecute the case." The trial court, in denying appellant's motion, believed it important that the "private sector" and not the police were responsible for this delay. We find that in a child molestation case of this sort, it was not unreasonable for the state to wait this amount of time on a hesitant mother's decision whether to press charges. Possible emotional effects to the child, injury to the child's reputation, and family disruption, all had to be considered in making her decision. Yarbor assigns several grounds of prejudice to his defense. First, he contends that Officer Strickfaden and J. E. had faded recollections of the circumstances by the time of trial. He argues that because of this situation his right to engage in effective cross-examination was in effect denied with respect to these two witnesses. We think it appropriate to note at the outset that to some degree there are faded recollections in every criminal action, since generally cases are not brought to trial until a few months after the allegedly illegal incident occurs. In the instant case, however, we are simply unable to determine whether the delay had any effect on the defendant's cross-examination of these two witnesses because Yarbor failed to certify into the record on appeal the relevant parts of the transcript. Since Yar-bor shoulders the burden of proving prejudice, we must rule against him on this point. Yarbor's second contention is that a potential witness, Brian Thompson, who lived at the premises where this incident occurred, may have provided exculpatory evidence had he been interviewed before May 16, 1974. In view of the fact that Yarbor is uncertain as to whether Thompson was even present when the event in question transpired; we find this allegation of prejudice too attenuated. "Finally, Yar-bor submits that because of the delay, he was unable to remember the conversation between him and the victim, which he contends constituted "a major element in the State's case." In response to this argument we need only refer to a sworn statement given by Yarbor on May 17, 1974: "I have personally heard J. E. testify on May 7, 1974 and on March 15, 1974. I have listened to the tape recording of [J. E.'s] testimony before the Grand Jury on April 9, 1974. . I have discovered numerous contradictions and discrepancies in [J. E.'s] testimony in these hearings. It is obvious to me that [J. E.] has been prompted and influenced with respect to a great deal of her testimony, has fabricated some of her testimony and presently has faulty recollection with respect to other matters of importance." The foregoing does not establish the prejudice required to support Yarbor's due process claim. Affirmed. . Prohibited by AS 11.15.134. . The testimony of J. E.'s mother before the Grand Jury indicates that she did not call the police until Thursday, August 16, and that Yarbor was not questioned until Friday, August 17. But Officer Striekfaden testified that he interviewed Yarbor on August 16. . "In all criminal prosecutions, the accused shall have the right to a speedy and public trial . . . . " Alaska Const, art. I, § 11, see U.S.Const. amend. VI. . Discussion of federal law is useful, but not binding upon us. We are not bound by federal law when interpreting the speedy trial provisions of the Alaska Constitution, so long as we observe minimum federal standards. Cf. Marks v. State, 496 P.2d 66, 68 § n. 2 (Alaska 1972) ; Glasgow v. State, 469 P. 2d 682, 686 (Alaska 1970). . AS 12.10.010 imposes a five-year accusation limitation on all offenses except murder. In Marks v. State, 496 P.2d 66, 68 (Alaska 1972), we said that this was the "primary guarantee" against "overly stale criminal charges". We also recognized there the role of constitutional due process guarantees to "protect a defendant against the hazards of pre-accusation delay." . "No person shall be deprived of life, liberty, or property, without due process of law." Alaska Const, art. I, § 7; see U.S.Const. Amend XIY, § 1. . On two previous occasions we have found it unnecessary to decide this issue. See Tarnef v. State, 512 P.2d 923, 931-32 (Alaska 1973) ; Marks v. State, 496 P.2d 66, 68 n. 2 (Alaska 1972). . E. g., People ex rel. Coca v. District Court, 530 P.2d 958 (Colo.1975) ; State v. Lee, 110 Ariz. 357, 519 P.2d 56 (1974) ; Alexrn-der v. State, 516 S.W.2d 368 (Ark.1974) ; State v. Bessey, 328 A.2d 807 (Me.1974) ; Commonwealth v. Cove, 320 N.E.2d 900 (Mass.1974) ; State v. Burtchett, 530 P.2d 471 (Mont.1974) ; People v. White, 32 N.Y. 2d 393, 345 N.Y.S.2d 513, 298 N.E.2d 659 (1973) ; State v. Serrell, 265 Or. 216, 507 P.2d 1405 (1973) ; State v. Bryson, 53 Haw. 652, 500 P.2d 1171 (1972). People v. Sobiek, 30 Cal.App.3d 458, 106 Cal.Rptr. 519 (1973). . Marks v. State, 496 P.2d 66, 68 (Alaska 1972) ; See Tarnef v. State, 512 P.2d 923, 931 (Alaska 1973). . See Tarnef v. State, 512 P.2d 923, 931 (Alaska 1973) ("it is not suggested and cannot seriously be concluded that it was unreasonable for the State to refrain from launching a prosecution . . . . "). . Yarbor is related to J.E.'s family.

11566740

Charles TAYLOR and Charmaine Taylor, husband and wife, and as parents and next friends of Charles Michael Taylor, Jr.; Angelo Tishwan Taylor; Anton Q-Terrio Taylor; Wilbert Levar Taylor; and Keianna Lillian Charmaine Taylor, Appellants, v. Oliver JOHNSTON, as personal representative for Glenn Ferris, M.D., deceased, Appellee

Taylor v. Johnston

1999-08-13

No. S-8316

460

467

985 P.2d 460

985

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:14:24.532101+00:00

CAP

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

Charles TAYLOR and Charmaine Taylor, husband and wife, and as parents and next friends of Charles Michael Taylor, Jr.; Angelo Tishwan Taylor; Anton Q-Terrio Taylor; Wilbert Levar Taylor; and Keianna Lillian Charmaine Taylor, Appellants, v. Oliver JOHNSTON, as personal representative for Glenn Ferris, M.D., deceased, Appellee.

Charles TAYLOR and Charmaine Taylor, husband and wife, and as parents and next friends of Charles Michael Taylor, Jr.; Angelo Tishwan Taylor; Anton Q-Terrio Taylor; Wilbert Levar Taylor; and Keianna Lillian Charmaine Taylor, Appellants, v. Oliver JOHNSTON, as personal representative for Glenn Ferris, M.D., deceased, Appellee. No. S-8316. Supreme Court of Alaska. Aug. 13, 1999. William J. Donohue, Girdwood, for Appellants. Donna M. Meyers and Howard A. Lazar, Delaney, Wiles, Hayes, Gerety, Ellis & Young, Inc., Anchorage, for Appellee. Before MATTHEWS, Chief Justice, FABE, BRYNER, and CARPENETI, Justices.

4137

25448

OPINION FABE, Justice. I. INTRODUCTION After becoming a partial paraplegic following treatment for migraine headaches, Charles Taylor sued his doctor, Glenn Ferns, for medical malpractice. The jury found that Ferris was not negligent. Taylor appeals the defense verdict, arguing that the trial court erred by (1) denying his motion to amend the complaint to include a claim for battery based on Ferris's alleged fraud in obtaining his medical license, (2) denying his motion to reopen discovery, and (3) allowing trial to proceed without an expert advisory panel report. We affirm. II. FACTS AND PROCEEDINGS In June 1993 Charles Taylor's neurologist referred him to Dr. Glenn Ferris for treatment of his migraine headaches. Taylor visited Ferris for a consultation and examination on June 29. He received the first of a series of trigger-point injections the next day. A week later, Ferris performed a cervical epidural steroid injection on Taylor at the Alaska Surgery Center. During this procedure, Ferris injected a drug into an area of Taylor's neck that lies very close to the spinal cord. Soon after this injection, Taylor began to experience complications and severe pain in his neck. An emergency room doctor and a neurosurgeon determined that Taylor had developed a blood clot. The neurosurgeon removed the blood clot, but a second blood clot then developed. After removal of the second blood clot, Taylor sustained permanent spinal cord injuries. Taylor sued Ferris for medical negligence in July 1994. Three months later, Taylor moved for appointment of an expert advisory panel pursuant to AS 09.55.536, which provides for an independent review process for medical malpractice claims. Ferris did not oppose the motion but recommended that the court appoint an expert from each of three specialties: physical medicine, any medical specialty familiar with the use of injections of epidural steroids for pain relief, and neurosurgery. Superior Court Judge Joan M. Woodward granted this motion in November 1994 but did not appoint a panel at that time. Judge Woodward held a pretrial conference in October 1995 and scheduled trial for October 1996. In March 1996 Taylor again moved for appointment of an expert advisory panel. Judge Woodward informed the parties of the Alaska State Medical Association's submitted nominations to the panel — all anesthesiologists — and ordered the parties to exchange documents and exhibits for the panel's review. Ferris then moved to disqualify one nominee, claiming that the doctor had personal animosity and bias toward him. At the same time, Ferris asked to substitute a phy-siatrist and a neurosurgeon for two of the panel nominees. Ferris also suggested that the panel process was futile because trial was at that point only seven weeks away. Taylor opposed this motion, asserting that Ferris did not support his claim of bias with any evidence other than hearsay and that a phy-siatrist is held to the same standard of care as an anesthesiologist in a medical negligence action. About a month before trial, Taylor moved for a continuance and asked to reopen discovery in order to present newly discovered evidence of Ferris's allegedly fraudulent actions in obtaining his medical license to the expert advisory panel. Taylor's stated reasons for the necessity of a continuance were that (1) discovery of expert witnesses was not complete; (2) the expert advisory panel had not reviewed the case; (3) Ferris had challenged the panel composition; (4) the assigned judge had retired; and (5) a party had preempted the newly assigned judge, leaving no judge to decide the outstanding motions. In support of his motion to reopen discovery, Taylor claimed that additional discovery was necessary to refute Ferris's credibility and to prove that Ferris lacked the degree of knowledge and skill required of health care providers. On October 8, 1996, Superior Court Judge Rene J. Gonzalez held a status conference at which he postponed the trial date to June 1997; he did not rule on the motion to reopen discovery. On the same day, Taylor moved to file a second amended complaint that included a battery claim against Ferris. In his opposition to this motion, Ferris argued that the motion was untimely and that the amended complaint would fail to state a claim upon which relief could be granted. In support of his motions for continuance, to reopen discovery, and to amend the complaint, Taylor pointed to evidence that Ferris had lied to the Alaska Medical Board and the Alaska Surgery Center when he told them that he had never been barred from receiving a license in any other state. Taylor also offered to prove that the Texas Board of Medical Examiners had denied Ferris's application to be licensed in Texas in 1988 because of "concerns relating to his medical education, falsification of his application for licensure, questionable professional ability, and lacking documentation." Taylor further alleged that Ferris had failed to complete the requirements for a medical degree from the University of Montemorelos in 1981 because he was in Powell, Wyoming during his required year of social service training. Finally, Taylor stated that Ferris never completed the requirements for certification by the American Board of Physical Medicine and Rehabilitation because he did not complete a year of clinical practice. Because of these alleged misrepresentations, Taylor claims that Ferris was not properly licensed in Alaska in 1993, when Taylor was his patient. The court denied Taylor's motion to file a second amended complaint. While the court found the motion untimely, it did not believe that the untimeliness was a sufficient ground for denying the motion. Instead, it based its ruling on the conclusion that a cause of action for battery by medical fraud did not exist. In October 1996 the superior court appointed the three originally submitted nominees to the expert advisory panel. The court denied Ferris's motion for disqualification of one panel nominee and his motion for substitution of a physiatrist or neurosurgeon. The court instructed the panelists to answer specific questions regarding the medical treatment that Ferris provided to Taylor. The parties submitted lists of documents for panel review in November 1996. Taylor's proposed submissions included documents supporting his claim that Ferris had fraudulent credentials. Ferris sought to include a medical summary of Taylor's medical records and certain depositions. Both parties moved to limit the other's submissions. But the court never ruled on these motions, and the expert advisory panel never issued a report because it did not receive the documents. The trial proceeded on June 2, 1997, addressing only the issue of negligence. The jury found that Ferris was not negligent. Taylor appeals the trial court's denial of his motion to file an amended second complaint including battery, his motion to reopen discovery to support that battery claim, and the trial court's failure to submit the case to the panel. III. DISCUSSION A. Standard of Review Superior courts have broad discretion to determine whether to allow or refuse an amendment to a complaint after a responsive pleading has been filed; we will interfere only if we find an abuse of discretion. Similarly, we review a motion to reopen discovery for an abuse of discretion. "We will find an abuse of discretion when we are left with a definite and firm conviction after reviewing the whole record that the trial court erred in its ruling." We apply our independent judgment to questions of statutory interpretation, such as whether the trial court properly construed and fulfilled its statutory duty to appoint an expert advisory panel. This court's duty is "to adopt the rule of law that is most persuasive in light of precedent, reason, and policy." B. The Trial Court Properly Denied Taylor's Motion to File a Second Amended Complaint. Taylor argues that he should have been allowed to amend his complaint to in- elude a battery claim because Ferris obtained Ms consent to the cervical injections by fraud. Alaska Civil Rule 15(a) provides that, after responsive pleadings have been filed, "leave [to amend] shall be freely given when justice so requires." But "[i]f the proposed change clearly is frivolous or advances a claim or defense that is legally insufficient on its face, the court may deny leave to amend." In deciding a motion to amend a complaint, the trial court must balance "the degree of prejudice to the opposing party against the hardship to the movant if the amendment is denied." Ferris asserts that the trial court correctly concluded that justice did not require allowing the amendment because allowing the amendment would have resulted in "significant delay, time and expense" for "an amendment that on its face would not withstand a motion to dismiss." In particular, Ferris claims that "[t]he additional battery claim would have substantially changed the theory of the case and required additional discovery and preparation for trial." In denying the motion to amend, the trial court focused on the futility of the battery claim rather than the potential prejudice to Ferris. The trial court found that no cause of action for battery existed because Ferris performed the procedure with "the intent of curing Taylor": Taylor alleges that the performance by Ferris of the injection upon Taylor constitutes a battery as Ferris was not a validly licensed physician.... Taylor, however, has provided no indication whatsoever that Ferris intended to commit a harmful contact with Taylor. To the contrary, given the proffered materials, it is clear that Ferris intended to help Taylor through the injection, and it was anything but his intention to harm Taylor. Relying on the Restatement (Second) of Torts § 18, 21, and 34 comment a, we recognized in Merrill v. Faltin that motive is not a critical element of a battery claim: To make one liable for an assault and battery it is not necessary that he be inspired by malicious motives. If one acts intending to cause a harmful or offensive contact with the person of another, and if the latter is put in imminent apprehension of such a contact, and an offensive contact results, one is liable for an assault and battery even though he acted with no feeling of hostility or ill will or enmity toward the other.[ ] We reemphasized this reasoning in Lowdermilk v. Lowdermilk, when we again noted that an actor may be liable for an assault and battery despite a lack of intent to cause injury. Thus, under Alaska law, an assault and battery claim turns not on the motive of the actor but on the consent of the victim. We have not had an occasion to address a medical battery claim in which a physician obtains a patient's consent by fraud. But the commentary to the Restatement (Second) of Torts § 892B states that "if [a person] is induced by the fraud, mistake or duress to consent to a harmful or offensive contact with his person, he may maintain an action for battery." The Restatement specifically notes that fraud may negate the element of consent between a patient and a doctor, providing the following example: "A, a physician, called to attend B in childbirth, takes C, a layman, with him. B, believing as C knows, that he is a physician, permits him to attend her during her confinement. C, under A's direction, holds B's hands. C is subject to liability to B." In a factually analogous Connecticut case, Khouri v. Koloniaris, the plaintiff alleged that the removal of his teeth by the defendant constituted an assault and battery because the defendant had falsely claimed to be a licensed dentist. The plaintiff claimed that he would not have consented to the act if he knew the defendant was not a licensed dentist. The defendant moved to strike the claim because the plaintiff failed to allege that the defendant intended to cause the injuries. In rejecting the defendant's argument, the Connecticut superior court reasoned: [IJntent is gist of action only where battery is committed in performance of act not otherwise unlawful; if cause of action is battery committed in performance of unlawful or wrongful act, intent of wrongdoer to injury is immaterial; he is answerable for what directly and actually results from his conduct, even though he did not intend the particular injury which follows.[ ] While the court noted that medical battery has generally been reserved for situations in which a physician fails to obtain any consent to the particular treatment, it nevertheless concluded that "[bjecause the plaintiff has alleged that the defendant fraudulently misrepresented himself as a licensed dentist and that the plaintiff allowed the defendant, based on that misrepresentation, to provide dental treatment ., the plaintiff has indeed alleged sufficient facts to support an action for battery." Because we find these authorities convincing, we conclude that a battery claim may lie if a person falsely claiming to be a physician touches a patient, even for the purpose of providing medical assistance. But here, Taylor was not treated by someone who was falsely representing himself as licensed. In fact, Ferris had a medical degree, was certified by the American Board of Physical Medicine and Rehabilitation, and was licensed to practice in Alaska. Accordingly, Ferris's representations to Taylor that he was a licensed and board-certified doctor were accurate. Thus, Taylor may not sue for battery on the basis that Ferris falsely claimed to be a licensed doctor. Taylor does not dispute that Ferris is licensed; instead, he contends that Ferris improperly obtained his license by misrepresenting his credentials. But as Ferns argues, "the superior court and the jury lack authority to declare Dr. Ferris' license to be void or voidable." Alaska's statutory scheme confers exclusive authority to grant or revoke licenses to the Alaska State Medical Board. Such a delegation makes sense because "[m]edicine is a complex subject and . [t]he Board is a competent body equipped with the necessary medical knowledge to determine whether a doctor's license to practice should be revoked." And as Ferris notes, "[i]f a plaintiff could bring a fraud claim by simply alleging a licensed physician was not properly licensed, nearly every medical negligence action would include a fraud claim." For these reasons, we choose not to look behind the Board's decision to license Ferris. Taylor could have requested a stay of the ease in order to apply to the licensing board for an action on Ferris's license or a declaration that Ferris's license was void from its issuance, but he did not do so. The fact that Ferris was licensed in Alaska at the time of the procedure defeats Taylor's claim for medical battery based on fraud. C. The Trial Court's Failure to Rule on the Motion to Reopen Discover Does Not Require Reversal. The trial court never ruled on Taylor's motion to reopen discovery to further explore the representations Ferris made to obtain his medical degree and license. Taylor now argues that the trial court's failure to rule on the motion, thereby preventing Taylor from supporting his battery claim or impeaching Ferris's credibility, requires reversal and a new trial. We disagree. Ferris maintains that Taylor effectively abandoned his motion to reopen discovery when he requested that the superior court not delay the trial if this court refused to grant Taylor's petition for review. Taylor initially moved to reopen discovery in order to submit further evidence to the expert advisory panel. But he later petitioned this court for review of the motion to reopen discovery for impeachment purposes. He then conceded a month before trial that "[i]f the Supreme Court ruling is against Taylor, then there is no reason to delay the trial. As matters now stand, Taylor does not want to vacate the trial date." When the trial court ordered that the summary judgment hearing would take place as scheduled, it commented that "[t]he parties have made it clear that the trial date of June 2, 1997, [should] remain undisturbed." Moreover, Taylor did not alert the trial court after we denied the petition for review that the motion to reopen discovery was still pending. Because Taylor failed to request a ruling on the motion to reopen discovery after denial of the petition for review and insisted that the trial date not be postponed, the trial court had no reason to understand that it needed to rule on the motion for the purpose of allowing Taylor to develop impeachment material for trial. Even if the trial court erred in failing to reopen discovery, we conclude that any error was harmless. The trial court permitted Taylor to introduce a substantial amount of impeachment evidence at trial, allowing him to question the validity of Ferris's medical degree and the fulfillment of the social service required to complete his training. During trial, Taylor was also permitted to accuse Ferris of misrepresenting and falsifying his credentials to obtain board certification from the American Board of Physical Medicine and Rehabilitation. Finally, the court admitted testimony from Taylor's experts that Ferris had fraudulently obtained his medical degree and board certification and that other states had denied his license for these reasons. Because the trial court gave Taylor substantial latitude to present this impeachment evidence, any error in the trial court's failure to rule on the motion to reopen discovery for impeachment purposes was harmless. D. The Trial Court Did Not Err in Proceeding to Trial Without an Expert Advisory Panel Report. Because the trial court never ruled on the parties' motions regarding submission of documents to the expert advisory panel and that panel subsequently never issued a report, Taylor contends that the case should be remanded for a new trial on negligence, causation, and damages. Alaska Statute 09.55.536 "provides for mandatory pre-trial review of medical malpractice claims by an expert advisory panel and makes the panel's written report admissible in evidence at trial." The Alaska panel review process "ensured that a malpractice plaintiffs case proceeds along the normal path to litigation after a maximum delay of eighty days." The trial court has discretion to bypass this review process, however, if it "decides that an expert advisory opinion is not necessary for a decision in the case." Although Ferris is correct in noting that AS 09.55.536 does not require the completion of a panel report in order for a malpractice trial to proceed, the trial court's actions gave the parties a reasonable expectation that the panel would complete a report before trial. Although difficulties in securing panel nominees delayed the panel process for two years, the trial court nevertheless acknowledged the requirements of the statute and accordingly appointed a panel seven months before trial in October 1996. In November 1996 the parties agreed to submit a list of documents for panel review but proceeded to disagree over the appropriate submissions. At this point, the parties had a reasonable expectation that the expert advisory panel process would proceed. Yet the trial court never ruled on the parties' various motions regarding submissions to the panel nor did it submit the case to the panel for review. Thus, although AS 09.55.536 does not require the completion of a panel report before trial, the trial court should have waited for a report in this case. But because Taylor failed to object at the trial level to allowing the trial to proceed before the panel completed its review, he has waived this issue on appeal. To preserve a claim based on a superior court's failure to rule on a motion, a party must make every effort to request and obtain a ruling before proceeding to trial. For example, in Coulson v. Marsh & McLennan, Inc., a party requested a ruling on her motion on three separate occasions: in an opposition to a summary judgment motion, at an oral argument, and in a motion for reconsideration. We concluded that the plaintiff had not waived her claim that the trial court failed to rule on her motion. Here, while Taylor objected to the lack of a panel report in his September 1996 motion to continue the trial, he failed to raise the issue again. In fact, a month before trial in May 1997 Taylor affirmatively requested that the trial proceed as scheduled: "As matters now stand, Taylor does not want to vacate the trial date." Because Taylor proceeded to trial without a ruling and without requesting one, he cannot now object to the lack of such a ruling. Thus, although the trial court failed to rule on the panel-related motions, Taylor has waived his objection to that error. IV. CONCLUSION Because the trial court correctly denied Taylor's motion to amend his complaint, because any error in the trial court's failure to rule on the motion to reopen discovery was harmless, and because the trial court properly proceeded to trial without a panel report, we AFFIRM. EASTAUGH, Justice, not participating. . Appellee Oliver Johnston is the personal representative for Glenn Ferris, who died during the pendency of this appeal. . The clerk of court sent a first request for panel nominees to the Alaska State Medical Association in September 1995 and a second request in January 1996 because the medical association had not responded. . Although Ferris claimed to have fulfilled his clinical practice requirement at Broken Arrow Medical Center in Oklahoma from August 1987 to July 1988, an administrator of Broken Arrow testified that Ferris resigned from the program. The administrator noted that, had he not resigned, Ferris would have been discharged because of personality and character problems. . In April 1997 Judge Gonzalez ordered all motions held in abeyance while Taylor petitioned this court for review of the denial of the motion to amend the complaint. But even upon denial of the petition for review, the trial court only proceeded to address the pending summary judgment motions and never addressed the other pending motions, including each party's motion to limit documents in the panel's review. . See Betz v. Chena Hot Springs Group, 742 P.2d 1346, 1348 (Alaska 1987); Rutledge v. Alyeska Pipeline Serv. Co., 727 P.2d 1050, 1054 (Alaska 1986). . See Alaska Rule of Civil Procedure 15(a). . See Betz, 742 P.2d at 1348; Rutledge, 727 P.2d at 1054. . Cf. Mount Juneau Enters., Inc. v. City & Borough of Juneau, 923 P.2d 768, 773 (Alaska 1996) (reviewing motion to continue discovery under Civil Rule 56(f) for an abuse of discretion). . Christensen v. NCH Corp., 956 P.2d 468, 473 (Alaska 1998). . See Alaska Hous. Fin. Corp. v. Salvucci, 950 P.2d 1116, 1119 (Alaska 1997). . Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979). . 6 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure § 1487 (2ded.l990). . Betz, 742 P.2d at 1348 (citations and internal quotation marks omitted); see also Rutledge, 727 P.2d at 1055. . 430 P.2d 913 (Alaska 1967). . Id. at 917 (citing the Restatement). . 825 P.2d 874 (Alaska 1992). . Id. at 879. . Restatement (Second) of Torts § 892B cmt. a (1979); see also 6A C.J.S. Assault and Battery § 16 (1975 & 1998 Supp.) ("Consent, in order to constitute a defense, must be knowingly and intelligently given, and not the result of fraud (citations omitted)). . Restatement (Second) of Torts § 55 cmt. b, illus. 3 (1965). . No. CV 330880, 1997 WL 80676 (Conn.Super.Feb.10, 1997). . See id. at*l. . See id. . See id. at *2, *4. . Id. at *4 (quoting Stuart M. Speiser et al., 7 The American Law of Torts 891 n.87) (internal quotation marks omitted). . See id. at *2. . Id. at *3. . See, e.g., AS 08.64.101 (requiring Board to admit, license, and discipline physicians); AS 08.64.170 (mandating that all Alaska physicians be licensed by the Board); AS 08.64.230 (empowering Board to grant licenses); AS 08.64.331 (describing the Board's disciplinary powers, including license revocations). . Storrs v. State Med. Bd., 664 P.2d 547, 554 (Alaska 1983). . See Alaska R. Civ. P. 61. . Keyes v. Humana Hosp. Alaska, Inc., 750 P.2d 343, 345 (Alaska 1988). . Id. at 350. . AS 09.55.536(a). .See Coulson v. Marsh & McLennan, Inc., 973 P.2d 1142, 1146 (Alaska 1999) (party preserved issue by requesting a ruling on her motion on three occasions); see also Russell v. State, 934 P.2d 1335, 1340-41 (Alaska App.1997) (defendant did not preserve issue for appeal because he failed to object at trial or to remind the judge that he had yet to rule on a motion); Marino v. State, 934 P.2d 1321, 1327 (Alaska App.1997) (defendant could not raise issue on appeal because he chose to proceed to trial without seeking a ruling on his motion). . 973 P.2d 1142 (Alaska 1999). . See id. at 1146. . See id.

10453026

Connie R. BARRETT, Appellant, v. STATE of Alaska, Appellee

Barrett v. State

1976-02-23

No. 2299

161

162

546 P.2d 161

546

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:14:29.992892+00:00

CAP

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

Connie R. BARRETT, Appellant, v. STATE of Alaska, Appellee.

Connie R. BARRETT, Appellant, v. STATE of Alaska, Appellee. No. 2299. Supreme Court of Alaska. Feb. 23, 1976. Brian Shortell of Bookman, Bryner & Shortell, Anchorage, for appellant. Stephen G. Dunning, Asst. Dist. Atty., Anchorage, Joseph D. Balfe, Dist. Atty., Anchorage, and Avrum M. Gross, Atty. Gen., Juneau, for appellee.

762

4533

OPINION ON REHEARING Before BOOCHEVER, C. J., and RABINOWITZ, CONNOR, ERWIN and BURKE, JJ. CONNOR, Justice. We grant Barrett's petition for rehearing in order to affirm and clarify our original opinion. Barrett argues that her guilty plea was not voluntarily made because the trial judge did not explain to her when she pleaded guilty the difference between a two-year suspended sentence, which the district attorney recommended pursuant to Barrett's plea bargain, and the suspended imposition of sentence and probation which the court actually handed down. Nothing in Criminal Rule 11 as it existed in 1971 required a judge to conform to the sentence recommended by the district attorney's office in accepting a negotiated plea. We find that the superior court judge carefully made sure that Barrett knew he was not bound by the sentence recommendation. The record discloses that Barrett knew the court might or might not follow the plea-bargained sentence, and that the judge might in fact sentence her to not more than 25 years imprisonment and/or a fine of not more than $20,000. Only then did the judge accept the plea. The court stated: "THE COURT: Well, you understand now that [the] court is not bound by those recommendations. We consider them but we have to make its [sic] own judgment as what sentence is going to be. Do you understand that ? MISS BARRETT: Yes, I do. Yes. ⅝ ⅜ ‡ ;Jc ;Jc ⅝ THE COURT: This maximum penalty for first offense is 25 years or a fine of not more than 20,000 or both. You understand that's the possible sentence— I — being possible, [the] court could give you that, do you understand that? MISS BARRETT: I understand, your Honor. * THE COURT: . . . [T]o just turn this young lady loose on a 2 year suspended sentence, I think would be dangerous for her, the court would be shirking their [sic] responsibility . . . ." It is apparent that the court feared that Barrett would have no incentive to stay off drugs if she were not under some supervision during either a suspended sentence or a suspended imposition of sentence. This determination the court was entitled to make. That its disposition of the case was less favorable to Barrett than she had anticipated under the plea bargain does not vitiate the voluntariness of her guilty plea, since she was aware of the possibility when she made that plea. It is true that Barrett's conviction upon a guilty plea might cause her to receive a larger sentence upon a second conviction, this time as a second-offender. The possible enhancement of punishment because of the commission of a subsequent crime is clearly a subject collateral to the guilty plea entered in this case. The trial judge is not required to anticipate such a state of facts when he accepts a guilty plea. In fact, he is probably hopeful that the sentence imposed will obviate such a circumstance. See United States v. Cariola, 623 F.2d 180, 186 (3rd Cir. 1963); Tafoya v. State, 500 P.2d 247, 250 (Alaska 1972). We note that in the case of a defendant who in fact reforms, the suspended imposition of sentence is a device which confers a considerable benefit, since the entire conviction may be set aside upon successful completion of the probationary period under AS 12.55.085(e). Affirmed. . After the 1973 amendments, Rule 11(e)(4) provides: "Rejection of Plea. If the court rejects the plea agreement, the court shall inform the parties of this fact and advise the defendant personally in open court that the court is not bound by the plea agreement. The court shall then afford the defendant the opportunity to withdraw his plea, and advise the defendant that if he persists in his plea of guilty or nolo contendere, the disposition of the case may be less favorable to the defendant than that contemplated by the plea agreement." . Additionally, we note that in the original order deferring imposition of sentence, the conditions set forth clearly advise the defendant that probation can be revoked for cause, that the conditions thereof may be modified, and that the period of probation may be re- duced or extended. . Up to life imprisonment, or a fine of not over $25,000, or both, under AS 17.12.110(b) (2). See also Ch. 110 SLA 1975.

8362482

Cordell C. TRITT, Petitioner, v. STATE of Alaska, Respondent

Tritt v. State

2008-01-04

No. A-9600

1017

1020

173 P.3d 1017

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.

Cordell C. TRITT, Petitioner, v. STATE of Alaska, Respondent.

Cordell C. TRITT, Petitioner, v. STATE of Alaska, Respondent. No. A-9600. Court of Appeals of Alaska. Jan. 4, 2008. Renee McFarland, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Petitioner. Tamara E. de Lucia, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Respondent. Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.

1824

11234

OPINION STEWART, Judge. Shortly after the parties completed opening statements in Cordell Tritt's jury trial, the trial court indicated that it would offer the State the option of a mistrial because the court believed that Tritt's opening statement was unfair. The prosecutor chose the court's option of a mistrial over Tritt's objection. Tritt moved to dismiss the case on the ground that a retrial would violate the double jeopardy clause. The superior court denied the motion to dismiss. Tritt petitioned this court for review, and we granted review. Because we conclude that there was no manifest necessity for a mistrial, we reverse the superior court and direct the superior court to dismiss the charges against Tritt. Facts and proceedings On September 10, 2005, a pickup truck crashed into a utility pole in Fairbanks. Witnesses saw three occupants emerge from the truck, and later identified Tritt as the driver. The police arrested Tritt for felony driving while under the influence and driving while his license was cancelled, suspended, or revoked. Throughout Tritt's processing, Tritt maintained that he was not the driver of the truck. Three days after the crash, another occupant of the truck, Natalie Pitka, went to the police and provided a written statement that she was the driver of the truck when it crashed. The next day, September 14, the State presented three eyewitnesses to the events after the crash at grand jury, but did not call Pitka. The grand jury charged Tritt with felony driving while under the influence, and the State filed an information charging driving while lHeense cancelled, suspended, or revoked. Before opening statements at Tritt's jury trial, the prosecutor moved the court for a protective order barring Tritt from introducing hearsay statements Tritt made to the police that he was not driving. Superior Court Judge pro tem Jane F. Kauvar announced that the statements would be inadmissible unless Tritt took the stand in his own defense. 'Tritt's attorney indicated that he understood. During Tritt's opening statement, Tritt's attorney argued that Tritt had consistently told police he had not been driving. The State objected, and Judge Kauvar told Tritt's attorney that he must have evidence to support his claim. He replied that he did. Tritt's attorney emphasized this fact two more times before the State objected and asked to be heard. Judge Kauvar responded that the State could be heard after Tritt's opening statement. Tritt's attorney told the jury that they would hear testimony from Pitka. He explained that Pitka went to the police three days after the accident and provided a written statement that she, not Tritt, had been driving when the pickup crashed into the utility pole. Tritt's attorney continued: And when this matter was presented to a grand jury for purposes of charging, Ms. Pitka wasn't presented as a witness in this matter by the prosecutor handling the presentment. The three witnesses at the scene that the State chooses to believe were presented. The prosecutor objected, contending that Tritt was arguing a pretrial motion issue that was improper to discuss in front of the jury. The court sustained the State's objection to this comment. Tritt's attorney then continued, "[YJou are the first jury, first body of decision-making citizens in this case, who will hear about what Ms. Pitka had to say with reference to what happened here." Tritt's attorney completed opening statement moments later, and the court proceeded outside the jury's presence. Judge Kau-var told Tritt that if he did not testify, there would be a mistrial. Tritt's attorney assured Judge Kauvar that Tritt would take the stand. The prosecutor thought that a jury instruction was necessary to inform the jury that there was nothing improper in the grand Jury process. Judge Kauvar said that she thought the opening statement started the trial on an "unfair footing," and indicated that she would give the jury a cautionary instruction if the prosecutor did not want a mistrial. The prosecutor informed the judge that it would support a decision from the court to grant a mistrial, as long as there was no bar to a retrial. The prosecutor maintained that "the jury has been irreparably tainted[.]" Tritt opposed a mistrial and pointed out the double jeopardy issue. Judge Kauvar announced that, if the State wanted a mistrial, she would "grant it on the basis that the evidence that was presented in opening statement . was highly prejudicial." Judge Kauvar concluded that the jury would be biased and an instruction to the jury ineffective. She found manifest necessity and declared a mistrial. Tritt moved to dismiss the case on double jeopardy grounds, claiming that manifest necessity did not exist and a mistrial was unnecessary. The case was reassigned to Superior Court Judge Mark I. Wood for consideration on the motion. After the parties submitted briefs and participated in oral arguments, Judge Wood issued a written decision denying Tritt's motion. He based his decision on the finding that manifest necessity existed for mistrial because Tritt's comments "prejudiced the state to such a degree that a cautionary instruction would not have cured the bias." Tritt petitioned for review and this court granted the petition. Discussion Why we conclude there was no manifest necessity for a mistrial Jeopardy attaches when the jury is sworn. Once jeopardy attaches, the trial may not be stopped short of a verdict unless the defendant consents or there is manifest necessity for a mistrial. Because of the double jeopardy implications of ending a trial short of a verdict, this court has cautioned trial courts that a mistrial should be declared without a defendant's consent only in "very extraordinary and striking cireumstances.'' We review a trial court's decision on a motion for a mistrial for abuse of discretion. We reverse the trial court only when, after reviewing the whole record, we are left with a definite and firm conviction that the trial court erred in its ruling. Tritt's attorney gave an opening statement that was keyed to an instruction given by Judge Kauvar just before the parties' opening statements that "it is not uncommon for two honest people to witness the same event and hear or see things somewhat differently." The attorney stated that the evidence would show that the visual perspective of the State's witnesses could explain their identification of Tritt as the driver. He said the police did not credit Tritt's denials and tried to gain admissions from Tritt. He summarized Pitka's expected testimony: she had been driving, was herself worried about legal trouble the day of the offense, but went to the police three days after the crash and gave a written statement accepting responsibility as the driver. The attorney pointed out that, at the grand jury, the State presented three witnesses from the seene that it "chooses to believe." Judge Kauvar (and later, Judge Wood) apparently believed that a mistrial was required because the defense attorney had essentially accused a prosecutor of acting in bad faith by willfully withholding exculpatory evidence from the grand jury. But the defense attorney did not explicitly accuse the prosecutor of any grand jury impropriety. The defense attorney simply noted that the prosecutor had presented three inculpatory witnesses who the authorities believed to be credible, that the prosecutor had not chosen to present Pitka's contrary testimony, and that the twelve members of the petit jury would be the first group to hear both sides of the case. Anyone familiar with Alaska grand jury practice would understand that the defense attorney was merely describing typical grand jury procedure. Under Alaska law, the prosecutor is normally not obliged to present the defense case to the grand jury, and the trial is the time when the defendant has the opportunity to present a competing view of the episode being litigated. Judge Kauvar may have feared that the trial jurors would misunderstand the defense attorney's remarks and infer that the prosecutor had acted in bad faith by suppressing exculpatory evidence at grand jury. But the judge could have cured this problem by giving an explanatory instruction to the jurors informing them: (1) that the purpose of grand jury is simply to decide whether there is good reason to require a person to stand trial; (2) that the prosecutor is normally not required to present the defense case to the grand jury; (8) that there was nothing improper about the prosecutor's decision not to call Pitka to testify at the grand jury in Tritt's case; and (4) that it was indeed the trial jury's obligation to now hear both sides of the case and then decide whether the State had proved Tritt's guilt beyond a reasonable doubt. Because the problem could have been cured in this manner, there was no manifest necessity for a mistrial. Because there was no manifest necessity for declaring a mistrial, and because the mistrial was declared over Tritt's objection, the double jeopardy clause bars the State from trying Tritt again on these charges. We take this opportunity to again urge trial judges to be cautious, and to carefully consider all of the alternatives before declaring a mistrial without the defendant's consent. As this case demonstrates, a declaration of a mistrial can have grave consequences. Here, the State will be denied the opportunity to establish Tritt's guilt of felony driving while under the influence. However, the framers of our constitutions (both state and federal) believed that our society would be subjected to greater evils if the government had the power to bring a defendant to trial repeatedly on the same criminal charge. Conclusion The superior court's ruling is REVERSED. Because any attempt to try Tritt again on these charges would violate his rights under the double jeopardy clause, we direct the superior court to dismiss the charges against Tritt. . March v. State, 859 P.2d 714, 717 (Alaska App.1993). . Arizona v. Washington, 434 U.S. 497, 505, 98 S.Ct. 824, 830, 54 L.Ed.2d 717 (1978); Browning v. State, 707 P.2d 266, 268 (Alaska App.1985). . Browning, 707 P.2d at 268 (quoting Lewis v. State, 452 P.2d 892, 896 (Alaska 1969)). See also Cook v. State, 36 P.3d 710, 729 (Alaska App.2001); Riney v. State, 935 P.2d 828, 838-39 (Alaska App.1997); Nelson v. State, 874 P.2d 298, 308 (Alaska App.1994); March, 859 P.2d at 717. . Walker v. State, 652 P.2d 88, 92 (Alaska 1982) (citing Amidon v. State, 565 P.2d 1248, 1261 (Alaska 1977)). . Hamilton v. State, 59 P.3d 760, 769 (Alaska App.2002) (citing Keogh v. W.R. Grasle, Inc., 816 P.2d 1343, 1349 n. 11 (Alaska 1991)). . See Frink v. State, 597 P.2d 154, 165-66 (Alaska 1979). . Id. at 166.

10471588

Janas Diane McLINN, by her next friend, Charles L. McLinn, Appellant, v. KODIAK ELECTRIC ASSOCIATION, INC., a corporation, Appellee

McLinn v. Kodiak Electric Ass'n

1976-03-01

No. 2278

1305

1314

546 P.2d 1305

546

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:14:29.992892+00:00

CAP

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

Janas Diane McLINN, by her next friend, Charles L. McLinn, Appellant, v. KODIAK ELECTRIC ASSOCIATION, INC., a corporation, Appellee.

Janas Diane McLINN, by her next friend, Charles L. McLinn, Appellant, v. KODIAK ELECTRIC ASSOCIATION, INC., a corporation, Appellee. No. 2278. Supreme Court of Alaska. March 1, 1976. Gary A. Zipkin of Ely, Guess & Rudd, Anchorage, for appellant. Sanford M. Gibbs of Hagans, Smith & Brown, Anchorage, for appellee. Before RABINO WITZ, C. J., and CON-NOR, ERWIN and BOOCHEVER, JJ.

6100

36378

OPINION RABINO WITZ, Chief Justice. On February 19, 1970, Kodiak Electric Association sent a.crew of five employees to install a new pole at the site of existing utility lines in the vicinity of Mission Road and Urdahl Circle, in the city of Kodiak'. In order to install the pole a boom truck was parked on Mission Road, thereby obstructing the northbound traffic lane. While cones were deployed around the truck, no flagmen were posted at either end of the obstruction. A driver approaching this obstruction , from the south could not see oncoming southbound traffic due to a curve in the road. At approximately 3 :45 p. m., Janas Mc-Linn, then three years old, approached the work site, entered the street, and began playing with the traffic cones. .Three Kodiak Electric employees who were observing the progress of the work underway saw Janas as she entered the street and started to play with the cones. Janas was instructed by Kodiak's employees at least twice to stay away from the cones and out of the street. Janas ignored these instructions and continued playing. Subsequently a young boy of ápproximately ten years of age (Janas' brother) arrived, grasped á struggling Janas by the collar, and led her up Mission Road and onto Urdahl Circle. At this point a truck with .a boat trailer attached, driven by William Burke, appeared on Mission Road traveling north. Upon seeing the traffic cones, the obstruction, and the children standing in Urdahl Circle, Burke testified that he came to a complete stop and then proceeded forward at less than five miles pet hour. Burke further stated that at the time his truck passed the children they were standing still about ten feet from him. However, after the truck had passed, Janas McLinn slipped loose from her brother's grasp and stumbled onto the traveled portion of Mission Road and into the wheel of Burke's boat trailer. As a result of Janas' injuries, suit was brought against Kodiak Electric on her behalf by her parents, but the trial resulted in a hung jury. A second trial resulted in a jury verdict in favor of defendant Kodiak Electric. After Janas' motions for a new trial were denied, this appeal followed. Before this court appellant Janas McLinn basically asserts two specifications of error. First, Janas argues that the superior court erred in instructing the jury that it was incumbent on her to prove that Kodiak Electric was in control of Mission Road at the time and place of the accident. Second, Janas asserts that it was error for the superior court to have refused to instruct the jury that a violation of 17 AAC 15.-130 is negligence per se. From the outset the crux of Janas' case has consisted of attempts to establish the existence of a legal duty of care running from Kodiak Electric to her. To that end, appellant has advanced, during the history of this controversy, several different theories of recovery. At the first trial Janas urged that Kodiak was responsible for her injuries under an attractive nuisance rationale. The theory was essentially one of premises liability. During the course of the second trial, Janas suggested other possible grounds for holding Kodiak liable for her injuries. More particularly, she alleged that the waving on of Burke, by an employee of Kodiak, constituted negligent conduct which proximately caused her injuries, and that the obstruction of Mission Road, in conjunction with failure to post flagmen to guide traffic around the obstruction, constituted the kind of unreasonable conduct that predicated an award of damages. Nonetheless, Janas' premises liability theory continued to resurface during the second trial. Janas argued that under the facts of this case Kodiak Electric owed her the same duty of care which a landowner or occupant owes to a trespasser under conventional notions of attractive nuisance. It is fairly clear from the record that, despite counsel's vacillations, the trial judge virtually from the outset understood the case to be principally one of premises liability. In instruction 5 the superior court set forth the issues on which Janas McLinn had the burden of proof, as follows: In this action, the plaintiff has the burden of establishing by a preponderance of the evidence all of the facts necessary to prove the following issues: (1) That the defendant was negligent; (2) That the negligence of the defendant was a proximate cause of injury to the plaintiff; (3) That the defendant was in control of Mission Street at the place of the occurrence. . . , Subparagraph 3 of instruction 5 was added by the superior court in response to Kodiak's objection to instruction 21, which articulated the elements of premises liability. As we have mentioned in this appeal, Janas contends that the giving of instruction 5, as modified, was prejudicial error. At trial, Janas' counsel stated: Your Honor, I wouldn't want an instruction that indicated to the jury that we had the burden of proving that Kodiak Electric Association had control of the street and that if we didn't prove that we lost the case. • The Court: Well, the burden of proof instruction doesn't say that. The burden of proof instruction is intended to be understood alternatively anyway and it is just if this issue is important to you, this party has the burden of proving it. Later, after reviewing the proposed instructions, Janas' counsel objected to the use of the conjunctive "and" between the three clauses of instruction S, on the basis that under some of the theories of liability advanced it would not be necessary for her to prove that Kodiak Electric controlled the street in question. Upon the trial court's agreeing to delete "and", counsel for Janas further requested that the third phrase of instruction 5 be cross-referenced to instruction 21, the possessor of land instruction: ". . . I want it in a position where it doesn't indicate to the jury I have to prove it rather than it indicates I have to prove it in connection with that problem." The trial judge then responded: "Well, . I think that's clear to [sic] the other instruction." Janas' counsel asked if there would be any objection to his explaining instruction 5 to the jury and the court replied, "No, you can certainly talk about any of these instructions. and if you want to point out to the jury you have a theory other than the theory encompassed in 21 that is independent of it and totally unrelated to it, you certainly may say that as long as you don't tell the jury that it's the burden of the defendant, to prove some other theory." The gist of Janas' argument on this point is that instruction 5 precluded recovery against Kodiak under a theory of ordinary negligence and had the effect of limiting the jury to consideration of only the single theory of premises liability. In other words, the superior court's ruling on instruction 5 was tantamount to a ruling that, as a matter of law, Kodiak Electric owed no duty toward Janas McLinn other than that which might spring from Kodiak Electric's control of the street at the place where the accident occurred. Janas suggests three alternative reasons why the jury should have received an ordinary negligence instruction requiring her to prove only negligence and proximate cause. First, appellant contends that, as a matter of law, one who places an obstruction on a public highway, even though without negligence, is under an affirmative duty to use ordinary care under the circumstances to prevent injury to others resulting from the dangerous situation created. Under this theory there is no need to prove control of the highway. Second, appellant argues that William Burke's deposition testimony, that a Kodiak employee waved him through the area, demonstrates an assumption of a duty on Kodiak's part to exercise reasonable care to prevent injury to her. Under this second "negligent signal" theory, if the jury accepted Burke's deposition testimony, they would necessarily have to conclude that Kodiak assumed control through its employee. Thirdly, Janas argues that Kodiak was under a statutory duty to assume control of the area by the posting of flagmen pursuant to the Manual on Uniform Traffic Control Devices for Streets and Highways. Under this theory Kodiak was vested with control of the street, as a matter of law, and the remaining burden on Janas would be to prove ordinary negligence under the circumstances. Comment on Janas' third altrnative theory of ordinary negligence will be deferred to a later section of this opinion. As to Janas' first two arguments relating to her ordinary negligence contentions, we comment in no greater depth than to note that they appear to be sound negligence theories. We find compelling reasons for concluding that, even if the evidence justifies instructing the jury under an ordinary negligence theory, the giving of instruction S in the circumstances of this case was not error. Instruction S did not prohibit the jury from considering ordinary negligence theories of liability. Instruction 5 was a burden of proof instruction and did not preclude recovery under an ordinary negligence theory if Janas did not prove control, by Kodiak, of the street. The instruction placed on Janas the burden of proving negligence, proximate cause, and control. Which factors would be relevant was dependent upon the substantive law theory the jury employed. Under instruction 21, control would necessarily have to be proved to predicate liability. Under theories of ordinary negligence, control need not be proved. We note that the superior court judge specifically deleted the conjunctive "and" from instruction 5 to allow the jury to apply the appropriate burdens of proof. Given that instruction 5 does not preclude consideration of ordinary negligence theories by the jury, the question arises whether it was open to the jury under the superior court's instructions to find that Janas had established Kodiak's liability by proof of only "ordinary" negligence. Instruction 6 places the burden on Janas to establish by a preponderance of the evidence that an act or omission of Kodiak employees was a proximate cause of the injuries sustained by her. This instruction contains no language relating to the subject of "control" but was rather a more specific, ordinary negligence burden of proof instruction. Instruction 20 defined negligence as the failure on the part of a reasonably prudent person to use ordinary care under the circumstances in the management of one's person or property, or of agencies under one's control. Instruction 24 then informed the jury that any increase in foreseeable danger requires increased care on the part of a reasonably prudent person. Instruction 25 defined proximate cause as an act or omission which plays a substantial part in bringing about, or actually causing, the injury or damage. Our study of these instructions has led us to the conclusion that the jury was in fact given instructions covering ordinary negligence under which Janas was only required to prove negligence and proximate cause. Under the instructions we have alluded to, it was open to the jury to find Kodiak liable on negligence theories other than the "premises control" theory of liability. For example, the jury could have found that, under instruction 24, the presence of the boom truck on Mission Road increased the foreseeable danger of accidents in the area which required increased care on the part of Kodiak. They could then further conclude, under instruction 20, that the failure of Kodiak employees to make certain that Janas was out of harm's way was unreasonable, and under instruction 25 that this failure to use reasonable care was a proximate cause of Janas' injuries. Thus, under the court's instructions, it would be irrelevant whether Janas proved control. The fact is the jury could have concluded Kodiak was negligent in the most conventional sense, but they did not. The superior court's instructions appear to adequately cover the theories of negligence Janas claims to have advanced as alternative predicates to liability. Even had Janas specifically requested legally accurate additional instructions to cover the theories of liability she claims the jury was precluded from considering under instruction 5, we question whether failure to give such additional instruction would have been error in light of the instructions actually given. The fact that Janas did not present to the trial judge an alternative to the instruction to which she objects here buttresses our conclusion that the giving of instruction 5 in the factual context of the case at bar was not error. Janas' objection to instruction 5 was that it precluded consideration of ordinary negligence as a potential basis upon which Kodiak could be found liable. To recapitulate the circumstances surrounding the giving of instruction 5, the record shows that this instruction was modified at least once at the insistence of Janas. In our view, Jan-as' objection to the conjunctive "and" in an earlier version of instruction 5 is highly significant. Her objection to the earlier version was made on the basis that under some theories of liability it would not be necessary for her to prove the existence of Kodiak's "control" of the street in question. In ruling on this objection, the superior court deleted the conjunctive "and" from instruction 5. Janas then requested a cross-referencing of the "control" burden portion of instruction 5 to the premises liability theory explained in instruction 21. Upon the court's assertion that such cross-reference was clear in the instructions as a whole, Janas' counsel then stated, "I don't have anything further, Your Honor." When counsel asked if he might explain instruction 5 to the jury, the court responded, " . . . you can certainly talk about any of these instructions. . And if you want to point out to the jury you have a theory other than the theory encompassed in 21. you certainly may say that . ." The court's readiness to allow Janas' counsel to advance alternative theories in argument persuades us that the court would have been as ready to allow those theories to be further explained and delineated in a technically proper instruction. Examination of the record discloses that in his final argument to the jury Janas' counsel did in fact argue theories of liability other than the control-premises theory. Janas' second specification of error concerns the superior court's failure to instruct the jury that Kodiak's failure to follow procedures required by the Uniform Manual on Traffic Control Devices for Streets and Highways, specifically its failure to post flagmen about its work, was negligence per se. Had the jury received such an instruction, their deliberations would have been limited to determining whether there was a causal relationship between the failure to post a flagman and Janas' injuries. According to Prosser, [ojnce the statute is determined to be applicable — which is to say, once it is in-terpreted as designed to protect the class of persons in which the plaintiff is included, against the risk of the type of harm which has in fact occurred as a result of its violation — the great majority of the courts hold that an unexcused violation is conclusive on the issue of negligence, and that the court must so direct the jury. Other jurisdictions vary considerably in the effect given to the breach of a traffic law. In Alaska, the seminal case concerning violation of law and its effect on a jury's consideration of negligence is Ferrell v. Baxter, In that case we adopted the rules set forth in the Restatement (Second) of Torts § 286, 288A and 288B (1965) as guidelines for trial courts on the proper use of traffic statutes, regulations, and ordinances in negligence cases. Section 286 provides that a trial court may adopt an administrative regulation as the standard of conduct of a reasonable man when certain prerequisites are met. Section 288B(2) provides that when a regulation is not adopted as the legal standard of care, an unexcused violation may nonetheless be relevant evidence bearing on the issue of negligence. In the case at bar the superior court did not adopt the administrative regulation in question as defining the standard of care. Rather, the court treated the regulation as relevant evidence bearing on the issue of negligence. We are now called upon to determine whether the superior court abused its discretion in determining that a violation of 17 AAC § 15.130 was only evidence of negligence and not negligence per se. We begin this inquiry by noting that nothing in Ferrell distinguishes between rules administratively adopted and rules which are law because they themselves were enacted by the legislature. The point of Ferrell is not that one type of law be given greater effect than another. Rather, it is that from time to time the state will articulate " . a policy that a certain class of individual be protected from a certain type of harm." The Ferrell case itself concerned not a legislatively enacted law but rather a regulation such as the one we are concerned with here. Regarding the effect to be ascribed to that regulation in Ferrell, we said: "By enacting the regulation pursuant to statutory authority, the Department of Public Safety has implicitly indicated that no reasonable person would [do the prohibited act." Subsequently, in Breitkreutz v. Baker, 514 P.2d 17, 20-24 (Alaska 1973), we elaborated on the criteria a trial judge should consider in determining what effect to give to a violation of statute or administrative rule. In that case we approved of a decision of the United States Court of Appeals for the Sixth Circuit where the court stated: . when a statute expresses a rule of conduct in general or abstract terms negligence per se has no application and . in such a case liability is determined by the usual test of reasonable care. Applying this standard in Breitkreutz to an administrative regulation directing drivers to not drive at a speed "greater than is reasonable and prudent", we approved of the trial judge's refusal to direct a verdict for plaintiff, on the ground that the jury must still determine what a reasonable and prudent speed would be under the circumstances. In the instant case we hold that the trial judge did not abuse his discretion in failing to instruct that a violation of 17 AAC 15.130 was negligence per se. Ferrell did recognize that certain circumstances might arise which would justify a decision not to adopt a regulatory standard, for example, when " . . . the law is somewhat obscure and unknown to the motoring public generally. . . . " One form of ignorance is well established as an excuse in these statutory violation cases. Where a party's infraction is due to innocent ignorance of the operative facts which make the statute or regulation applicable, courts have held that the jury must be given the opportunity to pass on the validity of the alleged excuse. We think the reasoning of these cases are applicable to the particular, facts of the case at bar. The superior court was of the view that a reasonably prudent person, contemplating the installation of a new pole at the site of existing utility lines on Mission Road, would not have been aware of the applicability of 17 AAC 15.130. This conclusion flowed from the ambiguous status of Mission Road at the time of the accident and the imprecise terms of the coverage of 17 AAC 15.130. In light of these factors, we are of the view that a negligence per se instruction was not warranted. Thus, we are led to the conclusion that no abuse of discretion has been shown. Appellant Janas McLinn received an eminently fair negligence instruction which emphasized the failure of Kodiak to post a flagman across Mission Road from Urdahl Circle. The judgment of the superior court is affirmed. BURKE, J., not participating. . There is some conflict in the testimony as to whether Burke actually came to a stop or merely slowed down. The most damaging testimony has him proceeding "very slowly" without coming to a stop. Burke is not a party to this action and whether he actually came to a complete stop or just slowed to a crawl is irrelevant to the questions we address in this appeal. . In a deposition Burke stated he had been waved on, after stopping, by a member of the work crew. In his testimony at trial,, Burke stated that he really "couldn't recall" whether or not someone signalled him on. On cross-examination Burke testified he did not depend on anyone to guide him safely past the children; " . . . the children as far as I was concerned were out of my way." .Burke testified that he put his vehicle in low gear and that in low gear his truck could travel no faster than 5 miles per hour. . 17 AAO 15.130 requires in part that " . . . all utility installations on, over or under highway rights-of-way shall, as a minimum, meet the following basic code requirements : . . . (4) Traffic Control (B) Uniform Manual on Traffic Control Devices for Streets and Highways, Bureau of Public Roads, 1966 . . . ." The Manual recommends the posting of flagmen under the circumstances which were present here. . In Taylor v. Alaska Rivers Navigation Co., 391 P.2d 15, 17 (Alaska 1964), this court recognized as a possible basis for recovery the rule of premises liability set forth in Restatement of Torts § 339 (1934), with minor modifications. That rule provides as follows : A possessor of land or a chattel is subject to liability for physical harm to children trespassing thereon, caused by a condition of the land or chattel, if (a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and (b) the condition is one of which the possessor knows or has reason to know, and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and (c) the children because of their youth do not discover the conditions or realize the risk involved in intermeddling in it or in coming within the area made dangerous by it, and (d) the utility of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and (e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children. . The balance of instruction 5 reads as follows : By a preponderance of the evidence is meant such evidence as, when weighed with that opposed to it, has more convincing force and the greater probability of truth. In the event that the evidence is evenly balanced so that you are unable to say that the evidence on either side of an issue preponderates, then your finding upon that issue must be against the party who had the burden of proving it. In determining whether an issue has been proved by a preponderance of the evidence, you should consider all of the evidence bearing upon that issue regardless of who produced it. . Instruction 21 informed the jury that: One in control of a street is subject to liability for physical harm to children coming thereon caused by traffic on the street if (a) the place where the traffic exists is one upon which the party in control knows or has reason to know that children are likely to come, and (b) the party in control knows or has reason to know of the traffic and realizes or should realize it will involve an unreasonable risk of death or serious bodily harm to such children, and (c) the children because of their youth do not discover the traffic or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and (d) the burden of eliminating the danger is slight as compared with the risk to children involved, and (e) the party in control of the street fails to exercise ordinary care to eliminate the danger or otherwise to protect the children. Kodiak objected to this instruction on the grounds that there was no evidence whatever that it was in "possession" of the area within the meaning of Restatement of Torts § 339 (1934) and that as a matter of law Kodiak could not have been a possessor in the sense of incurring affirmative duties of a land possessor towards trespassers. The superior court responded by imposing upon Janas the additional burden in instruction 5 of proving Kodiak was in control of Mission Street at the time of the accident. . Under Section 323 of the Restatement (Second) of Torts, it was incumbent upon Janas to show that the guidance of Burke's vehicle by a Kodiak employee was a service rendered "to" (or for the benefit of) her. Evidence going to this prerequisite of liability under Section 323 was lacking. Therefore, she was not entitled to an instruction based on this theory. . Compare note 4 supra, with Ferrell v. Baxter, 484 P.2d 250, 264 (Alaska 1971) ; see Restatement (Second) of Torts § 288B (1965). . Instruction 6 provided : Since a corporation can act only through its officers, or employees, or other agents, the burden is on the plaintiff to establish, by a preponderance of the evidence in the case, that the negligence of one or more officers, or employees, or other agents, of the defendant was a proximate cause of any injuries and consequent damages sustained by the plaintiff. Any negligent act or omission of an officer, or employee, or other agent, of a corporation, in the performance of his duties, is held in law to be the negligence of the corporation. . Instruction 20 provided : Negligence is the doing of some act which a reasonably prudent person would not do, or the failure to do something which a reasonably prudent person would do, when prompted by considerations which ordinarily regulate the conduct of human affairs. It is, in other words, the failure to use ordinary care under the circumstances in the management of one's person or property, or of agencies under one's control. . Instruction 24 provides: Because the amount of care exercised by a reasonably prudent person varies in proportion to the danger known to be involved in what is being done, it follows that the amount of caution required, in the use of ordinary care, will vary with the nature of what is being done, and all the surrounding circumstances shown by the evidence in the case. To put it another way, any increase in forseeable [sic] danger requires increased care. .Instruction 25 provided : Ahy injury or damage is proximately caused by an act, or a failure to act, whenever it appears from the evidence in the case, that the act or omission played a substantial part in bringing about or actually causing the injury or damage; and that the injury or damage was either a direct result or a reasonably probable consequence of the act or omission. Instruction 26 informed the jury that many different acts or omissions may operate independently or together to cause an injury, and any of these may be a proximate cause. Instruction 26 reads in full as follows: This does not mean that the law recognizes only one proximate cause of an injury or damage, consisting of only one factor or thing, or the conduct of only one person. On the contrary, many factors or things, or the conduct of two or more persons, may operate at the same time, either independently or together, to cause injury or damage; and in such a case, each may be a proximate cause. . See City of Fairbanks v. Nesbett, 432 P.2d 607, 612 (Alaska 1967) ; Veal v. Newlin, Inc., 367 P.2d 155, 156 (Alaska 1961). . Alaska Rule of Civil Procedure 51(a) provides : At the close of the evidence or at such earlier time during the trial as the court reasonably directs, any party may- file -written requests that the court instruct the jury on the law set forth in the requests. The court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury, but the court shall instruct the jury after the arguments are completed. No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury, by excusing the jury or hearing objections in chambers. As we said in Saxton v. Harris, 395 P.2d 71, 73 (Alaska 1964) (footnote omitted), "[t]he purpose of this rule is to enable the trial judge to avoid error by affording him an opportunity to correct his charge before it goes to the jury. The dictates of the rule are satisfied only if the judge is clearly made aware of the alleged error in or omission from the instructions. Counsel's objections must be specific enough to clearly bring into focus the precise nature of the asserted error." We are persuaded that the objections of Janas' counsel did not come within the spirit of Rule 51. Compare Pepsi Cola Bottling Co. v. Superior Burner Serv. Co., 427 P.2d 833, 837 (Alaska 1967), and Reader v. Ghemm Co., 490 P.2d 1200, 1202 n. 1 (Alaska 1971). In these cases we held that a trial court's failure to give a charge inay not be excused by technical defects in a requested instruction if the requested instruction sufficiently indicates to the judge a proper area of concern. We do not hold here that the failure of counsel to offer a technically proper instruction is by itself fatal to counsel's argument on appeal. Rather, we view the failure to offer an additional clarifying instruction free of technical defects as a factor in assessing prejudice to appellant in light of the other instructions given. As we have indicated, supra, the instructions given allowed the jury to consider an ordinary negligence theory. In light of the fact that the jury could consider such a theory, we hardly regard as prejudicial error the failure to post "neon signs" which, as proposed, were defective. . (Under appellant's single specification of error attacking instruction 5, the further argument is advanced that Kodiak was in possession of the Mission Road site as a matter of law. Section 328E of the Restatement (Second) of Torts defines a "possession" of land in terms of occupation and control; it does not require ownership interest as a prerequisite to liability. Kodiak claims that there was no evidence that it made any attempt to control both sides of the Mission Road. We agree with Kodiak's position and conclude that Janas was not entitled to a ruling that as a matter of law Kodiak was in control of the site of the accident. The Comment to Section 328E of the Restatement makes clear that "possession" as a predicate to premises liability is a factual issue. . See W. Prosser, Handbook of the Law of Torts (4th ed. 1971) § 201, at pp. 200-03 [hereinafter cited as Prosser]. . Prosser, supra note 17, § 36, at 200 (footnote omitted). . See generally 2 E. Harper and F. James, The Law of Torts § 17.6 (1956). . 484 P.2d 250 (Alaska 1971). . Restatement (Second) of Torts § 286 (1965) provides: The court may adopt as the standard of conduct of a reasonable man the requirements of a legislative enactment or an administrative regulation whose purpose is found to be exclusively or in part (a) to protect a class of persons which includes the one whose interest is invaded, and (b) to protect the particular interest which is invaded, and (c) to protect that interest against the kind of harm which has resulted, and (d) to protect that interest against the particular hazard from which the harm results. Restatement (Second) of Torts § 288A (1965) provides: (1) An excused violation of a legislative .enactment or an administrative regulation is not negligence. (2) Unless the enactment or regulation is construed not to permit such excuse, its violation is excused when (a) the violation is reasonable because of the actor's incapacity; (b) he neither knows nor should know of the occasion for compliance; (c) he is unable after reasonable diligence or care to comply; (d) he is confronted by an emergency not due to his own misconduct; (e) compliance would involve a greater risk of harm to the actor or to others. Restatement (Second) of Torts § 288B (1965) provides: (1) The unexcused violation of a legislative enactment or an administrative regulation which is adopted by the court as defining the standard of conduct of a reasonable man, is negligence in itself. (2) The unexcused violation of an enactment or regulation which is not so adopted may be relevant evidence bearing on the issue of negligent conduct. .Instruction 24A provided: There was in force in the State of Alaska at the time of the occurrence in question a certain regulation (17 Alaska Administrative Code, Sec. 15.130) which provided that: '(a) except where a higher degree of protection is required by the Department or by law, or orders of public authority having jurisdiction over the utility, all utility installations on, over or under highway rights of way shall, as a minimum, meet the following basic code requirements; . . . (4) traffic control (B) Uniform Manual on Traffic Control Devices for Streets and Highways, Bureau of Public Roads, 1961.' If you decide that a party violated the regulation in question by failing to comply with the recommendations set out in the Uniform Manual on Traffic Control Devices for Streets and Highways, Bureau of Public Roads, 1961, then you may consider that fact together with all the other facts and circumstances in evidence in determining whether or not the party was negligent before and at the time of the occurrence. . See e. g., Beithreutz v. Baker, 514 P.2d 17, 20 (Alaska 1973). . Ferrell v. Baxter, 484 P.2d 250, 261 (Alaska 1971). . Id. . Lester v. John R. Jurgensen Co., 400 F.2d 393 (6th Cir. 1968). . Id. at 396. . In Breitkreutz, 514 P.2d at 28, we quoted with approval the explanation of the Supreme Court of Ohio in Eisenhuth v. Moneyhon, 161 Ohio St. 367, 119 N.E.2d 440 (1954), regarding when a standard of care fixed by the legislature is to be regarded as final and conclusive. That explanation is sufficiently clarifying to bear repeating here: In other words, if a positive and definite standard of care has been established by legislative enactment whereby a jury may determine whether there has been a violation thereof by finding a single issue of fact, a violation is negligence per se; but where the jury must determine the negligence or lack of negligence of a party charged with the violation of a rule of conduct fixed by legislative enactment from a consideration and evaluation of multiple facts and circumstances by the process of applying, as the standard of care, the conduct of a reasonable prudent person, negligence per se is not involved. 119 N.E.2d at 443-44. . Ferrell v. Banter, 484 P.2d 250, 264 n. 24 (Alaska 1971). . Johnson v. Chicago & Northwestern Ry. Co., 71 S.D. 132, 22 N.W.2d 725 (19.46) ; see also Hullander v. McIntyre, 78 S.D. 453, 104 N.W.2d 40 (1960) ; McEachen v. Richmond, 150 Cal.App.2d 546, 310 P.2d 122 (1957) ; Mitchell v. Emblade, 80 Ariz. 398, 298 P.2d 1034 (1956) ; Wood v. Chicago, M., St. P. and Pac. R. R. Co., 45 Wash.2d 601, 277 P. 2d 345 (1954). . For 17 AAC § 15.130 to be applicable, Mission Road would have had to be a state highway. In 1965, the State of Alaska, in a letter written by Crosby Stein, district highway engineer, to .the City Manager of Kodiak, avowed that maintenance of Mission Road would be discontinued and indicated that the road would be dropped from the state highway system. After that period of time, the city of Kodiak continuously maintained the street. Although Mission Road was not formally withdrawn from the state highway system, the 1966 annual traffic report for the State of Alaska considered Mission Road to be a city route and no longer available for federal aid in the state highway program. On July 8, 1970, Mission Road was formally deleted from the state highway system and transferred to the city of Kodiak as a city street.

10345390

TULKISARMUTE NATIVE COMMUNITY COUNCIL; People of the Village of Tuluksak, Appellants, v. Harold HEINZE, Commissioner, Department of Natural Resources; Ric Davidge, Director, Division of Water, Appellees, Calista Corporation; Tuluksak Dredging, Intervenors-Appellees

Tulkisarmute Native Community Council v. Heinze

1995-07-28

No. S-5711

935

953

898 P.2d 935

898

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:17:46.954789+00:00

CAP

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

TULKISARMUTE NATIVE COMMUNITY COUNCIL; People of the Village of Tuluksak, Appellants, v. Harold HEINZE, Commissioner, Department of Natural Resources; Ric Davidge, Director, Division of Water, Appellees, Calista Corporation; Tuluksak Dredging, Intervenors-Appellees.

TULKISARMUTE NATIVE COMMUNITY COUNCIL; People of the Village of Tuluksak, Appellants, v. Harold HEINZE, Commissioner, Department of Natural Resources; Ric Davidge, Director, Division of Water, Appellees, Calista Corporation; Tuluksak Dredging, Intervenors-Appellees. No. S-5711. Supreme Court of Alaska. July 28, 1995. Eric Smith, Anchorage, for appellants. John T. Baker, Asst. Atty. Gen., Anchorage, and Bruce M. Botelho, Atty. Gen., Juneau, for appellees. Frederick H. Boness, Preston, Thorgrim-son, Shidler, Gates & Ellis, Anchorage, for Calista Corporation. James N. Barkeley and Paul K. Wharton, Hughes, Thorsness, Gantz, Powell & Brun-din, Anchorage, for Tuluksak Dredging. Before MOORE, C.J., RABINOWITZ, MATTHEWS, COMPTON and EASTAUGH, JJ. . The challenged permit extensions are as follows: Permit Extensions ADL 209433, ADL 213050, LAS 5670, LAS 5672, LAS 5674, LAS 5675, LAS 5676, LAS 5677, LAS 5678, LAS 5679, LAS 5680, LAS 5681, LAS 5682, LAS 5683, and LAS 5684.

10732

67327

OPINION EASTAUGH, Justice. I. INTRODUCTION Tulkisarmute Native Community Council, the tribal government of the Village of Tu-luksak, and Tuluksak residents (collectively TNCC) challenge the decision of the Department of Natural Resources (DNR) to extend fifteen permits for the appropriation of water in the Tuluksak River and its tributaries. The water is to be used for placer gold mining, a procedure in which overburden is removed from streambeds and nearby lands and the underlying gravels are mixed with water and run through a sluicebox. Because the water is taken from a stream, state law requires that it be appropriated. Residents of the Village of Tuluksak rely on the river for subsistence fish and wildlife uses and oppose the permit extensions. They contend that the extensions are without basis, and violate applicable regulations and article VIII, section 13 of the Alaska Constitution. They assert that appropriation of water for placer mining threatens the quantity and quality of the water and the health of fish and wildlife populations. DNR and interve-nors Tuluksak Dredging, Ltd. (TDL) and Calista Native Corporation (Calista) (collectively TDL) support extending the permits so that TDL may continue placer mining on the Tuluksak River. II. FACTS AND PROCEEDINGS In 1981 and 1982, TDL applied for water rights for placer mining on the Tuluksak River and its headwater tributaries. In February 1982 DNR issued permit ADL 209433-P, authorizing the appropriation of 6.0 cubic feet of water per second (cfs). In June 1982 DNR issued a second permit, ADL 213090-P, authorizing the appropriation of 7.0 cfs. ADL 213090-P expired in March 1985; ADL 209433-P expired in March 1986. In December 1986 DNR extended the permits for another four years. However, instead of issuing two extended permits, DNR separated the two original permits into fifteen separate permits. Each of the fifteen permits authorized an appropriation of 5.6 cfs. In February 1990, in anticipation of the expiration of the 1986 permits, ADF & G reported to DNR the likelihood that in seven of the stream locations, less than 5.6 cfs of streamflow existed. Consequently, ADF & G concluded that permitting appropriation of that amount would effectively deprive those streams of all their water. ADF & G requested that DNR supply specific information on those streams and an additional stream to complete its review. DNR apparently never responded to these requests. When the fifteen 1986 permits expired in March 1990, TDL applied for an extension of each of the permits. DNR issued TDL temporary water use permits for the 1990 mining season. In October 1990 DNR held a public hearing in Tuluksak at which villagers testified and unanimously opposed the extensions. The villagers described a variety of adverse impacts on the river which they attributed to mining: the river had grown shallow; the water was no longer safe to drink; the number of fish in the river had decreased dramatically; and the water had discolored river boats. By letter the villagers also asked that DNR not extend the permits and asserted that DNR had committed specified procedural and substantive errors. In its April 22,1991 written decision on the request for extension of the permits, DNR extended the permits through October 31, 1993, the end of the 1993 mining season. DNR rejected the villagers' view that TDL's mining adversely affected the quality and quantity of the water. DNR indicated that the turbidity resulted from natural causes; there was no proof mining caused loss of water depth, lower fish populations, and health problems; the use of water for mining is nonconsumptive because TDL operates a 100% water recycling system; and each creek contained sufficient water to support the withdrawal of 5.6 cfs. DNR also reasoned that "the extension of the permits is preferable to the issuance of certificates of appropriation, because of the complexity of the issues and the potential change in land ownership [from the Bureau of Land Management (BLM) to Calista]." TNCC filed an administrative appeal of the decision to extend the permits. DNR denied the appeal, stating that it relied on the best available hydrologic data to make its decision and otherwise complied with its regulations. DNR conceded that there would be a net water loss as a result of the appropriation but stated that the permits would "be conditioned to determine how much water is diverted and when it is diverted." DNR amended the permits to require the collection of hydrologic data to document the flow and water level in the river and creeks and the measurement of the amount of water diverted each mining season. TNCC appealed DNR's decision to the superior court. Contemporaneous with the filing of their opening superior court brief, TNCC filed a variety of documents to augment the record. Two of these documents were reports prepared by consultants retained by TNCC. The reports asserted that in most streams there was insufficient data to conclude that there would be no harm to fish, and that in at least some streams degradation of fish habitat was certain to occur. After a hearing, Superior Court Judge Brian C. Shortell remanded the matter to DNR to decide whether to accept and consider the additional materials offered by TNCC. DNR decided to add eight out of ten exhibits to the administrative record, but did not amend its decision except to note that TDL had abandoned its request for water at Shovel Creek. After further briefing by the parties, in April 1993 Superior Court Judge Dana Fabe affirmed DNR's decision. This appeal followed. III. DISCUSSION TNCC raises three issues on appeal: (1) whether DNR acted outside its authority by extending the water rights permits under the circumstances of this case; (2) whether substantial evidence supported extending the water rights permits; and (3) whether DNR's extension of the permits violated article VIII, section 13 of the Alaska Constitution. A. Standard of Review We have not previously addressed the standard of review for a challenge of a DNR decision regarding an application for water rights. However, for cases involving preferential land rights, we have stated that we review "discretionary actions that do not require formal procedures under the arbitrary and capricious or abuse of discretion standard." Olson v. State, Dep't of Natural Resources, 799 P.2d 289, 293 (Alaska 1990). "This is also the federal rule." Id. at 293 n. 7. Under that standard the court must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment_ Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823-24, 28 L.Ed.2d 136 (1971) (citations omitted), cited in Olson, 799 P.2d at 293 n. 7. We apply the same standard in reviewing state water rights decisions. Additionally, interpreting the applicable statutory requirements for granting a permit extension does not involve agency expertise. We consequently review the issues of statutory interpretation under the substitution of judgment standard. Longwith v. State, Dep't of Natural Resources, 848 P.2d 257, 260 n. 5 (Alaska 1992); Madison v. Alaska Dep't of Fish and Game, 696 P.2d 168, 173 (Alaska 1985). We review DNR's fact findings under the substantial evidence test, requiring that DNR's findings be supported by the record. Olson, 799 P.2d at 294. B. Water Rights in Alaska Free flowing waters in Alaska are subject to the appropriation doctrine: water may only be taken, or appropriated, from a stream with permission from the State, but the first person to apply has first priority to the volume of water requested. This doctrine is reflected in article VIII, section 13 of the Alaska Constitution: All surface and subsurface waters reserved to the people for common use, except mineral and medicinal waters, are subject to appropriation. Priority of appropriation shall give prior right. Except for public water supply, an appropriation of water shall be limited to stated purposes and subject to preferences among beneficial uses, concurrent or otherwise, as prescribed by law, and to the general reservation of fish and wildlife. After successfully appropriating a specific amount of water, the appropriator is entitled to a water right, a full and permanent property right in that quantity of water. The Alaska Water Use Act, AS 46.15.010-.270, governs the appropriation and distribution of water rights in Alaska. Doyle v. Peabody, 781 P.2d 957, 960 (Alaska 1989). DNR's regulations elaborate on the statutory requirements. A person must file an application with DNR to obtain a water right. 11 AAC 93.040 (1994). The applicant must provide information such as the specific use proposed for the water, when, where and how much water will be taken and discharged, the maximum amount to be used, and descriptions of any impoundment structures to be used. 11 AAC 93.040(c). After providing notice and an opportunity for others to file objections, DNR will issue a permit to appropriate water if issuance meets the requirements of AS 46.15.080. AS 46.15.133; 11 AAC 93.080-110. DNR may place conditions on the permit which "protect the public interest," by ensuring that a quantity of water will be maintained in the stream and that proposed structures for taking the water are adequate. 11 AAC 93.120(e); AS 46.15.100. The permit enables the permittee to construct any necessary works and to begin using the water so that he or she can qualify for a certificate of appropriation. See AS 46.15.110 ("A permit may place a time limit for beginning construction and perfecting appropriation."); AS 46.15.120 ("Upon completion of construction of the works and commencement of use of water, the permit holder shall notify the commissioner that the appropriator has perfected the appropriation"). DNR may extend the permit for "good cause shown," upon "receipt of a written request from the permittee showing diligent effort toward completing the appropriation." AS 46.15.110; 11 AAC 93.120(f). DNR may also cancel the permit "if the permittee (1) does not develop and make use of the appropriation within the permit time period, or (2) as provided in AS 46.15.175, violates a term or condition of the permit." 11 AAC 93.125. Once the permittee has demonstrated that "the means necessary for the taking of water have been developed and the permit holder is beneficially using the quantity of water to be certificated," he or she will receive a certificate of appropriation of water. 11 AAC 93.130(a)(1); AS 46.15.120. This provides the holder with a full and permanent property right in that quantity of water. The right attaches as of the date of application but may be lost through abandonment, primarily if a beneficial use is not made for a period of five years. AS 46.15.050(b); AS 46.15.140(c). C. Whether DNR Acted Outside Its Authority By Extending the Water Rights Permits? When DNR extended the permits, it reasoned that "extension of the permits . [was] preferable to the issuance of certificates of appropriation, because of the complexity of the issues and the potential change in land ownership." The decision further provided: The permits to appropriate water will be extended through the 1993 mining season. This date corresponds with the authorization to mine issued by BLM and the NPDES permit issued by EPA. The transfer of lands selected by Calista from BLM should be completed by that date, if not sooner. Calista will then have a say in the use of its lands for mining and Tuluk-sak Dredging will then be required to work with Calista. It is expected that the federal mining claim held by Tuluksak Dredging will be relinquished in order to facilitate the transfer of lands to Calista. TNCC argues that DNR was not authorized to extend the water rights permits because TDL did not demonstrate "diligent effort toward completing the appropriation" pursuant to 11 AAC 93.120(f). Specifically, TNCC contends that establishing "diligent effort" required TDL to demonstrate separate diversions from each of the streams in the Tuluksak River system. TDL and Calista explain in their joint brief that a placer mining operation requires a mining company to move equipment and build new settling ponds in order to mine different locations within the larger project area. They apparently claim that it is not feasible to work all locations within a project area in a given season, and therefore, TDL's failure to work all locations is not evidence of any lack of diligence. Further, TDL argues that it has demonstrated diligence because its "permit applications and subsequent activities constitute open steps providing notice of . [its] intent to secure appropriate rights on each of the permitted streams." Alaska Statute 46.15.110 provides that "[r]easonable extensions of time shall be permitted for good cause shown." Additionally, DNR's regulation elaborates that: "Upon the commissioner's receipt of a written request from the permittee showing diligent effort toward completing the appropriation, the permit will, in the commissioner's discretion, be extended for a period of time not to exceed the relevant maximum time period listed in . this section." 11 AAC 93.120(f) (emphasis added). Therefore, we consider whether the two reasons provided by DNR— the "complexity of the issues" and the "potential change of land ownership" — constitute "good cause shown" or demonstrate a "diligent effort" by TDL as required by the statute and regulation. We have not previously addressed "good cause" or "diligent effort" in the context of the relevant statute or regulation. However, two-other state courts have discussed "good cause" in the context of extending permits. In Kuiper v. Warren, 195 Colo. 541, 580 P.2d 32 (1978), the Colorado Supreme Court discussed good cause to extend a permit to construct a well and appropriate water. [T]he [Ground Water Management Act] and the [Colorado Ground Water Commission] guidelines afford appropriators the opportunity to obtain extensions upon a showing of good cause. The good cause shown provision, while not identical to the doctrine of due diligence, affords appropriators many of the same protections. Both the statutory extension procedure and the doctrine of due diligence afford appropriators, who are reasonably proceeding to complete appropriations under conditional rights, protection against loss of their rights. Designated ground water appropriators must construct their wells, place water to beneficial use, and comply with the statutory filing and time provisions or lose their right to divert. Id., 580 P.2d at 35. In Associated Enter. v. Toltec Watershed Improvement Dist., 578 P.2d 1359 (Wyo.1978), the Wyoming Supreme Court addressed the good cause requirement for a permit extension to complete construction of a reservoir. Thus, the sole criterion for extending these periods is whether the permittee has shown good cause for the extension. The above-quoted provision from § 41^4-506 finds its genesis in the common-law concept of due diligence which, in the context of water law, has been expressed as follows: "... [T]he law does not require any unusual or extraordinary efforts, but it does require that which is usual, ordinary, and reasonable. The diligence, required in the prosecution of the construction of all works necessary for the diversion and application of water in an attempted appropriation of the same is that constancy or steadfastness of purpose or labor which is usual with [people] engaged in like enterprises, and who desire a speedy accomplishment of their designs ." 2 Kinney on Irrigation and Water Rights, p. 1269_ It is basic that the determination of diligence is factual in nature and is to be determined from the circumstances surrounding each particular case. Id. at 1365-66 (citations omitted). We hold that the regulatory standard of requiring an applicant to demonstrate "diligent effort toward completing the appropriation" for a permit extension satisfies the more general statutory standard of granting an extension for "good cause shown." Therefore, DNR can extend a permit if the applicant shows diligent effort. To obtain a finding of reasonable diligence, the holder of the right must prove continuous, project-specific effort directed toward the development of the conditional right commensurate with his [or her] capabilities. Reasonable diligence must be evidenced by reasonable progress in the development of the conditional appropriation in the most expedient and efficient manner. Trans-County Water v. Central Colo. Water Conservancy Dist., 727 P.2d 60, 64 (Colo.1986). DNR stated that it extended the permits "because of the complexity of the issues and the potential change in land ownership." However, DNR failed to follow its own regulation in extending the permits based on these two reasons because neither basis bears on whether TDL demonstrated a "diligent effort toward completing the appropriation" as required by 11 AAC 93.120(f). DNR extended TDL's permits for reasons alien to the regulation. Moreover, TDL also failed to demonstrate diligent effort in its extension applications. DNR should have required TDL to describe the work which had been done to perfect the appropriation, show how the water had been beneficially used, or, at a minimum, explain why no use had yet been made, and state precisely why additional time was needed. Without this information, DNR could not determine whether TDL had made a "diligent" effort warranting permit extensions. TDL could not rely on its initial applications for water rights, because they did not contain information that would have satisfied the requirements of 11 AAC 93.040. We hold that on this record DNR was not authorized to extend the permits. 1. TDL did not demonstrate construction of infrastructure or water use. The representations TDL made in the extension applications reveal that the extension requests fail to meet the diligent effort standard. The initial permits, issued in February and June 1982 stated that TDL would construct and use bucket line dredges. The 1990 extension applications stated: The infrastructure including, but not limited to: airfields; road system; camp sites with complete living, working and power facilities; 2 bucketline dredges; and 1 trommel washplant are well established for support of any of our operations on the contiguous claim block and vicinity. TNCC asserts that "these facilities have long been present in the area. For example, . [Northland Gold Dredging's] dredge was operational in 1981, since it started to destroy the river then; and the dredge at Bear Creek had been in use well before 1988." TNCC's point is apparently that TDL's statement should not be construed as demonstrating a diligent effort by TDL, the permit holder, because Northland had already established the infrastructure. Additionally, TNCC argues that regardless of who completed the infrastructure, Northland or TDL, the fact the infrastructure is established obviates TDL's need for a permit extension. TDL responds that, by nature, mining cannot be confined to one location due to the need to build settling ponds and assemble the intakes of actual diversions. TDL, therefore, suggests that this indicates that the infrastructure has not been completed and extensions are warranted. However, TDL did not provide this information in its extension applications and the agency record does not clearly reveal what TDL may have done to prepare for further operations. Thus, TDL's unsupported assertion that it needs more time to complete the infrastructure is insufficient. TNCC further argues that since the dredges and the wash plant were available, TDL was in a position to make beneficial use of the water before the 1990 expiration of the 1986 extensions, but failed to do so. ADF & G raised this issue with DNR regarding eight of the streams in early 1990. Specifically, ADF & G questioned whether TDL had made any use of the waters, and with the exception of Spruce Creek, whether there were any present plans to mine there. DNR never responded to ADF & G. TDL did not demonstrate any actual water use in its extension applications. Moreover, in many of the applications, TDL stated that mining (and its concurrent use of water) would not begin until an undetermined or vague future date, in some cases commencing after the permits' 1993 expiration date. In other extension applications, TDL stated that it intended to operate in a number of the creeks in vague time frames from 1990 to 1994. An applicant must actu ally do something during the term of the permit to demonstrate diligence; a statement of intent cannot suffice. City of Denver v. Northern Colo. Water Conservancy Dist., 130 Colo. 375, 276 P.2d 992, 1003-04, 1008 (1954). See also Trans-County Water, 727 P.2d at 64 (citing Orchard Mesa Irrigation Dist. v. City of Denver, 182 Colo. 59, 511 P.2d 25, 28 (1973) ("to prove due diligence, there must be concrete efforts to finalize the appropriation; a vague hope to use the water someday is insufficient")). In its decision on appeal, DNR responded to TNCC's assertion that there was no evidence that the mining operation had used water during the past five years by stating that it "[found] evidence in the administrative record that water use . [had] occurred." DNR, however, did not specify what that use was or which streams had been used. TDL's applications failed to demonstrate that TDL had made any beneficial use of the water between 1986 and 1990, or that it intended to do so absent another extension. The record does not clearly indicate what use TDL made of the water before the 1986 extensions expired in 1990. The record does contain information that might have supported findings that TDL operated a wash plant at California Creek and Rocky Creek in 1987-89. The record suggests less clearly that the valley floors were dredged as recently as 1987, but does not specify where any such operations occurred. DNR made no specific findings about what beneficial use of water TDL made while the 1986-90 permits were in force, and made no findings about how any water use at particular sites might have justified extending the permits at all the sites. 2. Diligent effort can be shown on a project instead of on each individual stream. TDL contends that its placer mining operation is a single project, therefore, it need not perfect an appropriation from each stream to show diligent effort. TNCC argues that a showing of diligence must be made for each particular stream, claiming that the Colorado Supreme Court expressly rejected an argument identical to the one TDL makes here. Although in City of Denver v. Northern Colo. Water Conservancy Dist., 130 Colo. 375, 276 P.2d 992, 1000 (1954), the Colorado Supreme Court concluded, "The priority of appropriation which gives the better right under [the Colorado] Constitution is a priority on a stream rather than on a project," the facts in that case are distinguishable from the dispute before us. The Denver court listed the following considerations: (1) whether streams within a project are confluent with a main water body or somehow physically connected; (2) whether the per-mittee seeks to divert water from an "entirely separate drainage basin;" (3) whether the water appropriation on one water body was surveyed and planned years later than the other projects; and (4) whether appropriation on part of the project would directly affect other claimants who are "protestants [in that part of the project] but not directly affected by [the other] projects." Id. Thus, the court implicitly acknowledged that a demonstration of diligent effort on a stream within a project can conceivably suffice to show diligence throughout. Applying those guidelines in the instant case would support a conclusion that the fifteen permitted streams are part of a larger project: (1) the disputed permits are for the Tuluksak River and its tributaries; (2) all diversions are from two connected drainage basins within a defined area of operation; (3) TDL's mining and water use plan has always included each of the permitted streams; and (4) the "protestants" here claim to be directly affected by TDL's operations on each of the permitted streams. However, in light of TDL's failure to demonstrate diligent effort for any of the streams, we cannot extend the finding to the entire project. Consequently, we need not determine on how many individual streams a permittee must demonstrate diligent effort to demonstrate diligence on a project. In sum, TDL did not show a diligent effort in making a water appropriation in its permit extension applications. DNR made no explicit or implicit findings of diligent efforts, but rather, granted the extensions based on the alleged complexity of the issues and a prospective change in ownership of the land. Neither reason bears on whether TDL demonstrated a diligent effort to complete its water appropriation on any stream. DNR's rationale for extending the permits, therefore, is not related to the diligent effort criterion contained in 11 AAC 93.120(f). We conclude that DNR acted arbitrarily in extending the permits, thereby abusing its discretion. D. Whether DNR Had Substantial Evidence To Extend the Water Rights Permits? TNCC asserts that DNR's decision to extend the permits is not supported by the record. Specifically, it argues that (1) DNR lacked any basis to conclude that adequate water would be available for appropriation; (2) DNR did not have substantial evidence to support the amount of water granted for mining operations; (3) DNR did not consider that the method of placer mining had changed; and (4) DNR did not adequately address TNCC's concerns regarding water quality, navigation, or fish and wildlife. 1. DNR had adequate data to estimate stream flows and thereby determine that TDL could appropriate 5.6 cfs. TNCC contends that DNR did not have the necessary data to determine whether TDL should be able to appropriate 5.6 cfs from each of the fifteen streams. TNCC relies on two letters, one from Barry Hecht of Balance Hydrologies, Inc. and one from Lawrence Wise of Entrix, Inc., which express opinions that DNR erred in concluding that there was sufficient water to meet the requirements of TDL's mining operations while also protecting fish habitat. DNR contends that the permit extensions were based upon the best available data, and the information subsequently submitted by TNCC did not contradict DNR's data. DNR asserts that its decision is supported by adequate hydrologic data, relying on the memorandum by its hydrologist, Mark Inghram. DNR also notes that in approving TDL's appropriation of 5.6 cfs it relied on ADF & G's memorandum which stated that it had no objection to the issuance of the water right because the "withdrawal will not adversely affect fish or wildlife . if conducted according to an approved plan of operations." DNR's regulation provides that an application for a water right must include "a description of the mean annual flow, or mean monthly flow if available, using the best available data, or, if data are not available, an estimate of mean annual flow using acceptable hydrologic methods." 11 AAC 93.040(c)(14). Thus, TDL's requested water appropriation of 5.6 cfs must be based on the best available data or an estimate using acceptable hydrologic methods to estimate mean annual or monthly flows. Essentially, TNCC wants us to attach more importance to the methodology and conclusions of Hecht and Wise than to the methodology and conclusions of DNR's expert. TNCC's expert, Hecht, used the U.S. Geological Survey's standard procedure for estimating flows in ungauged waterbodies in southwestern Alaska and estimated stream flows based on the Kisaralik basin to the south of the Tuluksak area. Hecht challenged Inghram's "use [of] an average flow for the June through October period as the basis for evaluating water availability since flows vary so much over the course of the summer." Hecht suggested that DNR should use a minimum flow instead of a mean flow. TNCC's other expert, Wise, used the Ten-nant Method for determining instream flow requirements for the maintenance of fish habitat. To maintain "excellent" fish habitat, Wise recommended that flow diversions not exceed fifty percent of the average annual rainfall of any individual tributary and the sum of the withdrawals should not exceed fifty percent of the average annual flow of the Tuluksak River. Wise opined that, using the Tennant Method and Inghram's flow estimates, TDL could withdraw 5.6 cfs and maintain "excellent" fish habitat in most of the streams. However, he asserted that Shovel Creek did not contain enough water to withdraw 5.6 cfs, and diverting such an amount on Rocky and Spruce Creeks would result in "fair to degrading" and "poor or minimum" habitat, respectively. DNR and its hydrologist considered the information presented by Hecht and Wise in its decision on remand. Based on information provided by Hecht, Inghram revised his original flow estimates in eight tributaries to the Tuluksak River, finding that greater than 5.6 cfs of water existed in all but Shovel and Spruce Creeks. DNR concluded that the differences between Inghram's estimates and those of Hecht are roughly nine percent, which "represents corroborating values." As a result of Wise's assertion that there would be inadequate flow in Shovel Creek, TDL agreed to relinquish its permit to appropriate water from Shovel Creek for mining. DNR maintained, however, that Rocky and Spruce Creeks "have the water necessary for mining; and, since the water is required to be returned to those creeks, flows necessary for fish habitat would be maintained at a level that would be considered 'excellent' to 'outstanding' under the Tennant Method." After reviewing the documents submitted by TNCC, DNR adhered to its decision to issue all permit extensions except for Shovel Creek. No recorded data exist for the exact stream flows of the Tuluksak River and its tributaries. Consequently, DNR needed to extrapolate that information to determine how much water was available for appropriation. DNR considered the estimates of its hydrologist, Inghram, and those of Hecht and Wise, provided by TNCC ten months after DNR decided to extend the permits. DNR concluded that an appropriation of 5.6 cfs was justified in all streams except Shovel Creek, for which TDL subsequently relin quished its permit. Although DNR ultimately maintained its decision to extend the permits, it modified its analysis of flow estimates. We conclude that DNR's determination that TDL could appropriate 5.6 cfs based on the estimated stream flows in all streams except Spruce Creek is supported by substantial evidence. Despite its own hydrologist's estimate of only 4.6 cfs stream flow in Spruce Creek, Hecht's estimate of 3.6-1.2 cfs, and Wise's assertion that withdrawal of 5.6 cfs would result in "poor or minimum" fish habitat, DNR granted TDL the permit extension to appropriate 5.6 cfs in Spruce Creek. Therefore, DNR's extension for Spruce Creek was not supported by substantial evidence. 2. The record does not support a grant of the amount of water TDL requested and DNR granted. TNCC also argues the permit extensions are invalid because they allow TDL to take more water than it needs. TNCC argues that since TDL uses settling ponds to recycle 100% of the water, TDL does not need 5.6 cfs of water once the settling ponds are filled. TDL explains that despite its recycling program, it is necessary to divert water from the streams because of water loss (by evaporation and infiltration under normal conditions and when the operation stops for a protracted period) and the potential need to fill settling ponds which may be built when TDL moves the wash plant. TDL notes that while 5.6 cfs is the flow rate to which it requires access in order to guarantee sufficient water for its ongoing operations, TDL will not, in fact, divert 5.6 cfs twenty-four hours a day. The pertinent DNR regulation states that an application for a water right must include "a statement of the quantity of water requested, with documentation and calculations justifying the request." 11 AAC 93.040(c)(13). The record contains no documentation and calculations from TDL justifying its request for 5.6 cfs. On December 22,1986, DNR amended the amount of water to be appropriated to 5.6 cfs (from the previously permitted levels of 6 cfs and 7 cfs) in each of the permits, apparently on its own initiative, without supplying its reasons for doing so. DNR initially granted TDL 6 cfs and 7 cfs for two permits which covered large areas. DNR's initial grant can be fairly interpreted to have permitted TDL a total appropriation of 13 cfs for the two permitted areas, not 6 cfs and 7 cfs for each tributary within the permitted areas. The latter interpretation would potentially result in a cumulative total appropriation much greater than 13 cfs for the initial two permits. Therefore, when DNR split the initial two permits into fifteen permits, allowing 5.6 cfs to be appropriated for each permitted stream, DNR allowed TDL to appropriate a total of approximately 84 cfs. By doing so, DNR improperly amended the permitted appropriation amounts. Additionally, TDL has not supported its claimed need for 5.6 cfs. TDL broadly asserts that "[t]he ongoing flow rate necessary to guarantee operation of TDL's mining equipment is 5.6 cfs," explaining that 5.6 cfs is needed to replenish water loss in settling ponds due to evaporation, seepage, cessation of operation, or moving the wash plant. This assertion is not supported by facts in the record. No logical or self-evident reason explains why that amount of water is needed to fill or refill a settling pond; TDL could, for example, fill the pond at a slower rate or pump from the shallow ground water adjacent to ponds. Furthermore, other than asserting that 5.6 cfs is the flow rate to which it requires access, TDL fails to demonstrate why such an amount is necessary. Therefore, DNR's grant of 5.6 cfs lacked a substantial basis in the record. 3. DNR should have considered the change in the nature of the water use from a dredge operation to a wash plant. TNCC claims that the water use has changed, and therefore that the amount of water to be appropriated should reflect this change. TNCC contends that the original permits approved the operation of a bucket line dredge, which required 6 and 7 cfs to operate. In December 1986 DNR amended the appropriation per stream to 5.6 cfs; DNR retained that amended figure through the disputed extensions. However, DNR found that from 1987-90 TDL used wash plants which apparently require more water than bucket line dredges. TNCC argues that this is a substantial change in the way the water was used, and therefore that, DNR should not have extended the 5.6 cfs allocation without further analysis. TDL responds that "[t]he fact that . [it] has gone from a dredge to a wash plant operation does not change the type of beneficial use involved: placer mining. Only the type of equipment used has changed." The DNR Director responded similarly to TNCC's position on this point: "While the type of operation for mining has changed from dredging to a wash plant, I find that using water for placer mining has not changed." TNCC counters that the beneficial use is not "placer mining," but instead "placer mining by wash plant" rather than "placer mining by dredge." We agree. The issue is not the general purpose of the appropriation, but the requisite amount of water for the specific project involved. DNR requires a water right applicant to describe the "nature of the water use." 11 AAC 93.040(e)(9). The nature of the water use changes if a mining company employs a significantly different mining method that requires a different quantity of water. If TNCC was correct in asserting that a wash plant uses different amounts of water than a dredge, TDL should have been required to seek amended permits reflecting an adjusted limit on the amount to be appropriated. If TNCC was correct, TDL also should have been required to provide "a statement of the [new] quantity of water requested, with documentation and calculations justifying the request." 11 AAC 93.040(c)(13). DNR did not decide whether TNCC was correct; it only considered that the basic use, placer mining, was unchanged. DNR should have considered whether the two different methods of mining, in fact, require different amounts of water. Not having conducted that analysis or answered TNCC's argument, DNR should not have extended the 5.6 cfs allocation. The record does not appear to contain facts that would have supported a finding the two types of operations use identical amounts of water (had DNR made such a finding) and it certainly does not contain facts that are so convincing that they render harmless DNR's failure to decide that issue. 4. DNR adequately addressed TNCC's concerns regarding water quality and navigation, but failed to do so regarding fish and wildlife. TNCC argues that DNR did not adequately address TNCC's concerns regarding water quality, navigation, and fish and wildlife. DNR responds that TNCC supports this claim with opinions which are not probative of harm attributable to TDL's permitted activities. DNR may not issue a permit unless doing so is in. the public interest. AS 46.15.080(a)(4). In making this determination, DNR shall consider the impacts of water appropriation on fish and game resources, public health, and access to navigable water. AS 46.15.080(b)(3), (4), (8). DNR's regulation provides that "[a] permit extension . will, in the commissioner's discretion, be subject to additional conditions that the commissioner considers necessary to protect prior appropriators and the public interest." 11 AAC 93.120(g). Therefore, DNR must consider the public interest in determining whether to extend permits, specifically considering the impacts on water quality, navigation, and fish and wildlife. AS 46.15.080(b); 11 AAC 93.120(e)(2) & (g). a. Water quality concerns DNR's decision to extend the permits discussed water quality: The biggest concern expressed in the objections to this project and in the public hearing concerned water quality. This issue is hard to get a handle on due to the fact that there is no baseline data prior to mining, and the water quality work done to date has been geared towards turbidity and sediment. The USF & WS has a draft report out on the impacts of placer mining on the Yukon Delta National Wildlife Refuge. The conclusion states that no evidence was found that mining activities have adversely impacted the Tuluksak River's water quality or fish population! 1 However, the report goes on to say that river sediment in and below mining operations appear to be accumulating heavy metals. It is hypothesized that alterations in specific water quality parameters, such as PH, could release the heavy metals and trace elements found in sediment to the Tuluksak River. The report does not demonstrate that water quality has been affected by the mining to date, but speculates that the Fog River and Otter Creek significantly influence the lower Tuluksak River's chemical characteristics. Neither of these streams have been mined in the past. The report suggested that the current studies be continued with additional, and more extensive monitoring, on a regular schedule. BLM, in their Environmental Assessment (EA) states that, "No impact to the water quality of the Tuluksak River watershed is expected from the mining operation, because there are no planned diversions of surface water or direct discharges of processed water to the Tuluk-sak River. All surface and ground water intercepted in the mining areas will be collected and recycled into the operational water supply or treated to state and federal standards before discharge." The wash plant used in this mining operation has consistently met state and federal water quality standards during the last six years of operation, according to DEC and BLM. Monitoring by the federal and state agencies has not identified any contaminants in the Tuluksak River system, which might be attributed to the mining or its support activities (BLM's EA). DNR relied on the reports of various agencies in concluding that the Tuluksak River meets state water quality standards. DNR provided conditions regarding water quality on the permit extensions: Per AS 46.030.050, [sic] Any discharge to state waters made subsequent to these water appropriations shall comply with the Alaska Water Quality Standards. This may require the installation and maintenance of settling ponds or similar systems to reduce turbidity and settleable solids in the discharges. All operations will be conducted to prevent degradation of natural water courses or systems. Processed water will be recycled and any overflow will be treated to state and federal standards before discharge. All surface waters within the state of operations will be subject to treatment before discharge. Although DNR could have been more specific in the conditions it imposed regarding water quality, TNCC fails to demonstrate that DNR did not comply with state water quality standards. Thus, DNR did not abuse its discretion. b. Navigation concerns During the public hearing at Tuluk-sak, villagers testified that navigability on the river had decreased. DNR's decision found that navigability would not suffer from issuance of the permits because mining did not reduce the overall flow of the river since there would allegedly be no net loss of water. TNCC claims that DNR's decision ignored the villagers' testimony and is, therefore, unfounded. Although we acknowledge the sincerity of the villagers' opinions that mining will necessarily degrade the Tuluksak River, TNCC failed to document how TDL had negatively impacted navigability on the river and its tributaries. c. Fish and wildlife concerns The Tuluksak River provides important habitat for salmon and is relied upon as a subsistence and commercial fishery. The Tuluksak River system contains "one of the major salmon spawning streams in the Kus-kokwim River drainage." A loss of salmon production in the Tuluksak River will impact the Village of Tuluksak's subsistence fishery. Additionally, the Tuluksak River is a major contributor to the Kuskokwim River commercial fishery. TNCC argues that DNR did not adequately address TNCC's concerns regarding fish and wildlife. Villagers testified that there are fewer fish in the river than before mining began. Additionally, TNCC submitted Wise's report, stating that fish need at least fifty percent of the stream flow to have "excellent" fish habitat. TNCC also expresses its concern that stream segments may become dewatered when the return point of recycled water is downstream from the appropriation point, thereby significantly depleting fish spawning and rearing habitats and preventing passage of fish upstream or downstream at key life stages. TNCC's concern about the potential for dewatering has merit. A permit applicant must provide "a legal description of the point of withdrawal, diversion, or impoundment; the point of water use; and, if water is to be returned to a stream or water body, the point of discharge." 11 AAC 93.040(c)(6). Neither TDL's original applications nor its extension applications indicate precisely the points where the water will be diverted and then returned to the streams. Consequently, it is difficult to determine where a stream may potentially become dewatered. DNR failed to place any conditions on the permits concerning the distance between the point of appropriation and the point of return. See 11 AAC 93.120(e)(2)(A) (providing that DNR may include conditions to maintain a specific quantity of water at a given point to protect fish and wildlife) & 11 AAC 93.120(e)(2)(B) (providing that DNR may include conditions that include the approved location of points of withdrawal and return flow). 11 AAC 93.120(e)(2) gives DNR the authority to include conditions which would have potentially protected fish and wildlife. DNR's decision granting the permit extensions contained one condition regarding fish and wildlife: "Operations will be conducted in a manner to minimize wildlife species disruption and habitat destruction. Reclamation will be designed, to the extent practicable, to enhance wildlife habitat diversity and productivity." 11 AAC 93.120(e)(2) gives DNR the authority to include conditions which protect fish and wildlife. Because TDL's extension applications failed to reveal the location of the points of appropriation and return, DNR should have conditioned the permits. DNR might have cured any deficiency in the applications by imposing stringent limitations on dewatering and by requiring that operations cease or be reduced to maintain adequate streamflow for fish and wildlife. The sole condition DNR imposed regarding fish and wildlife is too vague to ensure protection of the salmon habitat from dewatering. Because DNR did not incorporate any specific condition regarding dewatering, it abused its discretion in granting extensions in response to deficient applications. IV. CONCLUSION We hold that DNR acted outside its authority in extending the water rights permits because TDL did not show "diligent effort toward completing the appropriation" as required by 11 AAC 93.120(f). We conclude that DNR had adequate data to estimate stream flows. We conclude that the amount of water TDL requested is not supported by the record. We conclude that DNR did not abuse its discretion in determining that the permit extensions adequately addressed water quality and navigation concerns; however, we conclude that DNR abused its discretion by failing to address fish and wildlife concerns adequately. Accordingly, we REVERSE DNR's decision to extend the permits and REMAND to DNR. If TDL wishes to pursue the extensions, DNR must order TDL to file a proper application for a permit for each stream for which TDL intends to use water in the definite future, providing a justification for the amount of water each operation would require, and demonstrating diligent effort and how water was beneficially used during the prior extensions that expired in 1990. Applicants seeking permits or extensions are not necessarily in the best position to make determinations potentially affecting fish and wildlife. Consequently, if DNR decides to issue permits, we urge it to consider including conditions requiring maintenance of specific minimum quantities of water in specified stretches of stream and specifying the points of withdrawal and return. . The Tuluksak River has its headwaters in the Kilbuck Mountains. The river is ninety miles long and drains approximately 830 square miles of southwestern Alaska before entering the Kus-kokwim River. Gold placer mining operations began on the Tuluksak in the early 1900's. In a 1983 report, the Alaska Department of Fish and Game (ADF & G) reviewed the permit applications since 1981 and characterized the Tuluksak River as a "major contributor to the Kuskokwim River commercial fishery." ADF & G estimated that the Tuluksak contributes seventeen percent of the salmon in the Kuskokwim River drainage. It also found that the portion of the river proposed for diversion and mining "contains the highest quality king salmon spawning habitat in the Tuluksak River drainage." Further, ADF & G reported that 91% of the king salmon, 92% of the chum salmon, 100% of the pink salmon and an unknown percent of the coho salmon spawning in the Tuluksak River occurs downstream of . [this portion] and is exposed to the detrimental effects of the increased turbidity and sediment loads which will result from instream mining by . [operating a mining company's] dredge. .DNR separated the permits for "administrative purposes so that for each stream (source of water) being used within the mining block there is a separate water right file." .ADF & G questioned the availability of 5.6 cfs in Shamrock Creek, Sabula Creek, Spruce Creek, Myrtle Creek, Rocky Creek, Shovel Creek, and Dry Creek. Additionally, ADF & G requested information regarding water flow, existing water uses, and the time water would be needed in Nugget Creek because it "has been specified as an anadromous fish waterbody . and is known to provide spawning and rearing habitat for coho salmon." . ADF & G asked for information such as monthly flow duration analyses, the estimate of mean annual flow, the existing water use appropriations, if any, from the waters, and the anticipated date the need for the water would arise. TNCC claims that ADF & G never received the information. . TDL has since expressly relinquished its permit for Shovel Creek. . Although the subject permit extensions expired at the end of the 1993 mining season, we consider the merits of this appeal. Generally, we refrain from deciding questions where events have rendered the legal issues moot. Brandon v. Dep't of Corrections, 865 P.2d 87, 92 n. 6 (Alaska 1993) (citing Afayes v. Charney, 693 P.2d 831, 834 (Alaska 1985)); see Kleven v. Yukon-Koyukuk School Dist., 853 P.2d 518, 523 (Alaska 1993) (quoting United States v. Geophysical Corp., 732 F.2d 693, 698 (9th Cir.1984) ("A claim is moot if it has lost its character as a present, live controversy.")). However, "where the matter is one of public concern and is recurrent but is capable of evading review," there is a public interest exception to the mootness doctrine. Hayes, 693 P.2d at 834 (quoting Doe v. State, 487 P.2d 47, 53 (Alaska 1971)). The public interest exception involves consideration of three main factors: 1) whether the disputed issues are capable of repetition, 2) whether the mootness doctrine, if applied, may repeatedly circumvent review of the issues and, 3) whether the issues presented are so important to the public interest as to justify overriding the mootness doctrine.... Ultimately, the determination whether to review a moot question is left to the discretion of the court. Id. (citations omitted). Here, consideration of the three factors indicates that this matter falls within the public interest exception. First, TDL has repeatedly sought and been granted extensions of its water use permits. Based on TDL's previous applications, it appears likely that it intends to continue to seek permit extensions, until its appropriation ripens into a water right. Thus, the issues addressed in the present controversy are likely to arise again, when DNR considers future extensions. Second, the last extension granted to TDL was for less than two years. Due to the complexity of various ancillary issues in this case, DNR has favored issuing shorter term permits pending their resolution. It is therefore likely that the term of future permit extensions will be completed before final appellate review occurs and thus application of the mootness doctrine may repeatedly circumvent review of the issues addressed in this appeal. Third, since a water rights permit can potentially ripen into a property right, the public interest in the common water resource is important. Moreover, due to the ripening nature of a water right, our review of the propriety of granting the permit extensions will potentially determine the viability of TDL's future water right. Therefore, although the permit extensions expired in October 1993, we consider the merits of this appeal. . "[A]ppropriate means to divert, impound, or withdraw a quantity of water from a source of water, for a beneficial use or to reserve water under AS 46.15.145." AS 46.15.260(1). . DNR made numerous changes to the pertinent regulations effective November 7, 1990: DNR amended 11 AAC 93.040(c), 11 AAC 93.120, and 11 AAC 92.130, and adopted 11 AAC 93.125. TDL applied in April 1990 for the permit extensions at issue. DNR issued the extensions in 1991. TNCC cited the amended regulations in support of its arguments before the agency and on appeal to the superior court and to this court. DNR cited one of the newly-amended regulations when it denied TNCC's administrative appeal. Likewise, appellees TDL and state officials have consistently cited to the amended regulations in their joint superior and supreme court briefs. No party on appeal has argued that the regulations effective November 7, 1990 are inapplicable to the issues before us. . AS 46.15.080 provides the criteria for issuing a permit: (a) The commissioner shall issue a permit if the commissioner finds that (1) rights of a prior appropriator will not be unduly affected; (2) the proposed means of diversion or construction are adequate; (3) the proposed use of water is beneficial; and (4) the proposed appropriation is in the public interest. (b) In determining the public interest, the commissioner shall consider (1) the benefit to the applicant resulting from the proposed appropriation; (2) the effect of the economic activity resulting from the proposed appropriation; (3) the effect on fish and game resources and on public recreational opportunities; (4) the effect on public health; (5) the effect of loss of alternate uses of water that might be made within a reasonable time if not precluded or hindered by the proposed appropriation; (6) harm to other persons resulting from the proposed appropriation; (7) the intent and ability of the applicant to complete the appropriation; and (8) the effect upon access to navigable or public water. . TDL and its lessee, NYAC Mining Company, hold all mining claims within the Tuluksak Valley. All lands within the NYAC planning block are federal lands managed by BLM. These lands are presently closed to mineral entry. Calista Regional Native Corporation has selected these lands under the Alaska Native Claims Settlement Act. The transfer of these lands to Calista is pending within the BLM. . Northland Gold Dredging mined the area in the early 1980's. . The extension application form states before the signature line, "I hereby apply for an extension of time in which to complete construction of the structures and begin beneficial use of water." (Emphasis added.) . The streams included: Shamrock Creek, Sa-bula Creek, Spruce Creek, Myrtle Creek, Rocky Creek, Shovel Creek, Dry Creek, and Nugget Creek. . In three of the extension applications, TDL stated that it had no intent to begin mining until after 1993, the expiration date of the present permits. With regard to two of those permits, TDL stated that actual operations will await suitable economic conditions. Additionally, two applications stated that TDL "may opt to wait on extracting these reserves until . [they] are working in that vicinity, in 1994 or 1995." One application stated, "It is anticipated that we will begin extracting those reserves in 1995. The exact timetable is dependant on the business strategy of mining the reserves on the whole contiguous claim block." Further, one application stated, "We have no present plans to develop these lode deposits ourselves but we are presently marketing their development [sic] and the continuation of the present water permit is valuable for that purpose." .The applications for Bear Creek, Bonanza Creek, Spruce Creek, and California Creek provided that TDL intended to operate in 1990 and 1991. The application for claim # AA30710 stated that TDL planned to operate in 1991. Some time thereafter, TDL would mine Granite Creek and Dry Creek. Another application provided that TDL "would likely move onto those reserves in 1992." One application stated that "Shamrock Creek is one of our optional sites for the Trommel Washplant beginning as early as 1992 or 1993." The application for Sabula Creek provided that TDL anticipated on extracting those reserves in 1993 or 1994. . Our analysis of this issue highlights the point that the permits in question here are essentially blanket permits authorizing water to be taken at any point along more than forty miles of stream. By contrast, the regulations applicable to applications for water rights are site specific, requiring designation of the point of water withdrawal and the point of discharge back to the stream. 11 AAC 93.040(c)(3). No applications conforming with the degree of specificity required by the regulations appear in the record. The parties do not directly address whether blanket permits to appropriate water are authorized by statute. It is clear, however, that the regulations concerning permit applications do not contemplate blanket permits. . This assumes blanket rather than point specific permits are lawful. See note 17, supra. . In the absence of any measurements or useful estimates, Inghram estimated flows in the affected creeks by "analogy to the nearest gaged basins of similar size, which are in portions of Southwest Alaska." Hecht challenges the analogy on the basis that the area used had much greater precipitation. . The Tennant Method requires the calculation of the average annual flow, and then assesses the effect of removal of flow on the habitat of aquatic animals by determining the percentage of average annual flow remaining in the stream. This method assigns habitat quality values for different flow regimes during different parts of the year. . Christopher Estes, Statewide Instream Flow Coordinator for ADF & G, stated that Wise incorrectly applied the Tennant method. Estes stated that the Tennant method "should be combined with an evaluation of mean daily flow, monthly flow, and other hydrologic characteristics particular to the water body under investigation, whenever these data are available or can be estimated." Estes concluded that Wise did not include estimates of mean annual flow for each tributary and instead based the analysis on a mean monthly flow estimated by combining mean monthly flows for June through October which may not reflect the flow variability available for fish and other uses during individual months. Additionally, he claimed the analysis contained no fish periodicity data, "without which it is not possible to assess the quality of, and need for, the recommended instream flow requirements to sustain fish habitat." Wise stated that he used a modified Tennant method in response to having only Inghram's flow estimates with which to work. He justified the use of the average flow from June through October as more realistically reflecting the stream conditions during the spawning season than would the use of the average annual flow. Regarding periodicity, Wise responded that his analysis did consider the timing of life history activities of salmon. Furthermore, Wise explained that using the standard Tennant method results in lower flow recommendations which may not provide full protection for spawning fish, therefore, using the modified Tennant method results in a "conservative estimate of the amount of flow needed to protect important fishery resources of the Tuluksak River tributaries." . Although 11 AAC 93.040(c)(13) speaks directly to an application for a permit, we believe that this requirement also applies to permit extensions. Because a permit extension concerns the terms and conditions of the permit and thereby the amount of water requested, DNR should require an applicant for a permit extension to provide the quantity of water requested, with documentation and calculations justifying the request. This is especially true where the information supporting the initial permit fails to satisfy the regulation or where the terms in the extension permit differ from those approved in the initial permit. . TNCC disputes TDL's assertion that the settling ponds will lose water, and instead, asserts that the ponds will gain water. TNCC points to TDL's ADF & G permit which specifies how TDL is to deal with "settling pond overflow water." . TDL argues in support of its allowed diversion of 5.6 cfs: "TDL's application for the wash plant operation requested 3,000 gallons per minute, or roughly 6.7 cfs. Since the application established that mining did not run into November, DNR decreased the allowable diversion to 5.6 cfs accordingly, to reflect June-October usage." TDL fails to explain why it initially needed 6.7 cfs. Additionally, TDL does not explain why the fact that November was not part of the mining season justified DNR's approval of 5.6 cfs. Further, TDL's statement that its application for the wash plant operation established that mining did not run into November is not found in the application. As TNCC points out, TDL's attempted justification makes no sense. "The amount taken from a stream reflects the amount to be taken at a given time, not an average throughout the mining season. Moreover, flows in November obviously are going to be far lower than in the summer, due to freeze-up, which means that June-October usage will be higher than June-November usage." DNR granted TDL 5.6 cfs without either an explanation or a justification in the record as to why that amount is necessary for TDL's mining operation. Possibly facts exist which would have supported a permit of 5.6 cfs, but the record does not contain them and DNR does not describe them. . A number of villagers testified at the DNR hearing as to how mining affected the Tuluksak River, noting the decline in water quality, water levels, and the number of fish. . The November 1990 USF & WS report provides: Limnological information and analytical data collected during non-mining periods indicate that the Tuluksak River's water quality meets state water quality standards. No sediment levels exceeded Service-derived criteria; however, sediment collected in, and downstream of, mined sites contained significantly greater concentrations of trace elements and heavy metals than those levels found in control samples. Total metals concentrations in fish collected from mining-influenced sites were not significantly greater than those fish samples collected from control sites. Furthermore, concentrations in fish were below Service DRAFT tissue criteria associated with expected environmental impacts. . USF & WS noted in its report that "placer mining in Alaska, in general, has had a history of non-compliance with water quality standards and there is little evidence that the existing situation is likely to improve soon." Consequently, USF & WS recommended, at a minimum, including the following parameters in future monitoring plans: settleable solids turbidity alkalinity hardness conductivity temperature and pH dissolved oxygen suspended solids total arsenic in water dissolve metals in water total metals in sediment mercury in fish tissue . DNR's decision stated the following about navigation: The navigability of the Tuluksak River has changed over time. Sand bars have been created at its confluence with the Kuskokwim River due to sediment deposits. Some of this sediment originated from the Tuluksak River and its tributaries. It is not possible to determine if this impact is due to past mining practices prior to 1985, but it is evident that a majority of sediment transported by the Tuluk-sak River comes through natural means, such as bank erosion. In the BLM environmental assessment for this mining project, it states that, "During periods of high flow, water clarity degrades slightly in the upper valley, but clarity may fall off sharply in the lower river due to accelerated bank cut and slumping of silt rich soils." The largest source of sediment within the Tu-luksak River comes from the Fog River, a tributary to the Tuluksak River. The Fog River has never been mined, and the turbidity and sedimentation processes occurring are natural. In some areas of past dredging, surface water flow is temporarily lost to intertailing flow. This is evident on California Creek, which does not have a continuous surface water flow to the Tuluksak River. This break in flow was caused by the 1955 dredging, which placed a strip of tailings across the valley mouth. In other areas, dredging adjacent to stream channels has caused a reduced surface flow as water is flowing through the tailings, and not at the surface. The overall flow of the Tuluksak River has not been decreased due to mining, and surface water quantity below these mining sites has not been altered. The same historical volumes of water are available downstream from the mining project due to the nonconsumptive nature of placer mining. . TNCC also argues that DNR violated article VIII, section 13 of the Alaska Constitution by extending TDL's permits because DNR did not reserve enough water to support fish and wildlife. However, we find it necessary to abstain from reaching constitutional issues unless essential to a decision in the case. See Municipality of Anchorage v. Anchorage Daily News, 794 P.2d 584, 594 n. 18 (Alaska 1990) (declining to reach broader constitutional issue when civil rules constitute sufficient device for controlling discovery harassment); State v. F/V Baranof, 677 P.2d 1245, 1255 (Alaska) (not addressing constitutionality of statute since owners were afforded due process), cert. denied, 469 U.S. 823, 105 S.Ct. 98, 83 L.Ed.2d 43 (1984); Zerbe v. State, 578 P.2d 597, 598 (Alaska 1978) (not addressing constitutional issue because of disposition of first point on appeal), overruled on other grounds, Stephens v. State, Dep't of Revenue, 746 P.2d 908 (Alaska 1987); Puller v. Municipality of Anchorage, 574 P.2d 1285, 1288 (Alaska 1978) (not reaching constitutional issues in light of construction of statute); State v. City of Anchorage, 513 P.2d 1104, 1112 (Alaska 1973) (reaching constitutional issue unnecessary after interpreting statute); Anniskette v. State, 489 P.2d 1012, 1016 (Alaska 1971) (not reaching broader question of statute's constitutionality since conduct protected by constitution) (cited with approval in Marks v. City of Anchorage, 500 P.2d 644, 647 n. 9 (Alaska 1972)). Because we hold that DNR erred in extending the permits pursuant to the applicable regulations, it is not essential to the resolution of the case to decide the constitutional issue.

11567021

Julio BRASSEA, Appellant, v. Ward E. PERSON, Appellee

Brassea v. Person

1999-08-13

No. S-8371

481

485

985 P.2d 481

985

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:14:24.532101+00:00

CAP

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

Julio BRASSEA, Appellant, v. Ward E. PERSON, Appellee.

Julio BRASSEA, Appellant, v. Ward E. PERSON, Appellee. No. S-8371. Supreme Court of Alaska. Aug. 13, 1999. Matthew W. Claman, Anchorage, for Appellant. Donald K. McLean, James W. Talbot, Bauer, Moynihan & Johnson, Seattle, for Ap-pellee. Before MATTHEWS, Chief Justice, EASTAUGH, FABE, and BRYNER, Justices.

2524

15273

OPINION MATTHEWS, Chief Justice. I. INTRODUCTION Seaman Julio Brassea suffered an inguinal hernia while working as a fisherman on the F/V DAPHNE S. While performing surgery to repair this hernia, the doctor discovered a second, unrelated Richter's hernia and performed a second surgery to repair it. The owner of the DAPHNE S. paid maintenance and cure for the costs associated with the first hernia, but not the second, contending that Brassea was no longer "in the service of the ship" when the second hernia was discovered. The superior court ruled that maintenance and cure was not owed Brassea because he was not "in service of the vessel" at the time the second hernia manifested itself and that there was no causal connection between Brassea's service to the vessel and his Richter's hernia. Because Brassea was in the service of the vessel at the time his injury manifested itself, and because the issue of causation is irrelevant to maintenance and cure analysis, we reverse. II. FACTS AND PROCEEDINGS A. Facts Julio Brassea was employed to work as a fisherman aboard the F/V DAPHNE S. by the vessel's owner, Ward Person. Brassea's term of employment was to be for the duration of the 1995 Kodiak salmon season, beginning in early June 1995. The vessel ceased fishing for the season on August 11, 1995. But on July 19,1995, Brassea injured himself while lifting a twelve-gallon gas tank. On July 24 he reported the injury to Person, who encouraged him to seek medical treatment, and on July 25 he was diagnosed with a right inguinal hernia. Person paid Bras-sea thirty days maintenance (at $25 per day for a total of $750) and hired a replacement. Brassea underwent laparoscopic surgery for the inguinal hernia on July 27, 1995. During the surgery Dr. Foody, the treating physician, noticed that Brassea also had what appeared to be a previously undiagnosed Richter's hernia, caused by surgery Brassea had undergone as an infant approximately fifty years earlier. Believing the Richter's hernia to be a potentially life-threatening condition, Dr. Foody determined it was medically necessary to repair it at that time. Dr. Foody's attempt to repair the Richter's hernia laparoscopically was unsuccessful, so he closed the laparoscopic incisions and performed a separate, external surgery. Both surgeries were successful, and Bras-sea was discharged from the hospital on July 31, 1995. At the follow-up appointment on August 3, however, Brassea complained of pain from the incision made to repair the Richter's hernia, and he was readmitted with a diagnosis of a fistula in the wound from the Richter's incision. He remained in the hospital until August 19, 1995, and was unable to return to work until September 22, 1995. If not for the Richter's hernia surgery and treatment for the related fistula, Brassea would have recovered completely by August 21,1995. Dr. Foody testified that he was unable to segregate the costs of the two hernia repair operations, but Person hired a registered nurse to separate the billing. She determined that $11,031.27 of the bill was attributable to the inguinal hernia (comprising a portion of the July 27-31 hospital stay). Person paid this amount. She attributed the remaining costs to the Richter's hernia ($34,-056.18 in medical expenses), and Person contests his responsibility for this amount. As stated above, Person has paid Brassea $750 in maintenance for the thirty-day period from July 25 to August 23. He also paid Brassea his unearned wages in the amount of $601.81 through August 11, 1995 — -the end of salmon fishing for the DAPHNE S. But Person did not pay maintenance for the period of August 24 through September 22, when Brassea returned to work. B. Procedural History Brassea sued Person in superior court, asserting claims for negligence under the Jones Act, and for unseaworthiness, maintenance, cure and wages under general mari time law. Both parties moved for summary judgment on the maintenance, cure and wages claim. The superior court granted Person's motion and denied Brassea's in a Memorandum Order dated July 29, 1997. The parties subsequently stipulated to dismissal of the remaining claims, and the court entered final judgment on October 6, 1997. Brassea appeals the grant of summary judgment in favor of Person. III. STANDARD OF REVIEW "State courts may apply their own standard of review to maritime cases under the 'saving to suitors' clause [of 46 U.S.C. § 1333]." We review de novo appeals from grants of summary judgment involving questions of law. We will adopt the "rule of law that is most persuasive in light of precedent, reason, and policy." IV. DISCUSSION A. The Right of Maintenance and Cure " 'Maintenance' is the right of a seaman to food and lodging if he falls ill or becomes injured while in the service of the ship. 'Cure' is the right to necessary medical services. Both extend to the point of 'maximum recovery'." The right to maintenance and cure arises from the contractual nature of the employer-employee relationship, and is in some respects more comprehensive than the right to worker's compensation. Both are liability-without-fault systems, but maintenance and cure contains no causation element and is not the seaman's only remedy. The origin of the seaman's right to maintenance and cure in the United States rests on two policy grounds. First is the general social interest in protecting sailors. The second policy ground is national: the security of the United States and its economic well-being depend on an able marine fleet. "[Maintenance and cure] encourages seamen to engage in perilous voyages with more promptitude, and at lower wages. It diminishes the temptation to plunder upon the approach of sickness; and urges the seamen to encounter hazards in the ship's service, from which they might otherwise be disposed to withdraw." The importance of these dual policy objectives has led courts to construe the right to maintenance and cure broadly. In Farrell v. United States, the Supreme Court noted: It has been the merit of the seaman's right to maintenance and cure that it is so inclusive as to be relatively simple, and can be understood and administered without technical considerations. It has few exceptions or conditions to stir contentions, cause delays, and invite litigations. The seaman could forfeit the right only by conduct, whose wrongful quality even simple men of the calling would recognize — insubordination, disobedience to orders, and gross misconduct. On the other hand, the Master knew he must maintain and care for even the erring and careless seaman, much as a parent would a child. For any purpose to introduce a graduation of rights and duties based on some relative proximity of the activity at time of injury to the "employment" or the "service of the ship" would alter the basis and be out of harmony with the spirit and function of the doctrine and would open the door to the litigiousness which has made the landman's remedy so often a promise to the ear to be broken to the hope.[ ] 1. Causation is irrelevant in maintenance and cure analysis. The superior court addressed the issue of causation in its Memorandum Order, reasoning that "[i]n the case of a pre-existing condition, a ship's master is liable only for aggravation of the condition, not for the condition itself." The two cases the superior court cited for this proposition are inapposite, however, as they concern claims brought for negligence under the Jones Act (where causation is an element), not claims for maintenance and cure. In fact, the question of maintenance and cure was explicitly avoided in both cases; in one it was expressly reserved for a separate judgment, and in the other the parties had settled the issue during the trial. As suggested by the language of Farrell, supra, requiring a showing of causation for maintenance and cure claims misapplies the law. "The duty to provide maintenance and cure is without regard to fault, and negligence and causation are not relevant." "The seaman may recover for any injury or illness suffered without his misconduct during the employment period. The injury or illness need not result from or be in any way causally related to his shipboard duties." This rule can be traced to Calmar Steamship Corp. v. Taylor, There, during an examination for a stubbed toe a seaman was discovered to be suffering from Buer-ger's disease. The Court held the seaman entitled to maintenance and cure, even though the disease was unrelated to his foot injury. Calmar therefore establishes that maintenance and cure extends to all injuries and illnesses which are "aggravated or manifested " during the seaman's term "in service of the ship." 2. Elements of a maintenance and cure claim Although the seaman has the burden of proof in a case for maintenance and cure, the burden itself is light. The claimant must show only four elements: (1) his engagement as a seaman; (2) that his illness or injury was aggravated or manifested itself while in the ship's service; (3) the wages to which he is entitled at the end of the voyage; and (4) the expenditures or liability he incurred for medicines, lodging, etc. In this case, the only contested element is (2) — whether Brassea's Richter's hernia "manifested itself' while he was "in the service of the ship." B. At the Time He Underwent Surgery for His Inguinal Hernia, Brassea Was "In the Sewice of the Ship'' for Purposes of Maintenance and Cure. Brassea contends that he was in the service of the ship at least until August 11, 1995 (when the DAPHNE S. stopped fishing for salmon), and arguably until September 22, 1995 (when Brassea reached maximum cure). Person responds that Brassea's service to the ship ended when his inguinal hernia rendered him unable to return to work aboard the DAPHNE S. Although Person paid maintenance and cure after that point, he claims Brassea was no longer in the service of the ship. In Faw'ell, the Supreme Court defined "in the service of the ship" as the state of being "generally answerable to [the] call to duty rather than actually in performance of routine tasks or specific orders." A seaman on vacation, for example, is not "answerable to the call of duty," and therefore is not "in the service of the ship." Person argues that Brassea was not "answerable to the call of duty" at the time he underwent surgery to repair the inguinal hernia because he could not be called upon to return to the ship. He contends that Bras-sea's shipboard injury had rendered him unfit for work, and no possibility existed that he would be summoned for duty. Brassea argues for a liberal interpretation of the "in the service of the ship" standard. This argument conforms to the expansive interpretation encouraged by the Supreme Court in Aguilar v. Standard Oil Co. In that case, the Court extended "service" to include injuries sustained while on shore leave. The Court reasoned that the policy considerations supporting the broad obligation of maintenance and cure required an equally broad definition of "service." The assumption is hardly sound that the normal uses and purposes of shore leave are "exclusively personal" and have no relation to the vessel's business.... [Sjhore leave is an elemental necessity in the sailing of ships, a part of the business as old as the art, not merely a personal diversion. . [I]t is the ship's business which subjects the seaman to the risks attending hours of relaxation in strange surroundings. Accordingly it is but reasonable that the business extend the same protections against injury from them as it gives for other risks of the employment.[ ] The facts of Brassea's case are even more persuasive. Brassea was not engaged in an "exclusively personal" activity when he underwent surgery for the inguinal hernia. His injury, and subsequent surgery, were incidents of his position as a seaman and closely related to the business of the ship. The second hernia was discovered and thus manifested itself during his treatment for the inguinal hernia at a time when, except for the treatment, he would have been working aboard the DAPHNE S. We conclude, therefore, that the discovery and treatment of the second hernia occurred while Brassea was in the service of the ship. V. CONCLUSION In light of the tradition of liberally interpreting a shipowner's liability for maintenance and cure, a liability that is "among 'the most pervasive' of all and . not to be defeated by restrictive distinctions nor 'narrowly confined,' " we REVERSE the superior court's judgment and hold that Brassea was in the service of the ship when his Richter's hernia was manifested, and that he is therefore entitled to maintenance and cure. We REMAND for further proceedings consistent with this opinion. CARPENETI, Justice, not participating. . An inguinal hernia occurs when, during physical exertion, a section of intestine is forced through the small sac in the muscle wall of the abdomen left by the descent of the testicle early in development. . A Richter's hernia consists of an obstruction of the small intestine, caused by the intestine becoming embedded in, or scarred to, the abdominal wall. . A fistula is "an abnormal passage leading from an abscess or hollow organ to the body surface or from one hollow organ to another and permitting passage of fluids or secretions." Webster's New Collegiate Dictionary 467 (9th ed.1989). . 46 U.S.C. § 688 (1994). . Brown v. State, 816 P.2d 1368, 1371 n. 2 (Alaska 1991). . See id. . Gnin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979). . 1 Thomas J. Schoenbaum, Admiralty and Maritime Law, 348 (2d ed.1994) (citations omitted). . Grant Gilmore & Charles L. Black, Jr., The Law of Admiralty, 281-82 (2d ed.1975). . See id. . Id.; see also Aguilar v. Standard Oil Co., 318 U.S. 724, 727, 63 S.Ct. 930, 87 L.Ed. 1107 (1943) (noting that maintenance and cure is designed to achieve "the combined object of encouraging marine commerce and assuring the well-being of seamen"). . Farrell v. United States, 336 U.S. 511, 69 S.Ct. 707, 93 L.Ed. 850 (1949). . Id. at 516, 69 S.Ct. 707. . Milos v. Sea-Land Serv., Inc., 478 F.Supp. 1019, 1023 (S.D.N.Y.1979); Scarberry v. Ohio River Co., 217 F.Supp. 189, 193 (S.D.W.Va.1963). . Milos, 478 F.Supp. at 1029. . Scarbeny, 217 F.Supp. at 189, 193. . Schoenbaum, supra note 8, at 349 (footnote omitted). . Gilmore & Black, supra note 9, at 287-88. . 303 U.S. 525, 58 S.Ct. 651, 82 L.Ed. 993 (1938). . Id. at 526, 58 S.Ct. 651. . Id. at 529, 58 S.Ct. 651. . See Weason v. Harville, 706 P.2d 306, 309 (Alaska 1985) (quoting 2 M. Norris, The Law of Seamen § 558 (3d ed.1970)). . Farrell, 336 U.S. at 516, 69 S.Ct. 707. . See Shaw v. Ohio River Co., 526 F.2d 193, 194, 198-99 (3d Cir.1975). . 318 U.S. 724, 63 S.Ct. 930, 87 L.Ed. 1107 (1943). .Id. at 733, 63 S.Ct. 930. . Id. at 733-34, 63 S.Ct. 930. . Vaughan v. Atkinson, 369 U.S. 527, 532, 82 S.Ct. 997, 8 L.Ed.2d 88 (1962) (quoting Aguilar, 318 U.S. at 735, 63 S.Ct. 930).

11570561

Nanette SAUVE, Appellant, v. Dennis M. WINFREE and Bill H. Nix, Appellees

Sauve v. Winfree

1999-08-20

No. S-8626

997

1004

985 P.2d 997

985

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:14:24.532101+00:00

CAP

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

Nanette SAUVE, Appellant, v. Dennis M. WINFREE and Bill H. Nix, Appellees.

Nanette SAUVE, Appellant, v. Dennis M. WINFREE and Bill H. Nix, Appellees. No. S-8626. Supreme Court of Alaska. Aug. 20, 1999. James T. Brennan and Amy Vaudreuil, Hedland, Brennan, Heideman & Cooke, Anchorage, for Appellant. Daniel T. Quinn, Richmond & Quinn, Anchorage, for Appellees. Before MATTHEWS, Chief Justice, EASTAUGH, FABE, BRYNER, and CARPENETI, Justices.

4170

25835

OPINION FABE, Justice. I. INTRODUCTION After falling down a stairway at her place of employment, Nanette Sauve sued the premises owners, Dennis Winfree and Bill Nix, who were also the officers and sole shareholders of Sauve's corporate employer. The superior court granted summary judgment to Winfree and Nix after concluding that their landlord duties were inextricably intertwined with their corporate duties and, thus, that they were immune as co-employees under the Workers' Compensation Act. Because Sauve raised a genuine issue of material fact as to whether Winfree and Nix's negligence as landlords caused her injury, we reverse the superior court's grant of summary judgment and remand for trial. II. FACTS AND PROCEEDINGS In 1989 Nanette Sauve began working as a retail clerk for Alaska Seapac, Inc., d/b/a 10th & M Seafoods (10th & M), in a two-story office building in Anchorage. On August 17, 1992, Sauve fell down a flight of stairs in the office building while working. She had undergone knee surgery twelve days before the accident as a result of a non-work-related incident earlier that year, and the fall aggravated her knee injury. 10th & M paid Sauve both medical benefits and workers' compensation benefits for a period of missed work due to disability after she fell. Dennis Winfree and Bill Nix are the sole shareholders, board members, and officers of 10th & M. Like Sauve, both Winfree and Nix are salaried, full-time employees of 10th & M. Sauve reported to Winfree and Nix, each of whom described himself as her supervisor. Winfree and Nix also own the building housing 10th & M and lease it in its entirety to 10th & M through a partnership they created called ANW Investments. According to ANW's accountant, Russell Minkem-ann, ANW intended the lease to be a "triple net" lease — that is, a lease requiring the lessee, 10th & M, to pay all insurance, taxes, and costs of maintenance and repair for the leased premises. According to Minkemann, ANW's sole income came from the rent paid by 10th & M for the building. ANW's partnership tax returns through 1989 list the building at 10th & M as the partnership's address. Minkemann also stated in his affidavit that, according to 10th & M's corporate tax returns, 10th & M has paid for all maintenance, repair, and improvements to the building during the course of the lease. Such repairs include work on the freezers, replacement of portions of ceilings and walls, and installment of non-skid material on the floors. Minkemann stated that all significant leasehold improvements to the building have been capitalized as assets of 10th & M and have been reflected in the depreciation schedules filed with the corporation's tax returns. Rick Dawson, an Anchorage building contractor, stated in an affidavit that the stairway in question is a winding stairway prohibited in retail establishments under the Uniform Building Code. Dawson stated that the staircase also exceeds the maximum rise allowed under the Code and that the width of portions of the tapered and fan-shaped treads on the stairs is too narrow. In August 1993 Sauve sued Winfree and Nix in their capacity as owners of the building, claiming that, as landlords, they were liable for her injuries on the stairs. Superior Court Judge Milton M. Souter granted summary judgment to Winfree and Nix on the ground that, because they were also Sauve's co-employees at 10th & M, they were immune from liability under the exclusive remedy provision of the Alaska Workers' Compensation Act. In Sauve v. Winfree (Sauve I), we reversed and remanded the case, concluding that Winfree and Nix's liability turned on whether Sauve's injuries were caused by the structure of the staircase or by negligent performance by Winfree and Nix of their "corporate responsibility for the condition of the premises." If the injury was rooted in corporate, rather than landlord, duties, then the exclusive remedy provision would apply and Sauve could not sue Winfree and Nix for her injuries. Following remand, Winfree and Nix again moved for summary judgment, alleging that Sauve's injuries arose from negligently performed corporate duties rather than landlord duties. Alternatively, Winfree and Nix argued that, as landlords, they owed no legal duty to protect 10th •& M's employees from injuries caused by the building's condition. In December 1997 the superior court granted summary judgment to Winfree and Nix. Because the court concluded that Win-free and Nix's landlord obligations were "inextricably intertwined" with their corporate obligations, it declined to resolve the issue of whether landlord liability would otherwise attach. Sauve appeals. III. DISCUSSION A. Standard of Review Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, 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." We review a grant or denial of summary judgment de novo. The interpretation of a statutory provision, such as the exclusive remedy provision of the Workers' Compensation Act, is a question of law. We resolve questions of law by adopting "the rule of law that is most persuasive in light of precedent, reason, and policy." B. Lessors of Commercial Property Generally Owe a Duty of Care to Employees of a Business Tenant. Sauve argues that the traditional common law rule of landlord immunity from tort liability no longer applies to commer cial leases and, thus, that Winfree and Nix are liable as landlords for injuries caused by a defective or dangerous condition on the 10th & M premises. Winfree and Nix respond that this court has only abrogated the common law rule with respect to residential leases. We agree with Sauve to the extent that commercial landlords owe a general duty of care to employees of commercial lessees. In Newton v. Magill, we abandoned the common law rule with respect to residential leases: The courts of a number of jurisdictions have begun to discard this common law rule . in favor of the principle that landlords are liable for injuries caused by their failure to exercise reasonable care to discover or remedy dangerous conditions. These courts have relied in part on statutory or common law warranties of habitability and in part on a belief that the rule of landlord immunity is inconsistent with modern needs and conditions.[ ] We further noted in Newton that Alaska's adoption of the Uniform Residential Landlord and Tenant Act (URLTA) in 1974 undermined the "theoretical foundation of the traditional rule of caveat emptor." Thus, we explicitly rejected the common law rule in favor of a rule based on general tort law that a landlord must act reasonably in view of all the circumstances. The harder question is whether such common law immunity has been abrogated in Alaska with respect to commercial leases as well. Winfree and Nix argue that the holding in Newton applies only to residential leases because the court justified its decision in part on Alaska's adoption of URLTA, which does not apply to commercial leases. At first glance, many of the rationales cited by the Newton court for abandoning the common law rule appear to apply with greater force to a residential landlord-tenant relationship: The legislature by adopting the URLTA has accepted the policy reasons on which the warranty of habitability is based. These are the need for safe and adequate housing, recognition of the inability of many tenants to make repairs, and of their financial disincentives for doing so, since the value of permanent repairs will not be fully realized by a short-term occupant.[ ] But many commentators have noted logical inconsistencies in the residential/commercial lease distinction. Most businesses, like residential tenants, are not "equipped to conduct sophisticated inspections of the mechanical and structural elements of a large commercial or industrial building." And many small businesses have the same lack of bargaining power that gave rise to protections for residential tenants. Still, courts in most other jurisdictions continue to apply the common law rule of landlord immunity to commercial leases. "[A]l-most all the state legislatures that have adopted statutes protecting residential tenants from uninhabitable premises have refused to expand the protection to commercial tenants." Only a few states — New Jersey, New York, California, and Texas — have moved toward recognizing an implied warranty of fitness or suitability in commercial leases. Notwithstanding courts' and legislatures' general hesitancy to make commercial landlords liable to their tenants, most courts allow the employees of commercial tenants to sue the landlord of the business premises on which the injury occurred. In Spence v. Citizens & Southern National Bank, the Georgia Court of Appeals allowed an employee to sue his employer's landlord based on the landlord's statutory duty to lease a safe premises. And in Mora v. Baker Commodities, Inc., the California Court of Appeal allowed a suit by a worker against the premises owner despite a provision in the lease requiring the tenant employer to make repairs: [A] commercial landowner[ ] cannot totally abrogate its landowner responsibilities merely by signing a lease. As the owner of property, a lessor out of possession must exercise due care and must act reasonably toward the tenant as well as to unknown third persons.[ ] The West Virginia Supreme Court held in Pack v. Van Meter that an employee could sue both her employer and her employer's landlord for an injury caused by falling down a stairway that lacked a handrail. The court concluded that both the employer and the landlord owed a duty of care to the employee: [T]he failure to maintain the stairway with handrails and the steps with a safe tread is a responsibility reasonably shared by the employer and the owner of the place of employment_ Courts in other jurisdictions have held that a tenant's employee, who is injured at his place of employment as a result of the landlord's violation of a safety statute or other applicable law, can maintain an action against the landlord to recover damages.... Furthermore, even in the landlord-tenant law, we have recognized that a landlord is not insulated from all liability with regard to injuries suffered by a third party on the leased premises.[ ] Courts have allowed suits by employees against commercial landlords even when the landlord is also the employer. In Tanguay v. Marston, the New Hampshire Supreme Court concluded that an employee could bring a slip-and-fall suit against his employer's president and principal shareholder, who was also the lessor of the employer's business premises where the injury occurred. And in Perkins v. Scott, a Florida opinion that we quoted with approval in Sauve I, the court held that an employee injured on the job could sue the premises owner, who was also the owner and manager of the corporate employer. Although we do believe that many of the policy reasons for protecting tenants in the context of residential leases apply with equal force to the commercial setting, this case does not require us to resolve the broad question of whether commercial landlords generally owe a duty of reasonable care to commercial tenants. Rather, we are faced with the narrower issue of whether third parties, specifically employees of a commercial tenant, may sue commercial landlords in tort. Because we acknowledge the need to protect injured third parties in both the residential and commercial lease contexts, we agree with the general trend in the case law allowing such suits and conclude that commercial landlords in Alaska owe a duty of reasonable care under the circumstances to employees of their commercial lessees. C. A Genuine Issue of Material Fact Exists as to Whether Sauve's Injuries Stemmed from Winfree and Nix's Negligence as Landlords.- Our stated reason in Sauve I for remanding this case was to conduct "further inquiry into the cause of Sauve's injuries." While we cautioned that Winfree and Nix should not be able to reap the benefits of their chosen business organization structure without facing the parallel consequences, we recognized that if an employer's corporate and landlord duties were "inextricably intertwined," then the exclusive remedy provision would apply and Winfree and Nix would not be liable as landlords: If . it was the structure of the staircase that caused her injuries and landlord liability would normally attach in such a case, then Winfree and Nix should be held liable to the extent of landlords that were not otherwise involved with Sauve's employment. . However, if the cause of her injury is rooted in corporate duties negligently performed by Winfree and Nix in terms of their supervision of Sauve, or their corporate responsibility for the condition of the premises, then the exclusive remedy provision would bar payment of further damages resulting from duties performed "incident" to employment.[ ] To survive summary judgment, then, Sauve must raise a genuine issue of material fact both with respect to whether the structure of the staircase — and not negligent supervi sion — caused her injury, and whether Win-free and Nix would be liable solely as landlords for failure to repair such a structural defect. We believe Sauve has met her burden. First, Sauve has presented credible evidence that the faulty structure of the staircase caused her injury. For example, she submitted an affidavit from a contractor explaining that the width of the treads on the stairs on which Sauve tripped was so narrow as to violate applicable building codes. As a point of comparison, if Sauve had fallen on the staircase because it was slippery from a work-related by-product, we would most likely conclude that the injury was "rooted in corporate duties negligently performed by Winfree and Nix in terms of their supervision" of Sauve. Second, a genuine factual issue exists as to whether Winfree and Nix are responsible for repair of structural defects on the 10th & M premises solely in their capacity as landlords. We have already concluded that Winfree and Nix did have a duty to Sauve as commercial landlords. But Winfree and Nix maintain that they also had a duty to Sauve in their capacity as corporate officers of 10th & M, based on the terms of their oral lease with 10th & M and on 10th & M's history of voluntary repairs. Specifically, Winfree and Nix assert that their partnership, ANW Investments, has been in an oral "triple net" lease with 10th & M for over seventeen years, under which 10th & M was "exclusively responsible for insurance, taxes, and all maintenance, repairs, and improvements." But such boilerplate terms do not necessarily signify that a tenant voluntarily agrees to be responsible for structural repairs, such as the faulty staircase at issue here, for which a landlord normally assumes liability. Furthermore, as Sauve argues, Winfree and Nix have interpreted the terms of the oral lease "in the manner which best suits their business purposes at any given moment." Although Sauve cannot avoid summary judgment merely by "conclusorily attacking" Winfree and Nix's credibility, other factors exist that, taken in the aggregate, cast "sufficient doubt on [Winfree and Nix's] credibility to create a genuine issue of material fact." These factors include the lack of a written lease, the fact that Winfree and Nix are the parties on both sides of the lease, the uncertain scope of the term "maintenance and repair" in the affidavits, and the fact that Winfree and Nix revealed the terms of the lease in a piecemeal fashion throughout discovery. Moreover, such questions of credibility should generally be determined at trial rather than resolved- at the summary judgment stage. In the Tanguay case, the New Hampshire Supreme Court reversed a grant of summary judgment against a plaintiff-employee under a similar set of facts. The employee in Tan-guay brought a slip-and-fall suit against his employer's landlord, who was also the president and principal shareholder of the employer corporation. The court determined that a genuine issue of material fact existed as to whether the defendant was acting in his corporate capacity, notwithstanding a provision in the lease relieving the landlord of the duty to repair. The court emphasized that the question of whether the employer is acting in a corporate capacity with respect to the employee's injury "is a question for the jury, unless the evidence would support only one finding as a matter of law." As for 10th & M's history of maintenance and repair, we agree with Winfree and Nix that such voluntary acts are relevant to the question of their assumed duty of repair. But the repairs that 10th & M has undertaken have been traditional commercial tenant improvements rather than major structural repairs such as the faulty staircase at issue here. The improvements made by 10th & M — -freezer repair, ceiling replacement, installation of skid-resistant surfaces, "structural" bracing, painting, new signage, and new lighting — serve to maintain a safe working environment rather than to alter the structure of the building. A change in the style, nature, or dimension of the staircase made to comply with municipal building codes is a structural change that would typically not be the responsibility of a commercial tenant. IV. CONCLUSION A commercial landlord owes a duty of reasonable care under the circumstances to its lessee's employees. Because Sauve raised a genuine issue of material fact as to whether Winfree and Nix were acting in their capacity as landlords by failing to repair the structural defect in the staircase that caused her injury, we VACATE the superior court's grant of summary judgment to Winfree and Nix and REMAND for trial. . Anchorage has adopted every chapter of the Uniform Building Code except 1 (Accessibility), 29 (Plumbing), and 30 (Elevators). See Anchorage Munic. Code § 23.05.010,23.15.010. . See AS 23.30.055. . 907 P.2d 7 (Alaska 1995). . Id. at 13. . See id. . Winfree and Nix do not concede that their actions were negligent in this case. For purposes of summary judgment, we treat Sauve's allegations of negligence as true. See Sonneman v. State, 969 P.2d 632, 635 (Alaska 1998) (viewing evidence in the light most favorable to the non-moving party for purposes of summary judgment). . Alaska R. Civ. P. 56(c). . See Sonneman, 969 P.2d at 635. . See Borg-Warner v. Avco Corp., 850 P.2d 628, 631 n. 8 (Alaska 1993). . Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979). . See City of Fairbanks v. Schaible, 375 P.2d 201, 205 (Alaska 1962); Restatement (Second) of Torts § 356 (1965). . 872 P.2d 1213 (Alaska 1994). . Id. at 1216. . See AS 34.03.010-380. . Newton, 872 P.2d at 1217. . See id. We do not agree with Sauve's contention that we effectively abrogated the common law rule in a series of cases beginning with Webb v. City & Borough of Sitka, 561 P.2d 731 (Alaska 1977). In Webb, we held that a landlord's liability would no longer turn on the status of the plaintiff as trespasser, licensee, or invitee. See id. at 732. But as the superior court points out, the abandonment of the common law classifications of injured parties does not aid in the determination of who has the duty of care to such parties. At least one court has noted the fallacy in assuming that a partial retreat from common law distinctions signals a willingness to impose on landlords a duty of care to tenants. See Bellemare v. Gateway Builders, Inc., 420 N.W.2d 733, 740-41 (N.D.1988) (noting that abandonment of common law distinctions between licensees and invitees had no bearing on a landowner's duty to a tenant). . Newton, 872 P.2d at 1217. . Paula C. Murray, The Evolution of Implied Warranties in Commercial Real Estate Leases, 28 U. Rich. L.Rev. 145, 172 (1994) (citation omitted); see also id. at 172-73 ("Over ninety percent of American corporations have assets of under one million dollars. In fact, more than fifty percent of American corporations have less than $100,000 in assets."). But see Fred William Bopp III, The Unwarranted Implication of a Warranty of Fitness in Commercial Leases — An Alternative Approach, 41 Vand. L.Rev. 1057, 1081-82 (1988) (noting that businesses, due to profit motive, can afford to pay certain repair costs that residential tenants could not justify financially). . See Murray, supra note 18, at 172 ("[T]he vast majority of commercial tenants are not corporate giants that have the financial clout to bargain on equal footing with the landlord or to adequately inspect premises for suitability and habitability."); Todd D. Ruggiero, Brown v. Green and Hadian v. Schwartz: Determining Who Is Responsible for Major Structural Repairs in Commercial Leases, 28 Pac. L.J. 417, 424 (1997). . See Ruggiero, supra note 19, at 423; Murray, supra note 18, at 162-63. . Murray, supra note 18, at 163. . See id. at 146, 164, 166-69. . See Arthur Larson, Third-Party Action[-]Over Against Workers' Compensation Employer, 1982 Duke L.J. 483, 500-01. Of those courts that have barred an employee's suit against an employer's landlord, most have done so not out of a recognition that the landlord generally has immunity with respect to commercial leases but rather because the injuries did not involve structural defects. See Chausse v. Coz, 405 Mass. 264, 540 N.E.2d 667, 667-68 (1989) (holding that the failure to provide a low-humidity environment to avoid an explosion was not a structural defect that the landlord was under a duty to repair); Regensdorfer v. Central Buffalo Project Corp., 247 A.D.2d 931, 668 N.Y.S.2d 291, 292 (1998) (stating that a clause obligating the lessor to make structural repairs would have been applicable had loose stairway treads been a structural defect). But see O'Brien v. Island Corp., 157 Vt. 135, 596 A.2d 1295, 1298 (1991) ("[A] tenant having control of the premises is, so far as third persons are concerned, the owner and . such persons must seek redress from the tenant."). . 195 Ga.App. 294, 393 S.E.2d 1 (1990). . See id. at 2, 3 n. 2. . 210 Cal.App.3d 771, 258 Cal.Rptr. 669 (1989). . Id. at 675. . 177 W.Va. 485, 354 S.E.2d 581 (1986). . See id. at 586-87. . Id. at 586 (citations omitted). The court also recognized a commercial landlord's duty of reasonable care to employees of an independent contractor who are working on the premises. See id. at 587. . 127 N.H. 572, 503 A.2d 834 (1986). . See id. at 837-38. The Tanguay court relied on the seminal case Sargent v. Ross, 113 N.H. 388, 308 A.2d 528 (1973), in which the New Hampshire Supreme Court emphasized the need to impose "ordinary principles of tort liability" on landlords and did not limit its discussion to residential leases. See id. at 531. In Newton v. Magill, we "further expand[ed] the landlord's duty of care in aligning Alaska with the jurisdictions following Sargent." See Newton, 872 P.2d at 1217. . 554 So.2d 1220 (Fla.Dist.App.1990). . See Sauve I, 907 P.2d 7, 10 n. 1, 12-13 (Alaska 1995). . See Perkins, 554 So.2d at 1221-22. . Because we conclude that commercial landlords owe a duty to employees of their commercial tenants, we need not address Sauve's argument that this case falls under the "retained control" and "public use" exceptions to tire common law rule. . Sauve I, 907 P.2d at 13. The parties do not dispute that Sauve's injury was "caused" by the staircase fall. Here, when referi'ing to the cause of Sauve's injuries, we refer more specifically to the question of whose negligence, if anyone's, caused the fall — Winfree and Nix as landlords or Winfree and Nix as 10th & M supervisors. . See id. at 10. . Id. at 13-14. . Id. . See id. at 13. . Sauve argues that the statute of frauds renders the triple-net lease unenforceable because it is an oral lease of more than one year. But neither party to the lease in this case seeks to contest the enforceability of its terms. A lease that would otherwise fall under the statute of frauds is enforceable if all parties admit to the making of an agreement. See AS 09.25.020(4). . Arctic Tug & Barge, Inc. v. Raleigh, Schwarz, & Powell, 956 P.2d 1199, 1201 (Alaska 1998). . Turnbull v. LaRose, 702 P.2d 1331, 1335 (Alaska 1985), quoted with approval in Arctic Tug, 956 P.2d at 1201. . When asked in interrogatories to state "the rental terms, including the rental price" under the lease, Winfree and Nix merely listed the annual rent and stated that "[t]he terms have not changed except to reflect adjustments and reserve requirements attached to the mortgage." Although Winfree and Nix could reasonably have read the question as referring solely to the payment terms of the lease, Sauve correctly points out the brevity of their response and the lack of discussion about the "triple-net" lease in the later affidavits. . See Griffith v. Taylor, 937 P.2d 297, 304 (Alaska 1997). . See Tanguay v. Marston, 127 N.H. 572, 503 A.2d 834, 836-37 (1986). . Id. at 836. . See, e.g., Stemple v. Phillips Petroleum Co., 430 F.2d 178, 182 (10th Cir.1970) (holding that employees could recover in tort against a company that sublet premises to employer because the company voluntarily undertook 11 major repairs during the period of ownership). . For example, such a structural improvement is not the type of repair easily reflected in a business's depreciation schedules for tax purposes.

11566798

Robert J. CRAMER, Appellant, v. Rick WADE, individually and d/b/a R & R Diving, Appellee

Cramer v. Wade

1999-08-13

No. S-8140

467

473

985 P.2d 467

985

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:14:24.532101+00:00

CAP

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

Robert J. CRAMER, Appellant, v. Rick WADE, individually and d/b/a R & R Diving, Appellee.

Robert J. CRAMER, Appellant, v. Rick WADE, individually and d/b/a R & R Diving, Appellee. No. S-8140. Supreme Court of Alaska. Aug. 13, 1999. Jeffrey P. Stark, Delaney, Wiles, Hayes, Gerety, Ellis & Young, Inc., Anchorage, for Appellant. John C. Wendlandt, Walker Walker Wend-landt & Osowski, LLC, Anchorage, for Ap-pellee. Before MATTHEWS, Chief Justice, FABE, and BRYNER, Justices.

3401

21641

OPINION BRYNER, Justice. I. INTRODUCTION Alaska resident Rick Wade loaned money to TSO and Kokua, Inc., two companies embarking on a business venture in California. He acted in part based on information that he had received from Kokua president Robert J. Cramer, a California resident. In return for Wade's loan, Cramer signed a note on behalf of Kokua promising repayment within ninety days. But when the note went unpaid, Wade filed suit in Alaska against Cramer, Kokua, TSO, and others and obtained a default judgment. The superior court denied Cramer's motion to set the judgment aside for lack of personal jurisdiction. We affirm, concluding that Cramer's contacts with Alaska satisfy minimum due process requirements, that his status as Ko-kua's president affords him no shelter from personal jurisdiction, and that he has failed to prove any other substantial injustice. II. FACTS AND PROCEEDINGS Kokua, Inc., is a Nevada corporation. Robert Cramer, its president, and Frank Watkins, its secretary, are Kokua's sole shareholders. At all times relevant to this case, Cramer and Watkins were residents of California. Neither has ever been to Alaska. In early 1992, Kokua's only substantial asset was a contract to purchase a certain mining interest near Susanville, California; Kokua was attempting to close on its contract. At about the same time, an unrelated California business venture named TSO was attempting to develop a track stop near Tracy, California. TSO needed about $135,000 in short-term financing to launch the project. Vince Estelle, a TSO partner, mentioned the project to Cramer, a business acquaintance, offering him an equity interest in the truck stop in return for help in financing. Estelle also heard from an associate that Rick Wade — a resident of Valdez, Alaska — might be interested in investing.. He contacted Wade to discuss the project. In late February 1992, Estelle spoke again with Cramer, saying that he had arranged a $135,000 loan from Wade but needed someone to guarantee payment of the note. Estelle offered Cram-er an equity interest in the track stop in return for the guarantee. Cramer later spoke with Watkins about the truck stop project and about Estelle's proposition. Cramer and Watkins were interested in the project, and both thought that Estelle's proposition was attractive. But neither wanted to risk personal exposure for such a large amount of money, so they decided to have Kokua act as the guarantor. On February 28, 1992, Cramer, Watkins, and Estelle met at Watkins's office in Campbell, California, and telephoned Wade in Alaska to discuss the financing behind the track stop project. Though Cramer and Wade dispute the details of the conversation, it is undisputed that the purpose of the call was to encourage Wade to make the loan, that Cramer spoke with Wade, and that they discussed the financial soundness of the truck stop project. That same day Cramer also had Estelle fax various documents to 'Wade regarding Kokua that tended to show that the company was on firm financial ground. After speaking with Cramer, Wade decided to go through with the loan. On March 3, 1992, Wade received a faxed copy of a promissory note signed by TSO partners Estelle and Rick Peters, as well as by Cramer and Watkins, on behalf of Kokua. The note named TSO and Kokua as payees and promised to pay Wade $135,000, plus monthly interest of three percent, by June 3, 1992. Wade also received a fax from Cramer indicating: I am instructing our escrow officer to retire our note to you dated Mar. 3, 1992, at the close of the Escrow. You will be [paid] $135,000.00 princip[al] plus $12,150.00 in interest for a total of $147,150.00 directly from Cal-Seria [sic] Title Co. By telephone from Valdez, Wade then directed a wire transfer of the loan funds to TSO's bank account in California. TSO subsequently lost its financing for the truck stop, and Kokua also lost its contract to purchase mining rights. Neither repaid the promissory note to Wade. In November 1993 Wade filed an action in Valdez to collect on the note. He named as defendants Kokua, TSO, Cramer, Watkins, Estelle, and Peters. The complaint stated claims for debt, breach of contract, and fraud and misrepresentation; it sought both compensatory and punitive damages. The superior court entered a default judgment against all defendants on May 8, 1995. Shortly after Wade attempted to collect on the note in California, Cramer, Watkins, and Kokua moved under Alaska Civil Rule 60(b)(4) to set aside the default judgment as void for lack of personal jurisdiction. After considering affidavits filed by the parties, the court declined to set the judgment aside, finding adequate grounds for personal jurisdiction. Cramer appeals this judgment. III. DISCUSSION A. Cramer Established Minimum Contacts with Alaska to Satisfy Due Process Requirements for Personal Jurisdiction. Civil Rule 60(b)(4) allows courts to grant relief from any judgment that is void. A judgment is void if the court that rendered it lacked personal jurisdiction over the defendant. Cramer contends that Alaska lacked personal jurisdiction over him because Wade's claim falls outside the scope of AS 09.05.015, Alaska's long-arm statute. Wade responds that the court had personal jurisdiction under subsections (a)(3), (a)(4)(A), and (a)(5)(D) of the long-arm statute. Alaska Statute 09.05.015(a)(3) gives Alaska courts personal jurisdiction "in an action claiming injury to person or property in or out of this state arising out of an act or omission in this state by the defendant." Construing this provision in Kennecorp Mortgage & Equities, Inc. v. First National Bank of Fairbanks, we recognized that failing to pay monetary obligations owed to an Alaska creditor is an "omission in this state" causing "injury to property." Moreover, AS 09.05.015(a)(4)(A) "applies in an action claiming injury to person or property in this state arising out of an act or omission out of this state when the defendant carried on solicitation or service activities" in this state. Here, Cramer's active solicitation of a loan from Wade by calling him in Valdez and his alleged acts of misrepresentation during the course of their interactions arguably would place Wade's claim within subsection (a)(4)(A) even if the injury to Wade were viewed as resulting from Cramer's acts or omissions outside Alaska. Finally, subpara-graph (a)(5)(D) of the long-arm statute confers personal jurisdiction in an action that "relates to goods . or other things of value shipped from this state . on the order or direction of the defendant." In Kennecorp Mortgage we indicated that this provision would allow jurisdiction over an out-of-state party receiving funds from an Alaska resident. Cramer nevertheless raises specific challenges to each of Wade's long-arm theories, insisting that subsections (a)(3), (a)(4)(A), and (a)(5)(D) are inapplicable. But even if they had merit, Cramer's specific long-arm challenges would not be determinative. In Glover v. Western Air Lines, Inc., we expressly construed Alaska's long-arm statute to confer jurisdiction "to the maximum extent permitted by due process under the federal constitution." And more recently, in Alaska Telecom, Inc. v. Schafer, we reinforced Glover by recognizing that in allowing personal jurisdiction on "any other grounds provided by common law," our long-arm statute's catch-all subsection (c) extends to any case falling outside the statute's other subsections "in which the exercise of jurisdiction is permissible under the Fourteenth Amendment." Thus, reduced to its essence, Cramer's argument requires us to decide whether the Due Process Clause of the Fourteenth Amendment forbids an Alaska court to maintain personal jurisdiction over him. To answer this question we must consider the extent of Cramer's contacts with Alaska and the basic fairness of requiring him to appear in its courts: "[D]ue process analysis asks two questions: first, whether minimum contacts exist; second, whether maintenance of the suit is consistent with traditional notions of fair play and substantial justice." Here, Cramer had no ongoing ties to Alaska. But his limited contacts with Wade will nonetheless satisfy due process requirements if "they are substantial enough that [he] could reasonably anticipate being haled into court in [Alaska]." Under the test established by the United States Supreme Court in Burger King Corp. v. Rudzewicz, Cramer could reasonably anticipate being sued in Alaska if he " 'purposefully directed' his activities at residents of the forum, and the litigation results from alleged injuries 'that arise out of or relate to' those activities." Cramer's contacts are sufficient for personal jurisdiction under this test. Cramer's argument that his telephone calls alone could not establish personal jurisdiction is unpersuasive, for it overlooks the totality of the conduct that Cramer engaged in. Cramer purposefully directed his activities at a resident of Alaska by telephoning and transmitting documents to Wade in Valdez, actively encouraging Wade's participation in the truck stop loan, pledging Kokua's assets to guarantee the loan's repayment, signing the promissory note of March 3, 1992, and sending Wade written confirmation that he had arranged direct repayment to Wade by Ko-kua's escrow officer. And Wade's suit against Cramer relates to and arises directly out of these contacts. Under analogous circumstances, we commented in American National Bank v. International Seafoods: This is not a ease of [a nonresident defendant] passively standing by.... Rather, this is a case where the [defendant], knowing that its direct assurance to an Alaskan [resident] would be necessary in order to effectuate a commercial inter-state transaction, directly contacted the Alaskan [res ident]; . and [made assurances of payment].[ ] Our comment in American National applies here. B. The "Corporate Shield" Doctrine Does Not Preclude Finding Personal Jurisdiction over Cramer. Cramer nevertheless contends that he could not reasonably expect to be personally sued in Alaska because, throughout the transaction, he acted solely in his corporate capacity as Kokua's president. In so contending, Cramer asserts the "corporate shield" doctrine, which establishes "that a corporate officer or agent who has contact with the forum state only with regard to the performance of corporate duties does not thereby become subject to jurisdiction in his or her individual capacity." But Cramer's own pleadings belie his assertion that he dealt with Wade exclusively as Kokua's corporate agent. The affidavits and documentary evidence that Cramer submitted establish that he and Watkins were Kokua's only shareholders and its principal officers. Before this transaction, the company did not actively do business guaranteeing loans; its sole significant asset was a contract to buy mining interests. According to Cramer himself, his involvement in the loan transaction grew out of his connection with Estelle. Nothing in Cramer's affidavit suggests that Estelle contacted Cramer in his corporate capacity. To the contrary, Cram-er's and Watkins's affidavits suggest that Estelle first communicated TSO's proposal to Cramer personally; Cramer then passed the information on to Watkins; both men viewed the offer as "interesting" and "attractive" but were reluctant to risk personal exposure to a $135,000 loss; accordingly, they decided to handle the guarantee through Kokua. In our view, this series of circumstances gives rise to a reasonable inference that in deciding to participate in Estelle's venture, in channeling the transaction through Kokua, and in subsequently encouraging Wade to go through with the loan, both Cramer and Watkins acted primarily, if not exclusively, to further their own interests, not those of Ko-kua. In any event, under a proper due process analysis it is entirely beside the point whether Cramer acted for himself or solely in his corporate capacity as Kokua's president. The only relevant point is that Cramer himself — in whatever capacity he acted — engaged in significant contacts with Alaska. In Calder v. Jones, the United States Supreme Court held, in determining whether a state offended due process by asserting personal jurisdiction over individuals who had acted in a corporate setting, that "[e]ach defendant's contacts with the forum State must be assessed individually." And in Calder ⅛ companion case, Keeton v. Hustler Magazine, Inc., the Supreme Court explained that Calder, by so holding, rejected "the suggestion that employees who act in their official capacity are somehow shielded from suit in their individual capacity." Regardless of whether he purported to act individually or in his corporate capacity, Cramer personally engaged in almost all of the significant contacts that could justify personal jurisdiction over either Kokua as a corporate entity or over Cramer as an individual. Considering Cramer's individual contacts with Alaska, we conclude, in light of these circumstances, that even if he could be deemed to have acted exclusively in his corporate capacity, due process would not shield him from suit in his individual capacity. C. Cramer's Potential Merit Defenses Do Not Preclude Personal Jurisdiction. Cramer further argues that there can be no basis for asserting personal jurisdiction here because his affidavits conclusively negate the claims of fraudulent misrepresenta tion that Wade levels against him personally, and unequivocally establish that he never personally promised to repay the loan — that only Kokua guaranteed repayment. Cramer insists that, at most, Wade's affidavits conflict with his own, raising genuine factual issues concerning the existence of jurisdiction that the superior court should not have resolved without first holding a hearing. But while these arguments raise potential defenses, they have no bearing on our jurisdictional ruling. As should be clear from our discussion above, our conclusion that Cram-er's contacts suffice to establish personal jurisdiction does not assume the truth of Wade's assertions. Instead, we have predicated our jurisdictional ruling on facts that are undisputed. To the extent that Cramer's evidence casts doubt on the underlying merits of Wade's claims, it is foreclosed by the default judgment. D. Personal Jurisdiction over Cramer Comports mth Fair Play and Substantial Justice. Having concluded that Cramer's contacts with Alaska satisfy the minimum contacts requirement of due process, we turn to the second part of the due process analysis, which entails a broader inquiry into fairness: After it has been determined that a defendant purposefully established minimum contacts within the forum state, these contacts may be considered in light of other factors to determine whether the assertion of personal jurisdiction would comport with fair play and substantial justice.[ ] Cramer bears the heavy burden of establishing basic unfairness: [WJhere a defendant who has purposefully directed his activities at forum residents seeks to defeat jurisdiction, the defendant must present a compelling case that certain considerations render jurisdiction unreasonable.[ ] Cramer asserts that his lack of ties to Alaska would render a defense in this state "obviously inconvenient and unreasonable." But conclusory assertions of this kind do not amount to a compelling showing: [Bjecause "modern transportation and communications have made it much less burdensome for a party sued to defend himself in a State where he engages in economic activity," it usually will not be unfair to subject him to the burdens of litigating in another forum for disputes relating to such activity.[ ] We have already expressly rejected Cram-er's claim of insubstantial contacts with Alaska and have held that he should reasonably have anticipated being haled into an Alaska court. Moreover, Cramer is now a Utah resident; Kokua is a Nevada corporation; and TSO and other defendants are located in California. Given these circumstances, no other forum presents obvious advantages. Because we see no compelling reason why jurisdiction would not comport with fair play and substantial justice, we hold that Cramer has failed to carry his burden. TV. CONCLUSION Because we conclude that Cramer has established minimum contacts with Alaska and has failed to prove that jurisdiction in this state would violate fair play and substantial justice, we AFFIRM the superior court's order denying Cramer's motion to set aside the judgment as void for lack of personal jurisdiction. EASTAUGH and CARPENETI, Justices, not participating. .Kokua did not appeal. Watkins did appeal, but subsequently notified this court that he had filed for bankruptcy in California. Although federal courts conflict on the issue, the majority rule appears to be that in a proceeding originally filed against the debtor, any pending appeal, whether by the plaintiff or debtor/defendant, is automatically stayed by virtue of 11 U.S.C. § 362(a)(1). See, e.g., Farley v. Henson, 2 F.3d 273, 275 (8th Cir.1993) (section 362 applicable to appeal by defendant/debtor); Ingersoll-Rand Fin. Corp. v. Miller Mining Co., 817 F.2d 1424, 1426 (9th Cir.1987) (same); Commerzanstalt v. Telewide Sys., Inc., 790 F.2d 206, 207 (2d Cir.1986) (same); Marcus, Stowell & Beye Gov't Sec., Inc. v. Jefferson Inv. Corp., 797 F.2d 227, 230 n. 4 (5th Cir.1986) (same); Cathey v. Johns-Manville Sales Corp., 711 F.2d 60, 61-63 (6th Cir.1983) (same); Association of St. Croix Condominium Owners v. St. Croix Hotel Corp., 682 F.2d 446, 447-49 (3d Cir.1982) (same). But see In re Lyngholm, 24 F.3d 89, 91-92 (10th Cir.1994); see also Southern Bank & Trust Co. v. Harley, 295 S.C. 423, 368 S.E.2d 908, 909 (1988) (stay does not prevent debtor from petitioning for appellate review); Greenspoint Palms Ltd. v. Greenspoint Co., 795 S.W.2d 219, 220 (Tex.App.1990) (same). For the reasons stated by the Ninth Circuit in Ingersoll-Rand, 817 F.2d at 1426, we find the majority rule preferable; we therefore deem Watkins's appeal stayed and decline to consider it. Because neither party has addressed the conflicting case law, however, we limit our ruling to the present case. . See Kennecorp Mortgage & Equities, Inc. v. First Nat'l Bank of Fairbanks, 685 P.2d 1232, 1236-37 (Alaska 1984) (quoting Holt v. Powell, 420 P.2d 468, 471 (Alaska 1966)); Aguchak v. Montgomery Ward Co., Inc., 520 P.2d 1352, 1354 (Alaska 1974). Whether a judgment is void is a question of law that we review de novo. See Kennecorp, 685 P.2d at 1236. The "burden of demonstrating want of jurisdiction or a denial of due process" falls on tlie moving party. See Aguchak, 520 P.2d at 1354; see also Kennecorp, 685 P.2d at 1237 ("Unless appellants can show that this case satisfies one or more of those conditions [for a void judgment], they cannot prevail on their Rule 60(b)(4) attack."). . 685 P.2d 1232 (Alaska 1984). . Id. at 1238; accord Fairbanks Air Serv., Inc. v. Air Operations Int'l Corp., 378 F.Supp. 1405, 1406 (D.Alaska 1974). . See Jonz v. Garrett/Airesearch Corp., 490 P.2d 1197, 1199 (Alaska 1971) ("The occurrence of an injury in Alaska allegedly caused by an act or omission by a defendant outside of Alaska is itself a contact with Alaska."). . See Kennecorp, 685 P.2d at 1238. . 745 P.2d 1365 (Alaska 1987). . Id. at 1367. . 888 P.2d 1296 (Alaska 1995). . Id. at 1299 (quoting AS 09.05.015(c)). . Alaska Telecom, 888 P.2d at 1300; see also Glover, 745 P.2d at 1367. . Glover, 745 P.2d at 1367, quoted in Alaska Telecom, 888 P.2d at 1300. . 471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). . Id. at 472, 105 S.Ct. 2174 (citations omitted), quoted in Alaska Telecom, 888 P.2d at 1300. . In support of this argument, Cramer cites Wessels, Arnold & Henderson v. National Medical Waste, Inc., 65 F.3d 1427, 1433 (8th Cir.1995) and Piper v. Kassel, 817 F.Supp. 802, 805 (E.D.Mo.1993). We need not decide whether these cases support Cramer's argument. To the extent that they suggest that jurisdiction cannot be founded on telephone calls alone, they are readily distinguishable from the present case, since, as our discussion in the text makes clear, Cramer's contacts went far beyond his telephone call to Wade. . American Nat'l Bank v. International Seafoods, 735 P.2d 747, 752-53 n. 10 (Alaska 1987). . Arkansas Rice Growers Coop. Assn v. Alchemy Indus., Inc., 797 F.2d 565, 574 (8th Cir.1986). . 465 U.S. 783, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984). . Id. at 790, 104 S.Ct. 1482. . 465 U.S. 770, 104 S.Ct. 1473, 79 L.Ed.2d 790 (1984). . Id. at 781 n. 13, 104 S.Ct. 1473. . Cramer cites Data Disc, Inc. v. Systems Technology Associates, Inc., 557 F.2d 1280 (9th Cir.1977), for the proposition that when the issue of personal jurisdiction hinges on factual issues that are genuinely disputed, the court must hear and resolve these factual disputes before ultimately determining jurisdiction. . Alaska Telecom, Inc. v. Schafer, 888 P.2d 1296, 1301 (Alaska 1995) (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985)). . Id. (citing Burger King, 471 U.S. at 477, 105 S.Ct. 2174). . Id. (citing Burger King, 471 U.S. at 474, 105 S.Ct. 2174).

11570488

Howard BESS, Darlene Bess, Jay Brause, and Gene Dugan, Appellants, v. Fran ULMER, Lieutenant Governor of the State of Alaska, and State of Alaska, Appellees; The Alaska Legislature, acting by and through the Alaska Legislative Council, Representative Pete Kelly, and Senator Loren Leman, Appellants, v. Fran Ulmer, in her official capacity as the Lieutenant Governor of the State of Alaska, Appellee; Elizabeth A. Dodd, Victor "Vic" Fischer, Katherine T. "Katie" Hurley, Ernest E. Line, George Rogers, and Jean Rogers, Appellants, v. Fran ULMER, Lieutenant Governor of the State of Alaska, Sandra Stout, Director of Division of Elections, and the State of Alaska, Appellees

Bess v. Ulmer

1999-08-17

Nos. S-8811/S-8812/S-8821

979

997

985 P.2d 979

985

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:14:24.532101+00:00

CAP

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

Howard BESS, Darlene Bess, Jay Brause, and Gene Dugan, Appellants, v. Fran ULMER, Lieutenant Governor of the State of Alaska, and State of Alaska, Appellees. The Alaska Legislature, acting by and through the Alaska Legislative Council, Representative Pete Kelly, and Senator Loren Leman, Appellants, v. Fran Ulmer, in her official capacity as the Lieutenant Governor of the State of Alaska, Appellee. Elizabeth A. Dodd, Victor “Vic” Fischer, Katherine T. “Katie” Hurley, Ernest E. Line, George Rogers, and Jean Rogers, Appellants, v. Fran ULMER, Lieutenant Governor of the State of Alaska, Sandra Stout, Director of Division of Elections, and the State of Alaska, Appellees.

Howard BESS, Darlene Bess, Jay Brause, and Gene Dugan, Appellants, v. Fran ULMER, Lieutenant Governor of the State of Alaska, and State of Alaska, Appellees. The Alaska Legislature, acting by and through the Alaska Legislative Council, Representative Pete Kelly, and Senator Loren Leman, Appellants, v. Fran Ulmer, in her official capacity as the Lieutenant Governor of the State of Alaska, Appellee. Elizabeth A. Dodd, Victor “Vic” Fischer, Katherine T. “Katie” Hurley, Ernest E. Line, George Rogers, and Jean Rogers, Appellants, v. Fran ULMER, Lieutenant Governor of the State of Alaska, Sandra Stout, Director of Division of Elections, and the State of Alaska, Appellees. Nos. S-8811/S-8812/S-8821. Supreme Court of Alaska. Aug. 17, 1999. Robert H. Wagstaff, Law Offices of Robert H. Wagstaff, Anchorage, for Appellants Bess, Brause and Dugan. James L. Baldwin, Assistant Attorney General, Bruce M. Botelho, Attorney General, Juneau, for Appellee State of Alaska. Kevin G. Clarkson, Breña, Bell & Clark-son, P.C., Anchorage, for Appellee Alaska Legislature. Allison E. Mendel, Mendel & Associates, Anchorage, for Appellants Dodd, Fischer, Hurley, Line and Rogers. Jay Alan -Sekulow, John P. Tuskey, American Center- for Law and Justice, Virginia Beach, Virginia; Kevin Theriot, American Center for Law and Justice-Florida, Panama City, Florida; Robert B. Flint, Hartig, Rhodes, Norman, Mahoney and Edwards, Anchorage, for Amicus Curiae American Center for Law and Justice. Before: MATTHEWS, Chief Justice, COMPTON, EASTAUGH, FABE, and BRYNER, Justices.

10084

64794

OPINION MATTHEWS, Chief Justice. 1. INTRODUCTION Citizen groups challenged three ballot propositions to amend the Alaska Constitution because the propositions were revisions not amendments; revisions can only be accomplished through a constitutional convention. In an expedited Preliminary Opinion and Order we held that Legislative Resolve No. 59 (relating to prisoners' right's) is a revision, and struck it from the ballot. Legislative Resolve No. 71 (limiting marriage) and Legislative Resolve No. 74 (relating to apportionment) are amendments, and therefore could appear on the ballot, though we disallowed a portion of No. 71. This opinion reaffirms and amplifies our Preliminary Opinion and Order. II. FACTS AND PROCEEDINGS The superior court granted summary judgment in favor of the State defendants and the Legislative Council, entering final judgment on September 8, 1998. This court granted expedited consideration and heard oral argument on the case on September 18,1998. On September 22, 1998, we issued a Preliminary Opinion and Order, striking Legislative Resolve No. 59 (restricting the rights of Alaska prisoners to those guaranteed by the federal constitution), allowing in part and deleting in part Legislative Resolve No. 71 (limiting marriage to the union of one man and one woman), and allowing Legislative Resolve No. 74 (transferring the power of reapportionment from the Executive branch to a Redistricting Board). III. STANDARD OF REVIEW [lj The parties agree that there are no material issues of fact before the court. Because the present case involves a question of law, we review the grant of summary judgment de novo and "adopt the rule of law that is most persuasive in light of precedent, reason, and policy." IV. DISCUSSION We based our expedited Preliminary Opinion and Order on the fact that the Constitution of the State of Alaska can be changed in only two ways — amendment and revision — and that a separate procedure must be followed for each. To amend the Constitution, the proposed change must be passed by a two-thirds vote of each legislative house and then approved by a majority of the voters. The Constitution may be revised by constitutional convention. By holding that Legislative Resolve No. 59 was a revision, and as such inappropriate as a ballot measure, we adopted the view that the Constitution "can be neither revised nor amended, except in the manner prescribed by itself, and the power which it has conferred upon the legislature in reference to proposed amendments, as well as to calling a convention, must be strictly pursued." The objective of this opinion is to elucidate the distinction between amendatory changes and revisory changes, to provide some guidance for future endeavors to change the Constitution. The Framers of the Alaska Constitution distinguished between a revision and an amendment. Like scholars and other framers in other states, they intended this distinction to be substantive. We conclude that a revision is a change which alters the substance and integrity of our Constitution in a manner measured both qualitatively and quantitatively. A. Revision and Amendment The Framers of Alaska's Constitution explicitly contemplated the importance of the differentiation between amendments and revisions and between their respective fields of application. In debating the text of article XIII, section 4, one constitutional convention delegate stated "[tjhere is a big difference between revisions, which implies rewriting the constitution, and making amendments to specific articles or sections of the constitution." Although no precise definition of the terms was reached by the Framers (perhaps because such a task is not possible), there was consensus that "amendment" contemplated a simple change, whereas "revision" would encompass broader and more comprehensive changes. The Framers also understood that "[rjevision includes amendment but amendment does not include revision." In recognition of these distinctions, the Framers fashioned more stringent procedures for adopting revisions than for adopting amendments. As first proposed to the convention, article XIII allowed revisions and amendments to be adopted by two successive legislatures. Delegates offered changes during floor debate distinguishing between revisions and amendments. Delegate Cooper proposed a change allowing revisions to be adopted by a two-thirds vote of two successive legislatures, a constitutional convention, or a three-fourths affirmative vote of a single legislature. Under this proposal, amendments were to be adopted by a popular, three-fifths majority vote. As ultimately passed, article XIII retained procedural distinctions for adopting revisions and amendments, but specified constitutional conventions as the only available avenue for revisions. The Framers' decision to narrow the alternatives for adopting revisions by making constitutional conventions the sole permissible procedure demonstrates not only their awareness of the distinction between revisions and amendments, but also their desire to give the distinction substance, thereby ensuring that it would be observed by future generations of Alaskans. Scholars have also concluded that a distinction exists between the two methods of constitutional change. Judge John A. Jameson, in his Treatise on Constitutional Conventions, wrote that the legislative process of amending a constitution should be confined to "changes which are few, simple, independent, and of comparatively small importance," whereas a constitutional convention is required for "a general revision of a Constitution, or even for single propositions involving radical changes as to the policy of which the popular mind has not been informed by prior discussion." Judge Jameson's examples of topics properly considered "amendments" include changes designed to address "a doubt . as to the construction to be put upon a particular clause[,] . or a new distribution among the agencies of government of their constitutional powers . to facilitate the transaction of business, or to render public operations more safe or more economical." One purpose of requiring a constitutional convention for revisions of the constitution is to promote stability. Some political thinkers have interpreted the written constitution in the American political system as a stabilizing element which operates to retard change or requires a more deliberate selection of what changes society deems desirable, hence acceptable. As a document embodying the fundamental political beliefs of the people and an accepted general arrangement of governmental powers, there is indeed good reason to examine searchingly any major changes proposed in the basic structure and philosophy.[ ] Another purpose is to provide a specialized body of citizens whose sole purpose is to consider the constitution as an organic whole, and to make the appropriate and necessary changes. [CJomplete revisions or even alterations of a very thorough character should be made by conventions expressly chosen for that purpose. Legislatures will usually have their time taken up with other matters and be unable to devote sufficient time to [the] subject, and the election of a body for the one purpose concentrates public attention upon questions of a constitutional character.[ ] According to Judge Jameson, constitutional changes of a magnitude which can only be accomplished by a revision are not a task for the legislature: The legislature is a body chosen for temporary purposes. It is a mirror of political passions and interests, and, with the best intentions, cannot be expected to be free from bias, even in questions of the highest moment. It is composed, moreover, in general, of politicians rather than of statesmen . But, when a Convention is called, it is sometimes possible to secure the return of such men. It is not necessarily because such a body is recognized to be, as it is, the most important ever assembled in a State, but because the measures it is expected to mature bear less directly on the interests of parties or of individuals. Party management, therefore, is not usually so much directed to the seeking of control of a Convention as of a legislature. Besides, the proper function of the latter body, that of municipal legislation, being one of the highest vested by the sovereign in any governmental agency, it cannot but be inexpedient, on a general view, that there should be added to it that of organic legislation, requiring different and higher gifts, and wider experience and study, thus threatening to unsettle the balance of the Constitution.[ ] The case law of other states which have similar constitutional provisions that distinguish between amendments and revisions is in accord with the scholarly writing. The courts have held that constitutions which provide for both processes of amendment and revision express a distinction of substance. The Supreme Court of Florida described one aspect of the distinction by stating that amendments "originate in the legislature and the people have the choice only of acceptance or rejection of the ones the legislature submits," while in the case of revision "[t]he people's delegates, elected for the purpose, . weigh proposed provisions, debate their merits, [and] decide what should become and what should not become the organic law." The same court later held that the power to amend the constitution (as distinct from the power to revise it) "includes only the power to amend any section in such a manner that such amendment if approved would be complete within itself, relate to one subject and not substantially affect any other section or article of the Constitution or require further amendments to the Constitution to accomplish its purpose." B. California's Resolution of the Issue As the Framers of the Alaska Constitution did not sufficiently define the difference between the two concepts for our purposes, and because Alaska has not before had occasion to address the deceptively simple question of the distinction between revisory and amenda-tory changes, it is helpful to look to the law of California, a state which has considered the issue carefully over a period of nearly one hundred years. A line of California Supreme Court cases, beginning with Liver-more v. Waite, has outlined the parameters of the procedures for constitutional change in that state. The Livermore court described the importance of adhering to strict procedures for revising and amending the California Constitution. Under the first of these methods the entire sovereignty of the people is represented in the convention. The character and extent of a constitution that may be framed by that body is freed from any limitations other than those contained in the constitution of the United States. If, upon its submission to the people, it is adopted, it becomes the measure of authority for all the departments of government, — the organic law of the state, — to which every citizen must yield an acquiescent obedience . The legislature is not authorized to assume the function of a-constitutional convention, and propose for adoption by the people a revision of the entire constitution under the form of an amendment.... The very term "constitution" implies an instrument of a permanent and abiding nature, and the provisions contained therein for its revision indicated the will of the people that the underlying principles upon which it rests, as well as the substantial entirety of the instrument, shall be of a like permanent and abiding nature. On the other hand, the significance of the term "amendment" implies such an addition or change within the lines of the original instrument as will effect an improvement, or better carry out the purpose for which it was framed.[ ] The California Supreme Court relied heavily on Livermore when it decided McFadden v. Jordan more than a half-century later. McFadden concerned a proposed "amendment" to the California Constitution. The amendment was designed to add a new article, composed of two hundred and eight subsections, totalling more than twenty-one thousand words. The court rejected the proposed amendment because it was so "far reaching and multifarious" as to amount to a revision. The proposal is offered as a single amendment but it obviously is multifarious. It does not give the people an opportunity to express approval or disapproval severally as to each major change suggested; rather does it, apparently, have the purpose of aggregating for ,the measure the favorable votes from electors of many suasions who, wanting strongly enough any one or more propositions offered, might grasp at that which they want, tacitly accepting the remainder. Minorities favoring each proposition severally might, thus aggregated, adopt all. Such an appeal might well be proper in voting on a revised constitution, proposed under the safeguards provided for such a procedure, but it goes beyond the legitimate scope of a single amendato-ry article. There is in the measure itself no attempt to enumerate the various and many articles and sections of our present Constitution which would be affected, altered, replaced or repealed.[ ] Four cases on the same topic followed McFadden. In three of those cases the California Supreme Court decided that challenged proposals to amend the state constitution were not impermissible revisions. Amador Valley v. State concerned Proposition 13, which proposed a new article, dramatically changing California's system of property taxation. After discussing Liver-more and McFadden, the court went on to state that the -method for distinguishing between amendments and revisions "must be both quantitative and qualitative in nature." For example, an enactment which is so extensive in its provisions as to change directly the "substantial entirety" of the Constitution by the deletion or alteration of numerous existing provisions may well constitute a revision thereof. However, even a relatively simple enactment may accomplish such far reaching changes in the nature of our basic governmental plan as to amount to a revision also. In illustration, . an enactment which purported to vest all judicial power in the Legislature would amount to a revision without regard either to the length or complexity of the measure or the number of existing articles or sections affected by such change.[ ] The court held that Proposition 13 was neither quantitatively nor qualitatively revi-sory in nature, despite the fact that it accomplished "substantial changes" in the tax system. In Brosnahan v. Brown, the California Supreme Court applied this quantitative/qualitative analysis in holding that the proposition known as the "Victims' Bill of Rights" was not an illegitimate revision. The court concluded that the "substantial changes" the proposal would accomplish failed to amount to a sufficiently "far reaching change! ] in the nature of [the] basic governmental plan as to amount to a revision." Finally, in Legislature of the State of California v. Eu, the California Supreme Court addressed a proposed amendment designed to limit "the powers of incumbency" by providing for term limits and restrictions on legislators' retirement benefits. Although the court recognized that "[t]erm and budgetary limitations may affect and alter the particular legislators and staff who participate in the legislative process," it held that "the basic and fundamental structure of the Legislature as a representative branch of government is left substantially unchanged" and therefore the proposal was not a qualitative revision of the constitution. Less than a year before Eu was decided, the California Supreme Court had applied the quantitative/qualitative analysis to a challenged initiative measure and reached a different result in Raven v. Deukmejian, At issue there was a proposal entitled the "Crime Victims Justice Reform Act," designed to limit the rights of criminal defendants to those guaranteed by the federal constitution. To that end, the measure contained a section that provided that certain criminal law rights "shall be construed by the courts of [California] in a manner consistent with the Constitution of the United States" and that the state constitution "shall not be construed to afford greater rights" than those afforded by the federal constitution. The Eu court later noted that the proposal in Raven (in contrast to that in Eu) was one that "would have fundamentally changed and subordinated the constitutional role assumed by the judiciary in the governmental process." In other words, the amendment would affect a core function of one of the three branches of government, an outcome expressly forbidden by Amador Valley. The California Supreme Court based its holding in Raven solely on the qualitative effect of the proposed amendment: As a practical matter, ultimate protection of criminal defendants from deprivation of their constitutional rights would be left in the care of the United States Supreme Court. Moreover, the nature and extent of state constitutional guarantees would remain uncertain and undeveloped unless and until the high court had spoken and clarified federal constitutional law. In effect, [the proposed amendment] would substantially alter the substance and integrity of the state Constitution as a document of independent force and effect.[ ] The court specifically stated that the proposed amendment did not have a quantitatively revisory effect, as it "delete[d] no existing constitutional language and it affect[ed] only one constitutional article," but concluded that qualitatively it was "so far reaching as to amount to a constitutional revision beyond the scope of the initiative process." C. The Alaska Rule and Its Application to the Three Challenged Ballot Measures The Constitution of Alaska, like that of California, provides different procedures for different methods of constitutional change. In deciding whether the proposal is an amendment or revision, we must consider both the quantity and quality of the proposed constitutional changes. We agree with the reasoning of the California Supreme Court in Livermore, McFadden, and Amador Valley that an enactment which is so extensive in its provisions as to change directly the "substantial entirety" of the constitution by the deletion or alteration of numerous existing provisions may well constitute a revision thereof [while] even a relatively simple enactment may accomplish such far reaching changes in the nature of our basic governmental plan as to amount to a revision also.[ ] The process of amendment, on the other hand, is proper for those changes which are "few, simple, independent, and of comparatively small importance." The core determination is always the same: whether the changes are so significant as to create a need to consider the constitution as an organic whole. With this in mind, we turn to an evaluation of each of the three challenged ballot measures. 1. Legislative Resolve No. 59 This measure proposed to amend the Alaska Constitution by adding a new section to article I, providing as follows: Rights of Prisoners. Notwithstanding any other provision of this constitution, the rights and protections, and the extent of those rights and protections, afforded by this constitution to prisoners convicted of crimes shall be limited to those rights and protections, and the extent of those rights and protections, afforded under the Constitution of the United States to prisoners convicted of crimes. This proposal bears an obvious similarity to the initiative measure at issue in Raven. Like the Raven court, we find the proposal to "amount to a constitutional revision beyond the scope of the [ballot] process," although our reasoning differs somewhat. The Raven court held that the proposal constituted a qualitatively revisory change to the constitution, but not a quantitatively revisory change. We take a hybrid approach. Not only would the proposal, for the reasons stated in Raven, "substantially alter the substance and integrity of the state Constitution as a document of independent force and ef- feet," but as we held in the Preliminary Opinion and Order, it also would potentially alter as many as eleven separate sections of our Constitution. Both qualitatively and quantitatively, thei-efore, Legislative Resolve No. 59 is an impermissible constitutional revision. 2. Legislative Resolve No. 71 This measure proposed to amend the Alaska Constitution by adding a new section to article I providing as follows: Marriage. To be valid or recognized in this State, a marriage may exist only between one man and one woman. No provision of this constitution may be interpreted to require the State to recognize or permit marriage between individuals of the same sex. Under our hybrid analysis, this proposed ballot measure is sufficiently limited in both quantity and effect of change as to be a proper subject for a constitutional amendment. Few sections of the Constitution are directly affected, and nothing in the proposal will "necessarily or inevitably alter the basic governmental framework" of the Constitution. 3. Legislative Resolve No. ⅞ This ballot measure was designed to alter the reapportionment scheme of article VI of the Alaska Constitution, concerning House and Senate districts. The Framers of the Alaska Constitution gave the power to reapportion the legislative districts to the executive branch, to be used as a check against legislative power. Legislative Resolve No. 74 removes this power from the executive and assigns it to a neutral body. Reassigning this power is unquestionably a significant change in the present system of Alaskan government. It does not, however, deprive .the executive branch of a "foundational power," and as a result does not constitute a revision. As the quantitative effect of the proposal is minimal, the qualitative force of this narrow change would have to be greater to satisfy our hybrid test. The essential function of the executive branch — to enforce the laws of the state — remains unchanged, as does its structure. No executive power is delegated to either of the other two branches. In fact, the intent of the Framers in giving the reapportionment power to the executive was primarily to prevent the abuse or neglect of that power in the hands of the legislature, rather than to safeguard a uniquely executive function. Historically, the "method [of delegating reapportionment power to the legislature itself] was a total failure" so the Framers delegated it to the executive "in order to assure that the reapportionment will be made and that there will not be neglect." This proposal, unlike Legislative Resolve No. 59, does not "fundamentally changef] and subordinate[ ] the constitutional role" of any branch in the governmental process. Therefore, although the proposed change is substantial, it is not so "far reaching and multifarious" as to comprise a revision. V. CONCLUSION We REAFFIRM the Preliminary Opinion and Order. . Appellant Bess challenged Legislative Resolve No. 59 in briefs to the superior court and to this court. The State and Legislative defendants did not respond to the argument that the resolve, considered individually, constituted a revision. . Appellant Bess challenged Legislative Resolve No. 74 in briefs to the superior court and to this court. The State and Legislative defendants again failed to respond to the challenge. . Our Preliminary Opinion and Order is attached as an appendix. It has been edited. . Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979). . See Alaska Const, art. XIII, § 1. . See id. at § 4. Amendments may also be accomplished by convention. See id. . McFadden v. Jordan, 32 Cal.2d 330, 196 P.2d 787, 789 (1948) (quoting Livermore v. Waite, 102 Cal. 113, 36 P. 424, 425 (1894)). . Cf. Adams v. Gunter, 238 So.2d 824, 831 (Fla.1970) (quoting McFadden, 196 P.2d at 796-98) (noting "differentiation . between [the] two procedures and between their respective fields of application."). . 2 Proceedings of the Alaska Constitutional Convention (PACC) 1247 (January 5, 1956). . See id. at 1274-77. . Id. at 1275. . 6 PACC App. V at 21-22 (December 9, 1955). . 2 PACC at 1242. . Id. . Judge John A. Jameson, A Treatise on Constitutional Conventions; Their History, Powers, and Modes of Proceeding § 540, 574(c) (Chicago, Callaghan and Company, 4th ed. 1887). . Id. at § 540. . Public Administration Service, 3 Constitutional Studies: Constitutional Amendment and Revision 1 (November 8, 1955). . Walter F. Dodd, The Revision and Amendment of State Constitutions 261-62 (1910). . Jameson, Constitutional Conventions at § 539. . See, e.g., Jackman v. Bodine, 43 N.J. 453, 205 A.2d 713, 725-26 (1964); Holmes v. Appling, 237 Or. 546, 392 P.2d 636, 638-39 (1964). . Rivera-Cruz v. Gray, 104 So.2d 501, 503-04 (Fla.1958). See also State v. Manley, 441 So.2d 864, 877 (Ala.1983) (Torbert, C.J., concurring) ("The people of this State, through their Constitution ., have decreed that they reserve, in revising or replacing the Constitution, a role much more active than merely passing upon a proposal someone else has written."). . Adams v. Gunter, 238 So.2d 824, 831 (Fla.1970). . 102 Cal. 113, 36 P. 424 (1894). . Id. at 426. . 32 Cal.2d 330, 196 P.2d 787 (1948). . Id. at 790. . Id. at 788. . Id. at 796-97. . These cases are: Legislature, of the State of California v. Eu, 54 Cal.3d 492, 286 Cal.Rptr. 283, 816 P.2d 1309 (1991); Raven v. Deukmejian, 52 Cal.3d 336, 276 Cal.Rptr. 326, 801 P.2d 1077 (1990); Brosnahan v. Brown, 32 Cal.3d 236, 186 Cal.Rptr. 30, 651 P.2d 274 (1982); Amador Valley Joint Union High School Dist. v. State Board of Equalization, 22 Cal.3d 208, 149 Cal.Rptr. 239, 583 P.2d 1281 (1978). . See Eu, 286 Cal.Rptr. 283, 816 P.2d at 1318; Brosnahan, 186 Cal.Rptr. 30, 651 P.2d at 288-89; Amador Valley, 149 Cal.Rptr. 239, 583 P.2d at 1284-89. . 22 Cal.3d 208, 149 Cal.Rptr. 239, 583 P.2d 1281 (1978). . Id. 149 Cal.Rptr. 239, 583 P.2d at 1283. . Id. 149 Cal.Rptr. 239, 583 P.2d at 1286. . Id. . Id. 149 Cal.Rptr. 239, 583 P.2d at 1286-87, 1289. . 32 Cal.3d 236, 186 Cal.Rptr. 30, 651 P.2d 274 (1982). . Id. 186 Cal.Rptr. 30, 651 P.2d at 276, 288-89. . Id. 186 Cal.Rptr. 30, 651 P.2d at 288-89 (quoting Amador Valley, 149 Cal.Rptr. 239, 583 P.2d at 1286). . 54 Cal.3d 492, 286 Cal.Rptr. 283, 816 P.2d 1309 (1991). . Id. 286 Cal.Rptr. 283, 816 P.2d at 1312. . Id. 286 Cal.Rptr. 283, 816 P.2d at 1318. . 52 Cal.3d 336, 276 Cal.Rptr. 326, 801 P.2d 1077 (1990). . Id. 276 Cal.Rptr. 326, 801 P.2d at 1079, 1080-83. . Id. 276 Cal.Rptr. 326, 801 P.2d at 1086. . Eu, 286 Cal.Rptr. 283, 816 P.2d at 1318. . 149 Cal.Rptr. 239, 583 P.2d at 1286 ("[A]n enactment which purported to vest all judicial power in the Legislature would amount to a revision without regard either to the length or complexity of the measure or the number of existing articles or sections affected by such change."). . Raven, 276 Cal.Rptr. 326, 801 P.2d at 1087 (emphasis in original). . Id. 276 Cal.Rptr. 326, 801 P.2d at 1086-87 (emphasis omitted). . Id. 276 Cal.Rptr. 326, 801 P.2d at 1086. . See discussion at page 982, supra. . Amador Valley, 149 Cal.Rptr. 239, 583 P.2d at 1286. . Jameson, Constitutional Conventions at § 540. . 276 Cal.Rptr. 326, 801 P.2d at 1086. . Id. . Id. 276 Cal.Rptr. 326, 801 P.2d at 1086-90. . Id. 276 Cal.Rptr. 326, 801 P.2d at 1087. . Our Preliminary Opinion and Order deleted the second sentence of Legislative Resolve No. 71 on other grounds. Appellants expressed concern that the language could be interpreted to permit the prosecution of individuals involved in marriage-like relationships without the benefit of state sanction, and ,thal this risk might discourage religiously sanctioned marriage ceremonies. Appellees questioned the need for deletion, contending that the language was mere surplusage, hut conceded at oral argument that this court has the power to order deletion. We explained our decision to order deletion as follows: We do not believe that language which is sur-plusage should be part of the constitution. Of special concern is the possibility that the sentence in question might be construed at some future time in an unintended fashion which could seriously interfere with important rights. As decades pass, the legislative history of the resolve may fade from memoiy. Further, court decisions lack the permanency of constitutional language and may be overruled. The objective of the second sentence — harmonization of other provisions of the constitution with the meaning of the first sentence — will be achieved in any event, for a specific amend-men! controls other more general .provisions with which it might conflict. [See] Johns v. Commercial Fisheries Entry Comm'n, 758 P.2d 1256, 1264 (Alaska 1988); State v. Ostrosky, 667 P.2d 1184, 1190 (Alaska 1983). . Brosnahan, 186 Cal.Rptr. 30, 651 P.2d at 289. . See 3 PACC 1839 (January 11, 1956)("[S]tu-dents and writers seem generally in accord that reapportionment . has been neglected where it has been left to legislators."). . The power to draw the boundaries of the House and Senate districts thereby passes from the governor, with the advice of a reapportionment board of his own appointment, to a five-member Redistricting Board, two members of which are appointed by the governor and one each by the House Speaker, the Senate President, and the Chief Justice of the Supreme Court. . Eu, 286 Cal.Rptr. 283, 816 P.2d at 1318. . Though the Framers assigned the reapportionment power to the executive branch, there are statements in the Proceedings of the Constitutional Convention that indicate that assigning the power to an independent board would be a rational, relatively uncontroversial alternative. See 3 PACC at 1859, 1863. . 3 PACC 1858 (January 11, 1956). . Eu, 286 Cal.Rptr. 283, 816 P.2d at 1318. . Cf. Brosnahan, 186 Cal.Rptr. 30, 651 P.2d at 288-89; Amador Valley, 149 Cal.Rptr. 239, 583 P.2d at 1284-89.

10459392

NATIONAL BANK OF ALASKA, a National Banking Association, Appellant, v. J. B. L. & K. OF ALASKA, INC., a corporation, et al., Appellees

National Bank of Alaska v. J. B. L. & K. of Alaska, Inc.

1976-01-28

No. 2289

579

592

546 P.2d 579

546

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:14:29.992892+00:00

CAP

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

NATIONAL BANK OF ALASKA, a National Banking Association, Appellant, v. J. B. L. & K. OF ALASKA, INC., a corporation, et al., Appellees.

NATIONAL BANK OF ALASKA, a National Banking Association, Appellant, v. J. B. L. & K. OF ALASKA, INC., a corporation, et al., Appellees. No. 2289. Supreme Court of Alaska. Jan. 28, 1976. Robert J. Dickson, of Atkinson, Conway, Young, Bell & Gagnon, Anchorage, for appellant. W. C. Arnold, Anchorage, for appellees.

6591

40661

OPINION Before RABINOWITZ, C. J., and CONNOR, ERWIN and BURKE, JJ. ERWIN, Justice. This action arises from a contract entered into by predecessors in interest of the present parties. It was treated by the court below as a suit for an accounting, but the nature of the case is in dispute on this appeal. Effective January 1, 1962, Kodiak Insurance and Building Corporation, an entity which was owned by the National Bank of Alaska as successor to the Bank of Kodiak, sold its insurance agency business to Arthur Brooks. Under the contract of sale, Brooks was required to pay: an amount equal to 15% of the net retained commissions earned by the Buyer in the conduct of the insurance agency business during the ten-year period commencing on January 1, 1962, and ending on December 31, 1971. Such amounts shall be payable on or before the 15th day of each month based upon the net retained commissions earned during the immediately preceding month. Brooks, the buyer, had managed the insurance agency business carried on by the Bank of Kodiak, through the entity of Kodiak Insurance and Building Corporation. Brooks and Bernard Guhrke had formed Kodiak Insurance, Inc., to pursue the former insurance agency business of Kodiak Insurance and Building Corporation, and the new entity regularly made payments under Brooks' contract with Kodiak Insurance and Building Corporation. In 1966 Kodiak Insurance and Building Corporation was dissolved and plaintiff NBA, as its corporate parent, acquired its interests, including the right to payments under the contract with Brooks. In 1967 defendant Jewett, Barton, Levy & Kern, a partnership, acquired the stock of Kodiak Insurance, Inc. (which had already undergone several previous transfers). It assumed the obligations of .the previous purchase agreement, including payment of 15% of the net retained commissions earned by the agency. Appellees' claim arises from the fact that NBA, from the time of its merger with the Bank of Kodiak, had been writing credit life insurance through its Kodiak Branch under an experience rating agreement with Olympic National Life Insurance Company of Seattle. The Bank received commissions on these sales. The original agreement selling the insurance business to Brooks had contained a covenant not to compete as follows: The Seller covenants with the Buyer that until December 31, 1971 the Seller will not engage in the insurance agency business on the Island of Kodiak, either directly or indirectly. The Seller further covenants that he will not during this period, directly, or indirectly, induce any of the former business clients to patronize any insurance agency other than the buyer. Appellee Kodiak Insurance, Inc. succeeded to the benefit of this covenant. The trial court granted plaintiff-appellant's prayer for money due and owing under the contract but offset it by 85% of the amount received by the Bank in commissions for credit life insurance, deeming the Bank to have violated the non-competition covenant. Conflicting testimony was received regarding the technical meaning of the term "net retained commissions," but the court apparently did not consider extrinsic evidence relating to the parties' intentions under the covenant not to compete. The court described the action as one for an accounting and struck a balance between the contract payments due appellant and the breach in favor of appellee. I. Admission of Extrinsic Evidence to Resolve an Ambiguous Term Appellant asserts that error was committed in the trial court's decision not to consider the circumstances and usage surrounding the formation of the contract. It contends that the covenant not to compete was ambiguous, and therefore parol evidence relating to the parties' intent should be used in the interpretation of the contract. This Court has repeatedly stated that, where a term in a written contract is ambiguous, extrinsic evidence of surrounding circumstances and usage may be admitted to aid in determining the intent of the parties and resolve the ambiguity. All courts and commentators seem agreed upon this proposition. The converse proposition —that where a term is clear and unambiguous, the intent of the parties is to be ascertained solely from the written instru ment — has been recited by this Court but appears to be in controversy both among commentators and in this Court's prior opinions. Commentators deal with two aspects of the question: first, under the general standards of contract interpretation; and secondly, as a function of the parol evidence rule. As to the former, both Williston and Corbin identify several standards, most of which parallel the four standards enumerated by Wigmore. Wigmore stated these as follows: 1. The popular standard (the common meaning of words), 2. The local standard (to include particular usages of a business group, technical terms or local dialect), 3. The mutual standard (to include particular meanings understood by the parties to contract), and 4. The individual standard (reflecting the sense attributed to words by a single party). Williston adopts these standards, adding a fifth: 5. A standard of reasonable expectation, or the sense in which the party using the words should reasonably have apprehended that they would be understood by the other party. Although he attempts to distinguish this latter concept, Williston concedes that it will provide generally .the same result as the mutual standard, and finds it the most applicable to bilateral transactions. Because the agreement in question represents an integration, the parol evidence rule provides some assistance in determining the applicable standard. Where there is an integration, the parol evidence rule, although a rule of law rather than interpretation, bars the introduction of extrinsic evidence to add to or vary the terms of the written agreement. It thus fixes the integrated document itself as the subject matter for interpretation. The question then becomes: to what extent may extrinsic evidence be used as an aid to interpretation? This Court has provided apparently divergent responses to this question. It was stated in Pepsi Cola Bottling Co. of Anchorage v. New Hampshire Ins. Co. that [w]e are in agreement with those authorities which hold that where the terms of a policy of insurance 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) This rule was made applicable as well to non-insurance cases in Port Valdes v. City of Vaides, where the above language was quoted in upholding a conveyancing agreement. However, in Alaska Placer Company v. Lee, in an opinion by Justice Dimond, the Court appeared to adopt the view of Professor Corbin that all disputed language in a contract must be treated as ambiguous. The court stated: [S]eldom in a litigated case do the words of a contract convey one identical meaning to the two contracting parties or to third persons. Therefore, it is invariably necessary, before a court can give any meaning to the words of a contract and can select one meaning rather than other possible ones as the basis for the determination of rights and other legal effects, that extrinsic evidence shall be heard to make the court aware of the "surrounding circumstances," including the persons, objects, and events to which the words can be applied and which caused the words to be used. (Emphasis added). This reference has generated confusion over the permissible use of extrinsic evidence in contract interpretation in Alaska. This Court declined an opportunity to clarify the resultant confusion in Day v. A & G Construction Co., Inc, where it found ambiguity to exist without resort to parol, then used evidence of the circumstances at the time of making to resolve the ambiguity. Appellant seeks to create order out of the confusion through an attempt to reconcile the holdings of the cases. Appellant suggests that -evidence of the surrounding circumstances first be consulted to determine whether or not an ambiguity exists. I'f, in light of all the circumstances, the language of the contract appears to be capable of only a single meaning, the Court need not go beyond the instrument in a search for other possible constructions which either of the parties may have placed upon their agreement. If, however, in the light of its language and the circumstances surrounding the formation of the contract, any term appears capable of more than one meaning, those circumstances may be further consulted to ascertain which meaning lies within the intent of the parties. This approach is not inconsistent with the views of secondary authorities. The Restatement proposes the following standard: The standard of interpretation of an integration, except where it produces an ambiguous result, or is excluded by a rule of law establishing a definite meaning, is the meaning that would be attached to the integration by a reasonably intelligent person acquainted with all operative usages and knowing all the circumstances prior to and contemporaneous with the making of the integration, other than oral statements by the parties of what they intended it to mean. (Emphasis added). Williston, who, like the Restatement, espouses the "objective" standard, is in accord on this point. [Tjhere must always be an association between words and external objects, and no matter how definite a contract may appear on its face, "words must be translated into things and facts." Thus . . . the contract in any event had to be appraised in view of the surrounding circumstances known to the parties at the time of its execution and these reasonably could be looked to without violating the parol evidence rule even though the contract were not deemed ambiguous. . . . Williston further suggests In interpreting contracts or clauses set forth in "clear and unambiguous" language, the courts do not confine themselves to a mere inspection of the document. Before committing themselves, the courts carefully examine the surrounding circumstances, prior negotiations, and all other relevant incidents bearing on the intent of the parties, (citations omitted) . Only after a careful and painstaking search of all the factors shedding light on the intent of the parties, only after "turning signs and symbols into equivalent realities" will the court conclude that the language in any given case is "clear and unambiguous" (citations omitted) The Court in Day clearly adopted this "reasonable expectation" standard espoused by Williston and the Restatement. The court stated "[expectation" or "understanding" standards allow substantially more leeway [than local standards] since a reasonable man is placed in the position of the parties, and the question is what he would reasonably expect that language to mean under the circumstances. (Emphasis added) We therefore conclude that appellant has correctly stated the law. But its statement does not necessarily support its allegation of error. The trial court appears to have followed precisely the procedure outlined by appellant in his.brief to this Court. The case was tried to the court, which had available to it all of the evidence of circumstances known to the parties at the time they entered the contract. The Memorandum of Decision simply stated : In deciding the above questions it must first be determined if there is ambiguity in the terms of the agreement, if there is no ambiguity the intent of the parties must be ascertained from the instrument itself. (citations omitted) I find no ambiguity in the terms of the agreement. Appellant points to the above and to the court's later statement— [i]n arriving at the decision that the sale of credit life insurance is prohibited by the covenant not to engage in the 'insurance agency business' I have considered the intent of the parties as manifest in the agreement. . . . —in concluding that the court did not properly consider all the evidence in determining the existence of an ambiguity. The court's statements may be viewed in a somewhat different light, however. The court suggested that the appellant's interpretation was unreasonable because of the reliance placed upon personal qualities of the buyer and the commitment of the buyer to pursue the business with vigor. The bank was selling all its right, title and interest to the physical assets and good will used by it in engaging in the busi ness of an insurance agency in Kodiak, Alaska, and all that remained was the name Kodiak Building and Insurance Corporation. The buyer agreed that he would not assign, transfer or sell that which he acquired without written consent of the bank, and that he would use his best efforts in the conduct of the insurance business throughout the period of the agreement. In the addendum attached to the agreement, the bank agreed it would not engage in the insurance agency business on the Island of Kodiak, either directly or indirectly, and would not indirectly or directly induce any of its former business clients to patronize any insurance agency other than that of the buyer. The covenant not to compete either directly or indirectly would become meaningless if it permitted the bank to compete but prohibited the shell, Kodiak Insurance and Building Corporation, from competing. The court thus clearly considered the likelihood that the buyer intended to have competition in any form from the bank inherently remote. While the court was looking, to some extent, to surrounding circumstances in reaching its opinion, such an interpretation also arises from the language used and inferences therefrom, particularly when one considers the extent of statutory authorization to engage in an insurance agency business which existed at the time of the agreement. In reviewing the superior court's findings, it should be noted that this Court is not bound by the "clearly erroneous" standard applicable to factual findings made by the court. The evidence relating to the parties' situations at the time they entered the contract was not disputed. Where the facts relating to surrounding circumstances are not in dispute, interpretation of the words of the contract is treated in the same manner as questions of law, and the standard used in reviewing factual findings is inapplicable. Nevertheless, we are of the opinion that the trial court was correct in its legal interpretation. II. Modification Appellant urges that, if the evidence of subsequent conduct is not dispositive of the parties' intent to construe the term "insurance agency business" in the noncompete clause to exclude the writing of credit life insurance, then the same evidence will show a subsequent modification of the contract. While the parties' acts might normally be used to show subsequent modification, the evidentiary facts are not present to demonstrate a modification in this case. The contract was a written one, as required by the statute of frauds, because it was to be performed over a ten-year period. Not only was there no written modification, but no oral agreement to modify appears. Appellant asks this Court to infer a modification solely from the parties' conduct. Furthermore, no facts appear to show the required consideration was given for any modification. In the absence of some consideration for the alleged change, no modification has taken place. III. Waiver of Appellant's Breach It is also contended that the facts revealed by the parties' performance under the contract amount to a waiver of NBA's breach, if any, of the covenant not to compete. NBA was shown to have been selling credit life insurance incident to its banking activities on Kodiak Island continuously since 1960. The evidence shows that from the inception of the agreement, Bernard Guhrke, a vice-president of Kodiak Insurance, Inc., was aware that the Bank was selling credit life insurance. Arthur Brooks, the original purchaser, and later president of Kodiak Insurance, had reason to know the same facts as he had been employed in the bank's insurance department. The knowledge of these officers may be imputed to the corporation. Despite knowledge of the facts giving rise to the present claim, the buyer and his successors regularly made payments under the contract for a period of nearly seven years without protest or objection to appellant's selling credit life insurance. It seems likely, however, that appellee's predecessors were unaware of the extent of their rights against appellant under those facts, as these rights are now asserted. Waiver is the intentional relinquishment of a known right, and absent knowledge of its right or claim, a party cannot be said to have waived it. The evidence does not lead to a clear conclusion one way or the other as to whether there was an intention to abandon these alleged rights. The trial court's memorandum decision does not discuss questions of waiver or estoppel although the issue was recognized during trial. However, it is clear from the entire decision that the court found the facts insufficient to bar appel-lee's assertion of claims arising from appellant's selling of credit life insurance. In Williams v. Stroh Plumbing and Electric, plaintiff asserted that defendant had, over a course of time, failed to respond to statements of account by plaintiff's assignor, and claimed this represented a waiver of defendant's account owing to plaintiff because there was a failure to assert this second account as an offset before plaintiff's action. The court there found such conduct, similar to that alleged here, insufficient to demonstrate an intention to waive the offset. Because there appears little evidence of an intent to give up any rights or an intent that appellant should rely upon appellee's payments under the contract as absolution for its alleged breach of the non-compete clause, the court's apparent (though not explicit) conclusion regarding alleged waiver or asserted estoppel should be upheld. IV. Appellees' Right to Affirmative Relief Appellees' right to affirmative recovery is challenged under the provisions of AS 10.05.720, which provides, in part: No domestic or foreign corporation may commence or maintain a suit, action or proceeding in a court in the state without alleging and proving that it has paid its annual corporation tax last due and has filed its annual report for the last calendar or fiscal year for which the report became due. . Jewett, Barton, Levy and Kern and J.B.L. & K. of Alaska, Inc. are parties to this action under an agreement to assume the obligations of Kodiak Insurance, Inc., but have no interest in Kodiak's claims. Thus, only Kodiak Insurance is entitled to enforce the covenant which it asserted at trial as a defense to NBA's action. The record discloses that Kodiak Insurance, Inc. suffered involuntary dissolution on November 6, 1972, for failure to pay its tax and file its annual report. It is thus clear that these acts were not performed for at least one year prior to November 6, 1972, and that the corporation was in default of such performance at the time this action was initiated and at all subsequent times. Kodiak Insurance is thus brought within the rule denying the right to initiate or maintain an action or suit to a non-qualified corporation. Where, as here, the party under such a disability is a defendant, his assertion of a counterclaim or set-off as a defense has not been treated as initiating or maintaining an action or suit. This Court recognized the distinction between plaintiffs and defendants by dictum in Alaska Mines and Minerals, Inc. v. Alaska Industrial Board, where this court stated: Appellant tries to escape the necessary results of its neglect by asserting that it was a defendant in the District Court, and therefore that the statutory prohibition is inapplicable. If appellant were a defendant in an action commenced in a court, its conclusion would be sound; for the statute is aimed only at a corporation that wishes to "commence or maintain" a proceeding, and not at one which defends against an action instituted by another. The Alaska Mines case did not distinguish, however, between the defendant who asserts a simple defense and one who, by counterclaim or offset, asserts a separate right to recovery against the plaintiff. No Alaska case has been located where this question has been considered. Most cases' which have considered the position of a counterclaim by a non-qualified corporation have permitted its assertion, but only to the extent necessary to offset plaintiff's claim. Two cases decided under a Washington statute similar to Alaska's are cited by appellant. In North Star Trading Co. v. Alaska-Yukon-Pacific Exposition, a non-qualified corporate cross-complainant was permitted to answer and assert a cross-complaint as a setoff but was denied the right to affirmative relief. The rule .was followed in Boston Towboat Co. v. lohn H. Sesnon Co. In the Alaska case of Kiebsack v. Hearn, the superior court allowed a non-qualified corporation to state a counterclaim for less than plaintiff's claim, stating that affirmative recovery could not be had. There is, however, a minority of states which appear to permit an affirmative recovery. Idaho, which has a statute penalizing non-qualification solely by injunction, has limited capacity to sue by judicial decision. In Burley Newspapers, Inc. v. Mist Publishing Co., that state held its limitation not applicable to defendants asserting a counterclaim. No dicta appears in the opinion to limit defendant's affirmative recovery. A federal court in Smith v. Kincaide construed a Mississippi statute to authorize a compulsory counterclaim, including affirmative recovery, although the statute barred a non-qualified corporation from being able to "bring or maintain any action or suit." These cases have, in effect, treated the plaintiff's action in bringing suit as raising an estoppel to assert, or waiver of, the defect in capacity which would exist had the defendant initiated the proceedings. It is clear from these cases that defendant Kodiak Insurance should be free to raise matters arising out of the contract at least as an offset. We, however, do not have to resolve these conflicting legal positions because of the nature of this case. In the case at bar, defendants asserted a defense, not in the form of a counterclaim but as a demand for an accounting, which was the same relief prayed for by plaintiff-appellant NBA in its complaint. While NBA now contends that the action was simply one in contract and that defendant's failure to counterclaim precludes recovery of any sort, it is clear from the pleadings, the written memoranda presented at the trial, and the oral arguments of the parties that this is an afterthought. The need for an accounting is generally rested upon one of three factors: 1. The existence of a fiduciary relationship requiring the defendant to account, to the plaintiff, 2. The existence of mutual accounts or a single account of unusual complexity, or, 3. a need for discovery. The latter consideration would appear to be insignificant under modern procedural codes, since discovery is extensive in all civil actions. No fiduciary relationship existed between the parties. However, the parties' claims are somewhat complex. The term "net retained commissions" had to be defined and its definition involved determinations of the items and amounts of items to be included in that definition. Expert testimony was required in deciding what, if any, commissions were due upon bad debts and accounts with the related Trinity Insurance Company. In regard to appellee's claim that they had overpaid in view of appellant's alleged breach of the non-competition covenant, determinations were necessary respecting the Bank's account under an insurance experience rating agreement with Olympic National Insurance Company and NBA's commissions for credit life insurance under that agreement. The court heard the matter itself, taking expert testimony where required. Although the court did not refer the matter to a master or auditor, it is clear that it treated the action as one for an accounting, and neither party objected to such treatment at trial. The significance of the action's treatment as one in accounting is grounded in the equitable maxim that he who seeks equity must do equity. A prayer for an accounting implies an offer to pay whatever obligation complainant may have towards the defendant. Thus, if the balance is found in favor of the appellee, he may recover even in the absence of a counterclaim. V. Measure of Damages In its memorandum decision, the court awarded damages for breach of the cove nant not to compete by awarding the amount received by the Bank from its sales of credit life insurance, subtracting 15% of that figure as retained commissions which would have been paid to NBA anyway. Thus, the court, in effect, assumed that all profits gained by the appellant were profits lost to the appellee. Or, to state it another way, the court struck the balance in the accounting as though the parties had entered in a joint business venture. Defendants below, appellees here, sought an accounting for overpayment of its obligation to defendant. At trial, it developed that the alleged overpayment occurred because NBA had received 15% of net retained commissions without offset for its alleged breach of the covenant not to compete. The measure of damages should be the usual measure for breach of the covenant, up to the amount of payments made by Kodiak Insurance. The measure for breach of a covenant not to compete is generally not the profits earned by the breaching party, but rather the lost profits of the party asserting the breach. However, while the bank was asked for the information at the trial, the only information they supplied the court was the gross figures which were subsequently reduced by offset for bad accounts to reflect a net profit figure. Because this is an action for accounting by the bank, the bank had the burden of producing further evidence to reduce the net profit figure. By failing to produce any evidence, they clearly are not in a position to claim the trial court erred in using the figures they supplied. Both parties appear to concede that the court erred in its calculation of prejudgment interest. The court simply cut appel-lees' calculation of interest in half. No accounting was made for the fact that, for the last three years of the operation of the agreement, there were also sums due appellant from appellees. Nor does the arbitrary cutting in half of appellees' proposed interest approximate the various time periods for which interest was due. Additionally, in Phillips v. State, this court stated that the 1965 amendment to AS 09.50.280 . . . evinces an intent that prejudgment interest be awarded more liberally than prior judicial interpretations of AS 45.45.010 would have called for. When the legislature determined that interest should run against the state from the time amounts were due, rather than from the time of entry of judgment, it did not draw any liquidated-unliquidated distinction such as were employed in previous decisions under AS 45.45.010. We believe this action on the legislature's part to be a manifestation of sound policy, for our own study of the problem has led us to the conclusion that the liquidated-unliquidated common law distinction lacks a persuasive rationale. In noting that the failure to allow such prejudgment interest encourages litigation, the court made clear that "whenever any cause of action accrues . . . the amount later adjudicated as damages is immediately 'due' in the sense of AS 09.50.-280 and AS 45.45.010(a)." This has been consistently followed and in Davis v. Chisim was further re fined to reflect that prejudgment interest was in the nature of compensation damages. The case characterized Phillips as stating that "in only the most unusual cases would prejudgment interest not be proper." While other jurisdictions (as noted by the trial court) hold that actions for accounting are in the nature of unliquidat-ed claims not entitled to interest, we are not persuaded to adopt such a view herein. We adhere to the view expressed in the Phillips line of cases and hold that prejudgment interest should have been awarded herein. On recomputing interest, this should be taken into consideration. VI. Award of Attorney's Fees without Motion or Hearing Appellant challenges the award of attorney's fees pursuant to Civil Rule 82 (a) by the court without a motion or hearing. This court's recent opinion in Urban Development Company v. Dekreon seems dispositive of the issue. By way of dicta, the court candidly stated: Under Civil Rule 82(a), a trial judge may award attorney's fees without a formal motion . . . and without a hearing. The judgment of the superior court as modified is ordered affirmed. BOOCHEVER, J., not participating. . The contract basically provided: the Seller desires to sell the property used by it in conducting the insurance business and the good will thereof. "Good Will" of the insurance business shall be defined to include the right to conduct the insurance agency business presently conducted by the Seller. . Day v. A & G Construction Co., Inc., 528 P.2d 440, 445 (Alaska 1974); Hendricks v. Knik Supply, Inc., 522 P.2d 543, 546 (Alaska 1974); Smalley v. Juneau Clinic Building Corp., 493 P.2d 1296, 1305 (Alaska 1969); Port Valdez Company v. City of Valdez, 437 P.2d 768, 771 (Alaska 1968); Pepsi Cola Bottling Co. of Anchorage v. New Hampshire Ins. Co., 407 P.2d 1009, 1013 (Alaska 1965). See also United States v. F. D. Rich Co., 434 F.2d 855 (9th Cir. 1970); Alaska Placer Company v. Lee, 455 P.2d 218, 221 (Alaska 1969). See Kupka & National Aero Sales Co. v. Morey, Alaska, 541 P.2d 740 (1975), as to the use of extrinsic evidence in determining whether there has been an integration of the contract. . See Port Valdez Co. v. City of Valdez, 437 P.2d 768, 771 (Alaska 1968); Pepsi Cola Bottling Co. v. New Hampshire Ins. Co., 407 P.2d 1009, 1013 (Alaska 1965) (insurance contract). . IX J. Wigmore, Evidence, § 2460 (3d ed.) 1940. . 3 S. Williston, The Law of Contracts, § 603 (3d ed. Jaeger) (1961). : Id. The Restatement of Contracts severs the- objective standard into two distinct standards: the reasonable meanings attached to a manifestation by (1) one making the manifestation and (2) one receiving it. Restatement of Contracts, § 227, Comment (a) (5) and (6) (1932). . Although no specific finding held the contract to be integrated, it is clear that the court so treated it. Neither party appears to challenge such a determination, although the resultant construction is in dispute. . See Restatement of Contracts, § 230 (1932). . 3 S. Williston, The Law of Contracts, § 603 (3d ed., Jaeger) 1961. . 407 P.2d 1009 (Alaska 1965). . 407 P.2d 1013. . 437 P.2d 768, 771 (Alaska 1968). . See also Smalley v. Juneau Clinic Building Corp., 493 P.2d 1296 (Alaska 1972). . 455 P.2d 218 (Alaska 1969). . 455 P.2d at 221, quoting 3A A. Corbin, Contracts, § 536 (1960). . See Erwin, "Parol Evidence or not Parol Evidence in Alaska," 8 Alaska L.J. 20 (1970). See also Kupka & National Aero Sales Co. v. Morey, Alaska, 541 P.2d 740 (1975), concerning the use of extrinsic evidence in determining whether there has been an integration of the contract. . 528 P.2d 440, 443, n. 4 (Alaska 1974). . Id. at 443-446. . Restatement of Contracts § 230 (1932). . 3 S. Williston, The Law of Contracts, § 609 (1951), quoting Nash v. Towne, 72 U.S. 689, 5 Wall. 689, 18 L.Ed. 527 (1867), and P. R. Company v. Denver & Rio Grande R. Company, 143 U.S. 596, 12 S.Ct. 479, 36 L.Ed. 277 (1892), and citing the Restatement, supra. . 3 S. Williston, The Law of Contracts, § 600A (1961). . Day v. A & G Construction co., 528 P.2d 440, 445 (Alaska 1974). . 528 P.2d at 444. .The agreement specifically defined the terms "property" and "good will" as follows : Article II — Definitions. As used in this agreement: 1. "Property" shall be defined to include all of the tangible physical assets used by the Seller in the conduct of the insurance business, including furniture and fixtures, accounts receivable and premium note receivable, but not including cash on hand or on deposit, any real estate or improvements thereon, or good will. 2. "Good Will" of the insurance business shall be defined to include the right to conduct the insurance agency business presently conducted by the Seller, its records, data, memoranda and information of expirations, books of account, good will, and all other information pertaining to the insurance business of the Seller. . See AS 21.09.010, requiring a certficate of authority to sell insurance; AS 21.09.070, setting up capital requirements for sellers; and AS 21.12.010-21.12.100, describing the types of insurance which could be sold. . Day v. A & G Construction Co., Inc., 528 P.2d 440, 443 (Alaska 1974); Peters v. Juneau-Douglas Girl Scout Council, 519 P. 2d 826, 834 (Alaska 1974). . Restatement of Contracts, § 235, Comment (h) (1932). . AS 09.25.010(a)(1). . The Territory of Alaska's appellate court, the 9th Circuit, held in 1910 that oral modification of a written contract was possible. Stanley v. Semple, ,173 F. 61 (9th Cir. 1910). Absent statutory requirements, this is the rule at common law. Stein v. Gable Park, Inc., 223 Or. 17, 353 P.2d 1034, 1038 (1960). . See generally Holiday Inns of America, Ine. v. Peck, 520 P.2d 87, 94-95 (Alaska 1974). . Beetschen v. Shell Pipeline Corp., 248 S.W.2d 66 (Mo.App.) aff'd 363 Mo. 751, 253 S.W.2d 785 (1962). . Williams v. Stroll Plumbing and Electric, 250 Iowa 599, 94 N.W.2d 750, 82 A.L.R. 2d 465 (1959); Werking v. Amity Estates, Inc., 2 N.Y.2d 43, 155 N.Y.S.2d 633, 137 N.E.2d 321 (1956) app. dism. 353 U.S. 933, 77 S.Ct. 812, 1 L.Ed.2d 756, reh. den. 353 U.S. 989, 77 S.Ct. 1281, 1 L.Ed.2d 1146 (1957). . 250 Iowa 599, 94 N.W.2d 750, 82 A.L.R.2d 465 (1959). . See AS 10.05.519(a)(1). . 354 P.2d 376 (Alaska 1960). . 354 P.2d at 379. . 68 Wash. 457, 123 P. 605 (1912). . 123 P. at 606. .199 F. 445 (W.D.Wash.1912). . No. 70-863 (3rd Judicial District, Alaska, Jan. 11, 1971) as cited in 9 Alaska L.J. 113 (1971). . Idaho Code, § 30-501. . 90 Idaho 515, 414 P.2d 460 (1966). The counterclaim asserted in Burley was one for foreclosure of a mortgage; thus, no question was raised as to the amount of recovery. . 232 F.2d 306, 310 (5th Cir. 1956). . Miss.Code 1942, Ann. § 5319. . Smith v. Howell, 91 Or. 279, 176 P. 805, 812 (1918). . Reference to an auditor or master is the preferred procedure upon an accounting, but such reference is a matter of discretion with the court. King v. Langham, 272 Ala. 662, 133 So.2d 669, 670 (1961) ; Baxter v. Krieger, 157 Cal.App.2d 730, 321 P.2d 879, 881 (1958). . Birt v. Birt, 102 Ariz. 374, 430 P.2d 136 (1967); Griffith v. Cooper, 145 Colo. 439, 359 P.2d 360, 361 (1961); Chapin v. Gritton, 178 Cal.App.2d 551, 3 Cal.Rptr. 250, 260 (1960). See Luckenbach S.S. Co. v. Norwegian Barque Thekla, 266 U.S. 328, 340, 45 S.Ct. 112, 69 L.Ed. 313, 316 (1924). .Merager v. Turnbull, 2 Wash.2d 711, 99 P.2d 434, 127 A.L.R. 1142 (1940). See generally eases annotated at 127 A.L.R. 1152. In Dowling Supply & Equipment, Inc. v. City of Anchorage, 490 P.2d 907 (Alaska 1973), it was held that absolute certainty in amount of damages for lost profits was not a prerequisite to recovery. However, some competent evidence as to amount must appear. 490 P.2d at 909. Here, there appears almost no evidence of the existence of actual damages. . 470 P.2d 266 (Alaska 1970). . Id. at 274. . Fairbanks Builders, Inc. v. Morton DeLima, Inc., 483 P.2d 194 (Alaska 1971); Nordin Constr. Co. v. City of Nome, 489 P.2d 455, 474 (Alaska 1971). See Hedla v. McCool, 476 F.2d 1223 (9th Cir. 1973). . 513 P.2d 475 (Alaska 1973). . Id. at 481. . Stockton Theatres, Ine. v. Palermo, 121 Cal.App.2d 616, 264 P.2d 74, 85 (1953); Lumberman's Supply Co. v. Neal, 189 Okl. 544, 119 P.2d 1017, 1018 (1941). . 526 P.2d 325 (Alaska 1974). . 526 P.2d at 329. . The superior court may wish to hold a further hearing to determine the exact amount of the new judgment.

10459288

H. Arthur WILLIS et al., Appellants, v. CITY OF VALDEZ, Appellee

Willis v. City of Valdez

1976-02-23

No. 2332

570

578

546 P.2d 570

546

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:14:29.992892+00:00

CAP

Before BOOCHEVER, C. J., and RA-BINOWITZ, CONNOR, ERWIN and BURKE, JJ.

H. Arthur WILLIS et al., Appellants, v. CITY OF VALDEZ, Appellee.

H. Arthur WILLIS et al., Appellants, v. CITY OF VALDEZ, Appellee. No. 2332. Supreme Court of Alaska. Feb. 23, 1976. Randall E. Farleigh of Robinson, Mc-Caskey, Reynolds, Frankel & Lekisch, Anchorage, for appellants. Kenneth P. Jacobus of Hughes, Thorsness, Lowe, Gantz & Powell, Anchorage, for appellee. Before BOOCHEVER, C. J., and RA-BINOWITZ, CONNOR, ERWIN and BURKE, JJ.

4810

28708

OPINION RABINO WITZ, Justice. This appeal arises from two quiet title actions, consolidated, involving lands within U. S. Survey No. 455 located in the area of Valdez, Alaska. The heirs of George Love claim ownership of lands in U. S. Survey No. 455, pursuant to the United States Patent issued to George Love in 1910 under soldiers' additional homestead entry scrips. The city of Valdez claims an interest in Lot 32, Block 37, First Division, through a deed dated August 25, 1971, from Andrew Engstrom, which is in the chain of title stemming from a 1907 quitclaim deed from George Love to North Valdez Land Company. Appellants, the heirs of Love, argue here that the superior court erred in entering partial summary judgment dismissing their claims. The superior court held that the quitclaim deed of 1907 from George Love to North Valdez Land Company conveyed an equitable interest in U. S. Survey No. 455 which was capable of carrying with it the subsequently acquired title received by George Love through patent from the United States government in 1910. The relevant facts are not complicated. In 1898 George Love received an assignment of the soldiers' additional homestead entry scrip of Winfield Evans from A. A. Thomas. Then, in 1902, Love obtained a separate assignment of a soldiers' additional homestead entry scrip, consisting of 40 acres, of Nathanal Kimball from Frederick W. McReynolds. In 1906 Love and three others executed the articles of incorporation of the North Valdez Land Company. In addition to acting as an incorporator, Love was a stockholder and initial director of the company. The articles of incorporation described the objects of the company to include the acquisition of lands. Two months after the North Valdez Land Company's articles of incorporation were executed, United States Survey No. 455 was approved. While there is no official record of a request for survey, the 1905 surveyor's notes refer to the land encompassed within United States Survey No. 455 as being claimed by George Love. On October 12, 1907, Love conveyed his interest in United States Survey No. 455 by quitclaim deed to the North Valdez Land Company. In early March of 1908, Love executed affidavits of publication and posting regarding his application for the lands encompassed within U. S. Survey No. 455. In mid-March the North Valdez Land Company filed its certificate of incorporation. Then, in late March, Love executed formal application for the land within U. S. Survey No. 455 as assignee of the soldiers' additional homestead entry scrips. In February of 1910, final certificate was issued to Love. This certificate acknowledged Love's payment, of fees and entry to the 159.98 acres within U. S. Survey No. 455. In July of 1910, patent was issued to Love. As is evident from the above, at the time George Love conveyed the lands in question to North Valdez Land Company (in 1907) he did not have title. Further, it was not until March of 1908 that the North Valdez Land Company completed the necessary steps to become legally incorporated under territorial law. These two points provide the basis for appellants' appeal. First, they argue that North Valdez Land Company was not, at the time of conveyance, a corporation in fact or law because the company had no legal existence, and therefore Love's 1907 conveyance to it was void. Second, appellants assert that Love himself did not have a suf ficient interest at the time he made the 1907 conveyance to result in the conveyance carrying with it the title he subsequently acquired by virtue of the 1910 patent. We find appellants' first argument unpersuasive. Assuming that the North Valdez Land Company was not a corporation de jure or de facto, Love and his successors in interest may still be estopped from denying the corporate existence of his 1907 grantee, the North Valdez Land Company. Appellee argues that at the time in question the North Valdez Land Company was a corporation by estoppel. "Corporation by estoppel" is actually a misnomer for the result of applying the policy whereby private litigants may, by their agreements, admissions, or conduct, place themselves in a position where they will not be permitted to deny the fact of the existence of a corporation. Because estoppel as a doctrine is concerned with the acts of the parties, as opposed to the legality of the corporation itself, we think the better rule is that the corporation by estoppel doctrine may be employed even when the corporation has not achieved de facto existence. As a general rule, promoters, stockholders, and members of a corporation are es-topped to deny its corporate existence where they have participated in holding it out as a corporation. In the case at bar George Love was an incorporator, stockholder, and director of North Valdez Land Company. Further, review of the record shows that Love never took any action which was inconsistent with the notion that the North Valdez Land Company was a legal corporation. It was to this entity which Love conveyed the land in question. Thus, we hold that the heirs of George Love, being in privity with him, are es-topped from denying the existence of North Valdez Land Company as a corporation at the time of the 1907 conveyance. There remains the more complicated question of whether Love's conveyance of his interest by the 1907 quitclaim deed after survey was approved, but prior to actual application under the scrip for patent, was sufficient to take with it the 1910 title acquired by virtue of the patent issued to George Love. Appellants concede that soldiers' additional homestead rights are personal property and freely alienable. Such transfers concern rights independent of interests in land; rather they concern legal privileges to enter land. At the other end of the spectrum, land owned in fee is also freely alienable. Thus, at the point when an applicant receives a federal patent to land, it may be sold. The issue we must determine then, is at what point in the pre-patent chain of procedures does a person have a sufficient interest in a particular tract of land to convey that land by quitclaim deed. It is established that public land can be conveyed by a possessor of a soldiers' additional homestead right prior to actually obtaining patent. In Webster v. Luther, 163 U.S. 331, 16 S.Ct. 963, 41 L.Ed. 179 (1896), application to enter was dated 1887 and patent granted in 1888. In an action by the holder of a quitclaim deed issued in 1890, the prevailing party's warranty deed (dated on the same day in 1887 that the application to enter was filed) was impliedly held to have conveyed the land. As a matter of law then, public land can be conveyed by a possessor of a soldiers' additional homestead right prior to actually obtaining patent; the patent will issue in the name of the original entryman but the land will belong to the person receiving the pre-patent conveyance. Further, it has been held that the conveyance before patent may be made by quitclaim deed. Gilbert v. McDonald, 94 Minn. 289, 102 N.W. 712 (1905). In Gilbert, the court stated that [u]nder the authorities referred to, we consider the question settled in this state that when patent issues it furnishes evidence of title in the patentee from the very inception of the proceedings to acquire title. Appellants argue that assuming all that is necessary to support a conveyance is an application for patent, even that was lack ing here. They also cite several cases which' they claim show that an applicant for patent has no right to the land. Appellants reason that if an applicant for a patent possesses no right to the land he conveys, then a fortiori George Love, who had not yet applied for a patent, had no rights to a particular piece of land which he could convey. If appellants' case law supported the proposition that one who claims land prior to patent being issued has no right to the land, it would conflict with the authority to which we have alluded. But, in fact, the cases appellants cite are not in conflict with Webster and Gilbert. Our study shows that they do not stand for the broad proposition which appellants would have us draw from them. Typical of the authorities relied on by appellants is Robinson v. Lundrigan, 178 F. 230, 233 (8th Cir. 1910). In Robinson the question the court actually resolved was ". whether or not a person who applies to enter public land with a void [sic] additional right is entitled, after his invalid application has been rejected, to a grant of additional time within which to obtain another right with which to enter the land where a valid application for the land has been received, and is pending, at the time the holder of the invalid right makes his application -for additional time." The Robinson court held that an applicant for land under a void scrip had no right to extra time to obtain a valid scrip and reapply for patent. In short, if the basis of a claim is void, there is no claim. There is no allegation in the instant case, nor in the cases we discussed supra, that the applicants for patent held void scrip. Thus, we conclude that the cases appellants cite are not in point with the instant discussion. Since Love had not applied for patent at the time of the 1907 conveyance, we must determine whether Love possessed any pre-application interest in the land which would furnish a foundation for the superi- or court's conclusion that Love had an interest capable of being conveyed and capable of taking with it after-acquired rights. Appellee's argument in support of the superior court's ruling is that at the point where proceedings to obtain a particular tract of land were begun, rights to the land attached. A conveyance of these rights to a third party would also, serve to vest after-acquired rights, such as title, in the third party provided that those after-acquired rights emanated from the same claim from which the earlier transferred rights were based. In short, once proceedings to obtain patent are initiated, a transfer of rights arising from those proceedings includes the right to eventually obtain patent to a piece of land. We find this reasoning to be in accord with the decisions we have cited holding that public land may be conveyed by a possessor of soldiers' additional homestead entry scrip prior to obtaining patent. We must still determine the point at which a party acquires rights to a particular piece of'property, assuming he subsequently proceeds to obtain patent. We think that logic dictates that this point must be the inception of proceedings to acquire a title. In the Soldiers' Ordinary Homestead Act (43 U.S.C. § 271), the inception of proceedings is the filing of a declaratory statement. Soldiers' Additional Homestead Act rights to locate land would be analogously exhausted when the inception of the proceedings took place and rights were located on a specific tract. While in the major portion of the country the first step toward acquiring particular land was the filing of a statement naming the property by reference to the existing rectangular survey system, the procedure in Alaska was different. For any claim in Alaska, where the system of rectangular surveys had not been extended, a special survey had to be made. Thus, the request for survey, or the survey itself, was the first document filed to initiate a Soldiers' Additional Homestead Rights Act land claim. Record claim was initiated by an application made to the surveyor general for a survey. Appellee's argument that request for survey or actual survey constitutes a sufficient "setting aside" of land to constitute the inception of proceedings to obtain that land under the act is persuasive. Assuming the claim is followed through to patent, it is eminently reasonable, under the conditions existing at the turn of the century in the Territory of Alaska, to regard title as dating back to survey; it is at that point that a particular piece of land is associated with a particular scrip. In In re Northwestern Fisheries Co., 39 L.D. S98 (1911), an administrative decision of First Assistant Secretary Pierce of the Department of the Interior, subsequent to survey but prior to application, Presidential Proclamation of February 16, 1909 withdrew public lands for addition to Tongass National Forest. The opiftion held that the survey and approval of same gave the applicant a claim which could not be defeated and which could be carried to patent. Since this is the only decision we have located which concerns rights prior to application for patent under the Soldiers' Additional Homestead Act, we think it appropriate to quote at length from this decision. With reference to the assertion of claim involved in the preliminary steps for the survey of this land, it seems clear that the survey thereof in the field and the approval of such survey by the surveyor-general, February 11, 1909, was a legal appropriation under the public land laws and whatever rights attached by such approval, were not defeated by the withdrawal. The evident purpose of the exception in the proclamation was to protect such claims if they were thereafter diligently prosecuted to final entry. Under the law and regulations one desiring to locate a Soldiers' Additional Homestead Right in Alaska, might have survey of the land intended to be located, and after approval by the surveyor-general file the plat of such survey in the local land office. These steps are preliminary to actual location in the land office and are rendered necessary because of lack of government surveys in said district. Can it be said that another might appropriate a tract as against one proceeding in conformity with department regulations to identify it by appropriate survey before making entry? If not, it must be because such prior claimant had initiated a claim which might ultimately ripen into a legal right. Under such circumstances the claimant should not be denied the right to perfect his claim unless he has been guilty of negligence. . In the case under consideration the law gave, as has been seen, the right to locate Soldiers' Additional Rights upon unsurveyed lands in the District of Alaska and the regulations under the law authorized the actual location of the scrip. The survey here in question was made as the regulations provided, was preliminary to the location, and was limited to the location and in furtherance thereof. The area embraced in the survey coincides with the extent of the company's claim, and if it has complied with the further provisions of the law and the regulations governing the acquisition of lands in Alaska in the exercise of Soldiers' Additional Rights, its claim must be sustained. Appellants attempt to distinguish Northwestern Fisheries by arguing that the rationale of that case was based on the clear language of the presidential proclamation which did not intend to prejudice claims which were being processed. This is not persuasive insofar as the significance of Northwestern Fisheries is that it recognizes a claim to particular land, based on a scrip, from the point in time when application for survey was made. Suggesting a contrary conclusion to Northwestern Fisheries is the circular issued by the Department of the Interior on September 12, 1908, published in 37 L.D. 160. As codified in 43 C.F.R. 132.13 (1938), the circular provided that an application under the Soldiers' Additional Homestead Act ". . . does not segregate the land or prohibit the filing of other applications . . . until after the allowance of the entry. . . . ", which leads to the questions what "segregate" means and for what purposes is the land not segregated. Since this circular preceded the decision in In re Northwestern Fisheries, we conclude that the words . . segregate the land or prohibit the filing of other applications for such land. . . . " should be read together as meaning that until entry is allowed others may also apply for the land. Thus, we conclude that in the Territory of Alaska, at the time of Love's 1907 conveyance to the North Valdez Land Company, Love's request for survey initiated a claim to the land requested. Appellants admit that Love requested survey on July 1, 1905. We conclude that since Love requested the survey on July 1, 1905, he therefore had existing rights to the lands encompassed within U.S. Survey No. 455 at the time in 1907 when he conveyed his interests in these lands to the North Valdez Land Company. We further conclude that the United States Patent issued to Love in 1910 inured to the benefit of the North Valdez Land Company under the 1907 quitclaim deed it received from Love. The judgment of the superior court is affirmed. . 43 U.S.C. § 271 provides: Soldiers and sailors entitled to make entry generally Every private soldier and officer who served in the Army of the United States during the recent rebellion for ninety days, and who was honorably discharged and has remained loyal to the Government, including the troops mustered into the service of the United States by virtue of the third section of an Act approved February 13, 1862, and every seaman, marine, and officer who served in.the Navy of the United States or in the Marine Corps during the rebellion for ninety days, and who was honorably discharged and has remained loyal to the Government, and every private soldier and officer who served in the Army of the United States during the Spanish war, or during the suppression of the insurrection in the Philippines for ninety days, and who was or shall be honorably discharged; and every seaman, marine, and officer who served in the Navy of the United States or in the Marine Corps during the Spanish war, or during the suppression of the insurrection in the Philippines for ninety days, and who was or shall be honorably discharged, shall, on compliance with the provisions of sections 161-164, 169, 171, 173, 175, 183, 184, 191, 201, 211, 239, 254, 255, 271, 272, 274, 277 and 278 of this title, as hereinafter modified, be entitled to enter upon and receive patents for a quantity of public lands not exceeding one hundred and sixty acres, or one quarter section, to be taken in compact form, according to legal subdivisions, including the alternate reserved sections of public lands along the line of any railroad or other public work not otherwise reserved or appropriated, and other lands subject to entry under the homestead laws of the United States; but such homestead settler shall be allowed six months after locating his homestead and filing his declaratory statement within which to make his entry and commence his settlement and improvement. 43 U.S.C. § 274 provides: Additional entry by veteran Every person entitled, under the provisions of section 271 of this title to enter a homestead who may have, prior to June 22, 1874, entered, under the homestead laws, a quantity of land less than one hundred and sixty acres, shall be permitted to enter so much land as, when added to the quantity previously entered, shall not exceed one hundred and sixty acres. . The' quitclaim deed which conveyed U. S. Survey No. 455 employed in part the following phraseology: Together with all and singular the tenements, hereditaments and appurtenances thereunto belonging or anywise appertaining, and the reversion and reversions, remainder and remainders, rents, issues and property thereof. To have and to hold, all and singular the said premises, together with the appurtenances, unto . . . [North Valdez Land Company], and to its successors and assigns forever. . Section 801 of the Compiled Laws of Alaska (1913) describes the point of corporate existence to be when the articles of incorporation have been "filed and recorded." Thus, at the time of Love's 1907 conveyance, North Valdez Land Company was not a corporation de jure. Appellants also argue that the North Valdez Land Company was not a corporation de facto at that time either. The necessary conditions for operation of the doctrine of de facto incorporation are colorable compliance with the laws of incorporation and good faith. H. J. Hughes Co. v. Farmers' Union Produce Co., 110 Neb. 736, 194 N.W. 872 (1923) ; of. Jefferson v. State, 527 P.2d 37 (Alaska 1974). It is generally agreed that one cannot even be said to colorably comply with applicable law until taking the basic step of filing the corporate articles. Kiamesha Dev. Corp. v. Guild Properties, 4 N.Y.2d 378, 175 N.Y.S. 2d 63, 151 N.E.2d 214 (N.Y.1958), 2 Model Business Corp. Act ¶ 50, § 4. Since the necessary condition of colorable compliance was not met, North Valdez Land Company was not a corporation de faeto at the time of Love's 1907 conveyance. . Cf. 8 W. M. Fletcher, Cyclopedia of the Law of Private Corporations (1966 rev'd ed.) § 3889 [hereinafter cited as Fletcher]. . Id. at § 3902. . Additionally, we recognize decisional law to the effect that a person who conveys real property to an association as a corporation cannot avoid the conveyance by denying the corporate existence of the grantee. 8 Fletcher, supra note 4, § 3958. Bukacek v. Pell City Farms, Inc., 286 Ala. 141, 237 So.2d 851 (1970), cert. denied, 401 U.S. 910, 91 S.Ct. 872, 27 L.Ed.2d 809 (1971); Jolley v. Idaho Securities, Inc., 90 Idaho 373, 414 P. 2d 879, 888 (1966). . The purpose and policy of the Soldiers' Additional Homestead Rights Act is well discussed in Barnes v. Poirier, 64 F. 14, 18 (8th Cir. 1894) (citation omitted, emphasis added), where the court said : The purpose of the [original Soldier's Homestead Rights Act] was to induce the permanent settlement of the donee upon, and the continued occupation and cultivation by him of, the land granted. Hence the requirements of settlement, cultivation, and occupation for a long period of time before entry, and of the affidavit of the homesteader at the time of final entry that he had not alienated any of the land, and hence the inevitable conclusion that any sale or contract of sale of the right to enter the land or of the land to be entered under these sections was an evasion of one of the main purposes of the act, and was against public policy and void. But the beneficiary of the grant under [the Soldier's Additional Homestead Rights Act] had already selected, settled upon, cultivated, and acquired his homestead from the public domain, and was presumably in the occupation of it before that grant was made. The purpose of the grant under that section surely was not to induce him to abandon his homestead, and make a new settlement on the new grant. It was rather to reward him for the services he had already rendered as a soldier in suppressing the Rebellion, and as a farmer in establishing his home upon, cultivating, and occupying that portion of the public domain he had already entered as his homestead. Hence it was that no settlement, no cultivation, no occupation, no affidavit of nonalienation, no affidavit at all was made a condition precedent to the enjoyment of the benefits of this grant or to the entry of the additional land under this section. The beneficiary was left free to select this additional land from any portion of the vast public domain described in the act, and free to apply it to any beneficial use that he chose. It was an unfettered gift in the nature of compensation for past services. It vested a property right in the donee. The presumption is that congress intended to make this right as valuable as possible. Its real value was measured by the price that could be obtained by its sale. The prohibition of its sale or disposition would have made it nearly, if not quite, valueless to a beneficiary who had already established his home on the public domain. Any restriction upon its alienation must decrease its value. .Quitclaim deeds normally do not transfer after-acquired interests or after-acquired title. E. g., Ott v. Pickard, 361 Mo. 823, 237 S.W. 2d 109 (1951); Reasor v. Marshall, 359 Mo. 130, 221 S.W.2d 111, 115 (1949); Annot., 44 A.L.R. 1266, 1276; 162 A.L.R. 556, 566. However, a quitclaim deed can transfer equity in property, including the equitable right to acquire a title by means of soldiers' additional homestead entry scrip. . The theory of the Gilbert case is that prior to patent an equitable title exists which ripens into legal title inuring to the benefit of the grantee claiming under the quitclaim deed. Thus, what the grantor conveys by quitclaim deed is an equitable interest. Compare Kelly v. Southworth, 38 Wyo. 414, 267 P. 691 (1928). The nature of rights secured under soldiers' and sailors' entry in 271 to 274, 43 TJ.S.C. has been treated differently for the purposes of alienation prior to patent than those obtained under normal homestead entry. Compare Anderson v. Carkins, 135 U.S. 483, 10 S.Ct. 905, 34 L.Ed. 272 (1890) with Anderson v. Clune, 269 U.S. 140, 46 S.Ct. 69, 70 L.Ed. 200 (1925). The absolute grant to soldiers and sailors, as opposed to the conditional grant to normal homestead entrymen, provides a basis for permitting alienation prior to patent for the former while restricting the latter's rights of alienation until the issuance of patent. . Emphasis added. The "authorities" the court referred to hold that an applicant for patent had a right to possession of the land, after application but prior to patent, as against a trespasser and could sue for damages for trespass from the time of application. In this regard, see Burr v. House, 3 Alaska 641 (1909), where the court held that mere settlement on open lands, absent a patent, vests the settler with a property right good against every one but the government. . We are not concerned with the analogous issue of estoppel by deed, since Love conveyed by quitclaim deed. . See, e. g., those cases discussed in text accompanying note 8, supra. .The matter is discussed in Opinion of the Attorney General: Feb. 25, 1899, 28 L.D. 149 (1899), as follows: By the terms of the statute (section 2306, Revised Statutes), the Soldiers' Additional Homestead Right is limited to the entry of 'so much land as, when added to the quantity previously entered shall not exceed one hundred and sixty acres.' When this right of entry is exercised upon surveyed land, as it must be, if exercised at all, outside of Alaska, the land must be taken according to legal subdivision. . . . Section one of the act of May 14, 1898 (30 Stat., 409), among other things, grants the right to enter unsurveyed lands in the district of Alaska under provisions of law relating to the acquisition of title through Soldiers' Additional Homestead Rights. Public lands in Alaska are not surveyed and no provision has been made for extending over them the system of public surveys. . . . Land cannot be entered there as an additional homestead, by legal subdivisions, because there are no such subdivisions. It is essential, however, to the allowance of entry that the land shall have been surveyed, and provision is made in the fourth paragraph of circular instructions, issued June 8, 1898, under the said act (27 L.D. 248), for the necessary survey, in the following language: 'The act makes no direct provision for the surveying of lands sought to be entered as Soldiers' Additional Homestead claims, and therefore special surveys must be made of such lands in the manner provided for in section 10 of this act, at the expenses of the applicant.' By means of the special survey the acreage to which an applicant is entitled under Additional Homestead Right may be definitely described and separated from the body of the public lands. . See also Gavigan v. Grary, 2 Alaska 370 (1905). . Section 10, Reg. .32 (27 L.D. 261) ; hut of. 37 L.D. 160 (1908). . The proclamation stated in part that, "[t]he withdrawals made by this proclamation shall, as to lands which are at this date legally appropriated under the public land laws, . be subject to and shall not interfere with or defeat legal rights under such appropriation. . . ." Thus, the Secretary in In re Northwestern Fisheries had to determine what constituted "legal rightsthe proclamation itself did not define legal rights or state what category of rights was to be recognized. . While there is no formal request for survey, the surveyor's notes, which constitute part of this record, repeatedly refer to IT. S. Survey No. 455 as being a survey of land claimed by George Love.

10358372

TRUSTEES FOR ALASKA, City of Kaktovik, American Wilderness Alliance, Northern Alaska Environmental Center, Alaska Wildlife Alliance, The Sierra Club, The Wilderness Society, Alaska Center for the Environment, Appellants, v. STATE of Alaska, DEPARTMENT OF NATURAL RESOURCES; Judy Brady, Commissioner, State of Alaska Department of Natural Resources, and James Eason, Director, Division of Oil and Gas, State of Alaska, Department of Natural Resources, Appellees. Arco Alaska, Inc., Chevron U.S.A., Inc., Phillips Petroleum Co., and Standard Alaska Petroleum Co., Intervenor-Appellees

Trustees for Alaska v. State, Department of Natural Resources

1993-12-23

No. S-5275

745

752

865 P.2d 745

865

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:13:42.524681+00:00

CAP

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

TRUSTEES FOR ALASKA, City of Kaktovik, American Wilderness Alliance, Northern Alaska Environmental Center, Alaska Wildlife Alliance, The Sierra Club, The Wilderness Society, Alaska Center for the Environment, Appellants, v. STATE of Alaska, DEPARTMENT OF NATURAL RESOURCES; Judy Brady, Commissioner, State of Alaska Department of Natural Resources, and James Eason, Director, Division of Oil and Gas, State of Alaska, Department of Natural Resources, Appellees. Arco Alaska, Inc., Chevron U.S.A., Inc., Phillips Petroleum Co., and Standard Alaska Petroleum Co., Intervenor-Appellees.

TRUSTEES FOR ALASKA, City of Kaktovik, American Wilderness Alliance, Northern Alaska Environmental Center, Alaska Wildlife Alliance, The Sierra Club, The Wilderness Society, Alaska Center for the Environment, Appellants, v. STATE of Alaska, DEPARTMENT OF NATURAL RESOURCES; Judy Brady, Commissioner, State of Alaska Department of Natural Resources, and James Eason, Director, Division of Oil and Gas, State of Alaska, Department of Natural Resources, Appellees. Arco Alaska, Inc., Chevron U.S.A., Inc., Phillips Petroleum Co., and Standard Alaska Petroleum Co., Intervenor-Appellees. No. S-5275. Supreme Court of Alaska. Dec. 23, 1993. Peter Van Tuyn, Trustees for Alaska, Anchorage, for appellants. Kyle W. Parker, Asst. Atty. Gen., Anchorage, and Charles E. Cole, Atty. Gen., Juneau, for appellee State of Alaska. Carl J.D. Bauman and Clyde E. Sniffen, Jr., Hughes, Thorsness, Gantz, Powell & Brundin, Anchorage, for intervenor-appel-lees. Before MOORE, C.J., and RABINOWITZ, BURKE, MATTHEWS and COMPTON, JJ.

3646

22868

OPINION COMPTON, Justice. Seven environmental groups and the City of Kaktovik ("Trustees") challenged the State's sale of Oil and Gas Lease 55 (Sale 55). They contend that the Department of Natural Resources (DNR) failed to consider several issues when it determined that the sale was in the "best interests" of Alaska. Arco Alaska, Inc., Chevron U.S.A., Inc., Phillips Petroleum Co., and Standard Alaska Petroleum Co. intervened. The superior court affirmed DNR's best-interest determination as well as its decision to proceed with Sale 55. This appeal followed. We reverse. I. FACTUAL AND PROCEDURAL BACKGROUND In Sale 55, the State offered oil and gas exploration and development rights to 201,-707 acres of offshore state land in the Beaufort Sea near Demarcation Point. Demarcation Point is located along the northern coast of the Arctic National Wildlife Refuge (ANWR) in northeast Alaska. See Appendix A attached. Pursuant to Alaska law, DNR can lease state lands only if it makes "a written finding that the interests of the State will be best served." AS 38.05.035(e); see also Trustees for Alaska v. State, DNR, 795 P.2d 805, 809 (Alaska 1990). In order to comply with this requirement, DNR began the lengthy administrative determination process in August 1983. In February 1988 DNR issued a preliminary best-interest finding, tentatively concluding that Sale 55 was in the best interests of Alaska. After this preliminary finding, DNR solicited additional comments and analysis from the public, the oil industry, and state and federal agencies. At this time, Trustees submitted oral and written comments critical of DNR's conclusion, and asked for a final determination that Sale 55 was not in Alaska's best interests. On April 25, 1988, DNR issued its final finding, concluding that the potential benefits of the sale outweighed the possible adverse impacts, and that the sale was in the best interests of the State. Trustees filed a motion for reconsideration which DNR denied. Trustees then appealed to the superior court. During the briefing before the superior court, we decided Trustees for Alaska v. State, DNR, 795 P.2d 805 (Alaska 1990) (Camden Bay), which involved a challenge to the State's Oil and Gas Lease Sale 50. In Camden Bay, we concluded that the DNR should have analyzed likely methods and risks of transporting oil to shore, but failed to do so. Id. at 810-11. Because of Camden Bay's relevance to the present case, the superior court allowed supplemental briefing to address any possible effect the decision might have on the issues under consideration. On January 24, 1991, the superi- or court issued its memorandum and decision affirming Sale 55. Among other things, the superior court found that Trustees had abandoned any arguments regarding transportation of oil because they did not include the issue in their points on appeal or argue the issue in their opening brief. The superior court denied Trustees' motion for rehearing. This appeal followed. II. DISCUSSION Trustees- challenge DNR's finding that Sale 55 is in the State's best interests on two grounds: (1) DNR failed to consider the environmental risks of transporting oil from the lease area to market; and (2) DNR failed to consider the impact of oil operations within the lease area on the Porcupine Caribou herd and on subsistence users of this herd. In response, Appellees contend that Trustees waived and abandoned the transportation issue, and furthermore, that DNR did consider these two issues. Appellees therefore contend that DNR's decision was not arbitrary. DNR's best-interest determination is subject to deferential review by this court. Since the determination "involve[s] complex subject matter or fundamental policy formulations," this court reviews the decision "only to the extent necessary to ascertain whether the decision has a 'reasonable basis.' " Camden Bay, 795 P.2d at 809 (quoting Hammond v. North Slope Borough, 645 P.2d 750, 758 (Alaska 1982)). Nevertheless, this court must ensure that DNR has taken a "hard look" at the salient problems and has genuinely engaged in reasoned decision making. Alaska Survival v. State, 723 P.2d 1281, 1287 (Alaska 1986). A decision will be regarded as arbitrary "where an agency fails to consider an important factor in making its decision." Canden Bay, 795 P.2d at 809. A. THE TRANSPORTATION ISSUE 1. Trustees Did Not Waive or Abandon the Transportation Issue. Appellees argue that this court should not address the transportation issue because (1) Trustees waived the issue by not raising it during the administrative process, and (2) Trustees abandoned the issue by not including it in their points on appeal, and by failing to brief the issue before the superior court. Trustees respond that they did raise the issue at the administrative level, and that they properly preserved the issue before the superior court. Appellees are correct that a party must raise an issue during the administrative proceedings to preserve the issue for appeal. The United States Supreme Court has stated that it is "incumbent upon intervenors who wish to participate [in agency proceedings] to structure their participation so that it is meaningful, so that it alerts the agency to the intervenors' position and contentions." Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 553, 98 S.Ct. 1197, 1216, 55 L.Ed.2d 460 (1978). Review of the record, however, demonstrates that Trustees did raise the transportation issue before DNR in their comments on the preliminary best-interest finding, and in their motion for reconsideration. Therefore, Trustees did not waive the transportation issue. The question whether Trustees abandoned the transportation issue on appeal to the superior court is a closer one. In examining this question, we focus on three aspects of the litigation: (1) Trustees' framing of their points on appeal, (2) the extent of Trustees' briefing on the transportation issue before the superior court, and (3) the superior court's request for supplemental briefing following our Camden Bay decision. Appellate Rule 210(e) provides in part: "At the time of filing his notice of appeal, the appellant shall serve and file with this designation a concise statement of the points on which he intends to rely on the appeal. The appellate court will consider nothing but the points so stated." Alaska RApp.P. 210(e). In their points on appeal, Trustees alleged: DNR's decision to proceed with Lease Sale 55 without providing the public with vital information on the scale of operations and infrastructure which will be required for a moderate to high level petroleum development operation, was arbitrary and capricious and without support in the administrative record. Specifically, DNR failed to follow standard analysis procedures for resource estimates; strategies used to explore, develop and produce and transport potential petroleum resources. DNR's decision to proceed with Sale 55 without adequately considering or identifying the types and locations of facilities "not located in ANWR" which would be used to facilitate the development of Demarcation Point was arbitrary.... We find that this statement is sufficient to preserve the issue as required by Rule 210(e). Nevertheless, Appellees argue that Trustees abandoned the transportation issue by failing to brief it before the superior court. Kodiak Electric Ass'n v. Delaval Turbine, Inc., 694 P.2d 150, 153 n. 4 (Alaska 1984) (even though the issue was included in appellant's points on appeal statement, the issue was abandoned because appellant failed to adequately brief it). We disagree. Although Trustees did not brief the issue adequately in their opening brief, they briefed the issue in response to the superior court's request for supplemental briefing on the Camden Bay decision. In fact, all parties briefed the transportation issue at this stage in the litigation. Given the extent of this briefing, Appellees cannot argue that the transportation issue was not adequately briefed, or that they will be prejudiced by our consideration of the issue. The superior court was correct to take judicial notice of the Camden Bay decision, and to request supplemental briefing as to its effect on this case. However, the superior court abused its discretion by refusing to address the transportation issue on the grounds that it was not adequately briefed. Because the issue was not abandoned, we now turn to the question whether DNR failed to consider the methods and risks of transporting ofi from the Sale 55 area. 2. DNR Erred in Failing to Consider the Transportation Issue. Alaska Statute 38.05.035(e) grants DNR the power to sell or lease state lands upon a written finding that "the interests of the state will be best served" by the disposition. AS 38.05.035(e). The written findings must set out the law and facts upon which DNR bases its conclusions, and must be made available to the public at least twenty-one days before the disposition. Id. In Camden Bay, this court rejected DNR's best-interest finding for Sale 50 because it failed to consider an important factor — "the unique risks presented by the oil transportation methods that would be necessary if the legal status of ANWR remains unchanged." 795 P.2d at 811. Trustees argue that DNR's best-interest finding in this ease is deficient for the same reason. Trustees contend that the Finding "is utterly bereft of any recognition of transportation as an issue, let alone any discussion of the environmental risks of transportation and how those risks affect the overall 'best interest' determination." In response, DNR claims that the record demonstrates "a careful consideration of the transportation issues." DNR argues: (1) its drafting of several lease terms indicates its acknowledgment of environmental risks associated with different transport methods; (2) its cumulative effects analysis considers transportation issues by acknowledging that a complete assessment of the effects of the lease sale is impossible until actual discoveries are made; and (3) it relied on a number of state and federal studies concerning oil transportation for a nearby federal oil lease. In addition, Intervenor-Appellees argue that DNR took a "hard look" at the transportation issue since it determined that development of Sale 55 might be economically feasible, i.e., that a discovery of a large enough volume of oil would make it "possible to build the necessary infrastructure to transport oil safely from the Sale 55 area to Pump Station No. 1 of the Trans-Alaska Pipeline System." Given the remote area of Sale 55, and the fact that ANWR cannot be used as a site for transportation facilities, it was incumbent upon DNR to consider and weigh the methods and associated risks of transporting oil to available onshore facilities. In Camden Bay, we stated: [Transportation] facilities are unquestionably a vital part of the development of the sale area for oil production and thus are important factors in the decision to lease the sale area. They would seem to present unique environmental risks. Yet the Finding is remarkable in that — as detailed as it is on other subjects — it fails to mention facilities of this magnitude at all [such as undersea pipelines as long as 50 miles], much less examine the critical question of whether they are safe. 795 P.2d at 810-11. This language forewarns that transportation is an important factor which DNR must consider when making its best-interest finding on a proposed lease sale. Review of the record, however, indicates that DNR did not take a hard look at the transportation issue in making its best-interest determination for Sale 55. For example, the Finding concludes that offshore development would be "feasible" without use of ANWR, but does not discuss how the oil would be transported or what risks these methods would pose. A finding or assertion that development is economically feasible is not the same as a finding that the sale is in the State's best interests. DNR must consider the "social, cultural and environmental impacts on the state from oil production." State, DNR v. Arctic Slope Regional Corp., 834 P.2d 134, 143 (Alaska 1991). In fact, the Finding for Sale 55 is remarkably similar to the Sale 50 Finding that was rejected by this court in Camden Bay. Much of the Finding appears to have been copied — without alteration — from the Sale 50 Finding. More importantly, the Sale 55 Finding deals with transportation issues in a similar cursory manner. Given the similarity between the Sale 50 and Sale 55 locations, as well as the two Findings' treatment of the transportation issue, this court's decision in Camden Bay is controlling. The best-interest Finding for Sale 55 failed to adequately address the methods and risks of transporting oil from the sale area to market. Accordingly, we reverse the decision of the superior court, and remand the case to DNR for a supplemental finding addressing this issue. B. THE PORCUPINE CARIBOU HERD Trustees further argue that the Porcupine Caribou Herd is susceptible to adverse impacts from oil and gas development off the shore of ANWR, and that DNR must consider this impact in making its best-interest determination. Trustees contend that the caribou use areas within, and immediately adjacent to, the Sale 55 area as calving grounds and for insect relief. Trustees raise concerns that oil development may cause the caribou to avoid this important area. Further, caribou may be subject to oil spills. Accordingly, Trustees argue that DNR's best-interest Finding was deficient because it failed to consider the impact of Sale 55 on the caribou herd. In response, DNR argues that it adequately addressed any impact development would have on the herd. DNR notes that Sale 55 is an offshore lease sale, and that Trustees have presented no evidence that "offshore activities themselves can interfere with caribou onshore in ANWR." Further, DNR contends that in formulating its final finding, it "considered volumes of information on caribou including general biological information, information regarding caribou in A1STWR, and information concerning the minimal effects of current onshore development in Prudhoe Bay on the caribou herds." Because of this, DNR concludes that it adequately considered any potential effects of the sale on the caribou herd. Despite DNR's contentions that it "considered volumes of information on caribou," the Finding does not suggest this level of consideration. In contrast to DNR's extensive discussion detailing the effects of the sale on whales, seals, polar bears, fish and birds, the Finding simply does not discuss the effects on caribou. DNR is required to take a "hard look" at the salient problems involved with a lease sale, and must engage in reasoned decision making. Camden Bay, 795 P.2d at 809. DNR's Finding indicates that it did not give the same level of consideration to the caribou herd that it gave to other wildlife. In fact, DNR's Finding consists of little more than an assumption that, since Sale 55 is an offshore oil lease, it will not affect ANWR or the caribou that use ANWR. DNR's Finding states: Sale 55 thus should not have a direct effect on ANWR lands themselves, although exploration and production activity within the sale area may be visible from ANWR. Although DNR asserts that development "should not" affect ANWR or the caribou that utilize ANWR, DNR has made no finding to this effect. Rather, it has simply made the unsupported assumption that off shore development cannot affect caribou. This approach is evident in the following language of the Finding: [W]hile the Department recognizes the intent behind the creation of ANWR, the department does not believe it is necessary to establish yet another undeveloped area, or buffer zone, around the refuge to achieve an acceptable level of protection for fish and wildlife within ANWR. Regulatory agencies have designed lease terms, permit requirements and field monitoring to control industry exploration and production activities. The protection of ANWR lands will be a consideration when granting approval of design, siting and construction of exploration and production facilities- [T]he department does not expect significant or permanent degradation to refuge wildlife, the environment, or the wilderness character of the refuge to occur. Although DNR attempts to argue that it "carefully considered caribou-related issues," the Finding language indicates otherwise. What DNR is really arguing is that offshore development cannot affect onshore caribou, i.e., that the sale's effect on the Porcupine Caribou Herd does not represent a "salient problem" for purposes of AS 38.05.035(e). See Camden Bay, 795 P.2d at 809 (DNR must take a hard look at any salient problems associated with sale). This argument is equally unpersuasive. The caribou herd is an important resource for the State of Alaska and the Natives that rely on the caribou for subsistence. Since the State has a substantial interest in the continued health and viability of the herd, the impact of the sale on the herd ⅛ an important factor which DNR must consider when making its best-interest determination. DNR failed to take a hard look at the impact of Sale 55 on the Porcupine Caribou Herd, and on the subsistence users of this herd. Accordingly, we reverse the superior court, and remand the case to DNR for a supplemental finding addressing these issues. III. CONCLUSION Trustees did not abandon or waive the transportation issue before the superior court. Since DNR failed to adequately consider the issue in making its best-interest finding, we REVERSE the decision of the superior court and REMAND the case for a supplemental finding. DNR failed to consider the effect of Sale 55 on the "important factor" of the Porcupine Caribou Herd. Accordingly, we also REVERSE and REMAND for a consideration of this issue. APPENDIX A ALASXA DEPARTMENT OF NATURAL RESOURCES DIVISION OF OIL ft GAS OIL AND GAS LEASE SALE 55 DEMARCATION POINT •CALC !• 1,000,000 1 iMt HUM DIRECTOR,•*•*» JIM EASON LEASING MANAGER) PAMELA ROGERS R Ms? CL,— DRAWN 8Y O.D.S. S) checked DATE tPfKWTO 12/19/87 •AJC UAP $< (««iltAMirM «NMtM *M data cmrc*,r»Fa «ia Ht*rt_ t n Aj miiwj gvrt*1H TAAMWinC tfKlIW '•««tCTWI OH NI MMIf CAMS SALE AREA - J. FIGURE 1A . The groups are Trustees for Alaska, American Wilderness Alliance, Northern Alaska Environmental Center, Alaska Wildlife Alliance, Sierra Club, Wilderness Society, the Alaska Center for the Environment. . Since the superior court acted as an intermediate court of appeal, we give no deference to the lower court's decision. Tesoro Alaska Petroleum Co. v. Kenai Pipe Line Co., 746 P.2d 896, 903 (Alaska 1987). "Instead, we independently scrutinize directly the merits of the administrative determination." Id. (citations omitted). . Apparently, Trustees decided not to fully brief the issue because the same court had previously rejected the argument in the Camden Bay case. In a footnote to their opening brief, Trustees wrote: Since these issues [including the transportation issue] are pending before the Supreme Court [in Camden Bay~\, Appellants are not re-addressing those issues in the same superior court which considered them previously. Nonetheless, Appellants reserve the right to address at a later date any determinations made by the Supreme Court in Camden Bay which have a bearing on Lease Sale 55. While we generally support efforts to conserve judicial resources, we caution against this type of appellate practice. Even if Trustees thought they would lose on the issue, they were obligated to raise and brief the issue if only to preserve it for appeal. See, e.g., Braun v. Alaska Commercial Fishing & Agrie. Bank, 816 P.2d 140, 145 (Alaska 1991) (issues insufficiently briefed are deemed abandoned). . Remarkably, the Sale 55 area is considerably farther away from conventional land-based transportation facilities on the North Slope (80 miles) than the Camden Bay sale area (50 miles). . DNR attempts to limit the precedential value of Camden Bay by suggesting that this court's holding as to the transportation issue was "perhaps" a result of incomplete briefing. . Trustees argue that the herd is important to the State because (1) it has been recognized by the United States and Canada as "a unique and irreplaceable resource of great value," (2) many Alaska Natives utilize the herd for subsistence purposes, and (3) the herd is used for recreation, aesthetic and sport hunting purposes by Alaskans. .If DNR had given this issue the same level of attention in its Finding that it gave the issue in the briefing before this court and the superior court, the Finding may have been sufficient. Nevertheless, the best-interest determination required by statute must take place before the lease decision is made, not as an after-the-fact exercise. . Although DNR did not find it necessary to study the impact of the sale on adjacent ANWR lands, it did think it appropriate to cite ANWR's petroleum potential as a factor supporting its decision to lease the Sale 55 area. The Finding states: Petroleum industry interest in the [surrounding] region is significant.... Members of the oil industry as well as the U.S. Department of the Interior and State of Alaska have assessed the petroleum potential of the coastal plain of the Arctic National Wildlife Refuge (ANWR) adjacent to the sale areas and indicated that it may be the most prospective unexplored region in North America. These facts in conjunction with the imminent decline of production from other North Slope oil fields . support the decision to lease now state lands in Sale 55. DNR cannot use the surrounding ANWR lands as a factor justifying development, and at the same time refuse to consider the impact of the sale on these lands.

11570784

Michael R. PATTERSON, Appellant, v. STATE of Alaska, Appellee

Patterson v. State

1999-07-23

No. A-6718

1007

1019

985 P.2d 1007

985

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T18:14:24.532101+00:00

CAP

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

Michael R. PATTERSON, Appellant, v. STATE of Alaska, Appellee.

Michael R. PATTERSON, Appellant, v. STATE of Alaska, Appellee. No. A-6718. Court of Appeals of Alaska. July 23, 1999. Rehearing Denied Sept. 2, 1999. Hearing Denied Dec. 23, 1999. Phillip Paul Weidner, Weidner & Associates, and Verne E. Rupright, Stepovich, Ken-nelly, & Stepovich, P.C., Anchorage, for Appellant. James L. Hanley, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee. Before COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.

5979

38109

OPINION STEWART, Judge. Michael R. Patterson was convicted of first-degree sexual abuse of a minor in 1988. Based on that conviction, the Alaska Sex Offender Registration Act "ASORA" requires Patterson to periodically register with the nearest police authority. An Alaska State Trooper issued Patterson a citation to appear in district court for failing to register as a sex offender because Patterson had not registered with either the state or local police. After Superior Court Judge Jonathan H. Link denied Patterson's multi-prong attack on the constitutionality of ASORA, Patterson entered a Cooksey plea to the charge of failing to register. He renews his constitutional challenges in this appeal. Because Patterson has not convinced us that there is a constitutional bar to prosecuting him for failing to register as a sex offender, we affirm his conviction. Facts and proceedings In 1994, the Alaska Legislature enacted ASORA. ASORA was codified in Title 12, chapter 63 and Title 18, chapter 65, section 87 of the Alaska Statutes. Alaska Statute 12.63.010(b)(1) requires a convicted sex offender to register at the Alaska State Trooper post or municipal police department nearest to where the sex offender resides at the time of registration. A registrant must allow the police to take a set of fingerprints and a photograph, and must provide biographical information including his or her name, address, date of birth, driver's license number, aliases, place of employment, and date and court of his or her sex-offense conviction. In addition, the sex offender must provide written notice within ten days of a change of residence to the nearest law enforcement office. If the sex offender has one conviction, he or she must register annually for the fifteen years following his or her unconditional discharge from supervision. If the sex offender has two or more sex offense convictions, the duty to register continues for life. The duty to register applies retroactively, requiring sex offenders who received an unconditional discharge before enactment of the law to register. Patterson was unconditionally discharged before the enactment of ASORA. Alaska Statute 18.65.087 directs the Department of Public Safety to create a registry of all registered sex offenders and to permit public access to that registry. For each sex offender, the registry includes the offender's biographical information that ASORA requires the offender to provide upon registration. Upon request, this information is released to any member of the public. On March 14,1996, an Alaska State Trooper reviewed ASORA computer records and found that Patterson failed to register. A trooper contacted Patterson to ask why he had not registered. Patterson told the trooper that his attorney had advised him not to comply with the registration requirement. The trooper served Patterson with a citation charging him with failing to register as a sex offender. In the trial court, Judge Link denied Patterson's motion to dismiss. Patterson renews his constitutional objections to ASORA in this appeal. Discussion The duty to register under ASORA does not violate the prohibition against ex post facto legislation. Patterson argues that ASORA violates the prohibition against ex post facto legislation contained in both the federal and Alaska constitutions. Both constitutions prohibit "the retrospective application of laws that 'alter the definition of crimes or increase the punishment for criminal acts.' " ASO-RA is clearly retrospective. However, "[t]he mere fact that [a statute] alters a convicted felon's circumstances to his or her disadvantage does not in itself invalidate the statute as ex post facto." The threshold question we must answer when deciding if ASORA is an ex post facto law is whether the notification or the registration provisions of ASORA increase the quantum of punishment Patterson received from his sexual abuse of a minor conviction. In determining whether ASORA is punitive legislation, both parties recognize the utility of the "intent-effects" test. The analysis under the "intent-effects" test is twofold: first, we decide whether the legislative intent behind ASORA was to regulate or to punish sex offenders; second, if the purpose was not punishment but regulation, then we must decide whether the effects of that regulation are so punitive that we must nevertheless view ASORA as punishment. Under the "intent-effects" test, if the legislature's intent is regulatory, Patterson must provide the "clearest proof' that ASORA is punishment. Other courts have applied the "intent-effects" test in several cases where the validity of sex-offender registration statutes was examined and upheld. Here, the articulated purpose of ASORA is regulatory and based on public safety concerns. The legislature made the following findings: (1) sex offenders pose a high risk of reof-fending after release from custody; (2) protecting the public from sex offenders is a primary governmental interest; (3) the privacy interests of persons convicted of sex offenses are less important than the government's interest in public safety; and (4) release of certain information about sex offenders to public agencies and the general public will assist in protecting the public safety. These findings state explicitly that recidivism of sex offenders is a problem and that the registration of sex offenders and the release of certain information about them will protect the public. As the State points out, there is no question that protection of the public is a valid regulatory purpose. On its face, the legislature's intent to promote public welfare is a valid regulatory goal. Patterson counters that the statutes' goals are retribution and deterrence and that those goals are "reserved for the criminal system alone." Patterson concludes that ASORA is not a valid exercise of the State's regulatory power because the legislature's focus was on sex offenders, not on the eligibility of individuals to engage in a certain activity, a classic indication of regulation by the legislature. Patterson argues that four characteristics of ASORA establish the legislature's punitive intent: (1) the effects of ASORA are triggered by a past conviction, (2) ASORA imposes duties and restraints on a sex offender, (3) ASORA "invades vested rights and it lengthens the period of time that the offender must be under the supervision of authorities," and (4) the registration provision of ASORA was codified in Title 12 of the Alaska Statutes, the title that contains the code of criminal procedure. Using a prior criminal conviction to trigger a subsequent consequence does not alone prove that the legislature had a punitive intent. In State v. Anthony, our supreme court upheld an ex post facto challenge to a statute that barred previously convicted felons from receiving permanent fund dividends. The court recognized that a statute altering the circumstances of a convicted felon could withstand an ex post facto challenge if the statute had a valid regulatory purpose. In Anthony, the legislature's articulated purpose was to obtain funds for crime victims. The court concluded that this articulated purpose combined with the statute's goal to reimburse the State for the cost of the prisoner's confinement established that the statute's purpose was compensatory and not punitive. ASORA imposes a duty on a sex offender to register and to provide updates when residential circumstances change. That duty continues for a minimum of fifteen years following an offender's final discharge from supervision. The act of registration does not parallel measures that are traditionally punitive. Registration involves no active supervision, treatment, or restriction of the registrant's activities. The registrant is not required to submit to a search at the request of a probation or parole officer, or otherwise comply with the conditions usually attendant on parole release or probation supervision. Although the prospect of registration may have a deterrent effect, a recognized attribute of criminal sentencing, deterrence can serve civil goals as well. The only "restraint" imposed by ASORA is the brief impact on personal liberty while performing that actual act of registration. Patterson also maintains that ASORA increases his punishment because he analogizes the duty-to-register period with the supervision component of probation. However, as we noted above, unlike normal periods of probation, ASORA imposes no behavioral restrictions and includes no potential sanctions for violating those restrictions. ASO-RA only defines the duty to register, and the potential charge for failing to register, if a sex offender does not satisfy that duty. We conclude that the duties imposed on a sex offender by ASORA are not analogous to the supervision of a defendant's conduct imposed by incarceration, parole, or probation. Compliance with ASORA does not entail any supervision of a sex offender's behavior. It merely requires disclosure of his or her general whereabouts by imposing the duty of periodic registration and reporting. Finally, the placement of the registration provisions in Title 12, identified as the Code of Criminal Procedure, does not convince us that ASORA is punitive. The various chapters in Title 12 address many facets of the criminal process including initial considerations such as arrest, bail, rights of victims, and trial and post-trial matters. We conclude that the placement of ASORA — a byproduct of a sex offender's conviction — in Title 12 does not indicate that the legislature had a punitive intent. The arguments raised by Patterson — the placement of some of ASORA in Title 12, the imposition of a duty on a sex offender to register, the trigger by past conviction for a sex offense, and the purported supervision of the sex offender — do not amount to proof of a legislative intent to punish. We conclude that the statute, read with the legislative findings, does not reflect a punitive legislative intent. Patterson has offered no proof challenging the link recognized by the legislature between commission of certain sex offenses and the propensity for recidivism. Although we conclude that Patterson has not shown a punitive legislative intent, Patterson may still show that the effect of the regulatory statute is so severe that ASO-RA is punishment. When we undertake this inquiry into the "effects" of ASORA, we must accept the manifest intent of the legislature unless Patterson clearly proves that the statutory scheme is so punitive in effect that the non-punitive purpose of the legislature is negated. Alaska Statute 12.63.010 requires a sex offender to register in person at the nearest Alaska State Trooper post or municipal police department within a specified number of days after release from in-state custody or after arrival in Alaska. The registration form requires the disclosure of the offender's name, address, place of employment, date of birth, the crime that triggered registration as a sex offender, the date(s) of sex offense convictions, place and court of sex offense convictions, aliases, and driver's license number. In addition, the registrant must allow the police to take a set of fingerprints and a photograph. In Kennedy v. Mendoza-Martinez, the Supreme Court applied seven guiding factors to use when analyzing whether a statute's effect is punitive: whether the required conduct or prohibition — the statute's impact — entails an affirmative disability or restraint, whether that impact has historically been regarded as punitive, whether that impact depends upon a finding of criminal intent, whether that impact will operate to promote traditional punishment objectives, whether that impact applies to behavior that is already a crime, whether that impact has an alternative non-punitive purpose, and finally, whether that impact is excessive in relation to the non-punitive purpose. Examining ASORA in light of the Kennedy factors, the "effects" portion of the "intent-effects" test, we find that although the impact of compliance with ASORA is significant, it is not fatal to the statute. ASORA does provide for dissemination of substantial personal and biographical information about a sex offender that is not otherwise readily available from a single governmental source. Patterson argues that the ready availability of this information will potentially result in personal harassment, embarrassment, or retribution by members of the public. While members of the community may view sex offenders with distrust or hostility, the legislature has not encouraged acts of retribution or violence against sex offenders. We follow the decisions in other jurisdictions sustaining their sex offender registration acts in the face of arguments that the acts violate the constitutional provisions against ex post facto legislation. Therefore, we reject Patterson's claim that ASORA violates the prohibition against ex post facto legislation. ASORA does not violate double jeopardy. Patterson next claims that prosecuting him for failing to register as a sex offend er violates the double jeopardy clause of the federal and state constitutions. He notes that a person must first be convicted of a sex offense before they have a duty to register as a sex offender. From this fact, Patterson concludes that a person's underlying sex offense is a "lesser included offense" of failing to register as a sex offender. Relying on Blockburger v. United States and Tuckfield v. State, Patterson argues that the government is prohibited from prosecuting a person for the underlying sex offense (the purported "lesser included" offense) and then later prosecuting the person for the "greater" offense of failing to register as a sex offender. This series of events, according to Patterson, is the equivalent of putting a defendant in jeopardy twice for the same offense. The Alaska Supreme Court addressed and rejected a similar contention in Danks v. State. The issue in Danks was whether a statute that increased penalties for repeat drunk driving offenders could lawfully apply to a defendant who committed drunk driving after the new law came into effect but whose prior offenses were committed before the passage of the new law. The defendant in Danks argued that sentencing him to the increased penalties of the new law would amount to an unconstitutional retroactive application of the law. The supreme court disagreed. Quoting from Gryger v. Burke, our supreme court stated: [T]he fact that one of the convictions that entered into the [defendant's sentencing] calculations . occurred before the Act was passed [does not make] the Act invalidly retroactive[J . The [defendant's] sentence as a [repeat] offender or habitual criminal is not to be viewed as either a new jeopardy or [an] additional penalty for the earlier crimes. It is a stiffened penalty for the latest crime, which is considered to be an aggravated offense because [it is] a repetitive one. This is the accepted view on this matter, both regarding increased punishments and new offenses that include, as an element of the crime, proof that the defendant was previously convicted of an offense: If the defendant commits crime A at a time when there is no habitual criminal statute, then such a statute is passed imposing increased punishment for a second offense, and then the defendant commits crime B, it is not within the ex post facto prohibition to apply the habitual criminal statute to crime B. No additional punishment is prescribed for crime A, but only for the new crime B, which was committed after the statute was passed. Similarly, it is permissible to define a crime as limited to certain conduct engaged in by persons who have theretofore been convicted of some other offense and to apply the statute to one whose earlier offense and conviction predated the enactment of this [new] statute. Based on these authorities, we reject Patterson's double jeopardy claim. His prosecution for failing to register as a sex offender was not a renewed jeopardy for his original sex offense. Rather, Patterson was prosecuted for a new crime — failing to perform a duty imposed on citizens previously convicted of sex offenses. Similarly, any punishment imposed on Patterson for failing to register will be punishment for this new crime, not an additional punishment for his original sex offense. ASORA does not violate Patterson's right to privacy. Patterson maintains that the notification provisions of ASORA, AS 18.65.087, violate his implicit right of privacy under federal law and his explicit right to privacy granted by article I, section 22, of the Alaska Constitution. Although there is no explicit right of privacy in the federal constitution, the United States Supreme Court had recognized "zones of privacy" created by specific constitutional guarantees. These zones of privacy have involved fundamental interests — those types of interests where the government is limited in its power to regulate conduct — such as marriage, contraception, and child rearing. The Supreme Court also recognizes an individual's interest in non-disclosure of personal matters. This interest in non-disclosure is recognized in other cases and has been described as a right of confidentiality. Patterson attempts to find support for his federal privacy claim in two Supreme Court eases: United States Dep't of Defense v. F.L.R.A. and United States Dep't of Justice v. Reporters Committee for Freedom of the Press. However, both of those eases turned on a question of statutory interpretation under the Freedom of Information Act, not on an implicit federal constitutional right of privacy. In F.L.R.A., the court decided that disclosure to the union of the home addresses of federal employees in a union's bargaining unit was barred by the statutory personal privacy exemption contained in the Freedom of Information Act. In Reporters Committee, the court balanced the personal privacy interest in FBI criminal rap sheets created by the statutory exemption from disclosure, against the public interest promoted by the Freedom of Information Act (to open agency action to public review). As a categorical matter, the court concluded that the little information about agency action that disclosure of rap sheets would provide was outweighed by the statutory exemption from disclosure. The court also noted that its decision rested on statutory interpretation, not on constitutional privacy grounds. Patterson also relies on Doe v. Poritz to support his claim that ASORA unconstitutionally invades his privacy rights. The Por-itz court recognized that the New Jersey sex offender notification and registration statute implicated a sex offender's privacy interest. The Poritz court also recognized the public welfare interest expressed by the legislature: because sex offenders had a considerable likelihood of recidivism, the registration and notification statute promoted public safety by giving the public information on the identity and proximity of sex offenders. Therefore, the court concluded that the public interest in disclosure substantially outweighed a sex offender's personal privacy interest. In addition to requiring fingerprints and a photograph, ASORA mandates that a registrant provide his or her name, address, date of birth, driver's license number, aliases, place of employment, and the date and court of their sex-offense conviction. Under AS 18.65.087(b), all the information that a sex offender provides is confidential except the information that the public can access pursuant to a request for information: the sex offender's name, address, date of birth, place of employment, photograph, and the details of his or her conviction. Regardless of the precise bounds of the federal right of privacy, the right does not attach to matters already within the public domain. The biographical information about a sex offender that the public can access under ASORA is information that is in large part already in the public domain. Most of that information is already in the sex offender's criminal case file. The Supreme Court noted that a person does not have an objectively reasonable expectation of privacy in his or her appearance or physical characteristics. We conclude that Patterson has not provided any compelling reason or authority to show that ASORA violates an implied right of privacy based on the federal constitution. Patterson also arg-ues that ASORA violates his personal and constitutional right to privacy under article I, section 22, of our constitution. The Alaska Supreme Court has adopted a two-prong test for construing the scope of Alaska's right to privacy. A person is protected from unreasonable government intrusion whenever (1) the person manifests a subjective expectation of privacy in the property or activity being subjected to government scrutiny, and (2) this expectation of privacy is one that society recognizes as reasonable. Determining a person's subjective expectation of privacy presents a question of fact. Whether that subjective expectation of privacy is one that society will recognize as reasonable is a question of law that considers the balance between the subjective expectation of privacy of the individual versus the public interest. If Patterson has a subjective expectation of privacy in all the information that he must provide upon registration, we must balance that assumed expectation of privacy against the public interest. Then, we decide if society will recognize that assumed expectation of privacy as reasonable. The public interest, as expressed by the legislature, centers on protecting public safety and welfare. We held in State v. Chryst that an individual's subjective expectation of privacy in his or her name and address is not an expectation that society would recognize as reasonable. As we already noted, the details of an offender's conviction and date of birth are matters of public record. Patterson has offered no authority that society would recognize his subjective expectation of privacy in his physical appearance — as represented by his photograph — as reasonable. Case law is contrary to Patterson's position. Patterson has also not offered any authority that he has a reasonable expectation of privacy in his employer's address. As the supreme court noted in State v. Glass, the constitutional protection of an individual's privacy depends on the factual context and the competing interests between society and the individual. In contravention to an individual's normal ability to decide when, what, and to whom to release personal information, ASORA forces a sex offender to divulge personal information to the government. The government then allows public access to some of that information. This compilation of personal information and its public accessibility represents a notable and significant alteration in the relationship between an individual and the government. The release of a sex offender's personal information also represents a loss of personal control over that biographical data. However, the individuals whose privacy interests have been affected are members of an identifiable group, convicted sex offenders, that the legislature considered a sufficient public safe ty risk to justify the creation of the registry and the release of that biographical data. We recognize the tension between the personal interests of individuals, like Patterson, and society's interest in public safety. Because of the legislature's expressed interest in public safety, we conclude that Patterson's assumed subjective expectation of privacy in the biographical information released pursuant to ASORA must yield to society's public safety interest. Patterson's assumed expectation of privacy is not an expectation that society will recognize as reasonable. Therefore, we conclude that ASORA does not violate Patterson's right to privacy under article I, section 22, of the Alaska Constitution. ASORA does not violate procedural due process or fundamental fairness. Patterson claims that ASORA deprives him of a liberty interest without procedural due process and is fundamentally unfair because it does not provide for any hearing before his personal information is entered into the Department's registry. Patterson again cites Doe v. Poritz to support his argument. The notification protocol reviewed in Poritz provided for a three-tiered protocol for community notification of registered sex offenders. The protocol triggered more active notification of the local community if an administrative assessment found that the offender presented more than the lowest level risk of re-offense. The New Jersey court concluded that due process entitled a sex offender to a hearing before the offender was classified as having more than the lowest level risk of re-offense. Unlike the New Jersey statute, Alaska's notification statute does not include an administrative assessment that can result in a more expansive distribution of information about the offender. Under ASORA, the Department of Public Safety collects the information provided by each registrant but perforas no adjudication or classification of individual offenders. The Department creates the registry and enables public access to that registry. Patterson has not cited authority that due process requires public access only to biographical information on those sex offenders with the greatest probability for re-offense. Patterson has shown no authority that limits the legislature from providing full access in all cases. Under ASORA, a sex offender's risk of re-offense is a matter of judgment for any member of the public who uses the Department's registry. The legislature decided that the fact of an offender's conviction for a sex offense was sufficient reason to include that offender in the registry because of the potential for re-offense. It is not an irrational conclusion for the legislature to create the sex offender registry in response to the potential for recidivism that sex offenders have as a group. Because ASORA, as presently before us, does not require any administrative adjudication, we conclude that Patterson has not been deprived of procedural due process and that ASORA is not fundamentally unfair. ASORA does not violate substantive due process. Patterson next argues that ASORA is a violation of substantive due process because both the registration and the notification provisions unconstitutionally impinge on his asserted liberty interests: his right to travel, to obtain employment, and to personal safety. But Patterson has shown no adverse impact on any liberty interest. On its face, ASORA does not impinge on the right to travel or obtain employment and does not endanger personal safety. Patterson made no showing that ASORA has or is likely to affect these liberty interests. A statute violates substantive due process only if the statute has no reasonable relationship to a legitimate governmental purpose. We do not decide whether the legislative action is wise, but only if it is based on a rational policy. "[I]f any conceivable legitimate public policy for the enactment is apparent on its face or is offered by those defending the enactment, the oppo nents of the measure must disprove the factual basis for such a justification." This statute does not affect those liberty interests. Nor has Patterson disproved the legislature's announced policy to promote public safety. We agree with the State that the concern for public safety satisfies the requirement of a legitimate public policy and conclude that Patterson's substantive due process attack fails. ASORA does not violate equal protection. Patterson also claims that ASO-RA violates equal protection. The equal protection clause of the Fourteenth Amendment guarantees that all individuals similarly situated will be treated similarly. Under the federal equal protection clause, if a statute does not target a suspect class, the government need only prove that the classification is rationally related to a legitimate government interest. Equal protection under article I, section 1 of the Alaska Constitution employs a sliding-scale analysis requiring a substantial relationship between legitimate legislative goals and the means chosen to achieve those goals. To pursue an equal protection claim, Patterson must show that he is a member of a group that is treated differently than another similarly situated group. Patterson has not identified any differently treated yet similarly situated group or argued how ASO-RA creates a suspect classification. Accordingly, we conclude that Patterson's equal protection attack fails because he has not shown or argued that convicted sex offenders are treated differently than any similarly situated group. ASORA is not cruel and unusual punishment. Patterson claims that ASORA imposes cruel and unusual punishment. Because we concluded above that ASORA's purpose is not punitive but regulatory, this argument fails. Patterson's claim regarding the privileges and immunities clause. Patterson claims that ASORA violates the privileges and immunities clause. He only mentions this claim in the heading in one section of his brief. Therefore, we conclude that argument is not adequately briefed and do not address it. ASORA is not overbroad. Patterson also attacks ASORA claiming that it is overbroad because the program does not provide an individual analysis of an offender's actual potential for recidivism. Patterson's overbreadth attack does not identify any particular constitutionally protected conduct that ASORA allegedly prohibits that was not already raised in his other constitutional objections. Reducing Patterson's argument to its core, he claims that the legislature should have created a more complex scheme than it did, one that included a determination of each offender's potential for recidivism. Essentially, Patterson has restated the due process claims that we rejected above. We conclude that Patterson has not met his burden to show that ASORA is overbroad. ASORA is not a bill of attainder. Next, Patterson claims that ASORA is a bill of attainder because it imposes a punishment without trial on the group that he is a member of — convicted sex offenders. This argument fails because the duty to register is not punishment. ASORA does not violate Patterson's plea agreement. Finally, Patterson claims that applying ASORA to him violates his plea agreement with the State. The legislature had not enacted ASORA when Patterson entered his plea. Patterson obtained the direct benefit of his plea; he was convicted and sentenced for sexual abuse of a minor. Patterson maintains that the duty to register is now a direct consequence of sex offense conviction. In Limani v. Stated, we discussed the differences between a "collateral consequence" and a "direct result" of a conviction. We adopted the convention that a collateral consequence is one that originates outside the court. Patterson relies on two legislative changes to the Criminal Rules to support his argument that registration is a direct consequence. The first is the legislature's amendment to Criminal Rule 11 requiring the court to advise a defendant of the duty to register as a sex offender if that defendant is entering a plea of guilty or no contest to a sex offense charge. The second is the amendment to Criminal Rule 32 that requires that a judgment of conviction for a sex offense include a notification of the defendant's duty to register as a sex offender. In Peterson v. State, a decision also being issued today, we hold that the failure to warn a person of the ASORA registration requirement when a person enters a plea to a sex offense may establish manifest injustice for purposes of Criminal Rule 11(c)(3). But we reached this conclusion based on the legislature's apparent purpose when it amended Rule 11(c) to require this warning. The registration requirement remains a collateral consequence of the plea. ASORA imposes the duty to register, not the sentencing court. Here, as in Petersen, we conclude that the duty to register is not a direct result of Patterson's plea agreement, but a collateral consequence. Therefore, we conclude that Patterson has not shown a violation of his plea agreement. Conclusion The judgment is AFFIRMED. . AS 11.41.434(a)(1). . AS 12.63.010 — .100. . Former AS 11.56.840 provides: A person who knowingly fails to (1) register, (2) file the written notice of change of address, or (3) file tire annual written notice or statement, as required in AS 12.63.010, is guilty of a class A misdemeanor. . See Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska 1974). . The 1998 legislative session modifications to these statutes are not at issue here. . A "sex offender" is a person convicted of a specifically enumerated "sex offense" as defined by AS 12.63.100(3). The statute has been amended to include child kidnapping. . AS 12.63.010(b)(1). . See id. In ch. 106, § 8, SLA 1998, the legislature amended this section to include additional information not at issue in this case. . AS 12.63.010(c). . AS 12.63.020(a)(2). . AS 12.63.020(a)(1). . See former AS 12.63.100(2): " 'sex offender' means a person convicted of a sex offense in this state or another jurisdiction regardless of whether the conviction occurred before, after, or on August 10, 1994[.]" . See U.S. Const. art. I, § 9, 10; Alaska Const, art. I, § IS. . Amin v. State, 939 P.2d 413, 416 (Alaska App.1997) (citing Collins v. Youngblood, 497 U.S. 37, 43, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990)). . State v. Anthony, 816 P.2d 1377, 1378 (Alaska 1991). . See e.g., Russell v. Gregoire, 124 F.3d 1079, 1086-88 (9th Cir.1997), cert. denied, - U.S. -, 118 S.Ct. 1191, 140 L.Ed.2d 321 (1998); Doe v. Pataki, 120 F.3d 1263, 1273-75 (2d Cir.1997), cert. denied, - U.S. -, 118 S.Ct. 1066, 140 L.Ed.2d 126 (1998). . Russell, 124 F.3d at 1087; Pataki, 120 F.3d at 1274. . See e.g., Russell, 124 F.3d at 1087; Pataki, 120 F.3d at 1273-75; E.B. v. Verniero, 119 F.3d 1077 (3d Cir.1997), cert. denied, - U.S. -, 118 S.Ct. 1039, 140 L.Ed.2d 105 (1998). . Ch. 41, § 1, SLA 1994. . See Anthony, 816 P.2d at 1379. . See id. at 1378; see also De Veau v. Braisted, 363 U.S. 144, 160, 80 S.Ct. 1146, 4 L.Ed.2d 1109 (1960). . See Russell, 124 F.3d at 1087. . AS 12.63.010(a). . AS 12.63.010(b)(1). . AS 12.63.010(b)(2). . 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963). . See id. at 168-69, 83 S.Ct. 554 (citations omitted). . See Russell, 124 F.3d at 1091-93. . See Russell v. Gregoire, 124 F.3d 1079 (9th Cir.1997); Doe v. Pataki, 120 F.3d 1263 (2d Cir.1997); Artway v. Attorney Gen. of New Jersey, 81 F.3d 1235 (3d Cir.1996); State v. Noble, 171 Ariz. 171, 829 P.2d 1217 (1992); People v. Starnes, 273 Ill.App.3d 911, 210 Ill.Dec. 417, 653 N.E.2d 4 (1995); State v. Manning, 532 N.W.2d 244 (Minn.App.1995); State v. Costello, 138 N.H. 587, 643 A.2d 531 (1994); Doe v. Poritz, 142 N.J. 1, 662 A.2d 367 (1995); Williford v. Board of Parole & Post-Prison Supervision, 137 Or.App. 254, 904 P.2d 1074 (1995); State v. Ward, 123 Wash.2d 488, 869 P.2d 1062 (1994); In re Estavillo, 69 Wash.App. 401, 848 P.2d 1335 (1993); State v. Taylor, 67 Wash.App. 350, 835 P.2d 245 (1992); Snyder v. State, 912 P.2d 1127 (Wyo.1996). . 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). . 621 P.2d 1350 (Alaska 1981). . 619 P.2d 720 (Alaska 1980). . 334 U.S. 728, 732, 68 S.Ct. 1256, 92 L.Ed. 1683 (1948). . Danks, 619 P.2d at 722 (emphasis added) (citations omitted). . 1 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 2.4, at 139 (1986) (emphasis added) (citations omitted). . Roe v. Wade, 410 U.S. 113, 152-53, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). . See id. . See Whalen v. Roe, 429 U.S. 589, 599, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977). . See National Treasury Employees Union v. United States Dep't of the Treasury, 25 F.3d 237, 242 (5th Cir.1994); Doe v. New York, 15 F.3d 264, 266 (2d Cir.1994); Plante v. Gonzalez, 575 F.2d 1119, 1133 (5th Cir.1978). . 510 U.S. 487, 114 S.Ct. 1006, 127 L.Ed.2d 325 (1994). . 489 U.S. 749, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989). . 5 U.S.C. § 552(b)(6). . F.L.R.A., 510 U.S. at 502, 114 S.Ct. 1006. . 5 U.S.C. § 552(b)(7)(C). . Reporters Committee, 489 U.S. at 778-80, 109 S.Ct. 1468. . See id. at 762 n. 13, 109 S.Ct. 1468. . 142 N.J. 1, 662 A.2d 367 (1995). . See id. at 409. . See id. at 411-12. . See Cox Broad. Corp. v. Cohn, 420 U.S. 469, 493-96, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975). . See United States v. Dionisio, 410 U.S. 1, 5-7, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973). . State v. Page, 911 P.2d 513, 515 (Alaska App.1996) (citing State v. Glass, 583 P.2d 872, 875, 880 (Alaska 1978)). . See Page, 911 P.2d at 515-16. . 793 P.2d 538, 542 (Alaska App.1990). . See Dionisio, 410 U.S. at 14-15, 93 S.Ct. 764. . See Glass, 583 P.2d at 879-80. . 142 N.J. 1, 662 A.2d 367 (1995). . See Concerned Citizens v. Kenai Peninsula Borough, 527 P.2d 447, 452 (Alaska 1974). . Id. . See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). . See id. at 441-42, 105 S.Ct. 3249. . See Alaska Pac. Assur. Co. v. Brown, 687 P.2d 264, 269-70 (Alaska 1984). . See Matanuska-Susitna Borough Sch. Dist. v. State, 931 P.2d 391, 397 (Alaska 1997); Rozkydal v. State, 938 P.2d 1091, 1095-96 (Alaska App.1997). . See Zok v. State, 903 P.2d 574, 576 n. 2 (Alaska 1995). . 880 P.2d 1065 (Alaska App.1994). . See id. at 1067. . - P.2d -, Opinion No. 1640, 1999 WL 521696 (Alaska App., July 23, 1999).

11566654

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS LOCAL UNION 1547, Appellant and Cross-Appellee, v. Clay E. LINDGREN and Craig F. Van Amburg, Appellees and Cross-Appellants

International Brotherhood of Electrical Workers Local Union 1547 v. Lindgren

1999-08-13

Nos. S-7424, S-7444

451

459

985 P.2d 451

985

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:14:24.532101+00:00

CAP

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

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS LOCAL UNION 1547, Appellant and Cross-Appellee, v. Clay E. LINDGREN and Craig F. Van Amburg, Appellees and Cross-Appellants.

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS LOCAL UNION 1547, Appellant and Cross-Appellee, v. Clay E. LINDGREN and Craig F. Van Amburg, Appellees and Cross-Appellants. Nos. S-7424, S-7444. Supreme Court of Alaska. Aug. 13, 1999. Rehearing Denied Sept. 23, 1999. William F. Morse, Associate General Counsel, IBEW Local Union 1547, and Helene Antel Brooks, Anchorage, for Appellant and Cross-Appellee IBEW Local Union 1547. James M. Hackett, Law Offices of James M. Hackett, Inc., Fairbanks, for Appellees and Cross-Appellants Lindgren and Van Amburg. Before COMPTON, Chief Justice, RABINOWITZ, MATTHEWS, EASTAUGH, and FABE, Justices.

4566

28541

OPINION MATTHEWS, Justice. I. INTRODUCTION Both parties to this appeal challenge aspects of the superior court's award of damages against a union for a breach of its duty of fair representation. II. FACTS AND PROCEEDINGS Clay E. Lindgren and Craig F. Van Am-burg were employed by the Fairbanks Municipal Utilities System (FMUS), an agency of the City of Fairbanks, in a bargaining unit represented by the International Brotherhood of Electrical Workers Local 1547 (IBEW). FMUS laid off Lindgren and Van Amburg effective January 10,1992. Lindgren and Van Amburg initially filed separate lawsuits against the City of Fairbanks and against certain FMUS supervisors (collectively the City) challenging their layoffs. Lindgren's complaint contained numerous legal theories, including loss of a protected merit position, loss of contractual rehire rights, violation of the Alaska Whistleblower Act, and denial of a meaningful hearing in violation of 42 U.S.C. § 1983. Lindgren sought compensatory and punitive damages, reinstatement, interest, and attorney's fees. Van Amburg's complaint was similar except that it contained no Whistleblower statute allegations. Some months later, Lindgren and Van Am-burg filed another lawsuit in which the City, the Deputy City Manager-Utilities, IBEW, and the union's business agent Pete Blair (collectively the IBEW) were defendants. The complaint in this action accused the defendants of conspiring to deprive the plaintiffs of their rights and alleged that IBEW had breached its duty of fair representation to the plaintiffs "by failing to protect plaintiffs' constitutionally protected property interests because of hostility or animus, and/or because of a lack of complete good faith and honesty and/or because of arbitrary conduct on the part of the defendant union." In June 1994 Lindgren and Van Amburg settled their lawsuits against the City. Van Amburg received the principal sum of $35,-000 and attorney's fees of $5,300 under Civil Rule 82. Lindgren received the principal sum of $155,000 plus Rule 82 attorney's fees of $13,800 and costs of $3,718.90. Van Am-burg was reinstated, but Lindgren was not. Lindgren's settlement agreement recited that, if he returned to work at FMUS, he might "be subjected to hostility and animosity in the workplace by union members, given his pending lawsuit against the union." Finally, the City made pension contributions on behalf of each plaintiff for the period of January 13,1992, to June 1,1994. But these settlements did not end the litigation, for the plaintiffs' claims against IBEW remained. Following a pretrial conference held shortly before the scheduled trial, the superior court issued an order directing the course of future proceedings. A jury trial on the question of IBEW's liability was ordered. With respect to damages, the plaintiffs' claims were limited to costs and attorney's fees incurred in privately prose cuting their claims against the City. The order noted that the attorney's fees were incurred under contingent fee agreements, and that these agreements provided "a reasonable basis upon which to determine damages in this case." The court therefore "conclude[d], as a matter of law, that the appropriate measure of Plaintiffs' damages for attorney fees [was] the monies spent under the terms of their contingency fee agreement[s]." The court also allowed IBEW to offset that portion of each settlement which represented Civil Rule 82 attorney's fees, less the contingent fee percentage applied to the Rule 82 fees: Defendant, therefore, is entitled to offset two-thirds of the attorney fees paid by the City. In other words, Plaintiff Lindgren received $9,200 for attorney fees from the City which should be offset from his claim here. Plaintiff Van Amburg received $3,533 from the City in attorney fees that should be offset from his claim here. IBEW argued that the Lindgren settlement represented in part punitive damages and damages under the Whistleblower statute that it either could not have sought or had no duty to seek in discharging its representational obligations. Therefore, IBEW argued that it should not be liable for attorney's fees spent to pursue these remedies. In response, the court ruled as follows: While the Court understands Defendant's arguments for apportionment of damages based on the Whistleblower statute and the concern for punitive damages, it is clear that the claim for wrongful discharge and breach of contract were substantial factors in the settlement of Plaintiffs' claims against the City. The settlement amounts themselves were calculated by looking at the lost wages Plaintiffs incurred and then providing reinstatement in Van Amburg's case and buying out reinstatement rights in Lindgren's case. Both of these remedies are available within the terms of the collective bargaining agreement. Hence, substantively the Court concludes that apportionment of damages among legal theories is not appropriate here. Practically, apportionment of damages among legal theories would be extremely difficult and highly speculative. Procedurally, the request for apportionment of damages is an affirmative defense that should have been pled, addressed in motion practice, and resolved far earlier than at trial. For all these reasons, Defendant's request that damages be apportioned among legal theories is hereby DENIED. The court also explained the context of its order: The Court is concerned about the status of this matter at this very late stage of the proceedings. A number of critical issues were not addressed during motion practice. The proposed jury instructions are lacking, especially as to damages. Furthermore, the parties are submitting major legal issues to the Court in the form of proposed jury instructions. [Counsel for IBEW] has commented that the Court is going to have a difficult job in crafting jury instructions that guide the jury through the difficult damages issues. [Plaintiffs' attorney] has indicated that the Court will have its work cut out for it in preparing appropriate damage instructions. Jury instructions, however, were to be submitted by the parties that were consistent with the parties' respective theories of the case. It appears to the Court that while the parties are prepared to proceed to trial on the liability issues, they are not prepared to proceed on the issue of damages. Therefore, bifurcation of the two issues would be appropriate. However, for the reasons set forth below, the Court concludes that the Court can resolve the damages issue summarily while allowing the parties to proceed to trial on liability. Trial by jury was held on the liability issues. The jury concluded that IBEW had breached its duty of fair representation and that Lindgren and Van Amburg had incurred attorney's fees that they otherwise would not have incurred as a result of IBEW's breach of duty. The trial court then entered judgment in accordance with the pretrial order. Specifically, Lindgren was awarded the principal sum of $47,066.67 plus interest, costs, and attorney's fees, and Van Amburg was awarded the principal sum of $9,933 plus interest, costs, and attorney's fees. IBEW appeals, raising numerous arguments. Briefly summarized, these arguments fall within three categories. First, IBEW argues the superior erred in awarding as damages for its breach of its duty of fair representation the attorney's fees incurred by the plaintiffs in prosecuting their cases against the City. Second, it contends the superior court should have held a hearing concerning the composition of the settlements to ensure that they did not include elements of damage that were not ascribable to IBEW's breach. Third, it argues the superior court erred in excluding certain evidence during the jury trial. For the reasons that follow, we reject the first and third arguments, but find merit in the second as to the settlement with Lindgren. Lindgren and Van Amburg cross-appeal, arguing that the superior court's award of attorney's fees was insufficient. Lindgren also argues that the superior court erred by ruling that his damages were limited to costs and attorney's fees incurred in suing the City. For the reasons that follow, we reject the former argument but find merit in the latter. III. DISCUSSION A. The Superior Court Did Not Err by Awarding as Damages for Breach of IBEW's Duty of Fair Representation Attorney's Fees and Costs Incurred in Prosecuting the Case Against the City. IBEW asserts that the superior court erred in imposing joint and several liability. It contends that courts should apportion, between an employer and a union, damages caused by the employer's breach of the collective bargaining agreement and the union s inadequate representation of employees. Contrary to IBEW's assertion, the superi- or court did not impose joint and several liability on IBEW. Instead, the court concluded that the amount of attorney's fees that the plaintiffs incurred in pursuing their claims against the City was a fair measure of the uncompensated damages that IBEW had caused by breaching its duty of fair representation. IBEW argues that some method of apportionment of damages between the employer and IBEW should have been utilized, but it does not specify the appropriate method of apportionment. Further, IBEW does not distinguish between (1) damages that might have been jointly caused by the wrongful conduct of the City and IBEW and (2) damages that were solely caused by the wrongful conduct of one of them. Instead, IBEW generally refers to a number of federal cases, which, in turn, are not especially directive as to how damages should be allocated between employers and labor unions where there is both a breach of contract and a breach of the union's duty of fair representation. IBEW relies extensively on Aguinaga v. United Food & Commercial Workers International Union, a case that reflects federal law in this area. The Aguinaga court stated: In hybrid § 301 cases, "[t]he governing principle! 1 is to apportion liability between the employer and the union according to the damage caused by the fault of each." Vaca v. Sipes, 386 U.S. 171, 197, 87 S.Ct. 903, 920, 17 L.Ed.2d 842 (1967). "[D]am-ages attributable solely to the employer's breach of contract should not be charged to the union, but increases if any in those damages caused by the union's refusal to process the grievance should not be charged to the employer." Id. at 197-98, 87 S.Ct. at 920-21. The general rule that damages are to be apportioned between the employer and the union may not apply in situations where a union affirmatively caused the employer to commit the contract breach, or where the union and the employer actively participated in the other's breach. Id. at 197 n. 18, 87 S.Ct. at 920 n. 18; see also Bennett v. Local Union No. 66, 958 F.2d 1429, 1440 (7th Cir.1992). Rather, these situations may warrant the imposition of joint and several liability.[ ] Federal courts have upheld at least two methods of fault apportionment. In Bowen v. United States Postal Service, the Supreme Court let stand an award of damages in a case where the trial court instructed the jury that it could attribute damages to the union based on the date of a hypothetical arbitration decision — the date when the employer would have reinstated the employee if the union had fulfilled its duty of fair representation. The employer was held liable for damages before that date, and the union was liable for damages after that date. In Agui-naga, the Tenth Circuit upheld a district court's disposition of a hybrid case in which the trial court (1) calculated the total amount of damages caused in common by defendants, and (2) assessed shares of the total damages using a percentage of fault method. Specifically, the trial court apportioned twenty-five percent of the damages to the union and seventy-five percent of the damages to the employer. Federal law does not control this case, however, because the National Labor Relations Act excludes employers that are political subdivisions of a state. Further, federal law contains a unique feature unreplieated in state law that may, as a practical matter, lead to different methods of allocating damages. ' As we noted in Kollodge v. State: [Fjederal and Alaska law differ on the consequences which follow from a union's refusal to represent an employee. Under federal law the employee may not proceed directly against the employer without first proving a breach of the union's duty of fair representation. [Vaca v. Sipes, 386 U.S. 171, 191, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967).] Alaska law places no such impediment on an employee's right to obtain direct review of the employer's decision to terminate the employee. Casey v. City of Fairbanks, 670 P.2d 1133, 1138 (Alaska 1983). The employee may obtain review in superior court or process his [grievance] through arbitration if permitted by the contract or regulations. Id. at 1138-39. This right of direct review would seem to make the action for breach of the duty of fair representation of less critical importance in state law than in federal law.[ ] Since, under federal law, an employer cannot be liable in a direct action by the employee unless the employee proves that the union has breached its duty of fair representation, damages against the employer and the union are often determined together in a single proceeding. The need for some method of allocating damages is thus presented. In this case, by contrast, IBEW was the only defendant. Lindgren and Van Am-burg had previously settled their claims against the City. All that may be needed to fully compensate the employees here is to award them the costs and attorney's fees they incurred in bringing suit against the City. Because IBEW breached its duty of fair representation, these expenses are logically recoverable as damages for that breach without deciding whether to adopt any particular allocation formula. It is therefore presently unnecessary to decide whether the federal model(s) of apportionment should generally be followed as a matter of state law in cases where damages include more than the reimbursement of an employee's costs and attorney's fees. IBEW next argues that, if it is to be assessed attorney's fees, the value of those fees should not be determined by the mechanical use of a contingency fee. Despite the rule applicable in federal litigation that attorney's fees are not ordinarily recoverable by the prevailing party, federal courts have frequently permitted litigants to recover from a union that has breached its duty of fair representation attorney's fees that the litigant reasonably incurred in pursuing a claim against the employer. IBEW does not contend that Alaska law should differ from federal law on this point, but argues that the award of attorney's fees should not be based on a contingent fee contract. IBEW argues that a "lodestar" computation — time spent multiplied by a reasonable hourly rate — should have been used. IBEW cites several cases suggesting that federal courts apply the lodestar method of calculation in cases where attorney's fees are statutorily authorized as an award to the successful litigant. These cases are inapplicable, however, as they deal with attorney's fees incurred in prosecuting a defendant. In contrast, the attorney's fees awarded in this case are an element of damages incurred in prosecuting not the defendant, but a third party that the defendant was contractually obligated to prosecute. Further, calculating damages by using the lodestar method when the attorney's fees were incurred under a contingent fee contract will only randomly and occasionally achieve the goal of making the employee whole. Where there is a contingent fee contract, awarding the fee actually incurred will achieve the desired goal. IBEW also argues that the "make whole remedial goal" of a claim against a union for breach of the union's duty of fair representation militates against a rule of "automatically awarding as damages the attorney fees [an employee] owed his counsel according to a contingency fee arrangement." We agree that a court should not automatically award the amount that an employee must pay as a contingent fee. Instead, contingent fees must pass the test of reasonableness. If they are found reasonable, they may be awarded. Here, the superior court made such a finding. In summary, the trial court found that the plaintiffs had been made whole by the settlement they received from the City, except to the extent that they were required to pay for the representation IBEW should have furnished as part of its responsibilities. The trial court thus awarded these payments as damages. This was a logical and straightforward method, well designed to afford full compensation to the plaintiffs. Further, the fact that the damages were based on the contingent fees incurred by the plaintiffs does not taint the damage award, since the contingent fee contracts were found reasonable. We therefore approve in principle the award as damages of attorney's fees and costs incurred by the plaintiffs in proceeding against the City. B. A Remand of the Judgment in Favor of Lindgren is Necessary to Ensure that His Settlement with the City Did Not Include Elements of Damage that Could Not Be Attributed to IBEW's Breach. The union argues that some portion of the settlements represent damages for plaintiffs' statutory claims that the union could not have prosecuted on the plaintiffs' behalf. The pretrial order stated that the whole amount of the settlements was sufficiently related to the claims that should have been brought under the collective bargaining agreement so that no breakdown of the settlement elements is necessary. IBEW effectively refutes this aspect of the order only with respect to punitive damages under the Alaska Whistleblower Act. Since Van Am-burg had no claim under the act, this point only applies to Lindgren's settlement. An affidavit of the City's attorney suggests that the possibility of a punitive award played an important role in the City's decision to settle. Since punitive damages would not have been available under the collective bargaining agreement, IBEW in full performance of its representational obligations could not have obtained such damages for Lindgren. Therefore, it would not be just to charge IBEW with attorney's fees insofar as those attorney's fees are allocable to punitive damages. For this reason, a remand is necessary to enable the court to conduct an evidentiary hearing and determine what portion, if any, of Lindgren's settlement represents punitive damages. IBEW also argues that the award overcompensated the employees because the superior court declined to consider (1) that "[ajfter their layoff, FMUS offered plaintiffs employment in positions other than in engineering," and (2) that Lindgren had interim earnings that the court should have deducted from his damage award. The first point lacks merit because the employees were not required to accept "positions other than in engineering" to mitigate their damages. IBEW's second point is more persuasive: that Lindgren worked during his layoff and that credit should have been given in his settlement for the amounts that he earned. The argument is, essentially, that the settlement was unreasonably high and therefore exceeds that which can fairly be charged to the union. We agree that IBEW should be permitted to present evidence on this point and that a remand is necessary for this purpose. After considering the evidence, the superior court should determine whether the amount received by Lindgren in the settlement with the City was excessive in that it fell outside the range of awards that could be reasonably expected had the union fulfilled its duty of fair representation. If excessiveness is found, attorney's fees to the extent of the excessiveness should not be awarded as damages. IBEW also argues that the award of contingent fees overcharged the union because the fees were inflated by compensation for earnings for Lindgren calculated after the time of the settlement. IBEW phrases this argument as follows: "If a contingency fee can be the basis for a union's damages the settlement to which the fee equation is applied may not include the value of front pay the employee accepted after declining reinstatement." IBEW argues that it could not have obtained damages for lost income for Lindgren after he was offered and declined reinstatement. We agree that a remand is necessary on this point. This issue is a mixed question of law and fact. On remand the court should invite briefs on the legal question as to whether lost income after reinstatement was offered and declined would have been a remedy available to Lindgren under the collective bargaining agreement. If such a remedy was available, the court should determine whether this aspect of the settlement was excessive. If such a remedy was not available, the court should determine what portion of the settlement represents such lost income and reduce the damage award by the amount of fees allocable to it. C. The Superior Court Did Not Err in Its Evidentiary Rulings During the Jury Trial. We next consider IBEW's argument that the superior court "erred in prohibiting the IBEW from presenting evidence that Lindgren accused FMUS of fraud and coverup to gain Whistleblower protection from an anticipated layoff, . [thereby denying] the IBEW a fair trial on the issues of liability and causation." IBEW argues that we should therefore order a new trial. This argument lacks merit. The evidence IBEW sought to present to the jury — which IBEW claims would establish that Lindgren would have pursued Whistleblower litigation regardless of the Union's breach of its duty of fair representation — would have been of no probative value as to whether IBEW breached its duty of fair representation and whether that breach caused at least some damage. IBEW also argues that the superior court eired by "not permitting the IBEW to present to the jury the terms of the settlement with the City." IBEW claims that the evidence it sought to present would have enabled the jury to conclude that "the attorney fees incurred by plaintiffs were attributable not wholly to the union's breach, but in part to the pursuit of parallel but distinct claims." This evidence also relates to the amount of damages and was irrelevant to the issues that were presented to the jury. D. The Cross-Appeal As cross-appellants, Lindgren and Van Amburg make two arguments. First, both Lindgren and Van Amburg claim that the superior court's award of attorney's fees was inadequate. The argument is so confusingly presented that we are unable to understand it. Nevertheless, we have reviewed the superior court's award of attorney's fees and conclude that the only error committed was a $32.67 transposition error that favored Van Amburg. Second, Lindgren argues that the superior court's award failed to make him whole because the court did not order IBEW to compensate him for future damages. We agree that a remand is necessary on this point. In its pre-trial order, the superior court stated that the City "[bought] out reinstatement rights in Lindgren's case" and that except "for costs and attorney fees" Lind-gren was "made whole by [his] settlement with the City." The superior court lacked a sufficient basis for this conclusion. The pretrial order was not entered in response to a motion for summary judgment or following an evidentiary hearing. Further, as mentioned above, the court never determined as a matter of fact or law whether Lindgren was entitled to an award of future damages. Accordingly, the superior court's conclusion that, except for costs and attorney's fees, Lindgren was "made whole by his settlement with the City" must be vacated. Whether Lindgren's settlement was fully compensatory must be litigated on remand. TV. CONCLUSION The judgment of the superior court is AFFIRMED as to Van Amburg and VACATED as to Lindgren. Lindgren's case is REMANDED for further proceedings consistent with this opinion. . AS 39.90.120(a). . His tide has since changed to Special Projects Coordinator. . These conclusions were expressed as answers to questions posed in a special verdict form. . Such cases, in federal jurisprudence, are referred to as "hybrid" cases. See Aguinaga v. United Food & Commercial Workers Int'l Union, 993 F.2d 1463, 1469 n. 1 (10th Cir.1993). This is because an employee may not proceed directly against an employer without alleging and proving that the employee's union has breached its duty to fairly represent the employee. See Vaca v. Sipes, 386 U.S. 171, 186, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967). . 993 F.2d 1463 (10th Cir.1993). . Id. at 1474. . 459 U.S. 212, 103 S.Ct. 588, 74 L.Ed.2d 402 (1983). . The Court did not approve nor disapprove such a method because the union had not objected to the jury instructions based upon the manner of apportionment. See id. at 230 n. 19, 103 S.Ct. 588. . Aguinaga, 993 F.2d at 1469. . See 29 U.S.C. § 152(2) (1994). . 757 P.2d 1028, 1034 (Alaska 1988). . See, e.g., Bowen v. United States Postal Serv., 459 U.S. 212, 103 S.Ct. 588, 74 L.Ed.2d 402 (1983); Aguinaga v. United Food & Commercial Workers Int'l Union, 993 F.2d 1463 (10th Cir.1993); Bennett v. Local Union No. 66, 958 F.2d 1429 (7th Cir.1992); Ames v. Westinghouse Elec. Corp., 864 F.2d 289 (3rd Cir.1988) Dutrisac v. Caterpillar Tractor Co., 749 F.2d 1270 (9th Cir.1983). . See Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975). . See, e.g., Bennett v. Local Union No. 66, 958 F.2d 1429, 1440 (7th Cir.1992) (stating that attorney fees in breach of duty of representation cases are not awarded as a penalty "but rather as proximate consequential damages for the union's failure to provide representation: the expense that [the employee] has incurred in pursing her contractual grievance against the Company 'is not merely a result of the harm that [the Union] did; it is the harm itself.' '); Cruz v. Local Union No. 3 of the Int'l Bhd. of Elec. Workers, 34 F.3d 1148 (2nd Cir.1994); Ames v. Westinghouse Elec. Corp., 864 F.2d 289, 293 (3d Cir.1988); Dutrisac v. Caterpillar Tractor Co., 749 F.2d 1270, 1275-76 (9th Cir.1983); Self v. Drivers, Chauffeurs, Warehousemen & Helpers Local Union No. 61, 620 F.2d 439, 444 (4th Cir.1980). .See Scott v. Local Union 377, Int'l Bhd. of Teamsters, Chauffeurs, Warehousemen & Helpers of America, 548 F.2d 1244, 1246 (6th Cir.1977). The court there stated: A different situation is presented, however, in [an] action against the Union, for in that action the principal element of Scott's damages is the amount which it cost him in attorney fees and other expenses to do that which the union was obliged but failed to do on his behalf. He was, therefore, entitled to include in his damages against the Union the amount which he reasonably expended in attorney fees and other costs in prosecuting his claim against the company, costs which he would not have incurred but for the Union's breach. . See, e.g., N.L.R.B. v. Laredo Packing Co., 730 F.2d 405, 407-08 (5th Cir.1984) ("A claimant's failure . to accept substantially equivalent employment . without good cause constitute^] [a failure to mitigate]." The court held that track drivers who refused an offer of nondriving employment that was "significantly dissimilar to truck driving" could not be charged with a failure to properly mitigate.). . Based on the assumption that the superior court's award of attorney's fees was insufficient and that he is entitled to receive additional attorney's fees, Van Amburg argues that the superior court applied the wrong pre-judgment interest rate. Our conclusion that the cross-appellants are not entitled to a greater award than they actually received disposes of this argument.

8361101

Adrian Ramon ORTIZ, Appellant, v. STATE of Alaska, Appellee

Ortiz v. State

2007-11-16

No. A-9611

430

433

173 P.3d 430

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.

Adrian Ramon ORTIZ, Appellant, v. STATE of Alaska, Appellee.

Adrian Ramon ORTIZ, Appellant, v. STATE of Alaska, Appellee. No. A-9611. Court of Appeals of Alaska. Nov. 16, 2007. Brian T. Duffy, Anchorage, and Joshua P. Fink, Public Advocate, Anchorage, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee. Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.

1834

11587

OPINION COATS, Chief Judge. Adrian Ramon Ortiz was convicted of one count of robbery in the first degree, and he was ordered to pay restitution to the victims of this robbery. Superior Court Judge Philip R. Volland conducted the restitution hearing. In a written motion, Ortiz argued that his restitution obligation should be governed by the version of AS 12.55.045 that was in effect at the time he committed his offense. In 2003, when Ortiz committed the robbery, AS 12.55.045 gave a sentencing judge discretion as to whether to order restitution, and it further allowed the sentencing judge to consider, if certain conditions were met, the defendant's ability to pay the proposed restitution. But in 2004, the Alaska Legislature amended the statute in two key ways. First, the legislature removed a sentencing judge's discretion to grant or withhold restitution; the statute now requires the judge to order restitution unless the victim expressly waives restitution. Second, the legislature eliminated a sentencing judge's authority to consider the defendant's ability to pay when setting the total amount of restitution. Ortiz's attorney argued that application of the new statutory provisions to Ortiz would violate the ex post facto clause. Thus, the attorney asserted that Judge Volland was required to apply the 2008 version of the statute and, therefore, Ortiz's ability to pay was relevant to setting the amount of restitution. Judge Volland rejected this argument and concluded that he was obliged to apply the current version of the statute. That is, Judge Volland ruled that he was precluded from considering Ortiz's ability to pay restitution when setting the amount of the restitution. Ultimately, Judge Volland ordered that Ortiz and his co-defendants be jointly and severally liable for $103,226.85 in restitution. Ortiz appeals this decision, renewing his argument that the ex post facto clause prohibited Judge Volland from applying the 2004 version of the restitution statute. Why we conclude that application of the 2004 statute to Ortiz violates the ex post facto clause The United States Constitution forbids any state from passing an ex post facto law. Similarly, the Alaska Constitution forbids the imposition of ex post facto laws. Ortiz does not specify which constitutional provision he is claiming the benefit of, but that is immaterial-because the Alaska Supreme Court has held that there is no distinction between state and federal law on this issue. The ex post facto clause forbids a legislature from enacting "any statute which punishes as a crime an act previously committed, which was innocent when done; which makes more burdensome the punishment for a crime, after its commission; or which deprives one charged with a crime of any defense available according to law at the time when the act was committed. We have summarized this definition as forbidding "the retrospective application of laws that 'alter the definition of erimes or increase the punishment for eriminal acts. The fact that a criminal statute is retrospective does not necessarily mean that it is a prohibited ex post facto law. "The threshold question we must answer when deciding if [this statute] is an ex post facto law is whether [the statute's] provisions . increase the quantum of punishment" Ortiz received for his conviction. Several federal cireuit courts of appeal have addressed the question of whether the ex post facto clause is violated by retrospective application of a restitution statute that forbids a sentencing court from considering the defendant's ability to pay. In 1996, Congress passed the Mandatory Victims Restitution Act of 1996 (MVRA). The MVRA made restitution mandatory for certain offenses, and it also required a sentencing court to order full restitution for the victim's losses, irrespective of the defendant's ability to pay. Because the MVRA superseded a prior restitution statute that required sentencing courts to consider a defendant's ability to pay, application of the MVRA to defendants whose offenses pre-dated the enactment of this statute raised a question under the ex post facto clause. The federal circuits reached differing answers to this question. The majority of the cireuits have concluded that retrospective application of the MVRA violates the ex post facto clause of the United States Constitution, "because restitution imposed as part of a defendant's sentence is criminal punishment, not a civil sanction, and the shift from discretionary to mandatory restitution increases the punishment meted out to a particular defendant. The minority view is set out in United States v. Newman. In Newman, the Seventh Circuit concluded that, even though the new restitution provision operated to the defendant's detriment, this detriment did not create an ex post facto violation. The court concluded that the primary purpose of restitution under the MVRA was not to punish criminals, but rather to compensate victims and to foree "wrongdoers to surrender ill-gotten gains. Thus, the court held that restitution was not a "criminal punishment" for purposes of the ex post facto clause-and, therefore, retroactive application of the restitution provisions of the MVRA did not violate this clause. Thus, the majority of the federal courts which have addressed this question have held that the provision of the MVRA which forbids a sentencing judge from considering the defendant's ability cannot be applied retroactively, while a minority of federal courts have concluded that this provision is not punitive and therefore can be imposed retroactively without violating the ex post fucto clause. The State urges us to adopt the minority view represented by the Newman decision. The State argues that the intent of the 2004 amendments to Alaska's restitution statute was primarily to compensate victims of a crime rather than to punish the defendant, and to make restitution orders in eriminal cases equivalent to the civil judgments that victims might obtain if they sued the defendants. We reject the State's argument because we conclude that restitution is a hybrid remedy. It is true, as the State asserts, that one primary purpose of restitution is to compensate victims for the harm done by the defen dant's criminal act. But a restitution order in a criminal case differs significantly from a judgment that a victim might obtain against a defendant in a civil lawsuit. The most obvious difference is that, when a court orders a defendant to pay restitution, the defendant faces imprisonment for willful failure to pay the restitution. Unless the defendant can establish that he "was unable to pay despite having made continuing good faith efforts to pay the . restitution," the court has the authority to imprison the defendant by revoking his probation, finding him in contempt, or ordering him "imprisoned until the order of the court is satisfied. Moreover, the sentencing court's authority to imprison the defendant for willful nonpayment is directly proportional to the amount of restitution that the defendant has been ordered to pay. Subsection (a) of AS 12.55.051, which governs enforcement of restitution orders, declares that the sentencing court is authorized to imprison the defendant for a term that "may not exceed one day for each $50 of the unpaid portion of the . restitution or one year, whichever is shorter." Additionally, when a defendant is imprisoned for willful non-payment of a restitution order, the defendant must receive "[clredit . toward satisfaction of the [restitution] order . for every day [the defendant] is incarcerated for nonpayment. This provision most strikingly demonstrates the underlying penal nature of the restitution order. A victim is not compensated by having the defendant spend time in jail. In fact, because the defendant must receive eredit for every day spent in jail, the very opposite occurs: the victim actually loses compensation when the defendant is imprisoned for wiliful non-payment of the restitution obligation. These provisions of AS 12.55.045 and AS 12.55.051 demonstrate that, even though restitution orders may further the aim of compensating the victim, these orders also have penal characteristics that cannot be ignored. Under Alaska law, the restitution order in a criminal case differs substantially from the money judgment that a victim might obtain against the defendant in a civil lawsuit. We therefore conclude that retrospective application of the Alaska restitution statute violates the ex post facto clause. | Accordingly, we VACATE the restitution order in Ortiz's case, and we direct the superior court to re-evaluate the question of restitution, applying the version of the restitution statute that existed at the time Ortiz committed his offense. We do not retain jurisdictiofi of this case. . AS 11.41.500(a)(1) and/or (3). . Former AS 12.55.045(a) (2003) & former AS 12.55.045(f), (g) (2003), respectively. . AS 12.55.045(a), as amended by ch. 17, § 1, SLA 2004. . AS 12.55.045(g), as amended by ch. 17, § 3, SLA 2004. . Id. . U.S. Const. art. I, § 10. ._ Alaska Const. art. I, § 15. . State v. Creekpaum, 753 P.2d 1139, 1143 (Alaska 1988). . State v. Anthony, 816 P.2d 1377, 1378 (Alaska 1991) (quoting Dobbert v. Florida, 432 U.S. 282, 292, 97 S.Ct 2290, 2298, 53 L.Ed.2d 344 (1977)). . Amin v. State, 939 P.2d 413, 416 (Alaska App.1997) (quoting Collins v. Youngblood, 497 U.S. 37, 43, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990)). . See Anthony, 816 P.2d at 1378 ("'The mere fact that [a statute] alters a convicted felon's circumstances to his or her disadvantage does not in itself invalidate the statute as ex post facto."); see also Stoneking v. State, 39 P.3d 522, 524 (Alaska App.2002) ("a statute is not illegally retrospective merely because it upsets expectations or operates to the disadvantage of individual defendants."). . Patterson v. State, 985 P.2d 1007, 1011 (Alaska App.1999), overruled on other grounds by Doe v. State, Dept. of Public Safety, 92 P.3d 398 (Alaska 2004). See also Smith v. Doe, 538 U.S. 84, 92, 123 S.Ct. 1140, 1146-47, 155 L.Ed.2d 164 (2003) (stating that the framework for this inquiry is well-established by United States Supreme Court precedent). . Title 2, Subtitle A of the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (codified in relevant part at 18 U.S.C. § 3663A, 3664). . 18 U.S.C. § 3663(A)(1) & § 3664(F)(1)(A), respectively. 18 U.S.C. . See United States v. Edwards, 162 F.3d 87, 88 (3d Cir.1998); United States v. Siegel, 153 F.3d 1256, 1260 (11th Cir.1998); United States v. Bapack, 129 F.3d 1320, 1327 n. 13 (D.C.Cir.1997); United States v. Williams, 128 F.3d 1239, 1241 (8th Cir.1997); United States v. Baggett, 125 F.3d 1319, 1322 (9th Cir.1997); United States v. Thompson, 113 F.3d 13, 15 n. 1 (2d Cir.1997). . Edwards, 162 F.3d at 89 (citations omitted). . 144 F.3d 531 (7th Cir.1998). . Id. at 537, 542. . - Id. at 542. . Id. See also United States v. Bach, 172 F.3d 520, 523 (7th Cir.1999); United States v. Nichols, 169 F.3d 1255, 1279-80 (10th Cir.1999). . AS 12.55.051(a). . Id. . Id. . Id.

11866906

Phillip BOBBY, Appellant, v. STATE of Alaska, Appellee

Bobby v. State

1997-12-19

No. A-6212

135

140

950 P.2d 135

950

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T17:45:37.779961+00:00

CAP

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

Phillip BOBBY, Appellant, v. STATE of Alaska, Appellee.

Phillip BOBBY, Appellant, v. STATE of Alaska, Appellee. No. A-6212. Court of Appeals of Alaska. Dec. 19, 1997. Scott A. Sterling, Wasilla, for Appellant. James L. Hanley, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee. Before COATS, C.J., and MANNHEIMER and STEWART, JJ.

2816

17175

OPINION MANNHEIMER, Judge. Phillip Bobby asks us to decide three issues in this case. The first issue involves the calculation of time under Alaska's speedy trial rule, Criminal Rule 45, when a defendant faces trial after withdrawing a previous plea of guilty or no contest. The second issue is whether the ex post facto clause prohibits the State from enforcing certain portions of Alaska's sex offender registration law, AS 12.63.010 et seq., against defendants who committed their crimes before the effective date of the law. The third issue is whether the judge who sentenced Bobby was clearly mistaken to put him on probation for 5 years following his release from prison. As explained more fully below, we hold that Rule 45 was not violated, that Bobby has failed to preserve his ex post facto attack on the sex offender registration law, and that the sentencing judge was not clearly mistaken to place Bobby on probation for 5 years. Facts of the case In March 1994, Phillip Bobby attacked a woman: he beat her on the head several times with a fire extinguisher, then raped her. Based on this incident, a grand jury indicted Bobby for first-degree sexual assault, AS 11.41.410(a)(1), first-degree assault, AS 11.41.200(a), and third-degree assault, AS 11.41.220(a)(1)(A). Six months later (on September 19, 1994), Bobby pleaded no contest to the count of the indictment charging first-degree assault and to a reduced charge of second-degree sexual assault, AS 11.41.420(a)(1). Because Bobby pleaded no contest to second-degree sexual assault, he was subject to the sex offender registration law, AS 12.63.010 et seq. This law had taken effect the previous month (on August 10,1994). When Bobby entered his plea to second-degree sexual assault, the superior court failed to inform him that his conviction of this offense would make him subject to the sex offender registration law. However, a few days later, the court resummoned the parties and explained this requirement to Bobby. Following this hearing, Bobby spoke to his attorney about the sex offender registration law. According to the affidavit and the testimony later offered by one of Bobby's attorneys, Bobby and his attorney discussed their options, including the possibility of filing a motion to withdraw Bobby's plea, but Bobby was undecided as to what he wished to do. While this issue remained unresolved, Bobby's sentencing was continued several times at his request. Then, on May 24, 1995, Bobby filed a motion to withdraw his pleas; the basis for this motion was Bobby's lack of awareness, when he entered the pleas, that he would be subject to the sex offender registration law. The superior court granted Bobby's motion on June 2, 1995; Bobby's former pleas of "not guilty" were reinstated, and his case was set for trial. When Bobby's case was called for trial on August 9, 1995, Bobby asked for a continuance until September 7th. Then, on September 7th, Bobby asked the superior court to dismiss his case; he argued that the speedy trial provisions of Criminal Rule 45 had been violated. Bobby conceded that Rule 45 had not been violated at the time he entered his no contest pleas in September 1994 — an event that stopped the running of the speedy trial "clock". See Criminal Rule 45(f). Bobby also conceded that, under Rule 45(c)(6), the speedy trial clock is reset to Day 1 whenever the court allows a defendant to withdraw pleas of guilty or no contest. However, Bobby asserted that he instructed his attorneys to file a plea-withdrawal motion in October 1994 (that is, a short time after he learned about the sex offender registration law), and he further asserted that his attorneys had inexplicably and incompetently failed to file this motion until seven months later (in May 1995). Bobby contended that this delay resulted in a violation of Rule 45: he argued that if his attorneys had acted with diligence in filing the plea-withdrawal motion, the court would have allowed him to withdraw his pleas several months earlier, and thus the Rule 45 clock would have restarted several months earlier, and thus his current trial date of September 7, 1995 would be in violation of Rule 45. Superior Court Judge Beverly W. Cutler held a hearing to investigate Bobby's allegation of incompetent representation. At the conclusion of the evidence, Judge Cutler found that Bobby's attorneys had shown diligence and had acted reasonably. In particular, Judge Cutler credited the evidence that Bobby had remained undecided for several months — up through April 1995 — as to whether he should seek withdrawal of his no contest pleas. She found that Bobby's testimony to the contrary was not credible. In addition, Judge Cutler ruled that even if Bobby had unambiguously asked his attorneys to file the plea-withdrawal motion, and even if the attorneys had incompetently failed to file the motion for several months, Rule 45 would still not be violated — because, under Rule 45(c)(6), the clock was reset to Day 1 when the court allowed Bobby to withdraw that plea, regardless of the procedural history that preceded that event. Following Judge Cutler's ruling, Bobby again decided to plead no contest to first-degree assault and second-degree sexual assault. He entered his pleas pursuant to Co-oksey v. State, 524 P.2d 1251 (Alaska 1974), preserving his right to appeal the superior court's denial of his Rule 45 motion. Judge Cutler subsequently sentenced Bobby to a 7-year presumptive term for first-degree assault , and she imposed a consecutive term of 4 years' imprisonment with 3 years suspended for the offense of second-degree sexual assault. Thus, Bobby's composite sentence is 11 years with 3 years suspended (8 years to serve). Judge Cutler placed Bobby on probation for 5 years following his release from prison. Bobby's Rule ⅛5 claim On appeal, Bobby renews his argument that the Rule 45 clock should have restarted when his attorneys unreasonably delayed filing the plea-withdrawal motion. Bobby completely neglects to mention Judge Cutler's findings of fact — her findings that Bobby could not decide for several months whether to withdraw his pleas, that Bobby's attorneys acted competently during this time, and that Bobby's assertions to the contrary were unbelievable. We must accept the superior court's findings of fact unless Bobby shows that they are clearly erroneous. Wilburn v. State, 816 P.2d 907, 911 (Alaska App.1991). Bobby's failure to address those findings means that he has faded to meet this burden. Additionally, we uphold Judge Cutler's ruling that even if Bobby had proved his factual assertions, Rule 45 would still not be violated. In essence, Bobby contends that, because of his attorneys' lack of diligence in filing the plea-withdrawal motion — something that could not be known to the court or the State until it was alleged and litigated — the speedy trial clock started running, unannounced, at some undetermined time during the winter or spring of 1995, when the court and the State were preparing for Bobby's sentencing. In Coffey v. State, 585 P.2d 514, 520-21 (Alaska 1978), and in State v. Jeske, 823 P.2d 6, 9-10 (Alaska App.1991), the supreme court and this court considered and rejected analogous arguments — that Rule 45 should be calculated based on mental states, decisions, or events unknown to the trial court. We likewise reject Bobby's argument. When Bobby entered his no contest pleas (the first time), Rule 45 was satisfied; no speedy trial issue remained. See Rule 45(f); see also Minch v. State, 934 P.2d 764, 767 (Alaska App.1997); Morris v. State, 734 P.2d 1012, 1014 (Alaska App.1987) (holding that Rule 45 is a speedy trial rule, not a speedy sentencing rule). As far as the superior court knew, the next event in Bobby's case would be the sentencing. Judge Cutler was entitled to assume that Bobby's ease presented no speedy trial issue "until an event or circumstance altering that status was affirmatively brought to the judge's attention. A contrary rule would leave Rule 45 calculations unsettled and tentative until the day of trial." Jeske, 823 P.2d at 9-10. We thus hold that it was irrelevant, for Rule 45 purposes, what delayed the filing of Bobby's plea-withdrawal motion. Until that motion was filed, Rule 45 was satisfied; after the motion was granted, Rule 45 was restarted. Even if Bobby had proved that his attorneys failed to diligently act on Bobby's request to withdraw his plea, the Rule 45 clock would not have surreptitiously started to tick before the plea-withdrawal motion was litigated. Bobby's attack on the sex offender registration law Having resolved Bobby's Rule 45 claim, we now turn to his argument that parts of the sex offender registration law are unconstitutional. Because Bobby has been convicted of second-degree sexual assault under AS 11.41.420(a), and because he has been sentenced to prison, he will be required to register with the troopers or the local police within 7 days of his release. See AS 12.63.010(a) and AS 12.63.100(2)-(3). When he does, his address, place of employment, date of birth, and photograph will be available to the public, as will information identifying the crime for which he was convicted, his date of conviction, and the length of his sentence. See AS 18.65.087(b). Bobby does not dispute the State's right to require him to register with the police and provide the listed kinds of information. However, Bobby contends that public disclosure of this information will have severe adverse consequences on his relations with others in the community and, perhaps, his personal safety. He argues that these consequences are so severe that they constitute an added punishment for his crime of second-degree sexual assault — and that, because he committed his crime before the sex offender registration law took effect, the ex post facto clauses of the federal and state constitutions prohibit the State from divulging this information to the public. We conclude that Bobby has failed to preserve this constitutional claim. First, the claim was never litigated in the superior court. Athough Bobby asserted that he should be allowed to withdraw his first no contest pleas because he had entered them in ignorance of the sex offender registration law, Bobby never argued in the superior court that application of the law to him would be unconstitutional. Absent plain error, an appellate court will not address claims that were not raised below. With courts around the country divided on the issue of whether disclosure of a sex offender's registration information constitutes "punishment" , Bobby's claimed error is not plain. See Hansen v. State, 845 P.2d 449, 457 (Aaska App.1993); Marrone v. State, 653 P.2d 672, 676 (Aaska App.1982) (holding that when there is no clear legal answer to the defendant's claim, the defendant has failed to establish plain error). Second, even if Bobby had litigated this claim below, he did not preserve it when he entered his Cooksey plea of no contest. More to the point, Bobby could not have preserved this claim when he entered his Cooksey plea. A defendant who pleads guilty or no contest waives all non-jurisdictional errors that may have been committed in the trial court. Cooksey established an exception to this rule, allowing a defendant to plead no contest and still preserve an issue for appeal. 524 P.2d at 1256-57; Miles v. State, 825 P.2d 904, 905 (Aaska App.1992). However, the issue must be explicitly preserved for appeal when the plea is entered, and the issue must be dispositive of the entire ease. Oveson v. Anchorage, 574 P.2d 801, 803 n. 4 (Alaska 1978); Miles, 825 P.2d at 905. The issue of whether the sex offender registration law can constitutionally be applied to Bobby is not dispositive of his case. Resolution of this issue has no effect on the authority of the State to prosecute Bobby for second-degree sexual assault, no effect on the validity of his conviction, and no effect on the superior court's authority to sentence Bobby for this crime (since registration is not a part of the court's sentence). In his reply brief, Bobby argues that, despite his failure to raise or preserve this issue in the superior 'court, he is nevertheless entitled to pursue his ex post facto claim because his claim goes to the constitutionality of the sex offender registration law (as applied to him), and because the constitutionality of a statute is always jurisdictional. This is incorrect. The cases that Bobby relies on, Gudmundson v. State, 822 P.2d 1328, 1330-31 (Alaska 1991), Crutchfield v. State, 627 P.2d 196, 199 (Alaska 1980), and Gray v. State, 525 P.2d 524, 527 (Alaska 1974), all involve constitutional challenges to the criminal statutes that the defendants were charged with violating— the statutes that provided the legal authority for the defendants' prosecution and punishment. Bobby was not prosecuted or sentenced for violating the provisions of the sex offender registration law. In fact, because he has not completed his sentence, he is under no obligation to honor those provisions yet. Rather, Bobby was prosecuted and sentenced for second-degree sexual assault. If Bobby attacked the constitutionality of the second-degree assault statute, that would be a jurisdictional issue. However, Bobby's attack on the public disclosure provisions of the sex offender registration law is not. For these reasons, we conclude that Bobby is not entitled to pursue his ex post facto claim on appeal. Bobby's attack on his 5-year period of probation Finally, Bobby contends that Judge Cutler was clearly mistaken when she placed him on probation for 5 years following his release from prison. Bobby argues that, because the offenses in this case are his first criminal offenses, Judge Cutler acted unreasonably in setting such a long period of probation; Bobby suggests that his probation should extend no more than 2 years. Having examined the record, we conclude that Judge Cutler's decision was not clearly mistaken. State v. Wentz, 805 P.2d 962, 964 (Alaska 1991); McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974). Bobby's victim suffered substantial injuries, and Bobby was ordered to pay several thousand dollars in restitution. One justification for setting Bobby's period of probation at 5 years would be to insure that he complies with this obligation. More important, however, is the fact that Bobby's violent physical and sexual assault on his victim was apparently inexplicable. The victim is Bobby's cousin, and the attack occurred without warning while Bobby was paying a social visit to her house. Under these circumstances, Judge Cutler was not obliged to adopt a sanguine view of Bobby's prospects for speedy rehabilitation. The judge could reasonably conclude that Bobby should be placed on probation supervision for 5 years to help insure the public safety and to reinforce the deterrent aspects of the sentence. Conclusion The judgement of the superior court is AFFIRMED. . When the legislature enacted the sex offender registration law, they also amended Alaska Criminal Rule 11(c) to require that when a court accepts a plea of guilty or no contest to one of the sex offenses listed in AS 12.63.100(3), the court must advise the defendant of the duty to register. See SLA 1994, ch. 41, § 10. This new requirement took effect on August 10, 1994, a few weeks before Bobby's sentencing. . First felony offenders convicted of a class A felony (such as first-degree assault) face either a 7-year or a 5-year presumptive term, depending on the circumstances of the offense. See AS 12.55.125(c)(l)-(2). One circumstance that triggers a 7-year presumptive term under AS 12.55.125(c)(2) is the defendant's use of a dangerous weapon. However, in Pruett v. State, 742 P.2d 257, 262-63 (Alaska App.1987), this court held that defendants charged with first-degree assault under subsection (a)(1) of AS 11.41.200 are subject to only a 5-year presumptive term, even if they used a dangerous instrument to commit the assault. Pruett did not resolve whether defendants convicted of first-degree assault under the other two subsections of the statute would face a 7-year or a 5-year presumptive term. Id. at 263, n. 7. Bobby was convicted under subsections (a)(2) and (a)(3); he stipulated that he was subject to a 7-year presumptive term. . Compare Doe v. Poritz, 142 N.J. 1, 662 A.2d 367 (1995), State v. Ward, 123 Wash.2d 488, 869 P.2d 1062 (1994), and Doe v. Pataki, 120 F.3d 1263 (2nd Cir.1997) with State v. Myers, 260 Kan. 669, 923 P.2d 1024 (1996), cert. denied — U.S. —, 117 S.Ct. 2508, 138 L.Ed.2d 1012 (1997). . Currently, AS 12.55.090(c) authorizes a sentencing judge to place a defendant on probation for up to 10 years. At the time of Bobby's offenses, however, the maximum term of probation was 5 years.

11875833

Daryl JAMES, George James, Embert James, Loren James, and Lillian Charles, Petitioners, v. STATE of Alaska, Respondent

James v. State

1997-12-26

No. S-7350

1120

1130

950 P.2d 1120

950

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:45:37.779961+00:00

CAP

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

Daryl JAMES, George James, Embert James, Loren James, and Lillian Charles, Petitioners, v. STATE of Alaska, Respondent.

Daryl JAMES, George James, Embert James, Loren James, and Lillian Charles, Petitioners, v. STATE of Alaska, Respondent. No. S-7350. Supreme Court of Alaska. Dec. 26, 1997. Susan M. Crocker, Assistant Public Defender, Ketchikan, John B. Salemi, Public Defender, Anchorage, for Petitioners. Joanne ‘Grace, Assistant Attorney General, Anchorage, Bruce M. Botelho, Attorney General, Juneau, for Respondent. Before COMPTON, C.J., and MATTHEWS, EASTAUGH and FABE, JJ.

5865

35965

OPINION MATTHEWS, Justice. 1. INTRODUCTION The question presented is whether the State owns submerged lands within the exterior boundaries of the Tongass National Forest. Under the equal footing doctrine and the Submerged Lands Act, title to submerged lands is conveyed to a new state at statehood unless a prior withdrawal was clearly intended to include submerged lands, and unless the United States clearly intended to defeat the future state's title to the submerged lands so withdrawn. Intent to include submerged lands within a withdrawal may be inferred from the purpose and language of a withdrawal. The purposes of the proclamation creating the Tongass do not require submerged lands and its language does not suggest that submerged lands were included. We conclude that the submerged lands were not included within the proclamation, and that they thus passed to the State. II. FACTS AND PROCEEDINGS Daryl, Loren, Embert, and George James, and Lillian Charles (Defendants) were charged with.illegally possessing herring roe on kelp in violation of AS 16.05.920(a). The Defendants possessed more herring roe on kelp than was permitted under their subsistence permits. The herring roe on kelp was harvested from coastal waters within the exterior boundaries of the Tongass National Forest (Tongass). Defendants moved to dismiss the charges. They argued that the State did not have jurisdiction because the activity was regulated by federal law under the Alaska National Interest Lands Conservation Act (ANILCA). 16 U.S.C. § 3101-3233 (1988). The superior court denied the motion. The case proceeded to trial; the jury convicted the Defendants. The court of appeals affirmed. James v. State, Mem. Op. & J. No. 3150 (Alaska App., April 26, 1995). This court granted Defendants' petition for hearing. III. DISCUSSION A The Question Presented Is Whether the United States Owns the Submerged Lands of the Tongass. The Defendants argue that ANILCA applies to coastal waters within the boundaries of the Tongass, because the United States holds title to the coastal submerged lands, and because ANILCA preempts subsistence fishery regulation by the State. The State responds that ANILCA does not apply to Tongass coastal waters because the State owns the submerged lands and therefore no basis for federal preemption exists. The State also argues, in the alternative, that there was no preemption even if ANILCA applies because the state regulations are consistent with ANILCA. ANILCA grants to the federal government the authority to regulate subsistence activities on "public lands." 16 U.S.C. § 3114. The term "public lands" is defined by ANILCA as follows: (1) The term "land" means lands, waters, and interests therein. (2) The term "Federal land" means lands the title to which is in the United States after December 2,1980. (3) The term "public lands" means land situated in Alaska which, after December 2,1980, are Federal lands, except— (A) land selections of the State of Alaska which have been tentatively approved or validly selected under the Alaska Statehood Act and lands which have been confirmed to, validly selected by, or granted to the Territory of Alaska or the State under any other provision of Federal law. 16 U.S.C. § 3102. Thus, as we explained in Totemoff v. State, 905 P.2d 954, 962 (Alaska 1995), the term "public lands" in ANILCA "means lands, waters, and interests therein, the title to which is in the United States. But 'public lands' does not include lands, waters, interests therein which were transferred to Alaska under other federal laws." Id. The roe that Defendants possessed was harvested in the Craig-Klawock area of the west coast of Prince of Wales Island. The exterior boundaries of the Tongass in this part of Alaska extend from the international boundary with Canada some 150 miles to the east, to a line approximately 60 miles to the west in the Pacific Ocean. These boundaries were established by a proclamation of President Theodore Roosevelt on February 16, 1909, withdrawing "[a]ll of the public land lying within the boundaries described" and adding them to the Tongass. Proclamation No. 846 (1909). To determine whether AN-ILCA applies, we must determine whether title to the coastal submerged lands in the Tongass transferred to Alaska at statehood. B. Controlling Authorities. The Defendants contend that the land beneath the coastal waters of the Tongass was reserved to the United States by the 1909 proclamation and was not transferred to the State at statehood. The State contests this. Two cases set out the general principles which govern this ease. 1. Utah Lake The first case is Utah Division of State Lands v. United States, 482 U.S. 193, 107 S.Ct. 2318, 96 L.Ed.2d 162 (1987) (Utah Lake). The issue in Utah Lake was whether title to the bed of Utah Lake — a navigable body of water — passed to the State of Utah upon Utah's admission to the Union, or whether the land remained in federal ownership because it had previously been reserved by the United States Geological Survey as a reservoir site. Id. at 198-99, 107 S.Ct. at 2321-22. The Court held that title to the lake bed had passed to Utah based on the equal footing doctrine. The Court explained the doctrine with respect to land underlying navigable waters as follows: When the 13 Colonies became independent from Great Britain, they claimed title to the lands under navigable waters within their boundaries as the sovereign successors to the English Crown. [Shively v. Bowlby, 152 U.S. 1, 15, 14 S.Ct. 548, 553, 38 L.Ed. 331 (1894).] Because all subsequently admitted States enter the Union on an "equal footing" with the original 13 States, they too hold title to the land under navigable waters within their boundaries upon entry into the Union. Pollard's Lessee v. Hagan, 3 How. 212, 11 L.Ed. 565 (1845). Utah Lake, 482 U.S. at 196, 107 S.Ct. at 2320. The Court went on to observe that Pollard's Lessee held that the United States held lands under navigable waters in territories '"in trust' for the future States," and that dictum in that case suggested that the equal footing doctrine "absolutely prohibited the United States from taking any steps to defeat the passing of title to land underneath navigable waters to" future states. Id. The Court noted that this dictum has been disavowed, as it was held in Shively v. Bowlby that the federal government has the authority to make a prestatehood conveyance of land under navigable water to a private party "in exceptional instances," in cases of "international duty or public exigency." Utah Lake, 482 U.S. at 196-97, 107 S.Ct. at 2320-21 (quoting Shively, 152 U.S. at 50, 14 S.Ct. at 566). The Court observed that there is "a strong presumption" against such conveyances. Utah argued in Utah Lake that only a conveyance to a third party and not merely a federal reservation could defeat a state's title to land under navigable waters at statehood. Id. at 200, 107 S.Ct. at 2322-23. The Supreme Court assumed, arguendo, that such federal power exists, id. at 201, 107 S.Ct. at 2323, but held that there was a strong presumption against its use: Although arguably there is nothing in the Constitution to prevent the Federal Government from defeating a State's title to land under navigable waters by its own reservation for a particular use, the strong presumption is against finding an intent to defeat the State's title. Id. Drawing on the cases involving prestate-hood conveyances to third parties, the Court stated: Congress, therefore, will defeat a future State's entitlement to land under navigable waters only "in exceptional instances," and in light of this policy, whether faced with a reservation or a conveyance, we simply cannot infer that Congress intended to defeat a future State's title to land under navigable waters "unless the intention was definitely declared or otherwise made very plain." Id. at 201-202, 107 S.Ct. at 2823 (quoting United States v. Holt State Bank, 270 U.S. 49, 55, 46 S.Ct. 197, 199, 70 L.Ed. 465 (1926)). The Court noted a difference between prestatehood conveyances to third parties and prestatehood reservations of lands beneath navigable waters. In the former, Congress necessarily intends to defeat the future state's claim to the land. In the latter, however, there may not be such an intent. "The land remains in federal control, and therefore may still be held for the ultimate benefit of future States." Id. at 202, 107 S.Ct. at 2323. In view of this, a two-part inquiry is required: (1) Did Congress clearly intend to include the lands beneath navigable waters within the reservation? (2) Assuming lands beneath the navigable waters were included within the reservation, did Congress clearly express an intention to defeat the future state's claim to the underlying lands? Id. 2. Beaufort Sea a. Utah Lake's "strong presumption" against defeating future state's title to submerged land applies to coastal submerged land. There is a distinction between tidelands and coastal undersea lands. Tidelands extend from mean high tide to mean low tide. Coastal undersea lands extend seaward from mean low tide for three miles. Tidelands and inland navigable waters are covered by the equal footing doctrine and are controlled by the Utah Lake decision. United States v. Alaska, — U.S. -, -, 117 S.Ct. 1888, 1892, 138 L.Ed.2d 231 (1997) (Beaufort Sea). Coastal undersea lands do not pass to the states under the equal footing doctrine. Therefore, the doctrinal basis for Utah Lake's "strong presumption" against defeating a future state's title does not exist as to such lands. Coastal undersea lands were held in United States v. California, 332 U.S. 19, 67 S.Ct. 1658, 91 L.Ed. 1889 (1947), to belong to the United States. In 1953 Congress passed the Submerged Lands Act, which nullified the effect of that decision and "recognized, confirmed, established, and vested in, and assigned to the respective States" title to submerged lands. 43 U.S.C. § 1311(a) (1994). Under the Submerged Lands Act a state receives title to submerged lands unless the United States has "expressly retained" them. 43 U.S.C. § 1313(a) (1994). In Beaufort Sea the Court held that Congress, by enacting the "expressly retained" exception, intended to employ the same standard to lands which pass under the act as that applicable to lands passing under the equal footing doctrine. b. Application of Utah Lake principles to Alaska. Beaufort Sea is also important because of how it applied the Utah Lake principles and because it applied them in the context of the Alaska Statehood Act. One of the withdrawals at issue in Beaufort Sea was National Petroleum Reserve No. 4, which was created by executive order in 1923. The boundary of the reserve followed the Arctic "coast line" measured along "the ocean side of the sand-spits and islands forming the barrier reefs and extending across small lagoons from point to point where such barrier reefs are not over three miles off shore." Beaufort Sea, — U.S. at -, 117 S.Ct. at 1907 (quoting Exc. Order No. 3797-A). At issue was whether the reserve included the submerged lands within this boundary, such as tidelands landward of the islands and lands underlying the "small lagoons" and the mouths of rivers and bays. Id. The State of Alaska argued that these submerged lands were not included within the reserve based on Utah Lake and another United States Supreme case, Montana v. United States, 450 U.S. 544, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981). The Court rejected Alaska's argument in a discussion which is of central importance to this case. We therefore quote at some length from the Court's opinion. First, the Court explained the Montana and the Utah Lake decisions as follows: In Montana, the United States, as trustee for the Crow Tribe, sought a declaratory judgment that it owned the riverbed of the Big Horn River and had conveyed a beneficial interest in the submerged lands to the Tribe. The river was located inside the boundaries of the Crow Reservation established by treaty in 1868, but the treaty did not expressly refer to the riverbed. 450 U.S., at 548, 554, 101 S.Ct., at 1249, 1252-1258. Applying the "strong presumption against conveyance by the United States" to defeat a State's title, id., at 552, 101 S.Ct., at 1251, we concluded that the "mere fact that the bed of a navigable water lies within the boundaries described in the treaty does not make the riverbed part of the conveyed land, especially when there is no express reference to the riverbed that might overcome the presumption against its conveyance," id., at 554, 101 S.Ct., at 1252-1253. Even though creation of an Indian reservation could be an "appropriate public purpose" justifying a conveyance of submerged lands, a conveyance of submerged lands beneath the river would not have been necessary for the Government's purpose, because fishing was not important to the Crow Tribe's way of life. Id., at 556, 101 S.Ct., at 1253-1254. In [Utah Lake], the Court found that the United States had not prevented the bed of Utah Lake from passing to Utah at statehood. The Sundry Appropriations Act of 1888, 25 Stat. 505, authorized the United States Geological Survey to select "sites for reservoirs and other hydraulic works necessary for the storage and utilization of water for irrigation and the prevention of floods and overflows." Id., at 526. The Survey selected Utah Lake as a reservoir site. 482 U.S., at 199, 107 S.Ct., at 2322. In 1890, when Congress repealed the 1888 Act, it provided "that reservoir sites heretofore located or selected shall remain segregated and reserved from entry or settlement as provided by [the 1888 Act]." Sundry Appropriations Act of 1890,26 Stat. 391. In concluding that the 1888 Act did not reflect a clear intent to include submerged lands within lands reserved for reservoir sites, the Court focused in part on the fact that the Act was motivated by concerns that settlers would claim lands suitable for reservoir sites or other reclamation efforts. 482 U.S., at 198, 203, 107 S.Ct., at 2321-2322, 2324. These concerns of "monopolization and speculation" "had nothing to do with the beds of navigable rivers and lakes." Id., at 203, 107 S.Ct., at 2324. Moreover, the Government's ability to control and develop navigable waters would not be impaired if the land beneath the navigable waters passed to the State. Id., at 202, 107 S.Ct., at 2323-2324; see also Arizona v. California, 373 U.S. 546, 597-598, 83 S.Ct. 1468, 1496-1497, 10 L.Ed.2d 542 (1963); Arizona v. California, 283 U.S. 423, 451-452, 457, 51 S.Ct. 522, 524-525, 75 L.Ed. 1154 (1931). We also considered whether certain references to the bed of Utah Lake in reports by the Geological Survey, coupled with the 1890 Act's requirement that selected sites remain segregated, accomplished a reservation of the lakebed. We concluded that the references to the lakebed in the Survey documents, when placed in proper context, did not indicate that the bed was included within the reservation. [Utah Lake ], supra, at 206, 107 S.Ct., at 2325-2326. Finally, we held that even if the 1888 or 1890 Acts reflected a clear intent to include submerged lands within a reservation, there was no evidence that the United States intended to defeat future State's entitlement to any land reserved. Again, our analysis focused on the fact that the transfer of title to the lakebed would not prevent the Government from developing a reservoir or water reclamation project at the lake. Id,., at 208, 107 S.Ct., at 2325-2327. Beaufort Sea, — U.S. at -, 117 S.Ct. at 1907-08. The Court then distinguished the Beaufort Sea case from Utah Lake and Montana on the ground that the boundary of the National Petroleum Reserve explicitly mentioned certain coastal features, whereas the boundaries of the reserves in Montana and Utah Lalce merely embraced navigable waters and, most importantly, because the purposes of the reserves in Montana and Utah Lake did not require reservation of submerged lands, whereas the purpose of the National Petroleum Reserve did require the inclusion of submerged lands. The Court stated: Montana and [Utah Lake] establish that the fact that navigable waters are within the boundaries of a conveyance or reservation does not in itself mean that submerged lands beneath those waters were conveyed or reserved. But Alaska's reliance on these cases is misplaced for two reasons. First, the Executive Order of 1923 does not merely define a boundary that encloses a body of navigable water. Rather, in describing a boundary following the ocean side of offshore islands and reefs, the Order created a Reserve that necessarily embraced certain submerged lands — specifically, tide lands shoreward of the barrier islands. Second, Montana and [Utah Lake ] establish that the purpose of a conveyance or reservation is a critical factor in determining federal intent. See also Alaska Pacific Fisheries v. United States, 248 U.S. 78, 87-89, 39 S.Ct. 40, 41-42, 63 L.Ed. 138 (1918) (reservation of "body of lands" in southeastern Alaska for Metlakahtla Indians included adjacent waters and submerged lands, because fishing was necessary for Indians' subsistence). The Executive Order of 1923 sought to retain federal ownership of land containing oil deposits. The Order recited that "there are large seepages of petroleum along the Arctic Coast of Alaska and conditions favorable to the occurrence of valuable petroleum fields on the Arctic Coast," and described the goal of securing a supply of oil for the Navy as "at all times a matter of national concern." Petroleum resources exist in subsurface formations necessarily extending beneath submerged lands and uplands. The purpose of reserving in federal ownership all oil and gas deposits within the Reserve's boundaries would have been undermined if those deposits underlying lagoons and other tidally influenced waters had been excluded. It is simply not plausible that the United States sought to reserve only the upland portions of the area. Id. at -, 117 S.Ct. at 1908-09 (footnote omitted) (emphasis in original). In sum, the 1923 Executive Order creating the Reserve reflects a clear intent to include submerged lands within the Reserve. The boundary by its terms embraces certain coastal features, and the Master interpreted it to embrace others. In light of the purpose of the Reserve, it is simply not plausible that the Order was intended to exclude submerged lands, and thereby to forfeit ownership of valuable petroleum resources beneath those lands. The importance of submerged lands to the United States' goal of securing a supply of oil distinguishes this case from Montana and [Utah Lake ], where the disputed submerged lands were unnecessary for achieving the federal objectives. Id. at -, 117 S.Ct. at 1909. Having concluded that submerged lands were intended to be included within the National Petroleum Reserve, the Court turned to the second question required under the Utah Lake decision, that is, whether "the United States intended to defeat a future State's title" to the reserved submerged lands. Id. The Court's master had found that in section 11(b) of the Alaska Statehood Act Congress expressed a clear intent to defeat state title, and the Court agreed. Section 11(b) of the Statehood Act provides in part that authority is reserved in the United States . for the exercise by the Congress of the United States of the power of exclusive legislation . in all cases whatsoever over such tracts or parcels of land as, immediately prior to admission of said state, are owned by the United States and held for military, naval, Air Force, or Coast Guard purposes, including naval petroleum reserve numbered 4. Pub.L. 85-508, 72 Stat. 347. The Court concluded that this language "reflects a clear congressional statement that the United States owned and would continue to own submerged lands included within the Reserve." Beaufort Sect) — U.S. at -, 117 S.Ct. at 1910. Beaufort Sea also involved submerged lands within the Arctic National Wildlife Refuge, formerly called the Arctic National Wildlife Range. The application that affected the withdrawal of the range described its boundary as beginning from "the line of extreme low water on the Arctic Ocean" at the Canadian Border and following "westerly along the said line of extreme low water, including all offshore bars, reefs and islands." Id. at-, 117 S.Ct. at 1914. The Court held that the range included submerged lands encompassed within these boundaries, distinguishing the range from Utah Lake and Montana on grounds similar to the grounds on which the National Petroleum Reserve was distinguished from those cases, namely that the boundary expressly referred to coastal features and that the navigable waters within the boundaries of the range were an important part of the wildlife habitat which the range was designed to protect. Id. at-, 117 S.Ct. at 1914-15. ' The Court then addressed the second question required by Utah Lake, whether the United States indicated an intent to defeat the future state's title to the submerged lands included with the range. The Court found such an intent in section 6(e) of the Statehood Act, which reserved from transfer to the state "lands withdrawn or otherwise set apart as refuges or reservations for the protection of wildlife." Id. at-, 117 S.Ct. 1916-17. C. The 1909 Reservation Did Not Include Submerged Lands. With respect to the first Utah Lake inquiry — whether the 1909 withdrawal included submerged lands — the Defendants argue that it did because submerged lands are encompassed within the boundary of the withdrawal. They contend that the term "public lands" has "consistently been held under Alaska law to include land under water,'" citing United States v. Alaska, 423 F.2d 764, 766 (9th Cir.1970) (Tustumena Lake). Further, they submit that "the intention of creating the Tongass National Forest would be defeated" if submerged lands were not included within the withdrawal. The State contends that submerged lands were not included within the 1909 proclamation, because the proclamation does not "make plain an intention to include submerged lands." The State argues that the term "public lands'.' does not ordinarily include submerged lands unless another meaning is inferable. The State also contends that the fact that the boundaries of the Tongass encompass submerged lands is in itself unimportant, because the western boundary of the proclamation was drawn as a matter of convenience "in order to easily describe the inclusion of numerous islands and the rugged coastline." Finally, the State submits that the purpose of the withdrawal does not require submerged lands. With respect to the second Utah Lake question — whether there was a clear intent to defeat a future state's title — the Defendants argue that such an intent was expressed in the proviso in section 6(e) of the Statehood Act excepting the transfer of lands "withdrawn or otherwise set apart as refuges or reservations for the protection of wildlife." The Defendants also argue that "[a]ll lands within the boundaries of the Tongass National Forest had been expressly retained by the United States upon Alaska's statehood and therefore were not granted to the state under the Submerged Lands Act." The State responds that the proviso of section 6(e) of the Statehood Act relied on by the Defendants does not apply, since the Tongass National Forest is not "specifically used for the sole purpose of conservation and protection of the fisheries and wildlife of Alaska," nor was it withdrawn as a refuge or reservation for the protection of wildlife. Further, the State argues that no other provision of the Alaska Statehood Act expressly retains the submerged lands within the boundaries of the Tongass National Forest as property of the United States. We conclude that the tidelands and lands underlying the coastal waters of the Tongass were conveyed to the State of Alaska at statehood under the equal footing doctrine and the Submerged Lands Act. Our discussion of the points argued by the parties follows. 1. The withdrawal does not require submerged lands for the achievement of its purposes. Although the submerged lands are included within the exterior boundaries of the Tongass, there is no indication, much less a clear indication, that they were intended to be included within the 1909 Tongass withdrawal. The withdrawal was governed by the Organic Administration Act of June 4, 1897, Ch. 32, Stat. 34 (codified at 16 U.S.C. § 473 et seq). The Organic Administration Act provided in part: all public lands that may hereafter be set aside and reserved as national forests under said section,[ ] shall be as far as practicable controlled and administered in accordance with the following provisions. No national forest shall be established, except to improve and protect the forest within the boundaries, or for the purpose of securing favorable conditions of water flows, and to furnish a continuous supply of timber for the use and necessities of citizens of the United States[.] Ch. 2, § 1, 30 Stat. 34 (codified as amended at 16 U.S.C. § 475). There were thus no more than three purposes justifying a withdrawal: "to improve and protect the forest," "to conserve the water flows, and to furnish a continuous supply of timber." Id. Conveyance of the submerged lands of the Tongass was not necessary to achieve these purposes. Use of coastal waters and tidelands may be necessary or useful to the harvest and transport of timber. However, the transfer of title of the submerged lands and tidelands to the State would not prevent such uses. See Utah Lake, 482 U.S. at 208, 107 S.Ct. at 2326 (transfer of title of the bed of Utah Lake "would not necessarily prevent the federal government from subsequently developing a reservoir or water reclamation project at the lake in any event"). 2. The term "public land" in the proclamation referred only to uplands. The State is correct that generally the term "public land" refers to uplands, unless the context of its usage otherwise requires a different meaning. The term "public land" as used in the proclamation necessarily has the same meaning as "public lands" has in the Organic Administration Act of 1897, and in the act which it limited, the Creative Act of 1891. Thus even if there is a different and more expansive meaning of public lands in the context of Alaska land law, that meaning could not have been used in the proclamation, for the proclamation would then have exceeded the authority of the act. Further, the term "public lands" in the Creative Act explicitly refers to uplands: the President is authorized to withdraw public lands "wholly or in part covered with timber or undergrowth." Creative Act of March 3,1891, ch. 561, 26 Stat. 1103 (codified as amended at 16 U.S.C. § 471 (repealed 1976)). 3. The western boundary of the Tongass is a boundary of convenience. We agree with the State's argument that the western boundary of the Tongass established by the 1909 proclamation is merely a boundary of convenience. It is drawn as it is in order to avoid the difficult task of describing the hundreds of islands and islets which constitute the western Ton-gass, which extends some 300 miles from Cape Bingham on the north to Cape Munzon on the south. Except as a matter of descriptive convenience, President Roosevelt could have had no conceivable purpose for including, for example, the open ocean 60 miles west of Cape Munzon. Additionally, ANILCA extended the boundaries of the Tongass National Forest, and yet stated, "But the boundaries of areas added to the . National Forest Systems shall, in coastal areas not exceed seaward beyond the mean high tide line to include lands owned by the State of Alaska." 16 U.S.C. § 3103. Thus in extending the boundaries of the Tongass, Congress did not intend to include even the tidelands of the Tongass. This reflects Congress' understanding that submerged lands were not included in the original reservation. 4. The second Utah Lake inquiry is moot. Our conclusion that submerged lands within the Tongass were not "withdrawn by the proclamation moots the second Utah Lake question, which is whether there was a clear intent to defeat the future State of Alaska's title to them. We observe, however, that there is nothing in the Statehood Act which clearly expresses such an intent. Section 6(e) of the Statehood Act does not apply, since the Tongass was not withdrawn as a refuge or reservation for the protection of wildlife, nor is it "specifically used for the sole purpose of conservation and protection of the fisheries' and wildlife of Alaska." Further, we have been cited to no other provision of the Statehood Act, nor to any other act, indicating an intention to withhold from the State title to the submerged lands of the Tongass. IV. CONCLUSION Based on the foregoing we conclude that the submerged coastal lands and tidelands within the boundaries of the Tongass are the property of the State of Alaska, and therefore the Defendants' argument that their conduct was governed by ANILCA fails. AFFIRMED. BRYNER, J., not participating. APPENDIX . Herring roe on kelp may be taken under a subsistence Ashing permit. 5 AAC 01.730(a). The sale of subsistence herring roe on kelp is prohibited by 5 AAC 01.010(d). The taking of herring roe on kelp for commercial purposes can be conducted only under a permit issued pursuant to 5 AAC 27.055. None of the Defendants had a commercial permit. . Daryl and Loren James each had permits for 32 pounds of herring roe on kelp. Lillian Charles and Embert James had permits for 158 pounds of herring roe on kelp. George James did not have a permit. The permits, including that of Margaret Lauth-Allen, who is not a defendant in this case, permitted a total of 538 pounds. The Defendants were in possession of approximately 1,900 pounds. . The United States has not claimed title to the tidelands or coastal submerged lands of the Ton-gass. 16 U.S.C. § 3103 (1988). See also Subsistence Management Regulations for Public Lands in Alaska, Subpart A, §_3(b)(ii) (Jan. 1997) (Regional Council Review Draft) (subsistence regulations limited to inland waters of Tongass National Forest). This fact does not, however, preclude the Defendants from asserting that the submerged lands are owned by the United States as part of their argument that the State lacks jurisdiction. . The boundaries of the Tongass established by the 1909 proclamation are shown on the appended map. . In Totemoff v. State, 905 P.2d 954 (Alaska 1995), we held, in response to contentions that such waters are "public lands" because of (a) the federal government's navigational servitude or (b) federal reserved water rights, that ANILCA does not apply to navigable waters overlying the coastal sea floor or tidelands owned by the State. In Alaska v. Babbitt, 72 F.3d 698 (9th Cir.1995), the Ninth Circuit held that ANILCA does not apply to navigable waters overlying state lands because of the federal navigation easement but that it does apply to navigable waters overlying state land which are subject to a reserved water right in the federal government. The Defendants here do not claim that the Tongass coastal waters are public lands because of the navigational ser vitude, nor do they contend that the reserved water rights doctrine applies. Instead, their argument is simply that the United States holds title to the coastal sea floor underlying the water where roe which they possessed was harvested. . The Court resolved this question in favor of the United States in United States v. Alaska, - U.S. -, -, 117 S.Ct. 1888, 1906, 138 L.Ed.2d 231 (1997) (BeaufortSea). . In this opinion we refer to both as submerged lands. . The scope of the Submerged Lands Act includes tidelands, land underlying navigable inland waters, and coastal undersea lands. However, the act was not necessary as to the first two categories, for they were already covered under the equal footing doctrine. .The Submerged Lands Act is expressly incorporated in the Alaska Statehood Act, Pub.L. 85-508, § 6(m), 72 Stat. 343 (1958). . In part, section 6(e) of the Statehood Act provides: All real and personal properly of the United States situated in the Territory of Alaska which is specifically used for the sole purpose of conservation and protection of the fisheries and wildlife of Alaska . shall be transferred and conveyed to the State of Alaska by the appropriate Federal agency: . Provided, That such transfer shall not include lands withdrawn or otherwise set apart as refuges or reservations for the protection of wildlife.... . The section referred to in the Organic Administration Act as "said section" was the Creative Act of March 3, 1891, ch. 561, § 24, 26 Stat. 1103 (codified as amended at 16 U.S.C. § 471 (repealed 1976)). In this act Congress authorized the President to "set apart and reserve . any State or Territory having public land bearing forests, in any part of the public lands wholly or in part covered with timber or undergrowth, whether of commercial value or not, as national forests." . In United States v. New Mexico, 438 U.S. 696, 708-09, 98 S.Ct. 3012, 3018-19, 57 L.Ed.2d 1052 (1978), the Court held that improvement and protection of the forest was not a purpose separate from the watershed and timber supply purposes of the act. The Court describes these purposes as "limited" and "relatively narrow." . Nor has it. Extensive logging has occurred on the Tongass since statehood, even though the State's title to the tidelands and submerged lands has not, to date, been challenged by the United States. .Congress passed the Multiple Use Sustained Yield Act of 1960, 74 Stat. 215 (codified at 16 U.S.C. § 528 et seq). This broadened the purposes of the national forests. The 1960 act provides: It is the policy of Congress that the national forests are established and shall be administered for outdoor recreation, range, timber, watershed, wildlife and fish purposes. The purposes of sections 528 to 531 of this title are declared to be supplemental to, but not in derogation of, the purposes for which the national forests were established as set forth in the [Organic Administration Act of 1897]. This act has no effect on this case for Alaska became a state prior to the act, and the act does not purport to enlarge existing withdrawals. See United States v. New Mexico, 438 U.S. 696, 713, 98 S.Ct. 3012, 3020-21, 57 L.Ed.2d 1052 (1978) ("While we conclude that the Multiple-Use Sustained-Yield Act of 1960 was intended to broaden the purposes for which national forests had previously been administered, we agree that Congress did not intend to thereby expand the reserved rights of the United States."). . There is much authority which supports this proposition. E.g., Utah Lake, 482 U.S. at 206, 107 S.Ct. at 2325-26; Mann v. Tacoma Land Co., 153 U.S. 273, 284, 14 S.Ct. 820, 822, 38 L.Ed. 714 (1894). . Although the Ninth Circuit Court of Appeals in Tustumena Lake stated, "In construing the pertinent Alaskan statutes, the courts have consistently held that the words 'public domain,' public lands' and 'land,' include land under water," 423 F.2d at 766, the cases cited by the Circuit in Tustumena Lake are not inconsistent with the proposition that the term "public lands" does not ordinarily include submerged lands because an intent was inferable in each of the cases relied on by the Circuit that submerged lands be included.

11875755

STATE of Alaska, Appellant, v. Glenda J. GREENFIELD, Appellee

State v. Greenfield

1997-12-19

No. S-6384

1118

1120

950 P.2d 1118

950

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:45:37.779961+00:00

CAP

Before COMPTON, C.J., and RABINOWITZ, MATTHEWS and EASTAUGH, JJ., and CARPENETI, J. pro tem.

STATE of Alaska, Appellant, v. Glenda J. GREENFIELD, Appellee.

STATE of Alaska, Appellant, v. Glenda J. GREENFIELD, Appellee. No. S-6384. Supreme Court of Alaska. Dec. 19, 1997. Patrick J. Gullufsen, Assistant Attorney General, Bruce M. Botelho, Attorney General, Juneau, for Appellant. Thomas M. Daniel, Katherine C. Tank, Leif Fonnesbeek, Perkins Coie, Anchorage, for Appellee. Before COMPTON, C.J., and RABINOWITZ, MATTHEWS and EASTAUGH, JJ., and CARPENETI, J. pro tem. Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution.

777

4995

OPINION MATTHEWS, Justice. I. INTRODUCTION The State of Alaska appeals from a partial grant of summary judgment in favor of Glenda Greenfield. The superior court ruled that the Alaska Whistleblower Act waived the State's immunity from punitive damages and the jury awarded punitive damages against the State. We reverse. II. FACTS AND PROCEEDINGS In early 1992 Glenda J. Greenfield was employed by the State of Alaska as the Acting Director of Nursing at the Alaska Psychiatric Institute (API). In January and March she reported that Frank Crum, then an act- mg assistant director, had engaged in sexual harassment and other inappropriate conduct toward the API staff. After an investigation into her allegations, Crum was disciplined. In late March Greenfield's appointment as Acting Director of Nursing was allowed to expire, although no replacement for her had been selected. In June Greenfield resigned "because her working conditions had become so intolerable that she could no longer effectively perform her job, and she saw no reasonable likelihood that the situation would improve." Greenfield sued the State and the director of API, asserting various civil rights complaints, among them violation of the Whistle-blower Act, AS 39.90.100. She filed a motion for partial summary judgment seeking a holding from the superior court that she was entitled to pursue a punitive damage award against the State. Specifically, she argued that AS 39.90.120(a) provided for a waiver of the State's immunity from punitive damages. The superior court granted the motion. The jury found the State hable under several statutes and awarded Greenfield $160,-000 in punitive damages pursuant to the Whistleblower Act. The State appeals only the punitive damage award. III. STANDARD OF REVIEW This appeal requires us to interpret the text of the Whistleblower Act. We apply our independent judgment to questions of statutory interpretation. Sauve v. Winfree, 907 P.2d 7, 9 (Alaska 1995). IV. DISCUSSION The Whistleblower Act authorizes public employees to bring suit against individuals and public employers, including the State. Alaska Statute 39.90.120 provides: (a) A person who alleges a violation of AS 39.90.100 may bring a civil action and the court may grant appropriate relief, including punitive damages. (b) A person who violates or attempts to violate AS 39.90.100 is also hable for a civil fine of not more than $10,000. The attorney general may enforce this subsection. (e) A person who attempts to prevent another person from making a report or participating in a matter under AS 39.90.100(a) with intent to impede or prevent a pubhc inquiry on the matter is hable for a civil fine of not more than $10,000. In Alaska Housing Finance Corporation v. Salvucci, 950 P.2d 1116, (Alaska 1997), we addressed this issue. The reasoning and holding of Salvucci apply to the present case. In Salvucci we said: AS 39.90.120(a) does not expressly and specifically authorize awards of punitive damages against government entities. The text of the statute is ambiguous as to whether such damages were meant to be authorized against such defendants. The presumption disfavoring punitive damage awards against government entities therefore apphes and the statute will not be construed as authorizing such awards. Moreover, the legislative history of the amendment which added reference to punitive damages to the statute shows that the amendment was added not to make government entities liable for punitive damages, but to ensure that individual defendants would not be immunized from punitive damages. That purpose is consistent with the reasons underlying the presumption disfavoring punitive damage awards against government entities. Id. at 24, 950 P.2d at 1126. V.CONCLUSION For the reasons that this court expressed in Salvucci, we hold that punitive damages are not available against the State under the Whistleblower Act. We therefore REVERSE the superior court's award of partial summary judgment to Greenfield on the issue of punitive damages. COMPTON, C.J., with whom RABINOWITZ, J., joins, concurring. FABE, J., not participating.

6872012

Morrill MAHAN, Appellant, v. Jessica MAHAN, Appellee

Mahan v. Mahan

2015-03-27

No. S-15456

91

97

347 P.3d 91

347

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T17:35:39.174670+00:00

CAP

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

Morrill MAHAN, Appellant, v. Jessica MAHAN, Appellee.

Morrill MAHAN, Appellant, v. Jessica MAHAN, Appellee. No. S-15456. Supreme Court of Alaska. March 27, 2015. Richard W. Postma, Jr., Law Offices of Mitchell K. Wyatt, Anchorage, for Appellant. Shana Theiler, Walton, Theiler & Winegar-den, LLC, Kenai, for Appellee. Before: FABE, Chief Justice, WINFREE, STOWERS, MAASSEN, and BOLGER, Justices.

3352

21494

FABE, Chief Justice. I. INTRODUCTION A husband and wife obtained a marriage dissolution that included a provision to split the "profits . after the cost of fuel and can[nelry dues" from their jointly owned commercial fishing boat. The ex-spouses dispute the meaning of the term "profits." Each party maintains that the other owes a large sum of money pursuant to the agreement. The superior court approved a standing master's recommendation that interpreted "profits" to mean "payment from the cannery, less deductions for fuel, dues and other advancements." Because the superior court's findings regarding the parties' reasonable expectations at the time of the dissolution agreement are not clearly erroneous, and because the superior court's interpretation of the provision accurately reflects those expectations, we affirm. II. FACTS AND PROCEEDINGS Morrill and Jessica Mahan married in 2004 and dissolved their marriage in June 2011. During their marriage, the couple had one medically fragile child. Morrill was the primary wage-earner for the family. As reported in their petition for dissolution, Morrill's total gross wages for 2010 were $137,362.81 while Jessica's total gross wages were $16,716.21. In addition, the petition indicated that Morrill and Jessica had each received $31,292.14 in gross income in 2010 from their commercial fishing business. The petition for dissolution included an addendum providing for the temporary maintenance of joint interests in the marital home and commercial fishing business. The parties agreed to maintain joint ownership of the marital residence and to split the profits from the commercial fishing business until October 2012, at which point Jessica was to take sole title to the home and Morrill was to take sole title to the commercial fishing boat and permit: The house and property will be owned jointly until 10/1/2012. The mortgage and utilities will be paid 50% by husband and wife. On 10/1/2012 the house will be paid by wife 100% and the house and property will be then turned over to the wife. The title will be solely in the wife's name. Household furnishings, everything in it will belong to wife. The commercial fishing boat will be owned jointly until 10/1/2012 and operated by the husband. The profits will be split equal between husband and wife after the cost of fuel and can{nelry dues. On 10/1/2012 the commercial fishing boat and permit will be then turned over to the husband. The title will be solely in the husband's name. A. The Initial Dissolution Hearing In June 2011 Magistrate Judge Jennifer Wells, serving as a standing master for the superior court, heard testimony from Morrill and Jessica before recommending that the superior court approve their dissolution. Morrill's and Jessica's testimony emphasized the connection between specific provisions of the agreement and the best interests of their child in light of her medical condition. Mor-rill and Jessica planned to rotate in and out of the marital home every two weeks so that their daughter would not need to travel back and forth between two homes. Morrill also agreed to remain named on the home mortgage even after the transfer of title to Jessica because she would be unable to obtain a low interest rate for the mortgage if she were to refinance on her own. Morrill testified that he intended to stay on the mortgage because "three percent interest . [is] hard to beat for [Jessica] and my daughter needs a place to live...." Magistrate Judge Wells found that the dissolution agreement was fair and that Morrill and Jessica entered into the agreement freely and voluntarily. The superior court promptly approved the master's report and granted the dissolution. B. Jessica's Motion To Enforce Despite the amicable dissolution proceeding, Morrill and Jessica's post-dissolution relationship soon became more adversarial. In October 2011 Jessica filed her first motion for an order enforcing the dissolution decree. The motion alleged that Morrill was imper-missibly removing from the home property that belonged to Jessica under the terms of the dissolution agreement. At the evidentia-ry hearing related to her motion to enforce, Jessica also alleged that Morrill had not paid her the 50% share of the 2011 commercial fishing profits to which he had agreed. The standing master's report concluded that Mor-rill was obligated to pay Jessica half of the +2011 commercial fishing income from the cannery, less fuel and dues, immediately. Morrill immediately objected to the master's report, arguing that the word "profit" meant "the positive income left after subtracting expenses from revenue," and that he was not afforded an opportunity to subtract his expenses other than fuel and cannery dues. He asserted that typical additional expenses included "pay[ing] deckhands," as well as "supplies, gear, bait, etc.," and that he typically spends "thousands of dollars in preseason costs . out of pocket before the boat even gets in the water." Superior Court Judge Anna Moran conducted a de novo review and approved the master's report. Addressing Morrill's objection, the superior court found "that Master Wells reasonably concluded Mrs. Mahan was to receive 50% of 2011 income from cannery income less deductions for fuel, dues and other advancements" and ordered payment of that amount. Following the order, Morrill made a one-time $15,000 payment to Jessica. But Morrill now characterizes this payment as an "advance" that did not "account[ ] for Jessical's] share of expenses." C. Jessica's Motion To Show Cause And Morrill's Cross-Motion For Money Judgment In July 2018 Jessica filed a motion to show cause alleging, among other grievances, that Morrill had "failed to pay any funds towards the 2012 fishing money owed or demonstrate [that] he fully paid her portion of 2011 funds." In opposition, Morrill filed a cross-motion for money judgment and asserted for the first time that the total fishing losses in 2011 and 2012 amounted to $96,826. He requested a judgment in the amount of $48,-4138-half of the total losses. Jessica responded that Morrill in fact owed her $49,079 as her share of the 2011 and 2012 fishing profits. After hearing additional testimony from Morrill and Jessica, Magistrate Judge Wells issued another report, which noted that the term "profits" already had been defined in her previous report and had been reviewed de novo by the superior court following Mor-rill's objection in 2012. Nevertheless, Magis trate Judge Wells held an additional eviden-tiary hearing and issued a new series of findings in a master's report, which concluded that "[tlhere is virtually nothing in the contract's purpose, the extrinsic evidence, or the contract's written terms, to support Mr. Mahan's interpretation." The report recommended that the superior court "continue to use its prior definition of this term." In January 2014 the superior court approved the master's report and ordered that the term "profits" continue to be defined as "payment from the cannery, less deductions for fuel, dues and other advancements." Morrill appeals. III. 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." IV. DISCUSSION The sole issue on appeal is the superior court's interpretation of "profits" to mean "payment from the cannery, less deductions for fuel, dues and other advancements." Morrill contends that the definition of "profits" is unambiguous and means "net profits," or "the excess of revenues over expenditures." He argues that the superior court erred by failing to apply this definition when it approved the standing master's report. Morrill also alleges that Jessica was a partner in the commercial fishing business. Citing his 2011 and 2012 federal income tax returns, Morrill asserts that the commercial fishing business operated at a loss, and he argues that Alaska partnership law requires Jessica to pay a 50% share of the business's alleged losses in 2011 and 2012. In the alternative, Morrill argues that even if the definition of "profits" is ambiguous, AS 25.24.220(g) "prohibited [the trial] court from using principles of contract interpretation to modify a dissolution agreement" without the consent of both ex-spouses. Finally, Morrill argues that even if the fishing profits provision is ambiguous and the superior court had authority to resolve that ambiguity, it erred by relying on impermissible self-serving testimony from Jessica about her subjective intent as extrinsic evidence. He asserts that the superior court should have instead resolved any ambiguity in favor of his definition. But as Magistrate Judge Wells concluded, "(there is virtually nothing in the contract's purpose, the extrinsic evidence, or the contract's written terms to support Mr. Mahan's interpretation." A. The Definition Of "Profits" In The Context Of The Commercial Fishing Provision Of The Dissolution Agreement Is Unambiguous. "We examine 'both the language of the [agreement] and extrinsic evidence to determine if the wording of the [agreement] is ambiguous.'" Although Morrill argues that extrinsic evidence may only be considered if the plain language of an agreement reveals ambiguity, that is not the law in Alaska. Rather, "[elxtrinsic evidence may always be received on the question of meaning " Morrill argues that the term "profit" is so well defined, in both ordinary and technical usage, as "total revenue minus total expenditures" that no other definition could possibly reflect the reasonable expectations of the parties. But while total revenue minus total expenditures may be a common meaning of the term "profit," it is by no means the only definition. Moreover, interpretation of a contract term does not fake place in a vacuum, but rather requires consideration of the provision and agreement as a whole. With that principle in mind, our starting place is the commercial fishing provision of the dissolution agreement, which provides: The commercial fishing boat will be owned jointly until 10/1/2012 and operated by the husband. The profits will be split equal between husband and wife after the cost of fuel and can{nelry dues. On 10/1/2012 the commercial fishing boat and permit will be then turned over to the husband. The title will be solely in the husband's name. Read as a whole, the commercial fishing provision undermines Morrill's position. If the term "profit" already contemplated subtraction of all expenditures, then there would be no reason to specify that specific expenses such as fuel costs and cannery dues were to be subtracted. The maxim of construction expressio unius est exclu-sio alterius applies when "parties list specific items in a document" and instructs that "any item not so listed is typically thought to be excluded." This principle suggests that expenditures other than fuel and cannery dues were not intended to be included because the parties did not list them. Our "preferred method of interpreting contracts is to reconcile conflicting terms in a way that gives effect to them all," and it is the superior court's interpretation of "profits"-not Mor-rill's-that best achieves this end. The interpretation of "profits" to mean fishing income finds substantial support in the extrinsic evidence findings made by Magistrate Judge Wells and relied upon by the superior court. The relevant findings are as follows: ' 7. . [Ms. Mahan] argues that this agreement was designed to give her extra income flow in the short term, recognizing the income disparity between the parties. 11. . [Alt the time of the dissolution, Mr. Mahan reported an adjusted annual income of $129,649. Ms. Mahan reported an adjusted annual income of $47,482. In the petition, each party reported that they received $31,292 in fishing income. 12. This income disparity has widened. Mr. Mahan continues to commercial fish and work lucrative jobs with employers such as Conoco Phillips and Chugach Electric. Ms. Mahan no longer receives commercial fishing income, and does not enjoy lucrative employment. 18. The parties' tax returns[ ] regarding the fishing business show the following: Year Loss Profit 2012 $78,462 2011 $18,364 2010 $3,874 2009 $24,933 2008 $33,724 2007 $36,251 2006 $28,255 2005 $82,847 14. Ms. Mahan argues that the parties historically used the fishing business as a tax shelter. The reported profit and losses tend to corroborate this testimony. 15. Given the parties' disparate incomes, cooperative agreements, and desire to work together for [their daughter's] ongoing security and stability, it is hard to imagine that they intended Ms. Mahan to pay Mr. Mahan 50% of whatever loss he reported on his tax return.... 16. . [The dissolution petition reflected more than $32,000 in actual income to each party from the 2010 fishing business-yet the tax return reported a $3,874 . profit. This difference suggests that the parties had a shared view of the [business] as an income [tax] shelter, and the check from the cannery as income. 18. . This particular contract seems clear. The parties stated "profit." They did not, either in writing or at the hearing, state that they intended to share "profit and loss." Additionally, they did not refer- | ence the tax returns. Instead, their language references the cost of fuel and cannery dues which is consistent with the fact that, at the end of the fishing season, the 'cannery writes a check to a fisherman less these amounts. - 19. There is virtually nothing in the contract's purpose, the extrinsic evidence, or the contract's written terms, to support Mr. Mahan's interpretation. There is ample evidence to support these findings, and the findings reinforce the conclusion that the parties intended to split the income derived from Morrill's commercial fishing less costs for fuel and cannery dues. Morrill and Jessica entered into other cooperative agreements to provide for their daughter at the time of the dissolution, which supports the inference that two years of shared fishing money was designed to provide temporary support to Jessica in her role as their daughter's primary caregiver and not designed to create a financial business-focused burden both parties knew Jessica would be unable to repay. Elsewhere in the dissolution agreement the parties asserted that the fishing business provided $31,292 in income to Jessica in 2010, and nowhere in the agreement do the parties refer to the tax returns indicating a history of commercial fishing losses. Instead, the dissolution agreement acknowledges only the positive income provided by the commercial fishing. Finally, our inquiry seeks "to give effect to the reasonable expectations of the parties" at the time of the agreement. With this in mind, it is noteworthy that Morrill did not assert his belief that the agreement was intended to provide for the sharing of both losses and profits until two years after the agreement was entered. Morrill suggests that the magistrate judge and the superior court made inappropriate use of Jessica's testimony in their findings. He alleges that "both [Magistrate Judge Wells and Judge Moran] relied entirely upon Jessica's self-serving testimony" in their respective analyses. But a party may "testify[ ] about its understanding in objective terms . sufficiently detailed to enable [the] trier of fact to form its own judgment as to the reasonableness of the party's understanding and the likelihood that the other party would have the same understanding." Here, the language of the findings makes clear that Magistrate Judge Wells did not rely solely on Jessica's testimony. For example, Magistrate Judge Wells's finding of an income disparity between the parties was based on details recorded in the dissolution agreement itself, And the parties' 2011 and 2012 tax returns corroborate the testimony from both parties at the initial dissolution proceeding that providing short-term finan cial support for Jessica was in the best interests of their child. Moreover, it was not unreasonable for Magistrate Judge Wells to draw an inference from the consistent tax losses recorded in Morrill and Jessica's pre-dissolution tax returns that the commercial fishing business was used as a tax shelter. Magistrate Judge Wells's inference that it is unlikely that the parties "intended Ms. Ma-han to pay Mr. Mahan 50% of whatever loss he reported on his tax return" is supported by both Morrill's and Jessica's testimony at the initial dissolution hearing in 2011-testi-mony that provides the best window into the parties' understanding of the agreement at the time it went into effect. The findings also rely on undisputed testimony from Jessica regarding how the cannery typically paid fishermen. Contrary to Morrill's alternative argument that the superior court improperly modified the terms of the dissolution agreement, "interpret[ing] a property agreement's provisions to clarify confusing language and resolve ambiguity" is not only appropriate, but "required under our case law" because "Ian] agreement entered into in connection with a dissolution proceeding is a contract subject to interpretation under contract principles." Thus, in our independent judgment, the plain text of the dissolution agreement's commercial fishing provision and the extrinsic evidence both support the conclusion reached by the superior court. Because the superior court's factual findings are not clearly erroneous and its inferences drawn from extrinsic evidence are otherwise supported by substantial evidence, and because the plain text of the dissolution agreement supports the superior court's interpretation, we affirm the superior court's interpretation of the contract terms. v. CONCLUSION We AFFIRM the superior court's order interpreting "profits" to mean "payment from the cannery, less deductions for fuel, dues and other advancements." . Villars v. Villars, 277 P.3d 763, 768 (Alaska 2012) (internal quotation marks and citations omitted). . While Morrill argued below that the commercial fishing business operated as a partnership, he did not raise this argument on appeal until his reply brief. It is well established that "issues not argued in opening appellate briefs are waived." See Hymes v. DeRamus, 222 P.3d 874, 887 (Alaska 2010). Even if Morrill's partnership argument was not waived, it would not succeed because the only evidence supporting the existence of a partnership was the joint ownership of the fishing boat. AS 32.06.202(c)(1) provides that joint ownership of an asset "does not by itself establish a partnership, even if the co-owners share profits made by the use of the property." . Villars, 277 P.3d at 768 (alteration in original) * (quoting N. Pac. Processors, Inc. v. City & Borough of Yakutat, 113 P.3d 575, 579 (Alaska 2005)). * . See Alyeska Pipeline Serv. Co. v. O'Kelley, 645 P.2d 767, 771 n. 1 (Alaska 1982) (rejecting a two-step approach to plain language and extrinsic evidence in contract interpretation and noting that its application was "artificial and unduly cumbersome," and "that it offers no advantage over [an approach] which initially turns to extrinsic evidence for such light as it may shed on the reasonable expectations of the parties"). . Alaska Diversified Contractors, Inc. v. Lower Kuskokwim Sch. Dist., 778 P.2d 581, 584 (Alaska 1989) (citing Alyeska Pipeline, 645 P.2d at 771 n. 1). . See Fairbanks N. Star Borough v. Tundra Tours, Inc., 719 P.2d 1020, 1024 (Alaska 1986) ("The 'parties' reasonable expectations are assessed through resort to the language of the disputed provision and other provisions of the contract...." (citing Peterson v. Winom, 625 P.2d 866, 872 n. 10 (Alaska 1981))). . Tesoro Alaska Co. v. Union Oil Co. of California, 305 P.3d 329, 334 (Alaska 2013) (quoting Bentley Mall Assocs. v. ADC Distrib. Corp., Mem. Op. & J. No. 865, 1997 WL 33812770, at *1 (Alaska Oct. 15, 1997)). . Hussein-Scott v. Scott, 298 P.3d 179, 182 (Alaska 2013). . Villars v. Villars, 277 P.3d 763, 768 (Alaska 2012). . Nautilus Marine Enters., Inc. v. Exxon Mobil Corp., 305 P.3d 309, 317 (Alaska 2013) (second alteration in original) (quoting Alaska Tae Woong Venture, Inc. v. Westward Seafoods, Inc., 963 P.2d 1055, 1067 (Alaska 1998)); see also Norville v. Carr-Gottstein Foods Co., 84 P.3d 996, 1003 (Alaska 2004) (Testimony of a party as to his subjective intentions concerning the meaning of a particular clause in a contract is not probative unless the party in some way expressed or manifested his understanding at the time of contract formation."). . Song v. Song, 972 P.2d 589, 593 (Alaska 1999). . McCarter v. McCarter, 303 P.3d 509, 514 (Alaska 2013). . Knutson v. Knutson, 973 P.2d 596, 600 (Alaska 1999).

10436861

Robin Floyd LOWN, Appellant, v. NICHOLS PLUMBING AND HEATING, INC., Appellee

Lown v. Nichols Plumbing & Heating, Inc.

1981-10-16

No. 5087

554

561

634 P.2d 554

634

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:35:28.823349+00:00

CAP

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

Robin Floyd LOWN, Appellant, v. NICHOLS PLUMBING AND HEATING, INC., Appellee.

Robin Floyd LOWN, Appellant, v. NICHOLS PLUMBING AND HEATING, INC., Appellee. No. 5087. Supreme Court of Alaska. Oct. 16, 1981. William G. Royce and Richard H. Wollen-berg, Sitka, for appellant. Paul M. Hoffman, Robertson, Monagle, Eastaugh & Bradley, Juneau, for appellee. Dimond, Senior Justice, sitting by assignment made pursuant to article IV, section 16 of the Constitution of Alaska.

4909

28704

OPINION Before RABINOWITZ, C. J., CONNOR, BURKE and MATTHEWS, JJ., and DIMOND, Senior Justice. MATTHEWS, Justice. In February 1978, the appellee, Nichols Plumbing and Heating, Inc. sued to quiet title to a parcel of land in the Chilkat Acres subdivision, located at Swanson Harbor, twenty-six miles west of Juneau. Appellant Robin Lown answered and counterclaimed, asserting that he was the fee simple owner of the land in question. The parties moved for summary judgment and the court ruled in favor of Nichols. Lown has appealed. We affirm. On January 1, 1965, Walter and Carol Reams executed a promissory note to the Coast Small Business Investment Company, a California corporation. On December 14, 1965, as security for this note, the Reams signed a deed of trust covering several parcels of land, including the parcel at issue. Although this land lies within the Juneau recording district, the deed of trust was originally recorded in Petersburg, and was not correctly recorded in Juneau until May 1967. Eight days after he executed the deed of trust, Walter Reams executed and recorded a deed conveying the land to J. J. Lown, appellant's father. However, Reams did not tell J. J. Lown about this conveyance until early 1966. Shortly thereafter, the two visited the property. According to Lown, Reams told him that he had deeded Lown the property to induce him to build a lodge on it, so that the surrounding parcels retained by Reams would be saleable as cabin sites. Lown stated that he decided to accept the conveyance and to proceed with the lodge project in the summer of 1966. On a second trip to Swanson Harbor that summer, Reams and Lown set up a wall tent on the land deeded to Lown. This tent was to be used in the initial stages of the lodge construction. Because they were unable to come up with construction money, however, nothing further was done in 1966. In June 1967, Lown and Laura Bailey moved to Swanson Harbor and undertook construction of a 48' X 64' lodge. Their building and living supplies were paid for by Reams and delivered by him by boat from Juneau. However, neither Lown nor Bailey were paid for their work. After Reams' death in the summer of 1968 Lown and Bailey were forced to abandon construction because of their lack of money and inability to get supplies. In July of 1967, Coast began non-judicial foreclosure pursuant to the terms of the deed of trust. Notice of Reams' default was mailed to Lown at his Juneau address, but he evidently did not receive this notice, although Reams had apparently been bringing his mail to Swanson Harbor. Reams was served personally with the notice of default, but never told Lown about it. The foreclosure sale took place on November 7, 1967, and Coast bought all the property listed in the deed of trust for the amount owed by Reams. In December 1967, Lown, at the instigation of Bailey, finally asked Reams to deliver the deed to the property. Reams did so and explained to Lown that he had taken a loan on the rest of the property, but that the section deeded to Lown was unencumbered. Reams did not mention that the foreclosure sale had already occurred. Lown deeded the land to Bailey and his son Robin in 1969. In 1975, Bailey deeded her interest in the land to Robin. Coast conveyed its interest to Nichols in April 1976, about two years before commencement of this action. AS 34.15.290, provides: Invalidity of unrecorded conveyance. A conveyance of real property in the state hereafter made, other than a lease for a term not exceeding one year, is void as against a subsequent innocent purchaser or mortgagee in good faith for a valuable consideration of the property or a portion of it, whose conveyance is first duly recorded. An unrecorded instrument is valid as between the parties to it and as against one who has actual notice of it. The question in this case is whether J. J. Lown was, to use the terms of the statute, ah innocent purchaser in good faith for a valuable consideration, before Coast's deed of trust was properly recorded in Juneau in May of 1967. If he was not, Robin Lown cannot claim priority of title under this statute. Instead, the general rule that a "purchaser at a deed of trust sale takes land subject only to those encumbrances which were created before execution of the trust deed. ." governs. J. J. Lown was initially a donee rather than a purchaser. By working to build a lodge on the property he substantially relied on his grant. Arguably, he may be said to have then given valuable consideration and perhaps should be considered to be a purchaser for the purposes of AS 34.15.290 as of the time of his substantial reliance. If so, the statute cannot be construed to protect him because his substantial reliance did not take place until June of 1967, after Coast's deed of trust was properly recorded. This result is well supported by authority. Where a purchase is made, but the purchaser does not give substantial consideration until after a prior conveyance is recorded, the purchaser takes subject to the prior conveyance. This does not mean, as the dissent suggests, that one making installment payments must check the title at the recording office before making each payment. All that is required is an initial payment of substantial consideration, or a promise to pay which has been relied upon by a third person. Part of the policy of the rule is based on a change of position in reliance on the absence of record or actual notice. As the court stated in La Fon v. Grimes: The principle upon which the doctrine of innocent purchaser for value rests, like equitable principles in general, is not a hard and fast rule of narrow application, but one to be liberally and equitably applied. Under it relief is denied to a purchaser without notice who has not paid value, on the ground that his equity arises, not out of his mere lack of notice, but out of injury to him, through an innocent change of position to his prejudice. It is therefore denied where the matter of the payment remains executory between purchaser and seller, and there is no irrevocable change of position. It is granted where either the buyer has paid the purchase price or has entered with third persons into a binding obligation with regard to it, whether the obligation arises out of the execution or the assumption of negotiable promissory notes, or other form of undertaking which the buyer is able to perform, and from which he cannot in law withdraw. McAnally v. Panther (Tex.Civ.App.) 26 S.W.2d 478; Essex v. Mitchell (Tex.Civ.App.) 183 S.W. 399; Tobin v. Benson (Tex.Civ.App.) 152 S.W. 642; Sparks v. Taylor, 99 Tex. 411, 90 S.W. 485, 6 L.R.A. (N.S.) 381; Clemmons v. McDowell (Tex.Civ.App.) 5 S.W.2d 224. 86 F.2d 809, 812-13 (5th Cir. 1936). Since J. J. Lown, at best, stood in the position of a subsequent purchaser for valuable consideration only after Coast's deed of trust was properly recorded, the deed of trust had priority over his deed. Accordingly, the judgment is AFFIRMED. RABINOWITZ, C. J., dissenting. COMPTON, J., not participating. . Alaska Laborers Training Fund v. P & R Enterprises, Inc., 583 P.2d 825, 826 (Alaska 1978) quoting Lynch v. McCann, 478 P.2d 835, 836-37 (Alaska 1970). . We are aware of no cases holding that a donee who spends money in reliance on a deed of gift is protected under recording statutes similar to AS 34.15.290. Generally, donees are not regarded as receiving protection. See 6A R. Powell, The Law of Real Property § 915 at 284 (1980). However, see also Note, 41 U. of Colo.L.Rev. 290, 292 — 93 (1969) where a proposal is made for statutory reform recognizing the interest of a relying donee. . E. g. La Fon v. Grimes, 86 F.2d 809, 812 (5th Cir. 1936); Givens v. Turner, 272 Ky. 211, 113 S.W.2d 1166, 1170 (1938); 4 A. Casner, American Law of Property § 17.10 at 557 (1952); 8 G. Thompson, Real Property § 4321, 4322, 4323 (J. Grimes rev. ed. 1963); R. Powell, supra note 3 § 916 at 288; 3 J. Pomeroy, A Treatise on Equity Jurisprudence § 750, 751, 755 (5th ed. 1948). . A broad reading of Givens v. Turner, supra, might lead to a contrary result, but the Court of Appeals of Kentucky has since opted for a narrower reading. In Young v. Adams, the court stated that: It is also contended that appellant's status as an innocent purchaser is destroyed because part of the purchase price was not paid until after the deed from H. C. Fields to Theo and Joseph Fields was recorded. In the deed from Orpha Moore to appellant, a vendor's lien was retained to secure a part of the purchase price. This lien was released by marginal endorsement on May 5, 1938. We have held that a purchaser who obtains notice of an unrecorded conveyance before payment of the purchase price will not be considered as an innocent purchaser for value. Kentucky River Coal Corporation v. Sumner, 195 Ky. 119, 241 S.W. 820; Givens v. Turner, 272 Ky. 211, 113 S.W.2d 1166. In the Givens case, we said, although the statement was not material to the decision, that if any of the purchase price is paid subsequent to notice of the first conveyance, the second will not be considered an innocent purchaser. We doubt that the rule is as broad as the opinion would indicate, but it is not necessary to turn this case on a reexamination of that question. 267 S.W.2d 85, 87 (Ky.App.1954).

10435633

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

Shaw v. State

1981-10-08

No. 5311

381

383

634 P.2d 381

634

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T17:35:28.823349+00:00

CAP

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

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

John SHAW, Appellant, v. STATE of Alaska, Appellee. No. 5311. Court of Appeals of Alaska. Oct. 8, 1981. Daniel T. Saluri, Fairbanks, for appellant. Peter A. Michalski, Asst. Atty. Gen., Anchorage, and Wilson L. Condon, Atty. Gen., Juneau, for appellee. Before BRYNER, C. J., and COATS and SINGLETON, JJ.

1219

7310

OPINION COATS, Judge. On April 10, 1973, John Shaw did not appear for sentencing on felony convictions for burglary and larceny in a building. The trial court issued a bench warrant for Shaw's failure to appear. According to his testimony, Shaw left the state of Alaska in March of 1973, prior to sentencing, in order to find work. Thereafter, Shaw resided in St. Louis, Missouri, until September 19, 1978, at which time he returned to Alaska. On December 29, 1979, after being stopped for a minor traffic violation in Fairbanks, Shaw was arrested on the 1973 bench warrant. Six years, ten months, and four days after commission of the crime, on February 14, 1980, Shaw was indicted for his failure to appear for sentencing in the 1973 felony conviction. Shaw was convicted in a jury trial and was sentenced to three years with two suspended. This sentence was made consecutive to the sentences on his burglary and larceny convictions. Shaw has appealed to this court, contending that he was not prosecuted until after the five year statute of limitations had expired. This appeal requires us to interpret AS 12.10.040, which reads as follows: When period of limitation does not run. (a) The period of limitation does not run during any time when the accused, with a purpose to avoid detection, apprehension, or prosecution, is outside the state or is absent from his usual place of abode within the state, but in no case shall this provision extend the period of limitation otherwise applicable by more than three years. (b) The period of limitation does not run during any time when a prosecution against the accused for the same conduct is pending in this state. Shaw admitted that he failed to appear for sentencing in his burglary and larceny case and that he resided outside the state for several years during the period in question. However, he contended that he believed these convictions "had been taken care of" and that he did not remain outside the state "with the purpose to avoid detection, apprehension or prosecution." Shaw argues that since he was not outside the state with the purpose to avoid prosecution, AS 12.10.040, which tolls the statute of limitations, does not apply to him and his prosecution was therefore commenced after the statute of limitations expired. The trial court ruled the statute of limitations was tolled under AS 12.10.040(b) because, with the issuance of a bench warrant for failure to appear, "a prosecution against the accused for the same conduct [was] pending in this state." AS 12.10.040(b). Since reliance on this theory results in the conclusion that the statute of limitations was tolled as a matter of law, it made Shaw's allegations under AS 12.10.040(a) irrelevant for establishing a statute of limitations defense. The trial court therefore ruled that Shaw was precluded from presenting a statute of limitations defense at trial. We agree with the trial court's decision. AS 12.10.030(b) provides: When period of limitation runs. A prosecution is commenced either when an indictment is found or when a warrant is issued, provided that such warrant is executed without unreasonable delay. Shaw argues that a prosecution was not pending in the manner contemplated by AS 12.10.040(b). Specifically, Shaw asks this court, for purposes of the tolling provision, to distinguish a bench warrant, issued upon a defendant's failure to appear, from an arrest warrant based upon complaint or information. Shaw contends that the former does not evidence the state's intent to prosecute the defendant for the separate offense of failure to appear but, rather, only its intent to apprehend the accused for purposes of sentencing in the original proceeding. Though it may well be that the statute of limitations is to be construed in favor of the defendant, Padie v. State, 557 P.2d 1138 (Alaska 1978), it does not follow that an unambiguous tolling provision should be denied the clear import of its language. AS 12.10.030(b) and AS 12.10.040 do not require that a warrant be based on an indictment, information, or other charging document before the statute of limitations is tolled by its issuance. Rather, under the plain language of the statutes, the period of limitations on a particular offense does not run during any time when a warrant is issued for the same conduct, provided that such warrant is executed without unreasonable delay. Statutes of limitation serve to encourage promptness in the prosecution of actions and thus avoid the injustice which may result from the prosecution of stale claims. Haakanson v. Wakefield Seafoods, Inc., 600 P.2d 1087 (Alaska 1979). We fail to see how permitting a bench warrant for failure to appear to stop the running of the limitation period is inconsistent with this general underlying policy.. We do not believe that requiring the state to file a complaint for failure to appear and requiring the issuance of a second warrant would serve any useful purpose. We have concluded that there are sufficient safeguards provided in the statutes since the statute of limitations is only tolled for a prosecution based upon the conduct for which a warrant is issued and since the execution of the warrant may not be unreasonably delayed. We therefore find that the running of the statute of limitations was tolled for at least the one year, ten months, and five days necessary to bring prosecution of the offense of failure to appear within the five-year period allowed by the statute. Accordingly, the judgment of the superi- or court is AFFIRMED. . AS 12.30.060(1) provides in pertinent part: Violation of conditions. A person released under the provisions of this chapter who wilfully fails to appear before a court or judicial officer as required. . . (1) If he was released in connection with a charge of felony, or while awaiting sentence or pending appeal after conviction of an offense, is guilty of a felony.... .AS 12.10.010 provides: General time limitations. A prosecution for murder may be commenced at any time. Except as otherwise provided by law, no person shall be prosecuted, tried, or punished for any offense, not murder, unless the indictment is found or the information or complaint is instituted within five years next after such offense shall have been committed. . The trial court did instruct the jury that in order to find Shaw guilty of failure to appear they must find that Shaw's failure to appear was wilful. . Shaw argues that the issue of whether he was outside the state for the purpose to avoid prosecution is a question of fact for the jury. Our disposition of this case makes it unnecessary for us to decide this question. . The trial court found that there was a reasonable basis for delay in executing the warrant to toll the statute of limitations "for a period of at least the one year, ten months and five days necessary to bring prosecution of the offense charged herein within the period allowed by the statute of limitations." This finding has not been challenged on appeal.

11866712

B.J., Appellant, v. J.D., Appellee

B.J. v. J.D.

1997-12-19

No. S-7878

113

119

950 P.2d 113

950

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:45:37.779961+00:00

CAP

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

B.J., Appellant, v. J.D., Appellee.

B.J., Appellant, v. J.D., Appellee. No. S-7878. Supreme Court of Alaska. Dec. 19, 1997. Terrence H. Thorgaard, Fairbanks, for Appellant. Julie A. Smith, Law Office of Julie A. Smith, Fairbanks, for Appellee. Before MATTHEWS, C.J., and COMPTON, EASTAUGH, FABE and BRYNER, JJ.

3940

23802

OPINION FABE, Justice. I. INTRODUCTION This appeal involves a dispute between B.J. and J.D. over the custody of V.J., B.J.'s daughter. The court awarded primary physical custody to J.D., who is not the child's biological father, and B.J. appeals. She argues that the superior court lacked jurisdiction over the case and that it applied the wrong standard in awarding custody. Because the superior court properly assumed jurisdiction under the Uniform Child Custody Jurisdiction Act (UCCJA) and made factual findings consistent with the "welfare of the child" test that is applicable to a custody suit involving a non-biological parent, we affirm. B.J. also contends that the trial court erred in denying her motion for attorney's fees. However, because there is no evidence that J.D. acted in bad faith under AS 25.20.115, we conclude that the superior court's denial of B.J.'s motion for attorney's fees was not an abuse of discretion. II. FACTS AND PROCEEDINGS B.J. and J.D. met in 1986. They had an intimate relationship, sometimes living together, until 1993. V.J. was. born in Fairbanks in June 1989. At the time of V.J.'s birth, B.J. and J.D. were not living together, although J.D. would often spend the night at B.J.'s apartment. J.D. testified at trial that he believed, and B.J. told him repeatedly, that he was V.J.'s biological father. Both B.J. and J.D. helped care for V.J., and J.D. provided financial support to B.J. and V.J. J.D. and B.J. ended their relationship in 1993. J.D. apparently sent V.J. to be cared for in Anchorage, but V.J. was returned to B.J.'s custody by court order. J.D. did not see the child for several months. He initiated a custody action in May 1993, but a court-ordered paternity test established that he was not V.J.'s father, and the trial court dismissed the custody action. In November 1993 B.J. took V.J. to Hawaii. B.J. and V.J. apparently lived in at least five locations during their approximately two years in Hawaii. B.J. lived with roommates and sometimes families with whom B.J. would trade child care responsibilities. J.D. maintained contact with V.J. through the phone and the mail. In February 1995 B.J. sent V.J. to J.D. for an indefinite stay. V.J. lived in Fairbanks with J.D. for five months while B.J. remained in Hawaii. In July 1995 B.J. returned to Fairbanks and attempted to regain custody of V.J. J.D. filed an action seeking legal and primary physical custody of V.J. After hearings on interim custody, Superior Court Judge Jay Hodges ordered a shared alternating week custody schedule. After another series of hearings on interim custody, Judge Hodges modified this order due to concerns raised by a counselor and a doctor, both of whom had examined Y. J. Dr. Marvin Bergeson, in his report and testimony, concluded that V.J. showed physical signs "highly suspicious for sexual abuse." These physical signs included "a very large hymenal opening, with the hymen being thickened, narrow, irregular." He testified that such findings were consistent with "chronic penetration" in the past, although not in the period immediately preceding the examination. The counselor, Aviva Stinson, testified that V.J. insisted she did not want to go to her mother and that V.J. acted strangely when the subject of her mother came up. The superior court restricted B.J. to supervised visitation with V.J. pending trial. Supervisors and counselors who observed the interaction between B.J. and V.J. during these visits later testified that the mother-daughter relationship appeared awkward, unnatural, and unaffectionate. A three-day trial took place in June 1996. The superior court found that it had jurisdiction over the action. After hearing the evidence, the court awarded shared legal custody to the parties but concluded that V.J.'s welfare and best interest "dictate[d] that the father [J.D.] should have physical custody." The court found that "based on the mother's prior conduct . [V. J.]'s welfare would be in jeopardy if the mother has custody." The court expressed concern about B.J.'s "desire to meet the needs of the child relative to any type of loving relationship," and concluded that B.J. "has demonstrated that she does not have the capacity to meet" V.J.'s "physical, emotional, mental, religious and social needs." The court, however, expanded B.J.'s visitation rights to include unsupervised overnight visits. After two further hearings to clarify visitation, the court signed a custody decree on September 19,1996. The superior court denied B.J.'s motion for attorney's fees. B.J. appeals. III. DISCUSSION A. Did the Superior Court Have Jurisdiction under the Uniform Child Custody Jurisdiction Act? B.J. first challenges the superior court's assumption of jurisdiction over this dispute. J.D. argues that B.J. waived this argument by failing to raise the issue of jurisdiction until her trial brief, nearly a year after J.D. commenced the superior court proceedings. Subject matter jurisdiction is generally a matter of law that we review de novo. See Hydaburg Cooperative Ass'n v. Hydaburg Fisheries, 925 P.2d 246, 248 (Alaska 1996). Because "subject matter jurisdiction issues may be raised at any time during litigation" and "jurisdiction otherwise lacking cannot be conferred by estoppel," the issue of subject matter jurisdiction was properly before the superior court. O'Link v. O'Link, 632 P.2d 225, 226-27 n. 2 (Alaska 1981). Jurisdiction in custody matters is governed by the Uniform Child Custody Jurisdiction Act. See AS 25.30.020(a). A court must determine whether jurisdiction under the UCCJA "exists or does not exist at the time when the petition is filed with the court." Rexford v. Rexford, 631 P.2d 475, 478 (Alaska 1980). B.J. contends that none of the conditions for exercising jurisdiction under the UCCJA exists. She asserts that Alaska was not V.J.'s "home state," that V.J. was not a child in need of aid, and that Hawaii had jurisdiction. While J.D. concedes that Alaska was not V.J.'s "home state" under AS 25.30.020(a)(1)(A) at the time he filed the action, he maintains that the superior court properly asserted jurisdiction under AS 25.30.020(a)(3). We agree. The superior court determined that it had jurisdiction under AS 25.30.020(a)(3), because it "appear[ed] that no other state would have jurisdiction under prerequisites substantially in accordance with (1) or (2) of th[e] subsection." AS 25.30.020(a)(3)(A). Neither Alaska nor Hawaii was V.J.'s home state at the time of filing. When J.D. filed the action, B.J. did not live in Hawaii and did not intend to return to Hawaii. Thus, because no "parent or person acting as parent" continued to live in Hawaii, that state, could not have exercised jurisdiction. Additionally, resolving this custody dispute in Alaska, rather than dismissing it when no other state had jurisdiction, appears to have been "in the best interest of the child." AS 25.30.020(a)(3)(B). The purposes of the UC-CJA include assuring] that litigation concerning the custody of a child takes place ordinarily in the state with which the child and the child's family have the closest connection and where significant evidence concerning the child's care, protection, training, and personal relationships is most readily available. AS 25.30.010(3). The UCCJA is also designed to "discourage continuing controversies over child custody in the interest of greater stability of home environment and of secure family relationships for the child." AS 25.30.010(4). Both of these policy considerations weigh in favor of the superior court's assertion of jurisdiction in this case. We affirm the superior court's assumption of jurisdiction under AS 25.30.020(3). No other state would have had jurisdiction of the case under the UCCJA at the time the action was filed, and it was in V.J.'s best interest for Alaska to exercise jurisdiction over this matter. B. Did the Superior Court Abuse Its Discretion in Awarding Custody of V.J. to J.D. ? 1. Standard of review We will only reverse the superior court's.determination of child custody issues if we are satisfied that the record shows an abuse of discretion or if the controlling factual findings are clearly erroneous. Abuse of discretion is established if the trial court considered improper factors or failed to consider statutorily mandated factors, or improperly weighted certain factors in making its determination. McQuade v. McQuade, 901 P.2d 421, 424 n. 9 (Alaska 1995) (citations and quotations omitted). 2. "Welfare of the child" is the correct test to apply where custody could be awarded to a person other than the biological parent. B.J. argues that the superior court failed to apply the "welfare of the child" test articulated in Turner v. Pannick, 540 P.2d 1051 (Alaska 1975) in awarding custody of V.J. to J.D., who is neither a biological parent nor a stepparent. In Turner v. Pannick, we held that an award of custody to a natural parent is "preferable and only to be refused where clearly detrimental to the child." Id. at 1055. We identified only three circumstances under which a superior court may award custody to a person other than the biological parent: (1) when the biological parent is unfit; (2) when the biological parent has abandoned the child; and (3) when the welfare of the child requires that a non-parent receive custody. Id. We have reaffirmed these principles in Britt v. Britt, 567 P.2d 308, 310 (Alaska 1977), Buness v. Gillen, 781 P.2d 985, 988-89 (Alaska 1989), and Rooney v. Rooney, 914 P.2d 212, 216 n. 8 (Alaska 1996). J.D. argues that the preference for natural parents established by Turner does not apply to this case and relies on Carter v. Brodrick, 644 P.2d 850 (Alaska 1982) to support this contention. Carter, however, did not hold that a biological parent is not preferred over a third party who stands in loco parentis to the child in the determination of custody. Rather, it dealt only with visitation, not custody, and involved a stepfather (the natural mother's former husband), not an unrelated third party. Id. at 855. Indeed, in Carter, we expressly reaffirmed Turner, stating that a court "would have jurisdiction to award custody of a stepchild to the stepparent if the court found that custody with the natural parent would be clearly detrimental to the child." Id. We therefore apply the "welfare of the child" test in this case. B.J. argues that the superior court incorrectly applied the "welfare of the child" test by failing to find that awarding custody to B.J. would be clearly detrimental to V.J. We disagree. A careful review of the superior court's oral findings and written custody decree reveals that the superior court made adequate findings consistent with the standard we prescribed in Turner. The superior court based its oral finding that "[V.J.j's welfare would be in jeopardy if the mother has custody," upon the evidence adduced at trial. The superior court relied on testimony regarding B.J.'s inability to provide a stable home environment or meet her daughter's needs. The trial court heard testimony that B.J. lived a transient lifestyle while in Hawaii between 1993 and 1995. During that time she and her daughter resided at five different addresses, usually shared with other families or individuals who would take responsibility for caring for V.J. B.J. admitted at trial that she was unable to provide a stable life for V.J. during the time they were in Hawaii. These facts led the court to conclude that "Hawaii was really not an acceptable place under the circumstances for [V-J-]," that "she has lived in an unstable, chaotic situation," and that "based on the mother's prior conduct . [V- J.]'s welfare would be in jeopardy if the mother has custody." Furthermore, the testimony of medical experts and counselors suggested that V.J. had been sexually abused while in Hawaii under her mother's care. Although the superior court found that B.J. was neither aware of nor directly involved in the sexual abuse, the court was clearly concerned about the "child's adverse reaction," and found that "her welfare is best served by physical custody in [J.D.]." The court also addressed B.J.'s inability to provide for the physical, emotional, mental, religious and social needs of V.J. The court's finding that B.J. "has demonstrated that she does not have the capacity to meet those needs" is consistent with the evidence in the record. Testimony from persons who supervised B.J.'s visitations in Fairbanks, a custody investigator, and counselors observing interactions between B.J. and V.J., all indicated that the mother-daughter relationship was unaffectionate and awkward. The testimony further suggested that B.J. at times acted inappropriately towards her child, on one occasion slapping V.J.'s forehead and pulling her ears, while on another striking V.J. with a closed fist while tussling with a visitation supervisor. According to the testimony at trial, B.J. also admitted to the custody investigator that she had difficulty disciplining V.J. and wanted and needed help earing for her. The superior court also considered testimony that V.J. was reluctant to visit B.J. unaccompanied or converse with her on the phone. In its oral and written findings, the court noted V.J.'s "concerns regarding her mother," and concluded that it would "not be in [V.J.]'s welfare or interests to return physical custody to [B.J.] The professionals who testified at trial also challenged B.J.'s judgment as a parent and expressed concern that if she were awarded custody, V.J.'s "future will be gone." The court echoed this sentiment by questioning B.J.'s "desire to meet the needs of the child relative to any type of loving relationship." Troubled by B.J.'s plans to go to South Carolina and her transient lifestyle in general, the court commented, "[t]here is some indication that [B.J.] . is not aware of the necessity of the type of relationship that should exist between [J.D.] and [V.J.]." The superior court appropriately applied the Turner standard and concluded that "it would not be in [V.J.'s] welfare . to return physical custody to [B.J.]," and that "[V.J.]'s welfare would be in jeopardy if the mother had custody." In light of these findings, which are substantiated by the record, we conclude that the trial court did not abuse its discretion "by considering] improper factors or failing] to consider statutorily-mandated factors, or improperly weighting] certain factors in making its determination." McQuade, 901 P.2d at 424 n. 9 (citations omitted). Therefore, we affirm the superior court's award of custody to J.D. C. Did the Superior Court Err in Denying B.J.'s Motion for Attorney's Fees? B.J. argues that she was entitled to attorney's fees and maintains that the superi- or court should have considered the "relative economic situations and earning powers of the parties when deciding whether to grant or deny her motion." Lone Wolf v. Lone Wolf, 741 P.2d 1187, 1192 (Alaska 1987) (approving exception to Alaska Civil Rule 82 in cases of divorce). J.D. contends that this limited exception to the rule of prevailing party attorney's fees is inapplicable. He contends that AS 25.20.115 governs the award of attorney's fees resulting from an action to modify, enforce or vacate a child custody award. The decision of which statute or rule applies to an award of fees presents a question of law. The standard of review on questions of law is de novo or independent review. See Langdon v. Champion, 752 P.2d 999, 1001 (Alaska 1988). The rule upon which B.J. relies is not applicable because the instant action did not involve the dissolution of a marriage. We have previously held that the divorce exception to Civil Rule 82 "is based on a broad reading of AS 25.24.140(a)(1) [pertaining to an interim award of attorney's fees in divorce eases] ., and on the reality that there is usually no prevailing party in a divorce case." L.L.M. v. P.M., 754 P.2d 262, 264 (Alaska 1988). Neither of these reasons applies here because this is not a divorce case and J.D. was clearly the prevailing party. In Bergstrom v. Lindback, 779 P.2d 1235, 1238 (Alaska 1989), we applied the "divorce exception" to a custody dispute between an unmarried couple both of whom were biologi cal parents of the child. The present case is distinguishable in many respects. It concerns the rights of a biological parent in relation to those of a non-biological parent. Although the parties in Bergstrom had never been married, they had been living together as husband and wife for fourteen years, and the custody dispute litigated there was closely analogous to custody disputes in divorce cases. Here, by contrast, J.D. filed this action more than three years after the parties had voluntarily ended their relationship and after the trial court had dismissed a lawsuit by J.D. seeking custody as a biological parent. The present case does not bear the same close resemblance to an initial custody proceeding in a divorce action as did Berg-strom. J.D. argues that the circumstances of this case are more akin to the modification of a custody award than to a divorce action. Alaska Statute 25.20.115 provides [i]n an action to modify, vacate, or enforce that part of an order providing for custody of a child or visitation with a child, the court may, upon request of a party, award attorney fees and costs of the action. In awarding fees and costs under this section, the court shall consider the relative resources of the parties and whether the parties have acted in good faith. Although by its terms the statute applies only to actions to "modify, vacate and enforce" child custody and visitation awards, we conclude that it is applicable to the present case. In J.D.'s initial action to gain custody of V.J., filed when he still believed himself to be her natural father, Superior Court Judge Jay Hodges entered a temporary order regarding visitation. J.D. was granted visitation rights, but B.J. was given physical custody of V.J. and the authority to take her to Hawaii on the condition that she return for the start of trial later the following year. When the paternity test established that J.D. was not the biological father, the court dismissed J.D.'s complaint and custody of V.J. remained with B.J. By filing his 1995 complaint and expedited motion for temporary orders, J.D. attempted to modify the substance of the court's earlier custody order and the status quo. Therefore, AS 25.20.115 governs J.D.'s efforts to regain custody of V.J. With respect to modification of custody and visitation orders, we review the denial of a motion for attorney's fees for abuse of discretion. See Kessler v. Kessler, 827 P.2d 1119, 1120 n. 4 (Alaska 1992). In addressing attorney's fees under AS 25.20.115 the court must consider the parties' relative economic situations, as well as whether they have acted in good faith. "The parties' relative financial resources do not necessarily take primacy over the presence or absence of good faith." S.L. v. J.H., 883 P.2d 984, 985-86 (Alaska 1994). B.J. failed to allege at anytime during the proceedings below or in her points on appeal that J.D. acted in a vexatious manner or in bad faith. Thus, the superior court did not abuse its discretion by denying B.J.'s motion for attorney's fees. IV. CONCLUSION We AFFIRM the trial court's assumption of jurisdiction, its award of primary physical custody to J.D., and its denial of B.J.'s motion for attorney's fees. . According to J.D., he continued to support both B.J. and V.J. financially from 1993 onward, paying medical and dental bills, covering B.J.'s rent when she was unable to pay it, and reconnecting B.J.'s phone when she failed to pay her bills so that he could stay in touch with V.J. . B.J.'s brief states, without record support, that she moved to Hawaii in "early 1993." However, B.J. testified at trial that she moved at "the end of November" in 1993. . Stinson, in later testimony, discussed her observations of V.J. and concluded that there was no doubt in her mind that she had heen sexually abused. . Alaska Statute 25.30.020(a) provides: The superior court has jurisdiction to make a child custody determination by initial or modification decree if the conditions set out in any of the following paragraphs are met: (1)this state (A) is the home state of the child at the time of commencement of the proceeding, or (B) had been the child's home state within six months before commencement of the proceeding and the child is absent from this state because of removal or retention by a person claiming custody or for other reasons, and a parent or person acting as parent continues to live in this state; or (2) the child is physically present in this state and is a child in need of aid as defined in AS 47.10.990; or (3) it (A) appears that no other state would have jurisdiction under prerequisites substantially in accordance with (1) or (2) of this subsection, or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine the custody of the child, and (B) is in the best interest of the child that this court assume jurisdiction. .The UCCJA defines the term "home state" as "the state in which the child, immediately preceding the time involved, lived with the child's parents, a parent, or a person acting as parent, for at least six consecutive months." AS 25.30.900(5). The phrase "person acting as parent" is defined as "a person, other than a parent, who has physical custody of a child and who has either been awarded custody by a court or claims a right to custody." AS 25.30.900(9). Finally, the act defines "physical custody" as "actual possession and control of a child." AS 25.30.900(8). Because J.D. had "actual possession and control" of V.J. and "claim[ed] a right to custody" at the time he filed the action, he was a "person acting as parent" under the UC-CJA. However, according to the testimony at trial, V.J. arrived in Fairbanks from Hawaii sometime in February 1995. J.D. filed his action on July 24, 1995, after V.J. had been in Fairbanks for at most five months and about three weeks. . We note for the purpose of clarity that the "best interest of the child" is being considered solely with respect to jurisdiction and not as the basis for awarding custody in matters involving a non-biological parent. . The superior court found that the "primary witnesses involved in this case are here in Alaska in the Fairbanks area" and concluded that Hawaii would be an inappropriate forum "[u]nder the facts and circumstances of this case, particularly where [B.J.] has indicated she doesn't even want to go back to Hawaii." . B.J. continued to have difficulty securing housing when she returned to Fairbanks. By the start of trial, she had lived in at least seven different places. Additionally, J.D. testified that he usually had to cover B.J.'s expenses when she received eviction notices or was unable to pay rent. . Other witnesses testified about B.J.'s lack of parenting skills, alluding to a number of instances in which young children, including V.J., were permitted to stay in the room while adults were viewing pornographic films. . B.J. intended to seek support in raising V.J. from her family in South Carolina. The custody investigator testified that he was concerned about that plan because B.J. had been physically abused by her adoptive parents, and because her contact and relations with her 19 siblings and adoptive parents were not current.

11867051

William J. MACKELWICH, Jr., Appellant, v. STATE of Alaska, Appellee

Mackelwich v. State

1997-12-19

No. A-6224

152

158

950 P.2d 152

950

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T17:45:37.779961+00:00

CAP

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

William J. MACKELWICH, Jr., Appellant, v. STATE of Alaska, Appellee.

William J. MACKELWICH, Jr., Appellant, v. STATE of Alaska, Appellee. No. A-6224. Court of Appeals of Alaska. Dec. 19, 1997. Michael D. Dieni, Assistant Public Defender, and Barbara K. Brink, Public Defender, Anchorage, for Appellant. Nancy R. Simel, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee. Before COATS, C.J., and MANNHEIMER and STEWART, JJ.

3659

23358

MANNHEIMER, Judge. This appeal requires us to interpret AS 16.05.180, a statute that empowers peace officers and other authorized employees of the Department of Fish and Game to engage in warrantless searches when investigating violations of the fish and game laws. The statute specifies that, before an officer exercises this statutory authority to conduct a warrant-less search, the officer must prepare a "signed written statement . [of] the reason the search is being conducted" and must "submit[] [this statement] to the person in control of the property or object to be searched". The question presented in this appeal is whether this statute (and its requirement of a written statement of the reason for the search) applies to situations in which peace officers search property after having obtained the property owner's consent. We hold that AS 16.05.180 does not apply under such circumstances. On May 24, 1995, the Alaska State Troopers in Kenai received an anonymous tip that <cWill Mackel-something" had poached a moose. The anonymous tip also included a second assertion: that this same person was "possibly [involved with] some type of drugs". The caller gave a general description of the property where the alleged moose-poacher lived; the troopers had earlier heard rumors that marijuana was being cultivated in that general area. The next day (May 25, 1995), two Alaska State Troopers went to the residence of William J. Mackelwich, Jr., to investigate this tip. The troopers explained that they had received a report of an illegal moose kill, and they asked for permission to search the property. Both Mackelwich and the other occupant of the property, Glenda Healy, consented to the proposed search. The troopers conceded that they did not prepare a written statement of the reason for the search. (The troopers also conceded that, when they spoke to Mackelwich and Healy, they did not mention their suspicions about marijuana.) After receiving Maekelwieh's consent to look around the property, the two troopers separately walked the grounds. One of the troopers (Trooper Leichliter) found an outbuilding of unusual appearance: the building had no windows, it was covered in tar paper, and it had two padlocks on a heavy door. A generator was running next to the building. Standing outside this building, Leichliter could smell the odor of growing marijuana. Having made these observations, Leichliter concluded his search and waited for his partner to return. After the troopers drove back to Kenai, Leichliter applied for a search warrant. The ensuing search revealed that Mackelwich was cultivating marijuana. Mackelwich was ultimately convicted of fourth-degree misconduct involving a controlled substance (possession of 25 or more marijuana plants), AS 11.71.040(a)(3)(G). On appeal, Mackelwich argues that the search warrant for his property was invalid because the warrant application was based almost entirely on Leichliter's observations of the out-building and the smell emanating from that building. Mackelwich contends that these observations must be suppressed because, even though the troopers had Mack-elwich's consent to search the premises, the troopers failed to provide Mackelwieh with a written statement of the reason for the search as required by AS 16.05.180. The issue is this: Should AS 16.05.180 be construed to govern all warrantless searches conducted to investigate fish and game violations, or should the statute be construed to apply only when a warrantless search is not justified under some other recognized exception to the warrant requirement? For the reasons explained below, we conclude that the latter construction of the statute is correct. The provision of law currently codified in AS 16.05.180 has a seventy-year history. A predecessor statute was first enacted by Congress in 1925 as part of legislation defining the powers of the Alaska (territorial) Game Commission and its agents. See Alaska Game Law of Jan. 13,1925, ch. 75 § 5, 43 Stat. 741 (codified as amended at 48 U.S.C. § 192 (1940)). This federal statute authorized officers and employees of the Alaska Game Commission to conduct warrantless searches of camps and conveyances whenever they had reason to believe that the search would uncover evidence of game offenses: Any officer or employee empowered to enforce this subchapter shall have authority without warrant to search any camp, camp outfit, pack or pack animals, automobile, wagon, or other vehicle, sled, or any boat, vessel, or other craft in the Territorial waters of the United States, or any boat, vessel, or other craft of the United States on the high seas when such officer or employee has reasonable cause to believe that such camp, camp outfit, pack or pack animals, automobile, wagon, or other vehicle, sled, boat, vessel, or other craft has therein or thereon any of the animals or birds, or parts thereof, protected by this subehapter, taken, possessed, sold, intended for sale, or transported contrary to law. 48 U.S.C. § 192. With slight modification, this provision was later codified as § 44 of the 1933 Compiled Laws of Alaska. With the addition of clauses allowing the warrant-less search of fish creels and aircraft, and with the addition of clauses recognizing that fish, bird nests, and bird eggs were also protected, the statute was codified as § 39-6-7 of the 1949 Compiled Laws of Alaska. The present form of the statute — AS 16.05.180 — was enacted in 1959 during the first session of the newly-organized state legislature. See SLA 1959, art. I, chap. 94, sec. 22. The statute now provides: Each peace officer designated in AS 16.05.150 may without a warrant search any thing or place if the search is reasonable or is not protected from searches and seizures without warrant within the meaning of art. I, § 14, Alaska State Constitution, which specifically enumerates "persons, houses and other property, papers, and effects." However, before a search without warrant is made[,] a signed written statement by the person making the search shall be' submitted to the person in control of the property or object to be searched, stating the reason the search is being conducted. A written receipt shall be given by the person conducting the search for property which is taken as a result of the search. The enumeration of specific things does not limit the meaning of words of a general nature. The current statute differs in three major ways from its predecessors. First, the legislature dropped the prior detailed listing of places that might be searched without a warrant — basically, camps and conveyances. Instead, the legis lature declared that officers enforcing the fish and game laws could conduct a warrant-less search of "any thing or place". Second, the legislature added two formal requirements. An officer who intends to conduct a warrantless search must prepare a written statement of the reason for the search and give this written statement to the person in control of the property. Additionally, after the search is completed, the officer must provide a written receipt for any items seized. However, in Nathanson v. State, 554 P.2d 456, 459-460 (Alaska 1976), the supreme court held that when no person is in immediate control of the property to be searched, so that compliance with the statutory requirement of written notice would unreasonably delay the investigation, officers conducting the search are excused from these requirements. Finally, the legislature expanded the scope of the warrantless searches authorized by the statute. The prior statute (in its various forms) had authorized warrantless searches if the officer conducting the search had "reasonable cause" to believe that the search would uncover evidence of a fish and game violation. Although the syntax of AS 16.05.180 is a little garbled, it appears that the current statute was intended to authorize warrantless searches in two different situations. The first situation is "if the search is reasonable". This is analogous to the old requirement of "reasonable cause". The legislature also authorized warrantless searches if the "thing or place [being searched] . is not protected from searches and seizures without warrant within the meaning of art. I, § 14 [of the] Alaska State Constitution". However, this second clause has been rendered largely moot by two court decisions: Wamser v. State, 600 P.2d 1359, 1360-61 (Alaska 1979) (holding that the notice requirements of AS 16.05.180 do not apply when a defendant has no constitutionally protected expectation of privacy in the evidence seized), and Dye v. State, 650 P.2d 418, 422 (Alaska App.1982) (holding that the notice requirements of AS 16.05.180 do not apply when the defendant has no constitutionally protected expectation of privacy in the area or property searched). In Maekelwich's case, the property that was séarched was the land surrounding his residence; this property was protected from warrantless search under Article I, Section 14 of the Alaska Constitution. See Pistro v. State, 590 P.2d 884, 886-87 (Alaska 1979). Moreover, Mackelwich was present when the officers arrived at the property to conduct their investigation. Thus, we are squarely presented with the issue of whether AS 16.05.180 governs the consent search of Maekelwich's land by officers investigating a violation of the fish and game laws. Mackelwich argues that the written notice requirement contained in AS 16.05.180 applies to any warrantless search conducted to investigate a potential violation of the fish and game laws. Under Mackelwich's interpretation, AS 16.05.180 was intended to divide warrantless searches into two categories — those conducted to investigate potential violations of the fish and game laws, and all others. Any warrantless search in the first category (that is, a search conducted to investigate a fish and game offense) is governed by special procedural requirements— specifically, the requirements of written advance notice and a receipt for articles seized. Because AS 16.05.180 does not speak of the recognized exceptions to the warrant requirement, Mackelwich contends that the statute must apply to all warrantless searches, even searches that would be justified under one or more of those recognized exceptions. Thus, Mackelwich concludes, the statutory requirement of advance written notice applies to warrantless searches like the one in his case — a search conducted with the consent of the person who owns or controls the property. We reject Maekelwich's interpretation of the statute for two reasons. First, it is inconsistent with the statutory history; second, it leads to unreasonable results. Since 1925, AS 16.05.180 and its various predecessor statutes have granted officers enforcing fish and game laws the authority to conduct warrantless searches as long as the search was supported by "reasonable cause" — or, as AS 16.05.180 now puts it, as long as the search "is reasonable". Because the pre-statehood versions of the statute did not impose special procedural requirements on the officers conducting the search, it is fairly clear that those pre-statehood versions of the statute were intended to extend the authority of officers enforcing the fish and game laws. The statute was a legislative attempt by Congress to bestow authority on government officials to conduct fish and game searches without a warrant. Both the Fourth Amendment to the United States Constitution and Article I, Section 14 of the Alaska Constitution protect against "unreasonable searches and seizures". Construing this phrase, both the United States Supreme Court and the Alaska Supreme Court have declared that, absent the consent of the person in control of the property, a warrantless search is per se "unreasonable" unless it falls within "certain carefully defined" exceptions to the warrant requirement. Camara v. Municipal Court, 387 U.S. 523, 528-29, 87 S.Ct. 1727, 1730-31, 18 L.Ed.2d 930, 935 (1967); Woods & Rohde, Inc. v. Alaska Dept. of Labor, 565 P.2d 138, 149, 151 (Alaska 1977). Given these constructions of thé federal and state Constitutions, there is obviously some question as to whether the legislative branch of government has the authority to declare that certain searches may be conducted without a warrant. See Woods & Rohde; 565 P.2d at ISO-52 (striking down a statute that authorized warrantless inspections of workplaces to investigate employers' compliance with the Alaska Occupational Safety and Health Act; the court held that such warrantless inspections violated the search and seizure clause of the Alaska Constitution). However, in the context of the present appeal, it is only necessary to identify the legislative purpose behind the statute; it is not necessary to decide whether that purpose is constitutional. We conclude, from the legislative history, that the purpose of the statute was to expand the government's authority to conduct warrantless searches for evidence of fish and game violations. The government already had the authority to conduct warrantless searches by consent. Thus, the statute must have been intended to address instances in which the person in charge of the property had not consented to the search — to confer the authority to conduct warrantless searches when there was no consent. Given this legislative purpose behind the earlier versions of the statute, we conclude that the limitations written into earlier versions of the statute (the list of specified places and objects that might be searched without a warrant) did not restrict government officers' ability to conduct other war-rantless searches with the consent of the person in charge of the property. Rather, these statutory limitations applied only when there was no consent for the search. The current version of the statute, AS 16.05.180, contains different limitations on warrantless searches. The current statute no longer limits the places or objects that may be searched without a warrant, but it does impose procedural requirements on warrantless searches — requiring written advance notice of the reason for the search, and a receipt for any objects seized. Again, however, we interpret these limitations to apply only to warrantless searches that depend upon the statute for their justification. Consent searches are lawful without reference to AS 16.05.180, and we therefore conclude that the procedural requirements contained in AS 16.05.180 do not apply to consent searches. Mackelwich argues against this conclusion by asserting that there is a different purpose behind the notice requirement contained in AS 16.05.180. He argues that the notice requirement was intended to ensure that the power of warrantless search would not be misused: by requiring officers to make a contemporaneous written record of the reason for the search (before the search is conducted), evidence uncovered during a war- rantless search can not be used to justify the search after the fact. We agree that Mackelwieh has identified a plausible purpose for the written notice requirement. His interpretation of the statute is, however, inconsistent with the supreme court's decision in Nathanson (discussed above), where the court held that officers need not comply with the written notice requirement if the person in charge of the property is not present and it would be unreasonable to delay the search. 554 P.2d at 459-460. If the purpose of the written notice requirement were to ensure the creation of a contemporaneous memorandum of the reason for the search, this purpose would seemingly apply all the more forcefully when the person in charge of the property is not present to speak with the officers. Yet the court in Nathanson reached a different conclusion. Moreover, even assuming that the legislature saw a value in requiring officers to write down, in advance, their reason for conducting a warrantless search, the fundamental question still remains: Did the legislature intend this notice requirement to apply to all war-rantless searches conducted to investigate fish and game violations? Or did the legislature intend instead for the requirement to apply only when the warrantless search would not be authorized but for the statute? If the notice requirement applies only to warrantless searches that would not be authorized absent AS 16.05.180, then the rationale behind the notice requirement has considerable force. It would be reasonable for the legislature to grant an expanded power to conduct warrantless searches, but then condition the exercise of that power on observance of additional procedural safeguards (such as the written notice requirement). However, if we accept Mackelwieh's interpretation of the statute — that the notice requirement applies to any and all warrantless searches conducted for fish and game purposes, even when those searches are justified by a recognized exception to the warrant requirement — then it is much harder to come up with a rationale for the notice requirement. Mackelwieh offers a plausible explanation of why the legislature might, as a matter of policy, want officers to give written notice of their grounds for conducting a war-rantless search. But this policy would seemingly apply to any and all warrantless searches. Mackelwieh offers no convincing explanation of why the legislature would want to enforce this notice requirement only upon officers conducting a warrantless search to investigate a fish and game violation, and to exempt all other warrantless searches from the requirement. Indeed, there are sound policy reasons for not construing the statute as Mackelwieh suggests. Under Maekelwich's interpretation, the applicability of AS 16.05.180 and its requirement of written notice would hinge on the subjective motivation of the officer conducting the search. The same law enforcement officer could conduct two warrantless searches, each of exactly the same degree of intrusiveness and scope, and the procedural requirements governing the two searches would depend on what the officer had in mind when he conducted the search. If the officer intended to investigate a potential fish and game violation, the notice requirement would apply. If the officer intended to investigate any other type of criminal offense, the notice requirement would not apply. The facts of Maekelwich's case illustrate the problem with such a rule. Mackelwieh argues that the troopers were bound by the notice requirement of AS 16.05.180 because they were investigating a moose kill. The State responds that, even though this was part of the reason for the search, the troopers were also investigating the second part of the tip — the information about drugs. Thus, the State argues, AS 16.05.180 should not govern this case because the troopers had an independent motivation for the search. We believe that the arguments of both parties are misguided. We have repeatedly held that the propriety of a search or seizure is not judged by the subjective intentions of the officer, but rather by an objective legal analysis of the facts. See Rogers-Dwight v. State, 899 P.2d 1389, 1390 (Alaska App.1995); Beauvois v. State, 837 P.2d 1118, 1121-22 & n. 1 (Alaska App.1992). It would run counter to this rule of law if we were to hold that an officer's subjective reason for conducting a warrantless search determined the applicability of AS 16.05.180. For all of the foregoing reasons, we reach the following conclusions: First, AS 16.05.180 was intended to expand the authority of law enforcement officers to conduct warrantless searches when investigating fish and game violations. The purpose of the statute is to grant officers the authority to conduct warrantless searches even when the circumstances would not support any of the recognized exceptions to the warrant requirement. Second, the procedural requirements of AS 16.05.180 apply only to those warrantless searches whose legality rests on the statute — searches that do not fit within any other recognized exception to the warrant requirement, and that would be illegal but for the statute. Even though the troopers in this case were investigating a fish and game violation, Mackelwich consented to the search of his property. Consent searches are a recognized exception to the warrant requirement. Thus, AS 16.05.180 did not apply to the search of Mackelwich's property. The superior court properly denied Mack-elwich's suppression motion. Mackelwich's conviction is therefore AFFIRMED. . The superior court also heard a materially different version of this encounter. Mackelwich and Healy both denied that they had consented to a search of the property. They told the court that the troopers had never asked for permission to search; instead, the troopers had instead simply informed Mackelwich and Healy that they were going to "look around" for evidence of a moose kill. After hearing this conflicting testimony, Superior Court Judge Jonathan H. Link found that Mackelwich and Healy had in fact consented to the search of the property- Mackelwich does not challenge this finding on appeal. . The pertinent portion of § 39-6-7, 1949 CLA provided: Any officer or other person empowered to enforce this Act shall have authority without warrant to search any camp, camp outfit, fish creel, pack or pack animals, automobile, aircraft, wagon or other vehicle, sled, or any boat, vessel, or other crafL in the territorial waters of the United States, or any boat, vessel, or other craft of the United States on the high seas when such officer or employee has reasonable cause to believe that such camp, camp outfit, fish creel, pack or pack animals, automobile, aircraft, wagon, or other vehicle, sled, boat, vessel, or other craft has therein or thereon any of the animals, birds, or fishes, or parts thereof, or nests or eggs of birds, protected by this Act taken, possessed, sold, intended for sale, or transported contrary to law. . See also Klockenbrink v. State, 472 P.2d 958, 960-61 (Alaska 1970), where the supreme court held that AS 16.05.180 does not apply when evidence is observed in plain view. The supreme court reasoned that when an officer observes objects in plain view (assuming the officer has committed no trespass to obtain that view), the officer does not conduct a "search" within the meaning of the search and seizure clause, and thus the statute does not govern the officer's actions. . Mackelwieh argues that, had the troopers prepared a written notice of their reason for searching his property, the superior court would not have had to resolve the conflicting testimony regarding whether Mackelwieh and Healy consented to the entry upon that property. This contention appears dubious. Even if the troopers had written down their reason for wanting to search Mackelwich's property, this writing would not have resolved the question of whether Mack-elwich consented to the search.

11871437

Brian E. ERICKSON, Appellant, v. STATE of Alaska, Appellee

Erickson v. State

1997-12-12

No. A-6309

580

587

950 P.2d 580

950

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T17:45:37.779961+00:00

CAP

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

Brian E. ERICKSON, Appellant, v. STATE of Alaska, Appellee.

Brian E. ERICKSON, Appellant, v. STATE of Alaska, Appellee. No. A-6309. Court of Appeals of Alaska. Dec. 12, 1997. Marcia E. Holland, Assistant Public Defender, Fairbanks, and Barbara K. Brink, Public Defender, Anchorage, for Appellant. James L. Hanley, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee. Before COATS, C.J., and MANNHEIMER and STEWART, JJ.

3779

24100

OPINION MANNHEIMER, Judge. In Yearty v. State, 805 P.2d 987, 995 (Alaska App.1991), this court held that when a defendant commits distinct types of sexual penetration upon a victim during a single episode of sexual assault, the defendant can be convicted of separate counts of sexual assault for each type of penetration. The appellant in this ease, Brian E. Erickson, was convicted of four counts of second-degree sexual abuse of a minor, AS 11.41.436(a)(1). The four counts involved the same victim and arose from a single episode of sexual abuse, but each count alleged a different form of sexual penetration. Pursuant to Yearty, the superior court entered four convictions against Erickson. On appeal, Erickson argues that Yearty was wrongly decided for two reasons: as a matter of statutory interpretation, and as a matter of constitutional law. First, Erickson argues that Yearty was wrongly decided as a matter of substantive criminal law. He asks us to re-examine and reverse the holding that a defendant who perpetrates distinct types of sexual penetration during a single assaultive episode can be convicted separately for each type of sexual penetration. Next, Erickson argues that Yearty's holding violates the double jeopardy clause of the Alaska Constitution as construed by the Alaska Supreme Court in Whitton v. State, 479 P.2d 302 (Alaska 1970). Erickson asserts that, under Whitton, an appellate court is not permitted to create double jeopardy rules for whole classes of cases — rules of general application that will govern all future cases that present the same double jeopardy issue. According to Erickson, the Yearty holding violates Whitton because Yearty establishes this sort of general rule — the rule that separate types of sexual penetration will support separate convictions. For the reasons explained below, we reject Erickson's arguments and affirm his convictions. Introduction: Whitton and the constitutional issue Erickson raises in this appeal In Whitton, the supreme court established the test for determining whether, under the double jeopardy clause of the Alaska Constitution, a defendant's violation of two different criminal statutes during a single criminal event should be treated as a single punishable offense or as two distinct offenses. The court declared that the sentencing judge should: compare the . statutes in question, as they apply to the facts of the case, to determine whether [the ease] involved differences in intent or conduct. [The judge] [sh]ould then [assess] any such differences . in light of the basic interests of society to be vindicated or protected, and decide whether those differences [are] substantial or significant enough to warrant multiple punishments. Whitton, 479 P.2d at 312. Erickson's ease does not raise the same question presented in Whitton (a defendant's violation of two statutes during a single criminal episode), but it involves a related question: whether a defendant's multiple violations of the same criminal statute during a single criminal episode should merge into a single offense. Both of the parties to this appeal agree that a Whitton analysis should govern Erickson's case. However, the parties disagree on what Whitton requires. The basic dispute is whether double jeopardy rulings under Whitton are ultimately case-specific. Whitton issues generally arise in recurring situations: can a defendant be convicted of both armed robbery and felony-murder when the robbery victim dies? See Todd v. State, 917 P.2d 674 (Alaska 1996). Or can a defendant who commits sexual assault be convicted of both an attempt and the completed crime? See Tuckfield v. State, 621 P.2d 1350 (Alaska 1981). Erickson argues that, even though Whitton issues arise in recurring situations, the supreme court wanted trial judges to decide each case individually, again and again making case-specific determinations of the double jeopardy question, with appellate review available to correct abuses of discretion. The State, on the other hand, argues that, under Whitton, the question of whether a defendant has committed one offense or two is ultimately a question of law. The State contends that, even though double jeopardy questions are normally decided by trial judges in the first instance, the supreme court envisioned that these questions would ultimately be decided by appel late courts who would craft rules of general application to govern recurring situations. Yearty is a case that established a rule of general application: Yearty held that distinct types of sexual penetration will support separate convictions for sexual assault. Because of this — because Yearty established a general rule to govern future cases — Erickson contends that Yearty runs afoul of Whitton. Whitton does not apply to Erickson's case The first issue we must confront is whether Whitton governs this question. As noted above, both Erickson and the State assume that Whitton provides the rule of decision in this case. However, as also pointed out above, Whitton dealt with a different problem from the one presented in Erickson's case. In Whitton, the question was whether a defendant could be convicted of two separate crimes when the defendant's single criminal act violated two different criminal statutes ("robbery" and "use of a firearm during robbery"). Erickson's case, like Yearty, raises a different question: whether a defendant can be convicted of separate crimes when the defendant violates the same criminal statute more than once in a single criminal event. The supreme court confronted this latter question in State v. Dunlop, 721 P.2d 604 (Alaska 1986). The defendant in Dunlop had recklessly killed two people in a motor vehicle accident; the trial court convicted him of two counts of manslaughter. On appeal, Dunlop contended that his separate convictions violated the Whitton rule. Dunlop's appeal hinged on the continued vitality of Thessen v. State, 508 P.2d 1192 (Alaska 1973), a case involving a defendant who set fire to a hotel and killed several people. In Thessen, the supreme court applied the Whitton rule and concluded that, even though a defendant's reckless conduct might kill several people, the number of victims was essentially fortuitous and the defendant could be convicted of only one count of manslaughter. Thessen, 508 P.2d at 1195. If Thessen was- still good law, then Dunlop should not receive two manslaughter convictions for killing two people. However, the supreme court held that Thessen had been wrongly decided, and it therefore affirmed Dunlop's convictions. Dunlop, 721 P.2d at 608-610. For purposes of deciding whether Whitton governs Erickson's appeal, it is crucial to note the reasons the supreme court .gave for overruling Thessen. The Dunlop court drew a distinction between two problems: (1) deciding whether a defendant's violation of two or more statutes by a single act should be considered one "offense" or many, as opposed to (2) deciding whether a defendant's multiple violations of the same statute in a single criminal event should be considered one offense or many; The court then held that Whitton does not apply to this second problem. Explaining why Thessen should be overruled, the supreme court explained: The [Thessen ]. majority looked . to Whitton for guidance in defining "single offense". [Thessen, 508 P.2d] at. 1194. Since Thessen violated only one statute, albeit fourteen times, the majority compared one count with another (rather than one statute with another) and applied the Whitton test. After much thought, we conclude that in Thessen we erred in applying Whitton to multiple violations of a single statute. . When several deaths or injuries occur in the course of a single incident, the offense prohibited by the statute has been violated several times over. Dunlop, 721 P.2d at 608-09 (first emphasis added; second emphasis in the original) (footnotes omitted). The court further clarified its thinking in footnote 17 of the Dunlop opinion, 721 P.2d at 608, where the court declared, "We do not disturb our holding in Whitton here. Whitton does not apply to these factual situations." Under the holding in Dunlop, the Whitton rule does not apply to Erickson's case. Erickson's case is like Dunlop and Thessen: Erickson was convicted of violating the same criminal statute four times during a single episode. Under Dunlop, Whitton provides the rule for determining when two statutes define the same "offense", but Whitton does not apply "to multiple violations of a single statute". Dunlop, 721 P.2d at 609. Instead, under Dunlop, the proper number of Erickson's convictions must be determined by identifying "the gravamen of [Erickson's] offense" and then deciding whether Erickson's conduct violated that statute four times or one. Id. The gravamen of second-degree sexual abuse of a minor, defined in AS 11.41.436(a)(1), is sexual penetration of a minor under the age of 16. Under the definition of "sexual penetration" codified in AS 11.81.900(b)(55), as interpreted in Yearty, a separate offense of second-degree sexual abuse of a minor is committed whenever the defendant engages in a distinct form of sexual penetration with the victim. In the present case, the jury found that Erickson had engaged in four distinct types of sexual penetration with the victim. To paraphrase Dunlop, "[w]hen several [distinct types of sexual penetration] occur in the course of a single incident, the offense prohibited by the statute has been violated several times over." 721 P.2d at 609 (emphasis in the original) (footnote omitted). Erickson was therefore properly convicted of four counts of second-degree sexual abuse of a minor. Alternatively, if Whitton does apply to Erickson's case, Whitton contemplates that appellate courts will formulate rules of general application, like the one announced in Yearty, to resolve recurring double jeopardy issues. Assuming that the supreme court spoke too freely in Dunlop and that the Whitton rule applies to Erickson's case, we must confront Erickson's contention that Whitton calls for case-specific double jeopardy rulings and forbids appellate courts from formulating rules of general application to resolve recurring double jeopardy problems. Some of the language used in Whitton supports Erickson's interpretation of the decision. For example, in the passage quoted above, the supreme court called on trial judges to assess whether significant differences in intent or conduct are revealed by "the facts of the case". 479 P.2d at 312. Later in the opinion, the Whitton court required trial judges to make an affirmative record of the reasons underlying their double jeopardy rulings; in particular, the supreme court called upon sentencing judges to explain "the relevant factual and other considerations which led [them] to such a decision, in order that the constitutional legitimacy of the [ruling] may be fully reviewed on appeal." Id. And, in answer to the anticipated criticism that the Whitton test was too vague to provide clear guidance in future cases, the Whitton court declared: We have stated the factors to be considered by the sentencing judge. We can go no further. At this point, reason and judgment must be exercised. There is no practicable way of formulating in advance any precise standards for the proper or "reasonable" exercise of such reason and judgment. Whitton, 479 P.2d at 313. Finally, the supreme court indicated that if the sentencing judge made a mistake in applying the Whitton criteria and erroneously refused to sentence a defendant for all of the separate offenses he or she had committed, the State could file a sentence appeal. The court conceded that it would have no power to increase the defendant's sentence in such an appeal, see AS 12.55.120(b), but the court would be "authorized to express [its] views as to the state's claim of excessive leniency", thus having "the salutary effect of further clarifying this area of criminal law and of obviating . the same or similar mistakes in future senteneings". Whitton, 479 P.2d at 313-14. These passages make it appear as if a judge's double jeopardy analysis under Whit-ton were merely one aspect of the judge's sentencing decision. However, if this were true, one would expect the Whitton court to have remanded Whitton's case to the superi- or court — so that, employing the just-announced Whitton criteria, the judge who sentenced Whitton could re-examine the facts of Whitton's case and re-evaluate the propriety of imposing separate convictions on Whitton for robbery and use of a firearm during robbery. This is not what the supreme court did. Instead of dealing with the double jeopardy issue as a question entrusted to the sentencing judge's discretion, the court treated the issue as a question of law. The court engaged in a generic analysis of the two criminal statutes, scarcely mentioning the specific facts of Whitton's case, and then announced a rule that was apparently intended to govern all future cases: We apply the test we have adopted to this case. Money was taken from persons in a restaurant by appellant and his two accomplices!,] who were armed with a rifle and a pistol. Since the presence of the firearms means that the money was taken by force or violence, -or by putting the victims in fear, the crime committed was robbery. And since the force or violence or fear was created specifically by the use of firearms, the more serious crime of robbery with a firearm was also committed. The more serious crime differs from the less serious crime in that there can be . robbery with or without a firearm. But the intent and conduct involved in the former encompasses the intent and conduct involved in the latter. Since the more serious offense already proscribes . and punishes the activity of the less serious offense, the differences between the two must be deemed insubstantial or insignificant in relation to the social interests involved. The result is that the two separate statutory crimes constitute the "same offense" for purposes of double jeopardy. A single .sentence was all that could properly be imposed under the double jeopardy provision of our constitution. Whitton, 479 P.2d at 314. The supreme court has followed this same approach to double jeopardy issues in all of its decisions since Whitton. That is, the court has consistently treated double jeopardy issues as questions of law; the court has decided these issues de novo, using statutory analysis, rather than reviewing trial court decisions for abuse of sentencing discretion under the particular facts of the defendant's case. The most recent example is Todd v. State; 917 P.2d 674 (Alaska 1996), where the court held that a defendant may be convicted of both felony-murder and the predicate felony (in Todd's case, first-degree robbery). In its holding, the court entirely omitted any discussion of the specific facts of Todd's case and instead focused completely on the statutory elements and underlying social policies of the two offenses: ' Applying the Whitton test, we conclude that felony murder and robbery are not the same offense for double jeopardy purposes; therefore, [Todd's separate convictions] are allowable. The statutes differ significantly in the intent and conduct required; the most obvious difference is the requirement under the felony-murder statute that someone have been killed. Moreover, as we discussed above, the statutes also protect different societal interests. The felony-murder statute protects against the loss of human life. "In contrast, the basic rationale of the robbery statute is protection against the terror of forcible taking." Todd, 917 P.2d at 681 (citation omitted). Similarly, in State v. Dunlop, 721 P.2d at 608-610 (when the supreme court decided that a' drunk driver could be convicted of several counts of manslaughter for killing several victims in one collision), in Jacinth v. State, 593 P.2d 263, 266-67 (Alaska 1979) (when the court decided that a defendant who set fire to a theater and killed the watchman could be convicted of both arson and manslaughter), in State v. Occhipinti, 562 P.2d 348, 351 (Alaska 1977) (when the court decided that a defendant could be sepa rately convicted for rape, kidnapping, and assault with a deadly weapon), and in Mead v. State, 489 P.2d 738, 740-41 (Alaska 1971) (when the court decided that a defendant could be separately convicted of burglary and larceny), the supreme court did not base its decisions on the specific facts of the defendants' cases. Instead, the court focused solely on the statutory elements of the offenses involved and the social policies underlying those offenses. The court did not speak of either the "abuse of discretion" or the "clearly mistaken" standard of review, nor did the court show any other deference to the sentencing courts' decisions. Instead, the supreme court decided these double jeopardy issues de novo, and the court gave every indication that it intended its decisions to govern all future cases raising these issues. • Moreover, in State v. Occhipinti the supreme court silently disavowed its statement in Whitton that a sentence appeal was the State's only remedy for an erroneous Whit-ton ruling. In Occhipinti, the sentencing judge misapplied Whitton and refused to convict and sentence the defendant separately for the offenses of rape, kidnapping, and assault with a deadly weapon. The supreme court held that these crimes were separate offenses under Whitton. The court further ruled that the sentencing judge was legally required to convict and sentence the defendant for each offense proved by the government. Occhipinti, 562 P.2d at 349. The court therefore granted the State's petition for writ of mandamus and ordered the sentencing judge to enter the disputed convictions and impose sentence. Id. at 349, 351. This ruling was, in effect, another declaration that Whitton decisions involve questions of law, not questions of sentencing discretion. Finally, we note that there is a basic problem with viewing Whitton rulings as just another aspect of a sentencing decision. That problem is the "clearly mistaken" standard of review. "Clearly mistaken" is the standard of review that the Alaska Supreme Court employs when reviewing sentencing decisions. McClain v. State, 519 P.2d 811, 813 (Alaska 1974). It is a deferential standard of review; that is, it gives considerable leeway to individual sentencing judges. The "clearly mistaken" test is founded on two concepts: first, that reasonable judges, confronted with identical facts, can and will differ on what constitutes an appropriate sentence; second, that society is willing to accept these sentencing discrepancies, so long as a judge's sentencing decision falls within "a permissible range of reasonable sentences". State v. Wentz, 805 P.2d 962, 965 (Alaska 1991), quoting McClain, 519 P.2d at 813. If double jeopardy rulings under Whitton were deemed just another aspect of a judge's sentencing decision, to be reviewed under the "clearly mistaken" test, this necessarily means that the supreme court would be willing to accept inconsistent double jeopardy rulings in factually identical cases, so long as the discrepancy could be attributed to reasonable differences of opinion or sentencing emphasis among trial court judges. Under Erickson's view of Whitton, two identically situated defendants who engaged in exactly the same conduct (with exactly the same results) could receive differing numbers of convictions and sentences — and both of these inconsistent criminal judgements would be upheld on appeal so long as the sentencing judges were not "clearly mistaken". McClain and Wentz allow such sentencing discrepancies when the issue is how much time a defendant should spend in prison, or how much of their sentence should be suspended, or how long their probation should be. Such decisions are traditionally entrusted to a sentencing judge's discretion, primarily because reasonable judges can and do differ on these matters. It is, however, fundamentally different — and fundamentally unfair — to empower sentencing judges to determine, at their discretion, the number of a defendant's convictions and sentences. The constitutional guarantee against double punishment should apply uniformly to all defendants. We do not believe that the supreme court intended the Whitton rule to be interpreted and applied in the manner Erickson suggests. For these reasons, we reject Erickson's contention that Whitton forbids appellate courts from formulating rules of general application to govern double jeopardy issues. The supreme court has repeatedly demonstrated that Whitton in fact calls upon appellate courts to formulate rules of general application to resolve recurring double jeopardy issues. As a matter of substantive criminal law, we reaffirm the Yearty holding Having determined (on alternative, bases) that the Yearty holding does not violate the supreme court's decision in Whitton, we lastly confront Erickson's argument that Yearty was wrongly decided as a matter of substantive law. Erickson was found guilty of second-degree sexual abuse of a minor — -sexually penetrating a child under the age of 16. During a single criminal episode, Erickson perpetrated four distinct forms of sexual penetration upon his victim. To determine how many counts of sexual abuse are encompassed by this criminal episode, Dunlop instructs us to identify the "gravamen" of the offense. 721 P.2d at 609. Erickson argues that, for all intents and purposes, any one form of sexual penetration is identical to any other. He contends that the violation of the victim's bodily integrity and privacy is essentially the same, regardless of how the penetration is perpetrated. Yearty came to a different conclusion. In Yearty, this court ruled that different forms of sexual penetration constitute different forms of indignity and violation, and they thus merit separate punishment. We concede that reasonable people might differ on this question. We note, however, that in the years since Yearty was decided, the Alaska Legislature has taken no action to indicate its disagreement with this court's conclusion. Moreover, it is not enough for Erickson to show that the Yearty decision was honestly debatable at the time, and that it might have gone the other way. Under the doctrine of stare decisis, a litigant who asks an appellate court to overrule a prior decision must demonstrate convincing reasons why the existing rule "was originally erroneous or is no longer sound because of changed conditions". The litigant must also demonstrate "that more good than harm would result from a departure from precedent". State v. Dunlop, 721 P.2d 604, 610 (Alaska 1986), quoting State v. Souter, 606 P.2d 399, 400 (Alaska 1980). Erickson has failed to meet this burden. We therefore adhere to our prior decision. Conclusion Under Yearty, Erickson was properly convicted of four separate counts of second-degree sexual abuse of a minor. The judgement of the superior court is AFFIRMED. . The supreme court had previously referred to the limited scope of the Whitton rule in Tuckfieid v. State, 621 P.2d 1350, 1352 (Alaska 1981): "It is well settled that double jeopardy is violated by conviction of both an offense and a lesser included offense, unless the convictions arise from separate conduct.... [This] rule is related to, but distinguishable from, the question considered in Whitton . and subsequent cases, concerning when separate punishment may be imposed for separate statutory offenses arising out of the same conduct." (emphasis added)

11876789

M.A., individually and as parent and next friend to J.A., and N.A., as parent and next friend to J.A., a minor child, Plaintiffs, v. UNITED STATES of America, Defendant

M.A. v. United States

1998-01-02

No. S-7593

851

857

951 P.2d 851

951

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:46:38.781116+00:00

CAP

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

M.A., individually and as parent and next friend to J.A., and N.A., as parent and next friend to J.A., a minor child, Plaintiffs, v. UNITED STATES of America, Defendant.

M.A., individually and as parent and next friend to J.A., and N.A., as parent and next friend to J.A., a minor child, Plaintiffs, v. UNITED STATES of America, Defendant. No. S-7593. Supreme Court of Alaska. Jan. 2, 1998. Keenan Powell, Powell & Slaten, LLC, Anchorage, for Plaintiff. Richard L. Pomeroy, Assistant United States Attorney, and Robert C. Bundy, United States Attorney, Anchorage, for Defendant. Before COMPTON, C.J., and MATTHEWS, EASTAUGH, FABE and BRYNER, JJ.

3610

22331

OPINION BRYNER, Justice. I.INTRODUCTION We accepted certification in this case to decide whether a cause of action exists under Alaska law for a physician's negligent failure to diagnose a pregnancy and, if so, the scope of recovery allowed under that cause of action. We conclude that negligent failure to diagnose a pregnancy gives rise to a cause of action for medical malpractice and is compen-sable to the extent that damages are ordinarily allowable in medical malpractice cases, but that no recovery may be awarded for expenses of rearing a healthy child born as a result of the misdiagnosis. II. FACTS AND PROCEEDINGS M.A. and N.A., acting on behalf of their minor daughter, J.A., filed a suit in federal court against the United States of America (the United States) for injuries stemming from the allegedly negligent failure of an Alaska Native Medical Center physician to diagnose J.A. as being pregnant. M.A. and N.A. contend that the negligence delayed J.A.'s awareness of her condition and precluded her from safely aborting her child, thus resulting in the birth of a healthy child. M.A. separately seeks damages in her own right for negligent infliction of emotional distress. Upon the filing of cross motions for summary judgment, the United States District Court for the District of Alaska certified the following questions: 1. Does negligent failure to diagnose a pregnancy which results in the birth of a healthy child give rise to a cause of action for medical malpractice? 2. In a cause of action for negligent failure to diagnose pregnancy, what damages are recoverable for the birth of a healthy child? 3. Specifically, would recoverable damages include past medical expenses, pain and suffering of the mother, and the cost of raising the child? 4. Would any recoverable damages be offset by the benefits the parent derives from the child? 5. If the mother is precluded from bringing a claim for negligent failure to diagnose pregnancy, may a close relative bring a claim for negligent infliction of emotional distress? We accepted certification pursuant to Alaska Appellate Rule 407 and now address these questions. III. DISCUSSION A. Standard of Review A decision by this court upon certification from another court involves determinative questions of Alaska law as to which there is no controlling precedent. Appellate Rule 407(a). Because we address questions of law and essentially stand in the shoes of the certifying court, we must exercise our independent judgment and select "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). For purposes of resolving the certified questions, we assume that J.A.'s treating physician negligently failed to diagnose her pregnancy, thereby precluding J.A. from opting for an abortion and resulting in her delivery of a healthy child. See Poor v. Moore, 791 P.2d 1005, 1005, 1008 (Alaska 1990). B. Should a Cause of Action Be Recognized for a Physician's Negligent Failure to Diagnose a Pregnancy ? We first consider whether to recognize a cause of action for negligent failure to diagnose a pregnancy. The United States, arguing that the issue is one of public policy, undertakes an analysis under D.S.W. v. Fairbanks North Star Borough School District, 628 P.2d 554, 555 (Alaska 1981), where we adopted a multifactored test for deciding whether a legal duty , should be deemed to arise in novel situations. The result of the D.S.W. analysis, in the United States' view, is that no duty should be imposed here. The D.S.W. test, however, does not apply if the existence of a duty is governed by statute. In the present ease, the United States' argument mistakenly assumes the absence of any generally applicable physician-patient duty arising under statute. The subject of medical malpractice is addressed in AS 09.55.530-.560, whose express purpose is to "codify the law with regard to medical liability." AS 09.55.530. Alaska Statute 09.55.540(a) specifically describes a physician's duty to act -with "the degree of knowledge or skill possessed or the degree of care ordinarily exercised under the circumstances, at the time of the act complained of, by health care providers in the [doctor's] field or specialty." The diagnosing of pregnancy is well within the mainstream of commonly ren dered medical services to which this provision applies. Moreover, the United States' D.S.W. analysis focuses too heavily on the specific circumstances of the present case. The existence of a duty turns not on the particularized facts of a given case, but rather on the basic nature of the relationship between the parties to the cause of action. On past occasions we have recognized that the unique nature of the physician-patient relationship confers upon physicians a fiduciary responsibility toward their patients. See Chizmar v. Mackie, 896 P.2d 196, 203-04 (Alaska 1995) (holding that a doctor has the duty to refrain from conduct that would foreseeably result in emotional harm to a patient). Given the provisions of AS 09.55.540(a) and this court's recognition of the fiduciary nature of the physician-patient duty, we conclude that a complaint alleging an examining physician's negligent failure to diagnose a pregnancy, as well as proximately resulting injuries, states a valid cause of action for medical malpractice. C. Are Expenses of Child Rearing Com-pensable when Negligent Misdiagnosis Results in the Birth of a Healthy Child? The more difficult question is how to conceptualize and compensate injuries stemming from this tort. The United States concedes that if negligent failure to diagnose a pregnancy is to be recognized as a viable cause of action, a plaintiff who proves that a misdiagnosis has precluded termination of the pregnancy should, be entitled to recover ordinary tort damages through the time of childbirth, including medical expenses, pain and suffering associated with the pregnancy and delivery, and lost wages. Cf. Poor v. Moore, 791 P.2d 1005, 1008 (Alaska 1990). Damages for emotional distress would also be recoverable. See Chizmar v. Mackie, 896 P.2d at 203-04. A harder , issue is whether the costs of raising a healthy child may additionally be awarded and, if so, whether these damages should be offset by the benefits of parenthood. Neither of the two jurisdictions recognizing a cause of action for negligent failure to diagnose a pregnancy has held that child-rearing expenses are compensable. See Rinard v. Biczak, 177 Mich.App. 287, 441 N.W.2d 441 (1989); Debora S. v. Sapega, 56 A.D.2d 841, 392 N.Y.S.2d 79 (1977). Courts dealing with the related issue of "wrongful pregnancy" — a category typically encompassing failed sterilization procedures resulting in unwanted pregnancies — are divided on the recoverability of child-rearing expenses: some allow full recovery, others adopt a mixed approach in which expenses are offset by the benefits of having a child, but most allow no recovery. This split in authority in wrongful pregnancy cases largely reflects diverging policy views. States denying childrearing expenses advance two principal rationales: first, the fear that children might someday suffer harm upon learning that they were not wanted and that a person other than a parent funded their upbringing; second, the belief that a normal, healthy child should not be regarded as an injury. An additional rationale sometimes mentioned is that child-rearing costs are too speculative. Courts allowing recovery for wrongful pregnancy have disparaged each of these rationales. In assessing the relative persuasiveness of these divergent authorities, we take guidance from Poor v. Moore, 791 P.2d at 1007-08, where we declined to allow child-rearing expenses to a mother who had been seduced and impregnated by her therapist. We assumed in Poor that the act of seduction amounted to malpractice, but we nonetheless concluded that the tortious conduct should not reheve the mother of her duty to support her child. Id. We took the view that recovery of this kind "could seldom, if ever, result in benefit to a child." Id. at 1008 (quoting Barbara A v. John G., 145 Cal.App.3d 369, 193 Cal.Rptr. 422 (1983)). While M.A. and N.A. accurately observe that Poor is not binding here because that case involved an action by one parent against another, Poor is nonetheless highly persuasive. For if "[t]he fact that the child was conceived during the commission of a tort on his mother does not reheve her of the statutory and common law duty of support," Poor, 791 P.2d at 1007, then it would seem anomalous that the fact of a failure to diagnose a pregnancy should relieve both parents of their duty to care for a ehild whom they conceived through a volitional act of sexual intercourse. There is also reason to fear that such a rule would tend to influence the fates of children who are born of unplanned and unwanted pregnancies. When a young mother hke J.A. considers whether to keep or relinquish for adoption her newborn child, she faces a profoundly difficult and uniquely personal decision. The child's best interests will clearly be served if this decision is firmly grounded in the mother's family values, her moral convictions, and her feelings for her child; yet a rule permitting awards of child-rearing expenses might encourage a decision founded instead on the vagaries of legal strategy and the desire for compensation. The risk of this pernicious influence weighs heavily against any arguable benefit that might be gained from an award of. child-rearing expenses. On prior occasions we have recognized and invoked our "power to limit claims . for public policy reasons." Chizmar, 896 P.2d at 211. We find such restraint necessary here. We hold that a claim of medical malpractice involving negligent failure to diagnose a pregnancy may result in recovery of ordinary tort damages for proximately caused injuries; those damages may compensate for injuries incurred through the time of childbirth. Beyond that point, no compensation for expenses or other damages related to rearing a healthy child may be allowed. D. May M.A Independently Recover for Negligently Inflicted Emotional Distress? The final question centers on M.A.'s right to recover independently of J.A. for emotional distress that M.A. incurred as a result of the misdiagnosis of her daughter's condition. To recover in an action for negligent infliction of emotional distress, M.A. must have a viable "bystander claim" or establish that J.A.'s physician owed M.A. a preexisting duty. Chizmar v. Mackie, 896 P.2d 196, 201, 203-04 (Alaska 1995); see also Hawks v. State of Alaska, 908 P.2d 1013, 1016 (Alaska 1995). M.A. asserts that she was owed an independent duty by her daughter's physician — that, in assuming responsibility for treating J.A., J.A.'s physician also "undertook a duty directly to M.A. to act with the degree of knowledge or skill possessed or the degree of care ordinarily exercised under the circumstances by health care providers[.]" Yet the source of a physician's duty to provide reasonably competent care lies in the unique nature of the physician-patient relationship. M.A. had no physician-patient relationship with her daughter's physician; nor does M.A. establish any other source from which a duty toward her might have arisen. Furthermore, the circumstances of this case, could not support the type of "bystander claim" that allows recovery for emotional distress in the absence of a preexisting duty. Under Mattingly v. Sheldon Jackson College, 743 P.2d 356, 365-66 (Alaska 1987), a bystander claim is permissible when a person closely related to a tort victim and in near proximity to the scene of the negligent injury suffers severe and foreseeable emotional distress due to "shock resulting] more or less contemporaneously with," or "follow[ing] closely on the heels of," the injury's discovery. Here, M.A. was not in close proximity to J.A., either at the time of the alleged misdiagnosis or when J.A. subsequently learned of her pregnancy; M.A.'s eventual "shock," if any, does not appear to have occurred contemporaneously with her daughter's discovery of the injury; and there is no indication that the immediate "shock" came in response to the alleged injury — the lateness of the pregnancy's discovery — rather than to discovery of the pregnancy itself. We do not question the devastating emotional impact on M.A. that was caused by news of J.A.'s pregnancy. The present case is nevertheless clearly not a suitable one for bystander recovery. Absent any colorable claim of a preexisting duty by J.A's physician toward M.A. or of circumstances creating bystander liability, M.A has no independent right to recover for emotional distress resulting from negligent misdiagnosis of her daughter's condition. IV. CONCLUSION To summarize, we hold that negligent failure to diagnose a pregnancy that results in the birth of a healthy child gives rise to a cause of action for medical malpractice. Recoverable damages include damages through the time of birth that could ordinarily be recovered in a medical malpractice action. But following birth, the cost of raising a healthy child and other damages relating to child-rearing are not recoverable. And absent a preexisting duty or circumstances establishing a bystander claim, there is no independent cause of action on the part of the patient's relatives for negligent infliction of emotional distress. . Appellate Rule 407(a) provides: The supreme court may answer questions of law certified to it by the Supreme Court of the United States, a court of appeals of the United States, [or] a United States district court . when requested by the certifying court if there are involved in any proceeding before it questions of law of this state which may be determinative of the cause then pending in the certifying court and as to which it appears to the certifying court there is no controlling precedent in the decisions of the supreme court of this state. . Michigan and New York recognize this cause of action. Rinard v. Biczak, 177 Mich.App. 287, 441 N.W.2d 441 (1989); Debora S. v. Sapega, 56 A.D.2d 841, 392 N.Y.S.2d 79 (1977). Illinois and Wisconsin have declined to do so. Cockrum v. Baumgartner, 95 Ill.2d 193, 69 Ill.Dec. 168, 447 N.E.2d 385 (1983); Rieck v. Med. Protective Co., 64 Wis.2d 514, 219 N.W.2d 242 (1974). See also Butler v. Rolling Hill Hosp., 382 Pa.Super. 330, 555 A.2d 205 (1989) (Pennsylvania statute prohibiting causes of action for wrongful life or wrongful birth precluded cause of action for failure to diagnose pregnancy). . Specifically, we quoted with approval the test articulated in Peter W. v. San Francisco Unified School District, 60 Cal.App.3d 814, 131 Cal.Rptr. 854, 859-60 (1976): [t]he foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost and prevalence of insurance for the risk involved. See D.S.W., 628 P.2d at 555. See also Hawks v. State of Alaska, 908 P.2d 1013, 1016 (Alaska 1995), and Estate of Day v. Willis, 897 P.2d 78, 81 (Alaska 1995). . See Estate of Day v. Willis, 897 P.2d at 81 ("Whether a legal duly exists, when not governed by statute, is a public policy question involving specified considerations that this court enumerated in [D.S.W.]."). . AS 09.55.540(a) provides: |T]he plaintiff [in an action based on negligence] has the burden of proving by a preponderance of the evidence 1) the degree of knowledge or skill possessed or the degree of care ordinarily exercised under the circumstances, at the time of the act complained of, by health care providers in the field or specialty in which the defendant is practicing; 2) that the defendant either lacked this degree of knowledge or skill or failed to exercise this degree of care; and 3) that as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred. . Cf. W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 53, at 356 (5th ed. 1984) ("It is better to reserve 'duty' for the problem of the relation between individuals which imposes upon one a legal obligation for the benefit of the other, and to deal with particular conduct in terms of a legal standard of what is required to meet the obligation."). . See Poor v. Moore, 791 P.2d at 1006. In contrast, in a case involving negligent failure to diagnose a pregnancy, there is no causal link between the negligence and the pregnancy. . Wrongful pregnancy cases allowing full recovery of childrearing expenses include Lovelace Med. Ctr. v. Mendez, 111 N.M. 336, 805 P.2d 603 (1991); Zehr v. Haugen, 318 Or. 647, 871 P.2d 1006 (1994); and Marciniak v. Lundborg, 153 Wis.2d 59, 450 N.W.2d 243 (1990) (however, Wisconsin has rejected a cause of action for failure to diagnose pregnancy (Rieck v. Med. Protective Co., 64 Wis.2d 514, 219 N.W.2d 242 (1974)). Cases following the mixed approach, or "benefits rule," include Hartke v. McKelway, 707 F.2d 1544 (D.C.Cir.1983) (not followed by the D.C. Court of Appeals); University of Arizona v. Superior Court, 136 Ariz. 579, 667 P.2d 1294 (1983); Stills v. Gratton, 55 Cal.App.3d 698, 127 Cal.Rptr. 652 (1976); Ochs v. Borrelli, 187 Conn. 253, 445 A.2d 883 (1982); Jones v. Malinowski, 299 Md. 257, 473 A.2d 429 (1984); Burke v. Rivo, 406 Mass. 764, 551 N.E.2d 1 (1990); and Sherlock v. Stillwater Clinic, 260 N.W.2d 169 (Minn.1977) (questionable in light of dicta in Hickman v. Group Health Plan, Inc., 396 N.W.2d 10 (Minn.1986)). Cases precluding recovery for child-rearing expenses include Boone v. Mullendore, 416 So.2d 718 (Ala.1982); Wilbur v. Kerr, 275 Ark. 239, 628 S.W.2d 568 (1982); Coleman v. Garrison, 349 A.2d 8 (Del.1975); Flowers v. District of Columbia, 478 A.2d 1073 (D.C.1984); Fassoulas v. Ramey, 450 So.2d 822 (Fla.1984); Fulton-DeKalb Hosp. Auth. v. Graves, 252 Ga. 441, 314 S.E.2d 653 (1984); Cockrum v. Baumgartner, 95 Ill.2d 193, 69 Ill.Dec. 168, 447 N.E.2d 385 (1983); Garrison v. Foy, 486 N.E.2d 5 (Ind.App.1985); Nanke v. Napier, 346 N.W.2d 520 (Iowa 1984); Byrd v. Wesley Med. Ctr., 237 Kan. 215, 699 P.2d 459 (1985); Schork v. Huber, 648 S.W.2d 861 (Ky.1983); Pitre v. Opelousas Gen. Hosp., 517 So.2d 1019 (La.App.1987); Macomber v. Dillman, 505 A.2d 810 (Me.1986); Rinard v. Biczak, 177 Mich.App. 287, 441 N.W.2d 441 (1989); Rolf v. Youngblood, 753 S.W.2d 24 (Mo.App.1988); Hitzemann v. Adam, 246 Neb. 201, 518 N.W.2d 102 (1994); Szekeres v. Robinson, 102 Nev. 93, 715 P.2d 1076 (1986); Kingsbury v. Smith, 122 N.H. 237, 442 A.2d 1003 (1982); Gracia v. Meiselman, 220 N.J.Super. 317, 531 A.2d 1373 (1987) (dicta); O'Toole v. Greenberg, 64 N.Y.2d 427, 488 N.Y.S.2d 143, 477 N.E.2d 445 (1985); Jackson v. Bumgardner, 318 N.C. 172, 347 S.E.2d 743 (1986); Johnson v. Univ. Hosps. of Cleveland, 44 Ohio St.3d 49, 540 N.E.2d 1370 (1989); Morris v. Sanchez, 746 P.2d 184 (Okla.1987); Mason v. Western Pa. Hosp., 499 Pa. 484, 453 A.2d 974 (1982); Smith v. Gore, 728 S.W.2d 738 (Tenn.1987); Terrell v. Garcia, 496 S.W.2d 124 (Tex.Civ.App.1973); C.S. v. Nielson, 767 P.2d 504 (Utah 1988); Miller v. Johnson, 231 Va. 177, 343 S.E.2d 301 (1986); McKeman v. Aasheim, 102 Wash.2d 411, 687 P.2d 850 (1984); James G. v. Caserta, 175 W.Va. 406, 332 S.E.2d 872 (1985); and Beardsley v. Wierdsma, 650 P.2d 288 (Wyo.1982). See generally Poor, 791 P.2d at 1006-07. . See generally Russell G. Donaldson, Annotation, Recoverability of Cost of Raising Normal, Healthy Child Bom as Result of Physician's Negligence or Breach of Contract or Warranty § 2[a], 89 A.L.R.4th 632 (1991). . See, e.g., Boone v. Mullendore, 416 So.2d 718 (Ala.1982); Wilbur v. Kerr, 275 Ark. 239, 628 S.W.2d 568 (1982). . See, e.g., Cockrum v. Baumgartner, 95 Ill.2d 193, 69. Ill.Dec. 168, 447 N.E.2d 385 (1983). . See, e.g., Boone v. Mullendore, 416 So.2d 718 (Ala.1982); Sorkin v. Lee, 78 A.D.2d 180, 434 N.Y.S.2d 300 (1980). . See, e.g., Burke v. Rivo, 406 Mass. 764, 551 N.E.2d 1, 4-5 (1990) (disparaging future harm to child rationale); University of Arizona v. Superior Court, 136 Ariz. 579, 667 P.2d 1294, 1298-99 (1983) (criticizing sanctity of life rationale); and Marciniak v. Lundborg, 153 Wis.2d 59, 450 N.W.2d 243, 245-46 (1990) (rejecting rationale of uncertainty). . As we said in Poor, 791 P.2d at 1008 (footnotes omitted), the plaintiff is entitled to recover tort damages for any injury . proximately resulting from [the defendant's] conduct. Thus, [the plaintiff] may recover medical expenses, pain and suffering, and lost wages resulting from the tort. [The plaintiff] may also recover any damages which a client under like circumstances who did not become pregnant, could recover, including damages for emotional distress, as well as punitive damages, if warranted. . Cf. Chizmar, 896 P.2d at 205 ("As Savitri's treating physician, Dr. Mackie owed her a duty to refrain from activity which presented a foreseeable and unreasonable risk of causing emotional distress." (emphasis added)); Burgess v. Superior Court, 2 Cal.4th 1064, 9 Cal.Rptr.2d 615, 622, 831 P.2d 1197, 1204 (1992) ("Under the facts of this case, [the mother] is . permitted to recover . as a result of the breach of the duty of care arising from the physician-patient relationship [.]" (emphasis added)). .There is no suggestion here of a potential contractual duly, since it is undisputed that M.A. did not take her daughter to the hospital or arrange for her to be examined.

8912781

Franklin DAYTON, Jr., Appellant, v. STATE of Alaska, Appellee

Dayton v. State

2005-09-08

No. A-08791

1069

1073

120 P.3d 1069

120

Pacific Reporter 3d

Alaska Court of Appeals

Alaska

2021-08-10T17:43:29.302427+00:00

CAP

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

Franklin DAYTON, Jr., Appellant, v. STATE of Alaska, Appellee.

Franklin DAYTON, Jr., Appellant, v. STATE of Alaska, Appellee. No. A-08791. Court of Appeals of Alaska. Sept. 8, 2005. Before: COATS, Chief Judge, MANNHEIMER, and STEWART, Judges.

2180

13764

ORDER Petition for Rehearing Franklin Dayton petitions us to reconsider our decision in his case, Dayton v. State, Alaska App. Opinion No. 2005 (August 26, 2005). Dayton asserts that we misconstrued one of his arguments on appeal, and he also asserts that we failed to address several of his arguments. The underlying issues in this appeal arise from the fact that the sentencing judge, Superior Court Judge Randy M. Olsen, found two aggravating factors-particularly vulnerable victim, and conduct among the most serious within the definition of the offense -based on the contents of the police reports and the pre-sentence report in Dayton's case. Judge Olsen relied on the contents of these reports after the parties expressly agreed that no live testimony would be presented on these issues, and that the judge could rely on the hearsay contained in these documents when making his rulings. On appeal, Dayton contended that when Judge Olsen resolved the disputed aggrava-tors himself, rather than submitting these aggravators to a jury, the judge violated Dayton's Sixth Amendment right to jury trial as construed in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). We rejected that argument because we concluded that, as a matter of Alaska sentencing law, Judge Olsen had the authority to impose Dayton's sentence (2 years to serve, plus 2 additional years of suspended jail time) even in the absence of any aggravating factors. Thus, Dayton's Blakely argument was moot. Dayton also raised a second attack on Judge Olsen's findings, this one having to do with the fact that no live testimony was presented in favor of the two aggravators. In our opinion, we described this argument as the contention that it was illegal for Judge Olsen to base his findings on the hearsay contained in the police reports and the pre-sentence report-illegal because the pre-sen-tence report contained at least two versions of events and, thus, live testimony from the people involved (the defendant and the vice-tim) was required, as a matter of law, before the judge could resolve any issues of fact in the State's favor. We criticized Dayton's attorney for making this argument because, during the superior court proceedings, she expressly agreed that the aggravators could be litigated in this manner-ie, expressly agreed that Judge Olsen could rule on the proposed aggravators without any need for the State to present live testimony from the victim. In the current petition for rehearing, Dayton's attorney asserts that she never argued that Judge Olsen's action was illegal in this sense. She declares that she was making a different argument: the argument that Judge Olsen was clearly erroneous (as a factual matter) when he concluded, based on the information contained in the police reports and pre-sentence report, that the State had proved the two aggravating factors-because the contents of these reports simply failed to support a finding that the two aggravators had been proved by clear and convincing evidence. | We assume that Dayton's attorney is accurately reporting the argument she intended to make. But, like any appellate court, when we decide a case we must rely on what an attorney writes, not on what an attorney may be thinking. Dayton's opening brief attacks Judge Olsen's fact-finding on the basis that it was illegal-not just that the record provided insufficient support for the judge's conclusions. Here is the pertinent portion of Dayton's opening brief (pages 23-25): [The procedure by which the [superior] court found the two aggravating factors . failed to comply with Blakely. Mr. Dayton asks [this] court to remand his case to the [superior] court for a new sentencing. Alternatively, if the court were to find that . Blakely [does] not apply to [the aggravating] factors, Mr. Dayton still asks [this] court to find that the [superior court's] determination that [the] aggravating factors were proved by clear and convincing evidence nonetheless resulted from an illegal procedure. . [The presentence report set forth [the victim's] version of events and Mr. Dayton's version of events.... [TJhe level of proof [for aggravating factors] is very high, "clear and convincing evidence." . Here, the [superior] court made a determination that [the victim] was more believable than Mr. Dayton . without being able to determine the two individuals' relative credibility.... [There was evidence presented to the [superior] court that called into question [the victim's] version of events.... Since there was information available to the [superior] court that [indicated that the victim's] version of events was inaccurate, the [superior] court erred in concluding that the information contained in the police report and the presen-tence report rose to the level of clear and convincing evidence.... Moreover, Mir. Dayton asks this court to [reverse] its earlier [holdings in Evans v. State and Hamilton v. State ] that a defendant is required to enter a testimonial denial of information [contained in the pre-sentence report if the defendant wishes to bar the State from relying on this hearsay, and to require the State to present live testimony in support of disputed factual issues at sentencing]. (Emphasis added) We have reviewed this portion of Dayton's opening brief in light of the statements made by Dayton's attorney in the current petition for rehearing. We are still convinced that, reading this passage objectively, it presents three arguments. Two of these arguments are attacks on the legality of the procedures used by Judge Olsen when he ruled on the State's proposed aggravating factors: first, that these procedures violated Blakely because the aggravating factors were not presented to a jury; and second, that these procedures were illegal because, as a matter of law, a judge can not determine the relative credibility of two competing versions of facts-or, at least, can not rule that one version is "clearly and convincingly" more credible than the other-without hearing live testimony from the witnesses. (The third argument contained in this portion of Dayton's brief is the argument that we should overrule our decisions in Evans v. State and Hamilton v. State-re-interpreting a defendant's right of confrontation at sentencing proceedings so that the State would always be barred from relying on hearsay to prove disputed facts at sentencing, regardless of whether the defendant offers a testimony denial of those facts. We address that argument later in this order.) In sum, although Dayton's attorney may not have intended to question the legality of Judge Olsen's reliance on the contents of the pre-sentence report in the absence of live testimony, that is the argument stated in her brief. The brief argues that Judge Olsen's fact-finding procedure was illegal (see the concluding words of the second paragraph of the above-quoted exeerpt)-not just that the record provided insufficient factual support for the judge's conclusions. To the extent that Dayton intended to argue that the record fails to support Judge Olsen's findings of fact, that those findings are clearly erroncous, we reject this argument. The judge's findings, and the judge's reasoning behind those findings, are quoted on page 9 of our slip opinion. When we evaluate Judge Olsen's findings in light of the contents of the pre-sentence report, we conclude that these findings are not clearly erroneous. We will, however, assume the truth of Dayton's attorney's assertions concerning her intentions when she wrote the brief. For this reason, we retract the paragraph on page 22 of our slip opinion where we suggest that Dayton's attorney might not have honored her duty to deal fairly with the superior court and with opposing counsel. We now turn to Dayton's third argument quoted above-the argument that we should overrule our decisions in Evans v. State and Hamilton v. State concerning a defendant's right of confrontation at sentence ing. Dayton asserts, correctly, that we failed to specifically address this argument in our decision. Evans v. State, 23 P.3d 650, 652 (Alaska App.2001), and Hamilton v. State, 771 P.2d 1358, 1362-63 (Alaska App.1989), hold that a judge who is making findings of fact at sentencing proceedings can rely on out-of-court statements described in the pre-sentence report for proof of the matters asserted, unless the defendant offers a testimonial denial of those statements and submits to eross-exami-nation, in which case the State must support its assertions with live testimony. Dayton argues that Evans and Hamilton can no longer be considered good law, at least when the sentencing judge is deciding disputed aggravating factors, now that the United States Supreme Court has clarified that it is the State's burden to prove aggravating factors beyond a reasonable doubt. Dayton's - argument-that Evans and Hamilton misallocate the burden of proof at sentencing-is premised on a misunderstanding of those two cases. Evans and Hanulton say nothing regarding the State's burden of proving aggravators. Instead, these two cases deal with the manner in which the State can satisfy its burden of proof. The issue presented in Evans and Hamilton was whether, or in what cireumstances, a criminal defendant can demand that the State support its factual allegations with live testimony, rather than relying on the hearsay contained in the pre-sentence report. We concluded that, although a defendant has a right of confrontation at sentencing, it is more cireumseribed than the defendant's right of confrontation at trial To trigger this sentencing right of confrontation, a defendant must take the stand, actively dispute the State's hearsay assertions, and submit to cross-examination on these issues. If the defendant does this, then the State will be obliged to support its assertions with live testimony. The Evans and Hamilton rule concerns the permissible and impermissible uses of hearsay at sentencing; the rule does not affect the State's burden of proving disputed aggravating factors (or any other disputed issues of fact on which the State bears the burden of proof). Thus, Dayton is simply wrong when he asserts (on page 25 of his opening brief) that, unless we overrule Evans and Hamilton, we will "impermissibly shift the burden to the defendant to disprove the facts upon which the aggravating factors [rest]." Finally, Dayton asserts in his petition for rehearing that we failed to address one more of his arguments: the argument that, when Judge Olsen increased Dayton's sentence based on the aggravating factor that Dayton's conduct was among the worst in cluded in the definition of third-degree assault, the judge failed to consider relevant sentencing decisions. Judge Olsen found aggravator (c)(10)that Dayton's conduct was among the worst within the definition of third-degree assault-because, as a factual matter, Dayton had actually committed a more serious crime: the class B felony of second-degree sexual assault (sexual penetration of an incapacitated victim). Dayton argues that, because Judge Olsen found that Dayton had actually committed the class B felony of second-degree sexual assault, the judge was obliged to evaluate Dayton's conduct in comparison to the conduct that typifies second-degree sexual assault, and also to evaluate Dayton's potential sentence in light of the benchmark sentencing ranges that we established in State v. Jackson, 776 P.2d 320, 326-27 (Alaska App.1989), for first felony offenders convicted of class B felonies. It is true that we failed to address this claim in our decision. The short answer to Dayton's claim is that Judge Olsen did not increase Dayton's sentence based on the "conduct among the most serious" aggravating factor. Rather, Judge Olsen imposed a sentence within the normal sentencing range allowed by former AS 12.55.125(k)(2) even in the absence of aggravators. Thus, Dayton's argument is probably moot. The longer answer to Dayton's claim is that (1) Dayton's conduct appears to be typical for second-degree sexual assault of an incapacitated victim, and (2) Dayton's sentence of 4 years with 2 years suspended falls squarely in the middle of the Jackson benchmark range for a typical first felony offender convicted of a typical class B felony offense. In other words, Dayton's sentence does not reflect the flaw that we noted in Benboe v. State, where we ruled that a sentencing judge committed error by substantially increasing a defendant's sentence based on the fact that the defendant's conduct qualified as a higher degree of crime, without taking into account the fact that the defendant's conduct would have been among the least serious forms of that higher degree of crime. To conclude: We reject all of Dayton's arguments in this petition for rehearing, with one exception: we retract the paragraph on page 22 of our slip opinion where we suggest that Dayton's attorney might not have honored her duty to deal fairly with the superior court and with opposing counsel. To that limited extent, the petition for rehearing is GrantED. Our original decision in this case, Opinion No. 2005, is WITHDRAWN and is SUPERSEDED by a revised decision, Opinion No. 2009, which will be issued on September 16, 2005. In all other respects, the petition for rehearing is DENIED. . AS 12.55.155(c)(5) and (c)(10), respectively. . Dayton, slip opinion at pages 15 and 20. . Id., slip opinion at page 21. . Evans, 23 P.3d at 652; Hamilton, 771 P.2d at 1362-63. . 698 P.2d 1230 (Alaska App.1985). . Id. at 1232-33.

8904826

OWEN M., Appellant, v. STATE of Alaska, OFFICE OF CHILDREN'S SERVICES, Appellee

Owen M. v. State, Office of Children's Services

2005-09-09

No. S-11798

201

203

120 P.3d 201

120

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T17:43:29.302427+00:00

CAP

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

OWEN M., Appellant, v. STATE of Alaska, OFFICE OF CHILDREN'S SERVICES, Appellee.

OWEN M., Appellant, v. STATE of Alaska, OFFICE OF CHILDREN'S SERVICES, Appellee. No. S-11798. Supreme Court of Alaska. Sept. 9, 2005. Robert L. Breckberg, Assistant Public Advocate, Chad W. Holt, Assistant Public Advocate Section Supervising Attorney, Anchorage, for Appellant. Michael G. Hotchkin, Assistant Attorney General, Anchorage, David W. Marquez, Attorney General, Juneau, for Appellee. Before: BRYNER, Chief Justice, MATTHEWS, EASTAUGH, FABE, and CARPENETI, Justices.

660

4197

OPINION PER CURIAM. I. INTRODUCTION Owen M. appeals from an order terminating his parental rights to his daughter Molly. Owen contends that the superior court erred by approving an adoption plan for Molly without taking testimony. Because we conclude that Owen waived his argument that an evidentiary hearing was required and did not timely appeal the denial of placement with Molly's paternal grandparents, we affirm. II. FACTS AND PROCEEDINGS The superior court terminated the parental rights of Owen and N.L. to their two-year-old daughter Molly as of October 8, 2004. In the termination proceedings the parents argued that Molly should have been placed with her paternal grandparents in Texas. Molly, who was born in September 2002, was placed in her current foster home in January 2008, fifteen days after she was taken into custody by the Office of Children's Services (OCS). That same month the parents asked OCS to seek placement of Molly with her paternal grandparents in Texas, and OCS pursued the necessary home study. In early June 2003, before the home study was complete, the grandparents withdrew from the home study, apparently at the urging of Owen. In August 2008 the grandparents appeared to renew the request that Molly be placed with them. The court denied the request, refusing to renew the home study process for them. Neither Owen nor the grandparents appealed. More than a year later during the termination proceedings on October 8, 2004, Owen again requested that Molly be placed with her grandparents. The court rejected his request and entered a permanency plan for Molly of adoption by her foster parents. Owen appeals. III. DISCUSSION Owen argues that the superior court improperly "entered findings on per-maneney . without any testimony, thus excluding all potential relative placements, including the paternal grandparents." We review Owen's argument for plain error because he did not ask the superior court for an evidentiary hearing on Molly's placement. "Plain error exists 'where an obvious mistake has been made which creates a high likelihood that injustice has resulted." Owen cannot show plain error,. The superior court did not make an obvious mistake in not holding an evidentiary hearing because neither the statute nor the CINA rule explicitly requires one. Moreover, the likelihood of an unjust result is slim because the superior court could have properly reached the same result-approving Molly's adoptive placement with her foster parents-even if it had held an evidentiary hearing. [4] Lastly, we observe that Owen's request for an evidentiary hearing is directed at getting Molly placed with her paternal grandparents. However, the superior court denied the family's requests to pursue placement with the grandparents in August 2003. Owen or the grandparents needed to timely appeal that placement denial. Because they did not do so, we will not consider Owen's current challenge to the placement decision as it is untimely. IV. CONCLUSION We AFFIRM the termination of Owen's parental rights and the permanency plan for Molly. . Pseudonyms or initials have been used for all family members to protect their identities. . N.L. does not appeal. . See, e.g., D.J. v. P.C., 36 P.3d 663, 667-68 (Alaska 2001) ("Issues not raised in the trial court shall not be considered on appeal, except for plain error."). . Id. at 668 (quoting Sosa v. State, 4 P.3d 951, 953 (Alaska 2000)). . See AS 47.10.080(l); CINA Rule 17.2. . See S.S.M. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth Servs., 3 P.3d 342, 345 (Alaska 2000) (holding order denying placement of child in need of aid with his sister was final, appealable order). . See Alaska R.App. P. 204(a)(1).

12014649

John LINDEKUGEL, Appellant, v. FLUOR ALASKA, INC., Alaska Pacific Assurance Co., and the Alaska Workers' Compensation Board, Appellees

Lindekugel v. Fluor Alaska, Inc.

1997-03-28

No. S-7360

1307

1312

934 P.2d 1307

934

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:43:39.597891+00:00

CAP

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

John LINDEKUGEL, Appellant, v. FLUOR ALASKA, INC., Alaska Pacific Assurance Co., and the Alaska Workers’ Compensation Board, Appellees.

John LINDEKUGEL, Appellant, v. FLUOR ALASKA, INC., Alaska Pacific Assurance Co., and the Alaska Workers’ Compensation Board, Appellees. No. S-7360. Supreme Court of Alaska. March 28, 1997. William J. Soule, Law Office of William J. Soule, Anchorage, for Appellant. Randall J. Weddle, James E. Hutchins, Faulkner, Banfield, Doogan & Holmes, Anchorage, for Appellees Fluor Alaska, Inc., and Alaska Pacific Assurance Co. Before COMPTON, C.J., RABINOWITZ, MATTHEWS, and EASTAUGH, JJ.

3578

21797

OPINION MATTHEWS, Justice. On August 26, 1976, John Lindekugel suffered a serious back injury while working for Fluor Alaska. Lindekugel and Fluor entered into a compromise and release on May 21, 1979, settling Lindekugel's various disability claims for a lump sum payment of $225,000. The compromise and release explicitly preserved Fluor's obligation to pay future medical benefits. It was approved by the Board. In 1981 Lindekugel went to work for George Easley Construction Company. On October 8th of that year he reinjured his back when he slipped while carrying a heavy sheet of plywood. In March of 1983, he filed an application for adjustment of claim against Fluor and Easley, seeking medical cost reimbursement from Fluor and Easley and disability payments from Easley. The claim referred to both accidents. It came on for hearing on May 12,1983. At the hearing, but out of the presence of Lindekugel, Gil Johnson, attorney for Lindekugel, announced his desire to dismiss the claim against Fluor, stating that a settlement had been reached with Easley although a compromise and release form putting the terms of the settlement in writing had not been drafted. The hearing chairman indicated that the hearing would be continued until the compromise and release form was submitted for approval. Randall Weddle, attorney for Fluor, objected to continuing the hearing, since he had an out-of-state medical witness ready to testify. Weddle requested an immediate dismissal with prejudice of the claim against Fluor. After an off-the-record discussion, Johnson agreed to dismiss the claim against Fluor with prejudice. After further discussion the chairman stated: "Dismiss [Fluor] with prejudice. Okay. Thank you." The chairman then stated that the hearing was continued with respect to the Lindekugel/Easley claim until the compromise and release "was worked out." As it turned out, quite a bit of working out was necessary. The Lindekugel/Easley compromise and release was finally filed in 1990. It proposed that Easley would pay Lindeku-gel $45,000, reciting that Easley had already paid $21,665.85. The compromise and release provided that Easley would not be responsible for "current or future medical benefits" for Lindekugel. The Board disapproved of the Lindeku-gel/Easley compromise and release. In a written opinion dated February 6, 1991, the Board noted many deficiencies in the compromise and release — notably it failed to describe at least five surgeries performed on Lindekugel after January 14, 1983. The Board concluded that the compromise and release was not in Lindekugel's best interest. In so concluding the Board stressed the public purpose rather than private rights aspect of workers' compensation, quoting Professor Larson's treatise on Workmen's Compensation Law as follows: [T]he underlying issue is once more the choice between viewing a compensation claim as a sort of private tort right and recognizing the social-protection character of the compensation system. If one thinks of a compensation claim as a private, personal, adversary money claim against the particular employer and his insurance carrier, one will go [on] to conclude, as the Kansas court did, that "workmen are not in any respect under guardianship or other disability; they and their employers are free agents; they may release their employers from liability for injuries on any agreed terms set forth." What this overlooks is that the entire compensation system has been set up and paid for, not by the parties, but by the public. The public has ultimately borne the cost of compensation protection in the price of the product, and it has done so for the specific purpose of avoiding having the disabled victims of industry thrown on private charity or public relief.... To this end, the public has enacted into law a scale of benefits that will forestall such destitution. It follows, then, that the employer and employee had no private right to thwart this objective by agreeing between them on a disposition of the claim that may, by giving the worker less than this amount, make him a potential public burden. The public interest is also thwarted when the employer and employee agree to a settlement which unnecessarily increases the cost of the product by giving the worker more than is due. As against this, it is often argued that to permit compromise will enable claimants to get at least something in the many contro versial cases where there is serious doubt whether fundamental conditions of liability can be established. But again it must be stressed that the objective of the legislation is not to see how much money can be transferred to workmen as a class; it is to ensure that those with truly compensable claims get full compensation. If there is doubt about the compensability of the claim, the solution is not to send the claimant away half-compensated; but to let the Compensation Board decide the issue. That is the Board's job. The Board was specifically concerned about the waiver of future medical benefits, quoting Professor Larson to the effect that an employee should almost never be permitted to waive them: A settlement ordinarily stops only the claimant's rights to weekly income benefits and does not affect his rights to future medical benefits.... This strictness is well justified, since it is difficult to imagine why it should ever be in the best interests of a claimant to bargain away his rights to future medical treatment for a lump sum. After all, how can unknown future medical costs be subjected to commutation on an actuarial basis? It is significant that the Council of State Government's draft compensation law does not permit even its strictly controlled application of lump-summing to be applied to medical benefits. The Board encouraged Lindekugel to pursue a claim against Fluor for medical expenses: [W]e would hope he would pursue claims for work-related medical costs against either Fluor (the first employer) or [Easley]. Even his attorney believes [Lindekugel] has a right of review against Fluor, but no claim has been filed against Fluor since the so-called settlement hearing in 1983. We do not understand why this has not occurred when the attorney asserts [Lin-dekugel] may have a right.... In addition, assuming [Lindekugel] has a right of review against Fluor for medical treatment, we question why Fluor was not brought into the present action since one issue settled in the C & R was medical treatment. Of course, the effect of the continuance hearing in 1983 has never been resolved. Eventually Lindekugel hired a new attorney who on September 30,1993, filed a claim against Fluor for medical expenses. Fluor answered, denying liability based on the oral dismissal with prejudice of May 12, 1983. The Board held that the oral order was valid. Lindekugel appealed to the superior court, which affirmed the Board. Lindekugel now appeals to this court. Lindekugel makes two arguments. First, he contends that the stipulation to dismiss Fluor with prejudice was "an agreement in regard to a claim" within the meaning of former subsection .210(b) of AS 23.30. Because the agreement was not set forth on a form prescribed by the Board and because the Board did not find it to be in the best interest of Lindekugel, he contends that it was, to use the language of subsection .210(b), "void for any purpose." Second, and alternatively, Lindekugel argues that the Board abused its discretion in not setting aside the stipulation for good cause shown. In response, Fluor argues first that assuming that the stipulation was invalid under subsection .210(b), it was merely voidable rather than void ab initio. As a voidable decision it is now enforceable since it was not corrected through a timely appeal or motion for reconsideration. Second, Fluor contends that the stipulation to dismiss the claim with prejudice was not "an agreement in regard to a claim" within the meaning of subsection .210(b). Third, Fluor contends that the stipulation for dismissal with prejudice was governed by the Board's regulation concerning stipulations, 8 AAC 45.050(c)(10). Fourth, Fluor argues that Lindekugel has waived any right he might have had to reassert claims against Fluor because (1) his counsel agreed to dismiss them with prejudice, (2) Lindeku-gel delayed objecting to the effect of the stipulation for more than ten years, and (3) Lindekugel failed to bring the case to hearing within two years as required by AS 23.30.110(c). Fifth, Fluor argues that the Board did not abuse its discretion in failing to set aside the stipulation for dismissal with prejudice because (1) the Board lacked such discretion as the stipulation was encompassed in an order of the Board and (2) Lindekugel's delay in requesting relief — and the prejudice to Fluor associated with that delay — justified the Board in not reopening the claim. The statute which is central to the disposition of this claim is AS 23.30.210(b). In 1983 it read as follows: At any time after death, or after 30 days subsequent to the date of the injury, the employer and the employee or the beneficiary or beneficiaries, as the case may be, have the right to reach an agreement in regard to a claim for injury or death hereunder in accordance with the applicable schedule hereof, but a memorandum of the agreement in a form prescribed by the board shall be filed with the board. Otherwise, the agreement is void for any purpose. If approved by the board, the agreement is enforceable the same as an order or award of the board and discharges the liability of the employer for the compensation notwithstanding the provisions of § 130, 160, and 245 of this chapter. The agreement shall be approved by the board only when the terms conform to the provisions of this chapter and, if it involves or is likely to involve permanent disability, the board may require an impartial medical examination and a hearing in order to determine whether or not to approve the agreement. The board may approve lump-sum settlements when it appears to be to the best interest of the employee or beneficiary or beneficiaries. The regulation governing stipulations in existence as of the 1983 hearing was 8 AAC 45.050(c) (10). It provided: Stipulations between the parties may be made at any time in writing prior to the submission of the proceeding or may be made orally or in the course of any hearing. (A) Such stipulation shall be binding upon the parties thereof unless permission be given for good cause to withdraw therefrom. (B) The Board may base its findings upon the facts as they appear from the evidence, or may cause further testimony to be taken or investigation made in the manner prescribed by the Act, any stipulation to the contrary notwithstanding. The regulation governing settlements in existence as of the 1983 hearing was 8 AAC 45.160. It provided in relevant part: Agreed Settlements, (a) Agreements which provide for the payment of less than the full amount of compensation due or to become due, and which undertake to release the employer from all future liability, will be approved only where it appears that a reasonable doubt exists as to the rights of the parties or that the approval would be for the best interest of the parties. (b) All agreed settlements must conform strictly to the requirements of AS 23.30.210. (d) The board will inquire into the adequacy of all compromises, and may, in its discretion, set the matter for hearing to take evidence when necessary to determine whether such agreement shall be approved or disapproved. Currently, the Board has in effect regulations requiring stipulations waiving an employee's right to benefits to comply with current AS 23.30.012 (former subsection .210(b)) and providing that settlements waiving medical benefits are presumptively unreasonable. 1. Was the Oral Stipulation for Dismissal with Prejudice an Agreement Regarding a Claim within the Meaning of Subsection .210(b)? We answer this question in the affirmative. The stipulation is "an agreement in regard to a claim" as we interpret that term. The meaning of the statutory term "agreement in regard to a claim" is clarified by the third sentence of subsection .210(b), which explains that the agreement, "[i]f approved by the board . discharges the liability of the employer. ." The emphasized language thus indicates that it is not every "agreement in regard to a claim" that is covered by subsection .210(b) — for stipulations as to procedural matters and as to facts would come within a broad construction of that term — but only those agreements which have the effect of discharging the liability of the employer. This interpretation is consistent with the Board's interpretation of the statute as reflected in regulations in effect at the time of the 1983 hearing, 8 AAC 45.050(c)(10) and 8 AAC 45.160, and in current regulations, 8 AAC 45.050(f)(3) and 8 AAC 54.160(c) (see supra n. 3 and preceding text) (all cited regulations provide that stipulation waiving employee's rights to benefits must conform with the section currently numbered .012). Because the oral stipulation for dismissal with prejudice discharged the liability of an employer, we conclude that the oral stipulation was ah "agreement regarding a claim" within the meaning of subsection .210(b). 2. What Is the Effect of Noncompliance with Subsection .210(b)? Subsection .210(b) expressly provides that where its terms are not complied with, "the agreement is void for any purpose." Lindekugel argues that the oral order of dismissal is also void since its only basis was the void stipulation. Fluor argues that the oral order was merely voidable and became enforceable after the time for appealing or seeking reconsideration passed. In our view Lindekugel has the better of this argument for three reasons. The first and most important is the legislative language. The phrase "void for any purpose" is a clear indication that the legislature intended that no legal consequences should flow from an agreement covered by subsection .210(b) which does not meet its requirements. Second, the purpose of the "void for any purpose" language in subsection .210(b) is to prevent poorly conceived agreements from discharging an employer's liability. Underlying this purpose are reasons which are both personal to the injured worker and social in character. The personal reasons are premised on the thought that the injured worker should not give up his or her rights except with knowledge and deliberation concerning the consequences. Included in the social reasons is the thought that if the injured worker improvidently surrenders his or her rights society may ultimately bear the burden of the worker's decision through public welfare or private charity. To allow a noncomplying settlement agreement to be validated by an order subverts these purposes. The social reasons have special force when considering whether the oral order based on the stipulation should be regarded as void or merely voidable. In Perry v. Newkirk, 871 P.2d 1150, 1154-55 (Alaska 1994), we held that a superior court judgment approving a stipulation in a divorce case terminating the father's parental rights was void rather than merely voidable because of the public interest in the subject matter. The public interest in the subject matter of this case is also strong, as the Board concluded in denying approval of the 1990 compromise with Easley which would have waived medical benefits. See supra pp. 1308-09. Third, Fluor's argument is based on the assumption that the oral order of the hearing officer was a final and appealable order. Fluor states: An appeal of a decision of an administrative agency must be brought within 30 days of the filing of a final order. Appellate Rule 602(a)(2); Diedrich v. City of Ketchikan, 805 P.2d 362, 365 (Alaska 1991). Appellate Rule 602(a)(2) as it existed in 1983 read as follows: The time within which an appeal may be taken to the superior court from an administrative agency shall be 30 days from the date that the order appealed from is mailed or delivered to the appellant. If a request for agency reconsideration is timely filed before the agency, the notice of appeal must be filed within 30 days after the agency's reconsideration decision. The language of Appellate Rule 602(a)(2) requiring mailing or delivery of the order in question implies that a written order is necessary in order to trigger the thirty-day period. Diedrich, cited by Fluor, is not to the contrary for there was a written order in that case. 805 P.2d at 364 n. 1. A review of our ease law has not revealed any case in which we have held that an oral administrative order was a final order for the purposes of triggering the thirty-day appeal period expressed in Appellate Rule 602(a) or its predecessor, Appellate Rule 45. Similarly, AS 23.30.125(a) requires that a final order be written, since oral orders cannot be filed: A compensation order becomes effective when filed in the office of the board as provided in AS 23.30.110 and, unless proceedings to suspend it or set it aside are instituted as provided in (c) of this section, it becomes final on the 31st day after it is filed. 3. Remaining Issues The above discussion effectively disposes of this ease. The oral order dismissing Fluor was void. Lindekugel's claim for medical expenses against Fluor thus remains to be decided. Fluor's claim of waiver fails for the same reasons that the stipulation cannot be enforced. Johnson's agreement to the stipulation is the predicate for the waiver argument, and the agreement is void. The two-year period of AS 23.30.110(c) is not a bar, for Lindekugel requested a hearing within two years of Fluor's controversion. See Huston v. Coho Electric, 923 P.2d 818 (Alaska 1996); Tipton v. ARCO Alaska, 922 P.2d 910 (Alaska 1996). We need not decide whether the Board abused its discretion in failing to set aside the stipulation, for it was void. The decision of the superior court affirming the decision of the Board is REVERSED, and this case is REMANDED to the superior court with instructions to reverse the Board's decision and remand the case to the Board for farther proceedings. FABE, J., not participating. . Fluor was insured by ALPAC/INA for workers' compensation purposes. . The statute has now been renumbered; it currently appears, confusingly, as section .012 rather than subsection .210(b). . 8 AAC 45.050(f)(3) (1996) provides: Stipulations of fact or to procedures are binding upon the parties to the stipulation and have the effect of an order unless the board, for good cause, relieves a party from the terms of the stipulation. A stipulation waiving an employee's right to benefits under the Act is not binding unless the stipulation is submitted in the form of an agreed settlement, conforms to A.S. 23.30.012 and 8 AAC 45.160, and is approved by the board. 8 AAC 45.160(c)(1996) provides in relevant part: Every agreed settlement must conform strictly to the requirements of AS 23.30.012_ 8 AAC 45.160(e) (1996) provides in relevant part: Agreed settlements in which the employee waives medical benefits or benefits during rehabilitation training are presumed unreason able and will not be approved absent a showing that the waiver is in the employee's best interests. . In accordance with this interpretation, we note that stipulations governed by 8 AAC 45.050(c)(10) which have the effect of discharging an employer's liability must also satisfy the statutory requirements of subsection .210(b). . In its current form, Appellate Rule 602(a)(2) has the following additional language which was not present in 1983: The 30-day period for taking an appeal does not begin to run until the agency has issued a decision that clearly states that it is a final decision and that the claimant has thirty days to appeal. An appeal that is taken from a final decision that does not include such a statement is not a premature appeal. . The last sentence of AS 23.30.110(c) provides: "If the employer controverts a claim on a board-prescribed controversion notice and the employee does not request a hearing within two years following the filing of the controversion notice, the claim is denied." . Fluor argues that if Johnson had not agreed to the stipulation it would have presented its medical witness who would have testified that the medical expenses incurred by Lindekugel between the second accident on October 8, 1981, and the hearing, May 12, 1983, were caused by the second accident. Fluor does not argue that the witness is now unavailable or that the same testimony cannot be obtained from another witness. But there will be a duplication of expenses which must be borne by Fluor. We note that if Fluor's witness had testified and persuaded the Board, the Board's decision on the merits would not have discharged Fluor as to future medical expenses — those incurred after the hearing. Lin-dekugel, and Easley, would always be free to contend that the second accident had consequences which were limited in character and that medical expense claims presented at future hearings remained Fluor's responsibility. Thus Fluor's claim that it was prejudiced by not going forward at the 1983 hearing is plausible, but the prejudice it may have suffered is not as significant as Fluor implies.

10426214

STATE of Alaska, DEPARTMENT OF NATURAL RESOURCES and Northern Adjusters, Inc., Petitioners, v. Lee DUPREE, Respondent

State, Department of Natural Resources v. Dupree

1983-05-13

No. 6047

562

568

664 P.2d 562

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 NATURAL RESOURCES and Northern Adjusters, Inc., Petitioners, v. Lee DUPREE, Respondent.

STATE of Alaska, DEPARTMENT OF NATURAL RESOURCES and Northern Adjusters, Inc., Petitioners, v. Lee DUPREE, Respondent. No. 6047. Supreme Court of Alaska. May 13, 1983. Michael A. Barcott, Faulkner, Banfield, Doogan & Holmes, Anchorage, for petitioners. Millard F. Ingraham, Fairbanks, for respondent. Before BURKE, C.J., and RABINOWITZ, CONNOR, MATTHEWS and COMPTON, JJ.

3629

22705

OPINION BURKE, Chief Justice. AS 23.30.220(2) provides that the average weekly wage of an injured employee is that most favorable to the employee calculated by dividing fifty-two into the total wages earned in any one of the three calendar years immediately preceding injury. Departure from this formula is sanctioned when the Alaska Workers' Compensation Board determines that the employee's average weekly wage cannot be "fairly calculated" under subsection (2). AS 23.30.220(3). At issue in this case is whether Dupree's average weekly wage was fairly calculated under that section because application of the three year rule resulted in a compensation award substantially in excess of her after-tax salary on the date of injury. We hold that Dupree's average weekly wage was fairly calculated under subsection (2) and affirm. The facts in this case are not contested. Lee Dupree was injured in the course and scope of her employment in November 1978. At that time, Dupree was earning approximately $300 per week. In 1976, however, Dupree earned $538 per week, that figure reflecting her employment on the pipeline project. Based on her 1976 earnings, Du-pree's disability award under subsection (2) was $359 per week, an amount in excess of her salary when the disability arose. Dupree's employer and its workers' compensation carrier requested that the Board reduce Dupree's weekly compensation rate to reflect accurately her wage loss due to injury. The Board complied, setting Du-pree's average weekly wage under subsection (3) at $200 per week, an amount commensurate with her after-tax salary on the date of injury. Dupree appealed to the superior court. That court reversed, concluding that the Board lacked the authority to modify an award calculated under subsection (2) and based entirely on documented past earnings. Dupree's employer and its workers' compensation carrier petitioned for review. Until amended in 1977, the Alaska wage basis statute closely resembled a model statute first enacted in New York and still in force in numerous jurisdictions. Under this generic statute, an employee's average annual earning capacity was fixed according to the weekly wage earned at the time of injury. If, for some reason, the weekly wage at that time was not representative of actual annual earning capacity, earnings of similarly situated employees were used to arrive at an approximation of the claimant's annual earning capacity. The amended Alaska statute departs significantly from the traditional wage basis statute. Rather than focusing on the employee's weekly earnings at the time of injury, the statute calls for a survey of the employee's earnings in the three calendar years immediately preceding injury. The Board is then directed to select the year "most favorable" to the employee to serve as the basis for computing the claimant's probable future earning capacity. The 1977 amendment thus shifts emphasis from the employee's earnings at the time of injury to the employee's earnings over a selected historical period. Implicit in this change is the premise that an employee's documented past earning capacity is perhaps the best guide to probable future earning capacity. The state submits that an average weekly wage figure arrived at by selecting the year most favorable to the employee and dividing by fifty-two is "unfairly calculated" if the resulting figure exceeds the employee's salary at the time of injury. In essence, the state contends that the Board has the discretion to modify a figure calculated under subsection (2) whenever it feels that a claimant's future earnings will not equal documented past earnings. We believe that such a construction of AS 23.30.-220(3) would eviscerate AS 23.30.220(2), contravene the legislature's intent in amending the statute, and create unnecessary difficulties in administering the wage basis provision of the Alaska Workers' Compensation Act. The state concedes, as it must, that some excess of award over salary is contemplated by new subsection (2). It follows that a claimant's salary on the date of injury cannot serve as a ceiling on compensation awards; any other rule would simply reinstate the claimant's salary at the time of injury as the determinative factor in calculating future earning capacity. Consequently, Dupree's average weekly wage figure cannot be said to be unfairly calculated, as that term is used in subsection (3), merely because it exceeds her salary on the date of injury. In arguing to the contrary, the state is in effect trying to undo what the legislature did in 1977. Nor are we persuaded that Du-pree's award was unfairly calculated because there was no evidence that she was capable of reproducing her 1976 earnings. We recognize that Dupree's earnings in 1976 were a product of the times and unlikely, in the normal course of things, to be repeated. But neither this court nor the Board can say with any assurance that Du-pree would not have earned as much during the period of disability as she did in 1976. In arguing to the contrary, the state is in essence suggesting that the Board is entitled to make factual findings in every case on the likelihood that a claimant's future earnings will not equal documented past earnings. This the statute does not authorize. On the contrary, subsection (2) is written to give the benefit of past earnings history to the employee. It would be inconsistent with this purpose to place the burden on the employee of proving that past earnings were representative of future earning capacity; the legislature has already made that determination. We are unwilling to rewrite subsection (2) to permit the Board to substitute its discretion for the legislative past earnings approach. Accordingly, we conclude that subsection (2) does not entitle the Board to disregard an employee's documented past earnings merely because it feels the claimant is unlikely to match those earnings in the years to come. We note that any other construction of subsection (3) could only serve to increase uncertainty concerning proper wage basis calculation and cause a corresponding increase in litigation. Adopting the state's construction of subsection (3) would put the Board in the uncomfortable position of having to assess whether an award in excess of salary is warranted, or whether past earnings are, for some reason, unrepresentative of future earning capacity. Such speculation is not contemplated by the statute. Finally, we note that the result reached here is compelled by the rule that ambiguous workers' compensation statutes should be construed in favor of the employee. Seward Marine Services, Inc. v. Anderson, 643 P.2d 493 (Alaska 1982); Hood v. State, Workmen's Compensation Board, 574 P.2d. 811, 813 (Alaska 1978). Given this longstanding rule of construction, and considering the evident legislative design, we hold that Dupree's average weekly wage was not unfairly calculated merely because it exceeded her salary on the date of injury. AFFIRMED. . The average weekly wage figure derives its importance from the fact that a temporarily but totally disabled employee draws 66⅜% of his average weekly wage in disability payments. AS 23.30.185. Thus, the greater the claimant's average weekly wage, the greater the compensation award. . As amended in 1977, AS 23.30.220 provides: Except as otherwise provided in this chapter, the average weekly wage of the injured employee at the time of injury is the basis for computing compensation and is determined as follows: (1)Repealed by § 11 ch. 75 SLA 1977 (2) the average weekly wage is that most favorable to the employee calculated by dividing 52 into the total wages earned, including self-employment, in any one of the three calendar years immediately preceding the injury; (3) if the board determines that the wage at the time of injury cannot be fairly calculated under (2) of this section, or cannot otherwise be ascertained without undue hardship to the employee, the wage for calculating compensation shall be the usual wage for similar service rendered by paid employees under similar circumstances, as determined by the board; . . Prior to being amended, AS 23.30.220 provided: Except as otherwise provided in this chapter, the average weekly wage of the injured employee at the time of injury is the basis for computing compensation, and is determined as follows: (1) if at the time of the injury the employee had been employed in the same or similar employment for 27 weeks immediately before the injury, the average weekly wage is the weekly wage at the time of injury. (2) if at the time of the injury the employee had been employed in the same or similar employment for less than 27 weeks . the average weekly wage is that most favorable to the employee calculated by dividing 52 into the total wages earned, including self-employment, in any one of the three calendar years immediately preceding the injury; (3) if the board determines that the wage at the time of injury cannot be fairly calculated under (2) of this section, or cannot otherwise be ascertained without undue hardship to the employee, the wage for calculating compensation shall be the usual wage for similar service rendered by paid employees under similar circumstances.... Similar wage basis statutes are found in California, Cal.Lab.Code § 4453 (West 1971); Colorado, Colo.Rev.Stat. § 8-47-101 (1973); District of Columbia, D.C.Code Ann. § 36-301 to 344 (1981) (incorporating the substantive provisions of the federal Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 910 (1976)); Florida, Fla.Stat. § 440.14 (West.1981); Georgia, Ga.Code Ann. § 114— 402 (1973); Maine, Me.Rev.Stat.Ann. tit. 39, § 51 (1978); Michigan, Mich.Comp.Laws Ann. § 418.371 (1967); and New York, N.Y. Workmen's Compensation Law § 14 (McKinney 1965). The Alaska statute differed from these statutes principally in the number of weeks worked requirement and in the language authorizing discretionary computation in lieu of mechanical calculation. Under the federal statute and numerous state statutes, discretionary computation is authorized where the statutory methods cannot be fairly applied to arrive at an annual earnings approximation. Under the pre-amendment Alaska statute, however, discretionary computation was proper where a claimant's wage could not be fairly calculated pursuant to the statutory method. We have had no opportunity to consider whether this difference in phraseology is significant, and, in light of the result reached here, do not reach the question. . Examples include employment situations where the claimant has been a full time employee irregularly employed due to poor business conditions, Casualty Indem. Exch. v. Industrial Accident Comm'n, 135 Cal.App. 746, 27 P.2d 782 (Cal.1933), a temporary full time employee, Dept. of Water v. Industrial Accident Comm'n, 130 Cal.App. 231, 19 P.2d 832 (Cal.1933), a seasonal employee, Marshall v. Andrew F. Mahoney Co., 56 F.2d 74 (9th Cir.1932) and an employee newly engaged in piecework, Belliamo v. Marlin-Rockwell Co., 215 App.Div. 845, 213 N.Y.S. 85 (N.Y.1927). In each case, the statutory formula could not be fairly applied since to do so would result in ascertaining a "mere theoretical earning capacity, having no regard to the actual facts of the case, but [which] would award arbitrarily . . compensation in excess of what [the employee] was able to earn if at work...." Marshall v. Andrew F. Mahoney, Co., 56 F.2d 74, 78 (9th Cir.1932) (interpreting sections of the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 910 (1976)). . A review of the pertinent legislative history indicates that this was a reasoned and intentional departure from the traditional manner of computation. The bill that made the changes to AS 23.30.220 was introduced at the request of the governor as S.B. 131 on February 4, 1977. 1977 Senate Journal 203. As initially proposed, the bill would have increased the weeks worked requirement in subsections (1) and (2) from 27 to 52. Id. When referred to the Senate Labor and Management Committee, however, the original proposal was rejected and the following substituted: Section 8. AS 23.30.220(2) is amended to read: (2) [IF AT THE TIME OF THE INJURY THE EMPLOYEE HAS BEEN EMPLOYED IN THE SAME OR SIMILAR EMPLOYMENT FOR LESS THAN 27 WEEKS IMMEDIATELY BEFORE THE INJURY,] the average weekly wage is that most favorable to the employee calculated by dividing 52 into the total wages earned, including self-employment, in any one of the three calendar years immediately preceding the injury; Sec. 9. AS 23.30.172 and 23.30.220(1) are repealed. The bill left the senate in this form. The bill moved through the house without major amendment. Proposed amendment No. 7, however, would have left AS 23.30.220 as it existed before 1977. This amendment was rejected and the bill became law. 1977 House Journal 1474. This history, sparse as it may be, indicates that the legislature deliberately shifted to a historical earnings approach, disregarding earnings at the time of injury or even in the year of injury. All that is material are the highest earnings in the three calendar years immediately preceding injury. .The state submits that it is not attempting to confer additional discretion on the Board but merely seeks to confirm existing discretion. It argues that subsection (3) was designed to permit modifications where the statutory formulae were less likely to produce an accurate earnings estimate than the appraisal possible though an ad hoc administrative proceding. Contrary to this assertion, however, it is not at all clear that subsection (3) was intended to confer such wide-ranging discretion. Review of the legislative history of the federal analogue to subsection (3) indicates that that section was designed to permit discretionary computation only when the claimant was involved in seasonal, intermittant, or part time employment: This subsection in the present law is used where the employment itself, in which the injured employee was engaged when injured, does not afford a full year of work . Thus subsection (c) applies to seasonal, intermittent, discontinuous, and like employment which affords less than a full work year or work week. S.Rep. No. 1315, 80th Cong., 2d Sess., reprinted in 1948 U.S.Code Cong.Serv. 1979, 1982 (emphasis added). At least one jurisdiction, however, has authorized discretionary computation in an instance where reference to the formula, while possible, would produce a less accurate figure than that possible through administrative adjudication. Hastings v. Earth Satellite Corp., 628 F.2d 85 (D.C.Cir.1980). Conversely, other courts have held that the statutory for-mulae must be applied whenever possible, i.e., where the claimant has been engaged in full time steady work for the requisite period. Landry v. Bates Fabric, Inc., 389 A.2d 311, 312 (Me.1978); St. Pierre v. St. Regis Paper Co., 386 A.2d 714, 716 (Me.1978). Given the narrow question presented here, i.e., whether Du-pree's wage was unfairly calculated because it exceeded her salary on the date of injury, we do not believe it necessary to discuss this issue further. . We recognize that there is authority for treating wage basis calculation somewhat differently in the case of a temporarily (as opposed to permanently) disabled employee. See Argonaut Ins. Co. v. Industrial Accident Comm'n, 57 Cal.2d 589, 371 P.2d 281 (Cal.1962). AS 23.30.-220 does not draw such a distinction and we decline to create one judicially. The Board's discretion should not vary according to the severity of the injury and the duration of the incapacity. . This opinion does not purport to address all instances where an award might be subject to modification. Rather, our holding is simply that the Board lacks authority to modify an award based on documented past earnings, absent facts in the record establishing a claimant's absolute inability to match past earnings in the years to come.

6983435

Mary JAWORSKI, Appellant, v. ESTATES OF Andrew G. HORWATH, Marjorie Horwath, Michael J. Horwath, by Sue STREETS, Personal Representative, Appellee

Jaworski v. Estates of Horwath

2012-05-25

No. S-13566

753

763

277 P.3d 753

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.

Mary JAWORSKI, Appellant, v. ESTATES OF Andrew G. HORWATH, Marjorie Horwath, Michael J. Horwath, by Sue STREETS, Personal Representative, Appellee.

Mary JAWORSKI, Appellant, v. ESTATES OF Andrew G. HORWATH, Marjorie Horwath, Michael J. Horwath, by Sue STREETS, Personal Representative, Appellee. No. S-13566. Supreme Court of Alaska. May 25, 2012. Michael J. Zelensky, Ketchikan, for Appellant. Amanda M. Schulz, Ketchikan, for Appel-lee. Before: CARPENETI, Chief Justice, FABE, WINFREE, and STOWERS, Justices.

6946

43531

OPINION PER CURIAM. 1. Alaska's probate nonclaim statute, AS 13.16.460, provides that claims against an estate arising before the decedent's death are barred unless presented: (1) within four months of the first publication of notice to creditors; (2) within three years of death if no notice to creditors is published; or (8) within limits specified by other applicable statutes of limitations The statute also bars most claims arising after the decedent's death unless presented within four months of the time they arise. 2. Andrew G. Horwath, Sr. died in 1991 in Ketchikan. His widow, Marjorie Hor-wath, later moved to Minnesota to live with their daughter, Mary Jaworski. A Minnesota court entered a conservatorship order for Marjorie, appointing Mary "Conservator of the Person" and Michael Horwath-An-drew and Marjorie's son, and Mary's brother-"Conservator of the Estate." Marjorie died in 2001, and Michael died in 2007. Michael served for a time as personal representative of Andrew's estate and applied to do so for Marjorie's estate, as well, but was not formally appointed. Another Horwath daughter, Sue Streets, became the personal representative for the estates of Andrew, Marjorie, and Michael. 3. In November 2008 Mary presented claims against all three estates, alleging that her then-deceased brother Michael had not always made a court-ordered monthly payment to her for their mother's care and that Michael had not reimbursed her for improvements she made to her house while caring for Marjorie. Mary also claimed Michael had improperly dissipated property and mismanaged both parents' estates. All claims against a decedent's estate that arose before the death of the decedent . if not barred earlier by other statute[s] of limitations, are barred against the estate, the personal representative, and the heirs and devisees of the decedent, unless presented as follows: (1) within four months after the date of the first publication of notice to creditors if notice is given in compliance with AS 13.16.450; . (2) within three years after the decedent's death, if notice to creditors has not been published. 4. Personal representative Sue issued a disallowance of these claims in December 2008, asserting that the claims were unfounded and time-barred under both the nonelaim statute and the applicable statutes of limitations. Mary petitioned for an extension of time to initiate proceedings on her disallowed claims. Sue opposed the motion, arguing that no extension could be allowed because all of Mary's claims were barred by the applicable statutes of limitations. Mary did not respond to the merits of Sue's arguments. The superior court denied Mary's extension petition on grounds that her elaims were barred by applicable statutes of limitations. 5. Mary moved for reconsideration, contending that the superior court's order was "not clear" but seemed to be based on her failure to comply with the nonelaim statute, rather than the underlying statutes of limitations. She asked for clarification. The court did not respond to the motion for reconsideration, and under Alaska Civil Rule 77(k)(4) it was deemed denied 30 days later. 6. Mary appeals. Although Mary's statement of issues on appeal asserts the superior court erred by denying her requested extension because she "exceeded the period under the statute of limitations," thereby causing a "forfeiture" of her claims, the legal arguments in Mary's opening brief do not address this issue. Instead of addressing the court's ruling that her claims were barred by applicable statutes of limitations and that she therefore was not entitled to an extension of time to initiate proceedings on her disallowed claims, Mary argues her claims should not be barred by the nonclaim statute because she had not been given notice the nonelaim period had begun to run. 7. The issue before the superior court was neither the merits of Mary's claims nor the merits of personal representative Sue's disallowance of Mary's claims for failure to comply with the nonelaim statute. The issue before the court was Mary's requested extension of time to contest Sue's disallowance of Mary's claims. The court denied the extension because the applicable statutes of limitations already had run on all of Mary's claims. Mary did not address the statute of limitations issues in the superior court or in her opening brief to this court. Only in Mary's reply brief did she address the statutes of limitations, and then only in the context of Michael's actions as her mother's Minnesota conservator. 8. Having failed to argue the statute of limitations issues in the superior court or in her opening brief to this court, Mary has waived these issues. The superior court's decision is therefore AFFIRMED. CHRISTEN, Justice, not participating. . AS 13.16.460 provides in relevant part: . See AS 13.16.460(b). . AS 13.16.465(3) provides no extensions of time to initiate a proceeding on a disallowed claim may "run beyond the applicable statute of limitations." . Alaska R. Civ. P. 77(k)(4) provides that if the court does not rule on a motion for reconsideration within 30 days, the motion is considered denied. . Very little of the partial dissent's extensive statutes of limitations discussion can be traced to Mary's arguments or briefing. . Hymes v. DeRamus, 222 P.3d 874, 889 (Alaska 2010) ("We have repeatedly held that 'a party may not raise an issue for the first time on appeal.'" (quoting Brandon v. Corr. Corp. of America, 28 P.3d 269, 280 (Alaska 2001))); id. at 887 ("[Issues not argued in opening appellate briefs are waived." (citing Shearer v. Mundt, 36 P.3d 1196, 1199 (Alaska 2001))). . We take no position on whether Mary may, in connection with final accountings in Andrew's and Marjorie's probate estates, assert mismanagement claims as to when Michael served as personal representative. See AS 13.16.485(d) ("Issues of liability as between the estate and the personal representative individually may be determined in a proceeding for accounting, surcharge, or indemnification or other appropriate proceeding.").

8361116

Chester L. LOVE, Appellant, v. STATE of Alaska, Appellee

Love v. State

2007-12-28

No. A-9136

433

439

173 P.3d 433

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.

Chester L. LOVE, Appellant, v. STATE of Alaska, Appellee.

Chester L. LOVE, Appellant, v. STATE of Alaska, Appellee. No. A-9136. Court of Appeals of Alaska. Dec. 28, 2007. Dan S. Bair, Assistant Public Advocate, Chad W. Holt, Section Supervising Attorney, Anchorage Adult and Juvenile Section, and Joshua P. Fink, Public Advocate, Anchorage, for the Appellant. Terisia Chleborad, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee. Before: Coats, Chief Judge, and MANNHEIMER and STEWART, Judges.

3718

22579

OPINION COATS, Chief Judge. On February 2, 2002, while he was on parole release from a prior felony, Chester L. Love was arrested for possession of heroin (fourth-degree controlled substance misconduct). Because Love's possession of the heroin was also a violation of his parole, he was taken into custody both for the new crime and for the parole violation. Based on Love's possession of the heroin, the Alaska Parole Board revoked his parole, and Love served approximately another two years in prison. The new criminal charge (possession of heroin) was still pending trial. In March 2004, Love completed serving his time on the parole revocation and was released on bail for the heroin possession charge. But while he was on bail release, Love was charged with an assault and returned to custody. In December 2004, while Love was still in custody (awaiting trial on both the heroin possession charge and the assault charge), Love reached a plea agreement with the State. Under this plea bargain, Love agreed to plead guilty to the heroin possession charge, and it was further agreed that Love would serve a 2-year term of imprisonment on this charge. The agreement provided that Love would "receive eredit for all time served under this case." At Love's sentencing hearing, his defense attorney asked Superior Court Judge Pro Tem Sigurd E. Murphy to include language in the judgment that indicated Love was to receive credit for time served. The attorney told the court that he was requesting the addition of this language to the judgment because he and his client believed that Love had "already done his time." One week later, Love moved to withdraw his plea. In support of this motion, Love told the superior court that he had not received the benefit of his bargain-because the Department of Corrections had told Love that he was not going to receive eredit against his heroin possession sentence for the two years that he had earlier spent in custody on his parole revocation. Superior Court Judge Larry D. Card conducted an evidentiary hearing on Love's motion to withdraw his plea. Love's attorney testified at this hearing. According to the attorney, Love agreed to the 2-year sentence on the heroin possession charge only because Love believed that he would be credited for the two years that he had already spent in prison on the parole revocation. Love assumed that, because he had been taken into custody on both the parole violation and the new heroin possession charge, the two years that he served in prison between February 2002 and March 2004 would be credited against both the parole revocation and the new heroin possession charge (in the event that Love was convicted of that charge). The attorney acknowledged that he had questioned Love's interpretation of his legal situation. In particular, the attorney testified that he had spoken to Love about former AS 12.55.025(e), a statute that has been repealed, but previously provided that "if [al defendant has been convicted of two or more crimes, sentences of imprisonment shall run consecutively." The attorney testified that he told Love "that the sentences may be consecutive," but that Love was convinced "and, as it turns out, right that . they could [be] concurrent." According to the attorney, Love was convinced (based on his prior experience in these matters) that the Department of Corrections would give him double credit for these two years-and, thus, the 2-year sentence for heroin possession would essentially be served as soon as it was pronounced. The defense attorney and Love decided to ask the superior court to put language in the judgment that Love was entitled to credit for all time served under this case-and then they would leave the actual calculation of Love's sentence to the Department of Corrections. The defense attorney stated that Love "was convinced, and again rightfully so, that he was going to get credit for time served and [that hel had done all his time and would be out shortly. That's the only reason he took the deal." Love himself also testified at the hearing. According to Love, he told his attorney that he would be willing to accept a plea bargain only if he received credit against his sentence for all the time that he had previously served in prison after he was arrested in February 2002. That is, Love would accept a plea agreement only if it would make him eligible for immediate release. Love conceded that his attorney had shown him AS 12.55.025(e). But they also discussed other statutes that they thought supported Love's position. Love stated that, based on his experience, the Department of Corrections would allow the sentence on the heroin possession charge to run concurrently with the remainder of his prior felony sentence that he was forced to serve because of the parole revocation. In other words, Love was convinced that he would receive a two-year credit against both sentences for the time he spent in prison between February 2002 and March 2004. Having heard this testimony, Judge Card denied Love's motion to withdraw his plea. Judge Card found that Love had indeed thought he would be given double credit for the time he served in prison following his parole revocation. However, Judge Card further found that Love's belief was mistaken, and that neither Love's defense attorney nor the prosecuting attorney had told Love anything to foster or confirm this belief. Judge Card further found that the parties had negotiated in good faith, that they fully intended to enter a legal agreement, and that Love should not have been surprised when the Department of Corrections refused to give him double credit for the two years. Love now appeals the superior court's decision. Why we conclude that Love is entitled to withdraw his plea Under Alaska law, it is clear that Love could not receive double credit for the two years he spent in prison following his parole revocation. These two years had already been credited against the remainder of Love's sentence on his prior felony-the sentence he was forced to serve after his parole from that prior felony was revoked. After receiving that credit, Love could not receive another two-year credit against his new sentence for heroin possession. We explained the law on this point twelve years ago in Smith v. State, 892 P.2d 202 (Alaska App.1995): Smith's present appeal concerns the calculation of [his] sentence. At the time he was sentenced, Smith had spent 266 days in jail. [The sentencing judge] declared that Smith should receive credit against his sentence for these 266 days. The State objected, pointing out that Smith had not been arrested for his present offenses, but rather for violating his parole from [al] prior felony. The State argued that, since Smith was going to be credited with these 266 days in his prior felony, he should not receive another 266-day credit in his present case. [The sentencing judge] disagreed, ruling that Smith should receive the 266-day credit in both cases. This ruling was incorrect. By law, Smith's sentence in the present case had to run consecutively to his sentence from his previous felony. AS 12.55.025(e), Jennings v. State, 713 P.2d 1222 (Alaska App.1986). This being so, Smith's 266 days in jail could be applied against only one of these sentences. Endell v. Johnson, 738 P.2d 769 (Alaska App.1987). Smith, 892 P.2d at 203. It is uncontested that Love's mistaken belief that he would receive double credit for the two years he served in jail between February 2002 and March 2004 was a critical factor in Love's decision to accept the plea bargain offered by the State. Love accepted the proposed 2-year sentence for heroin possession because he believed that, with the double credit, he would be released from jail immediately after the sentence was imposed. And as soon as Love discovered that the Department of Corrections disagreed with his interpretation of the law, he promptly moved to withdraw his plea. The defense attorney warned Love that his interpretation of sentencing law might be wrong. The record reflects that Love's attorney talked to him about former AS 12.55.025(e), the statute that required Love to serve the heroin possession sentence consecutively to the remainder of his sentence from his previous felony. But it seems to us that the crucial fact here is that Love's attorney did not flatly tell Love that his understanding of the law was wrong. Rather, the defense attorney left open the possibility that Love's understanding of the law might be correct. Moreover, the attorney encouraged Love to think that it might make a difference if the judgment included wording that Love "shall receive credit for all time served under this case." Indeed, the defense attorney stated at the sentencing hearing, "[Wle think that [Love has] already done his time." Judge Card appears to have believed the testimony given by Love and his attorney on these matters. Nevertheless, Judge Card denied Love's motion to withdraw his plea on the theory that it was sufficient for the defense attorney to inform Love of the risk that the Department of Corrections might disagree with Love's interpretation of the law-the risk that the Department would not give Love the double credit he expected. We disagree. We issued our decision in Smith long before the plea negotiations in this case. Thus, when Love and his attorney were discussing the proposed plea agreement, Alaska law was already absolutely clear that Love could not receive double credit for the two years of imprisonment. These two years had already been credited against the remainder of Love's sentence from his prior felony-the remainder that Love was forced to serve after his parole was revoked. Alaska law flatly stated that these same two years could not additionally count against the new sentence that Love was about to receive on the heroin possession charge. Love was entitled to competent legal advice when he assessed the proposed plea agreement and decided whether to accept it. The record demonstrates that he did not receive competent advice. The defense attorney did not tell Love that his understanding of Alaska sentencing law was wrong, and that Love would have to serve another two years in prison if he accepted the proposed plea agreement. Instead, the attorney told Love that his understanding of the law might be correct, and that Love would be in a better position if they asked the sentencing judge to insert language about "credit for time served" in the judgment. The record shows that the defense attorney had questions on this point. But if the attorney performed legal research to resolve his questions, he failed to find our decision in Smith. (We note that the Smith decision is listed in the annotations to AS 12.55.025 in the 2004 edition of the Alaska Statutes, Titles 10 to 12, page 622. Nor is there any indication that the defense attorney contacted the Department of Corrections to obtain their view on how Love's sentence would be calculated. Because Love did not receive competent legal advice on this issue, and because this issue was crucial to Love's decision to accept the plea bargain, we conclude that Love is entitled to withdraw his plea. Alaska Criminal Rule 11(h)(8) declares that, even after sentencing, defendants are entitled to withdraw their plea if they "prove that withdrawal is necessary to correct a manifest injustice"-a term that is defined to include ineffective assistance of counsel. The decision of the superior court is REVERSED. Love must be allowed to withdraw his plea. . See SLA 2004, ch. 125, § 7. . Following the repeal of AS 12.55.025(e) and the enactment of a new statute governing consec utive sentencing, AS 12.55.127, the Smith decision is now listed in the annotations to AS 12.55.127. See the 2006 edition of the Alaska Statutes, Titles 10 to 12, page 704. . Alaska R.Crim. P. 11(b)(4)(A).

10422151

Rodney T. DeCRISTOFARO, Appellant, v. SECURITY NATIONAL BANK, A National Banking Association, Appellee

DeCristofaro v. Security National Bank

1983-05-27

No. 6088

167

169

664 P.2d 167

664

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

Rodney T. DeCRISTOFARO, Appellant, v. SECURITY NATIONAL BANK, A National Banking Association, Appellee.

Rodney T. DeCRISTOFARO, Appellant, v. SECURITY NATIONAL BANK, A National Banking Association, Appellee. No. 6088. Supreme Court of Alaska. May 27, 1983. William K. Walker, Anchorage, for appellant. William F. Meese, Dickson, Evans & Esch, Anchorage, for appellee. Before BURKE, C.J., and RABINOWITZ, MATTHEWS and COMPTON, JJ.

1205

7704

OPINION "RABINOWITZ, Justice. In an action for breach of a non-competition clause of an employment contract, employee DeCristofaro appeals from an order granting summary judgment to his former employer. Security National Bank (SNB) hired Rodney DeCristofaro in June of 1979 pursuant to an employment contract which contained the following clause: NON-COMPETITION. In the event De-CRISTOFARO voluntarily terminates his services as Assistant Vice-President of SECURITY in breach of this Agreement during the two (2) year period set forth in Paragraph "1", then for a period of nine (9) months after such termination, De-CRISTOFARO shall not engage in the banking business, either individually or as an officer, employee or controlling shareholder of any bank in the State of Alaska. Because of the difficulty of determining damages for a breach of this non-competitive clause, it is agreed that the damages shall be the unamortized relocation expense plus the unamortized placement fee paid to Foust, Dier, and Associates upon his hire. In March of 1980, DeCristofaro voluntarily terminated his employment with SNB, and within nine months he went to work for the Alaska Commercial Fishing and Agriculture Bank (CFAB).- Thereafter, SNB filed suit in the superior court. In its complaint, SNB averred that DeCristofaro breached the terms of the non-competition clause in taking up employment with CFAB and sought liquidated damages under the clause. SNB subsequently moved for summary judgment. In opposition, DeCristofaro argued that CFAB was not a "bank" for purposes of the non-competition clause and that he was not engaged in the "banking business" within the meaning of the clause. DeCristofaro submitted his own affidavit and the affidavit of SNB's former president, Wayne Littleton, who had signed the employment contract on behalf of SNB. Both claimed that they understood the clause to apply only to full-service commercial banks and that the purpose of the clause was to prevent SNB from losing its deposits and depositors to other banks upon DeCristofaro's departure. In reply, SNB submitted the affidavit of its current president indicating that the clause was intended to apply to all of SNB's competitors, that the purpose of the clause was to prevent key personnel from taking SNB business to competitors, and that CFAB was a competitor. It is uncontested that CFAB is not a full-service commercial bank and that it competes with SNB only in certain limited areas. CFAB is state-funded and has no depositors, and hence does not compete with SNB for deposits or offer the myriad customer services of the typical commercial bank. CFAB, however, does compete with SNB in the market for commercial fishing and agricultural loans. The superior court granted summary judgment in favor of SNB and awarded SNB liquidated damages in the amount of $13,244.41. DeCristofaro appeals. I. In contract interpretation cases, we have held that summary judgment is inappropriate where there remains a question of the parties' expressed intentions. Hazell v. Richards, 659 P.2d 575, 577 n. 3 (Alaska 1983); Peterson v. Wirum, 625 P.2d 866, 869-70 (Alaska 1981); Kincaid v. Kingham, 559 P.2d 1044, 1047 (Alaska 1977); Smalley v. Juneau Clinic Building Corp., 493 P.2d 1296, 1305 (Alaska 1972). Summary judgment is improper if the evidence before the superior court indicates that "a factual dispute exists as to the expressed intent of the parties . . " Peterson, 625 P.2d at 870. We hold that the affidavit of SNB's former president, Wayne Littleton, submitted by DeCristofaro in opposition to SNB's motion for summary judgment, established the existence of a question of material fact. Littleton stated that the language of the non-competition clause was intended to apply to employment by or at a full-service, commercial banking institution, such as the First National Bank of Anchorage, National Bank of Alaska, United Bank Alaska, etc. That language was not intended to cover or apply to employment of Mr. DeCristofaro at a bank-like institution or "financial agency" except a full-service, commercial banking institution. Although at trial the impact of Littleton's testimony might be reduced, either through the introduction of other evidence or through cross-examination, we must at this time draw factual inferences in favor of DeCristofaro, against whom summary judgment was granted. Stanfill v. City of Fairbanks, 659 P.2d 579 (Alaska 1983); Swenson Trucking & Excavating v. Truckweld Equipment Co., 604 P.2d 1113, 1116 (Alaska 1980). Under that standard, we hold that it was error for the superior court to grant SNB's motion for summary judgment. We note two additional principles which support our holding that the non-competition clause in this case cannot be construed as a matter of law in the manner urged by SNB. First, non-competition agreements are disfavored in the law as restraints upon trade and because they impose hardships upon individuals seeking to earn a livelihood. They are, therefore, strictly construed. Barnes Group, Inc. v. Harper, 653 F.2d 175, 179 (5th Cir.1981), cert. denied, 455 U.S. 921, 102 S.Ct. 1278, 71 L.Ed.2d 462 (1982) (applying Georgia law); Gagliardi Bros., Inc. v. Caputo, 538 F.Supp. 525, 529 (E.D.Pa.1982); Roth v. Gamble-Skogmo, Inc., 532 F.Supp. 1029, 1031 (D.Minn.1982); American Broadcasting Companies v. Wolf, 52 N.Y.2d 394, 438 N.Y.S.2d 482, 486-87, 420 N.E.2d 363, 367-68 (N.Y.1981) ("There is, in short, general judicial disfavor of anticompetitive covenants contained in employment contracts."). See also Restatement (Second) of Contracts § 188 comment g (1982). Second, in the absence of other means of ascertaining the reasonable expectations of the parties, we have held that ambiguities in contractual language are to be construed against the drafter. See Duncan v. City of Fairbanks, 567 P.2d 311, 313-14 (Alaska 1977); Modern Construction, Inc. v. Barce, Inc., 556 P.2d 528, 530 (Alaska 1976). In this case, it appears that the contractual language was supplied by the bank. For the reasons stated, the judgment of the superior court is REVERSED and REMANDED. . Upon review of a trial court's decision pertaining to a contract, the interpretation of words is ordinarily held to be a matter for the court, while resolution of a dispute as to the surrounding circumstances is for the trier of facts. Day v. A & G Construction Co., 528 P.2d 440, 443 (Alaska 1974) (footnote omitted). Stated otherwise, while the interpretation of a writing is a task for the court, where the interpretation turns upon the acceptance of extrinsic evidence, the process of weighing the evidence is for the trier of fact. Alyeska Pipeline Service Co. v. O'Kelley, 645 P.2d 767, 771 n. 2 (Alaska 1982). . This possibility, taken together with the contrary evidence of intent which was introduced by SNB precludes entry of summary judgment in DeCristofaro's favor on the question of the meaning of the contract in the present posture of the case. . We do not consider DeCristofaro's claim that the non-competition clause is unenforceable as an unreasonable restraint of trade because that claim was not raised before the trial court. It therefore has been waived for purposes of this appeal. University of Anchorage v. Simpson Building Supply Co., 530 P.2d 1317, 1324 (Alaska 1975); Moran v. Holman, 501 P.2d 769, 770 n. 1 (Alaska 1972).

10426535

Jon W. HOWARD, Appellant, v. STATE of Alaska, Appellee; Grady M. HOWARD, Appellant, v. STATE of Alaska, Appellee

Howard v. State

1983-06-10

Nos. 6027, 6123

603

612

664 P.2d 603

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.

Jon W. HOWARD, Appellant, v. STATE of Alaska, Appellee. Grady M. HOWARD, Appellant, v. STATE of Alaska, Appellee.

Jon W. HOWARD, Appellant, v. STATE of Alaska, Appellee. Grady M. HOWARD, Appellant, v. STATE of Alaska, Appellee. Nos. 6027, 6123. Court of Appeals of Alaska. June 10, 1983. Dennis L. McCarty, Ketchikan, for Appellant Jon W. Howard. Robert Blasco, Asst. Public Defender, Ketchikan, and Dana Fabe, Public Defender, Anchorage, for appellant Grady M. Howard. Charles M. Merriner, Asst. Atty. Gen., Office of Special Prosecutions and Appeals, Anchorage, and Wilson L. Condon, Atty. Gen., Juneau, for appellee.

5099

30343

OPINION Before BRYNER, C.J., and COATS and SINGLETON, JJ. SINGLETON, Judge. Grady M. Howard entered a plea of nolo contendere to two counts of sexual assault in the first degree. AS 11.41.410. Jon W. Howard entered a plea of nolo contendere to one count of sexual assault in the second degree. AS 11.41.420. Both Howards entered their pleas reserving a right to appeal orders of the trial courts denying motions to suppress evidence, pursuant to Oveson v. Anchorage, 574 P.2d 801 (Alaska 1978), and Cooksey v. State, 524 P.2d 1251 (Alaska 1974). We therefore have jurisdiction over this case. In addition, Jon Howard claims that his sentence of eight years with three years suspended was excessive. We affirm both convictions and Jon Howard's sentence. Grady Howard raped L.J. and E.H. Jon Howard had sexual contact with L.J. without her consent. At the time L.J. was fourteen years old; E.H. was fifteen years old. These incidents occurred on July 10, 1980, in a secluded, heavily-wooded area bordering Ketchikan. During the assault, Grady Howard threatened E.H. with a knife which he drove in the ground near them. E.H. grabbed the knife and stabbed Grady in the back as hard as she could. She said she buried the knife in his back up to the hilt. She then kicked him off and the two girls made their escape and reported the crimes to the police. The two girls were separately interviewed and gave consistent descriptions of their assailants. They indicated that they thought the two men were brothers. They said that the older man was white, in his late twenties or early thirties, 5'8" to 5'9" tall, with ear-length dark brown hair, curly on the ends, and a three or four-day-old scraggly growth of beard. He had a large nose, a tattoo on his left forearm with red color in it, and was slim with a protruding belly; he was wearing blue jeans and a dark colored fur-lined leather jacket that zipped up the front. They said the older man resembled then Sitka Chief of Police Bill Thorton, but was a bit thinner. They described the younger man as a white male, eighteen or nineteen years old, 5'6" or 5'7" tall, with light brown or "dishwater" blond hair coming two inches below his ears and slightly curled at the ends. They said he had distinctive eyes, not oriental but kind of slanted, that he was skinny, and wore blue jeans and a dark blue denim jacket with a white, fleece collar and lining, and that he had a scar on the right side of his right eye that looked fresh. They said both of the men smelled as if they had not bathed for some time. Both had a slight accent which the girls thought could be southern. Finally, E.H. said that she had heard one of the men call the other a name which she thought was "Danny." E.H. said that she had driven the knife blade into the older man's back to the hilt and slightly downward just under his right shoulder blade. She described the knife as having approximately a six-inch, slightly rusted blade. The girls also described a distinctive cowboy hat that the younger man was wearing. They recognized the hat when the police found it at the scene of the assault along with the girls' clothing. The girls also told the police that the older man told them that he had just gotten out of prison for armed robbery. The assaults were given substantial publicity in the Ketchikan area. A number of people reported seeing persons matching the general description of the two assailants. The strongest leads came from Frank Trafton, who ran a drop-in center for transients in Ketchikan, and Don Smith, who was employed by Trafton. Trafton and Smith stated that two sets of brothers had stayed at the center and matched the general description given by the victims. They did not remember the names of either pair of brothers. One pair had, however, been in the company of a local resident named Okie Ross. Ross was contacted and told police that these men were the Toler brothers from Georgia. He believed they had left town but stated that they had camped briefly in the Ward Lake Camp area. People at the camp area were contacted and had vague memories of the Toler brothers. Georgia authorities were contacted and it was discovered that Harry Toler, one of the brothers, had a criminal record for burglary. Trafton also told the officers that one pair of brothers, they did not know which, had recently camped in a secluded area near Ketchikan Creek. Finally, Smith identified the hat found at the scene of the rape as having been worn by one of the members of one of the sets of brothers, but he did not know which one. Sergeant Varnell and Officer Mallott of the Ketchikan Police then determined that they would look for the Tolers in the Ketchikan Creek area. Since the area was densely wooded and remote, they asked William Spear, a local resident, to accompany them as a guide and help them find an abandoned mine at the end of a railroad trestle where they thought the Tolers might be camping. . On July 12, 1980, two days after the assaults, Sergeant Varnell, Officer Mallott and Spear set out along Ketchikan Creek in hopes of locating the Toler brothers. Spear was in the lead and Varnell brought up the rear. After proceeding a distance up the creek, they smelled a campfire. At first they thought they would circle around behind the camp to avoid alarming its occupants, but misjudged the distances and stumbled out of the brush into the campsite. Spear, who was in the lead saw two men at the camp. One of these men noticed Spear, grabbed a rifle, and ran into the brush. The other was sitting on a log with his back to Spear, drinking coffee. Spear told Mallott and Varnell that he had seen a man run into the brush. Varnell drew his pistol and approached the man seated by the campfire who turned out to be Jon Howard. He was wearing some kind of a raincoat or slicker which covered his clothes. Varnell frisked Jon Howard at gunpoint, handcuffed him, and ordered him to sit on the log. Varnell then noticed that Jon Howard was wearing a blue denim jacket with a fleece collar. He also noticed that a leather jacket, similar to the one described by the victims, was lying under a nearby tarp. In the meantime, Spear and Officer Mal-lott searched the surrounding woods for the second man, who was later identified as Grady Howard. They found him hiding beside a fallen tree with an unloaded .22-caliber rifle lying beside him. Mallott drew his pistol, pointed it at Grady, and ordered him to put his hands on a tree. Mallott then frisked Grady, handcuffed him behind his back and took him back to the clearing to join his brother. In the course of the frisk, Mallott seized a knife from a sheath on Grady's belt. The knife matched exactly the description given by the girls. The two men were given Miranda warnings after Spear and Mallott returned to the clearing with Grady Howard. The officers observed the two Howards and for the first time concluded that they matched the physical descriptions given by the victims. Varnell asked Jon Howard if he owned a cowboy hat similar to the one described by the girls and found at the rape scene. Jon Howard admitted that he did, but said that it had been stolen two or three days before. Var-nell asked the Howards for their names and was told that the younger man was Jon Howard and the older was Grady Howard. Varnell, believing that they were the Tol- ers, accused the Howards of lying. The Howards, who were handcuffed, told Var-nell they had identification in their wallets. Varnell examined the driver's licenses which identified the two men as, respectively, Danny and Jon Howard. Grady, who was a fugitive from Oregon on an armed robbery conviction, had been using his older brother Danny's driver's license for identification. He did not mention this impersonation to Sergeant Varnell, but merely suggested that "Grady" was a nickname. Var-nell made a mental note that one of the girls had indicated that one of their assailants was called "Danny." Varnell asked Grady if he had a back wound. Grady admitted that he did, suggesting that he had been scraped by a tree branch a few days earlier. Varnell asked Grady if he could look at his back and Grady consented. Varnell raised Grady's shirt and observed two bandages in an "X" pattern on Grady's back. Varnell probed the wound in hopes of determining whether the wound was as deep as the victim had described it, or was merely a scrape as suggested by Grady. When Grady did not show signs of discomfort, Varnell lowered Grady's shirt. A few moments later, after talking to the Howards, Varnell asked Grady if he could remove the bandages. Again, Grady did not object and when Var-nell removed the bandages, he saw that Grady had sustained a substantial wound and not merely a scrape. At this point, Sergeant Varnell advised the Howards that they were under arrest. The brothers were taken to the police station where both girls positively identified them from photographic lineups. Jon Howard later made a full confession. WERE THE HOWARD'S ILLEGALLY ARRESTED? The Howards concede that by the time of their formal arrest the police had probable cause to arrest them. The police knew that they matched the physical description and wore clothes similar to those described by the victims. Moreover, Jon Howard admitted owning a similar hat, while Grady Howard conceded having a similar wound. See Uptegraft v. State, 621 P.2d 5, 9-10 (Alaska 1980). Nevertheless, the Howards argue that at the time they were actually arrested, the police had not verified this information and therefore did not have probable cause to arrest them. Thus, the primary legal issue presented by this appeal requires us to determine the time at which the How-ards were arrested. The Howards contend that they were arrested at the point when they were confronted with loaded guns and were handcuffed. The state concedes that probable cause was lacking if this contention is correct, so that all of the fruits of the arrest, i.e., the statements made by the Howards, police observation of Grady Howard's wound, and Jon Howard's subsequent confession, must be suppressed. However, the state argues that police detention of the Howards at gunpoint despite their handcuffing the Howards, amounted to an investigatory stop, based upon reasonable suspicion, and that the arrest did not occur until the on-the-scene investigation was completed approximately twenty minutes after the Howards were first accosted by the police. The Howards were separately indicted and tried for these crimes. Jon Howard's case was assigned to Judge (now Justice) Allen Compton while Grady Howard's case was assigned to Judge Thomas Schulz. With the consent of the parties, Judges Compton and Schulz held a joint suppression hearing at which evidence was presented regarding the arrest of the Howards. The judges agreed that no evidence should be suppressed because of the timing of the arrest. Essentially, both judges concluded that the police had probable cause to arrest the Howards shortly after observing them in the clearing. Judge Schulz specifically found that the police, by accosting the Howards with guns drawn and immediately handcuffing them, had made an arrest and not an investigatory stop. Judge Compton thought it was a close issue and leaned towards finding an investigatory stop, but concluded that it was not necessary to make the distinction because he agreed with Judge Schulz that in any event the police had probable cause at the time they entered the clearing. The Howards argue that the trial judges findings of probable cause were clearly erroneous. They point out that each judge seems to have assumed that the police had an opportunity to compare the Howards with the descriptions given by the victims before the Howards were handcuffed, the point at which the Howards contend the arrest occurred. They argue vigorously that the record would not support such a finding and that in fact they were accosted and handcuffed before any effort was made to determine whether they matched the description previously given. Before deciding whether police contact with the Howards constituted an investigatory detention or an arrest and, consequently, whether reasonable suspicion or probable cause is the appropriate test in the cases under consideration, it is necessary to briefly consider recent developments in the law of arrest. 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. See Palmer v. State, 604 P.2d 1106, 1112 (Alaska 1979) (Rabinowitz, C.J., concurring); Model Code of Pre-Arraignment Procedure § 110.1 (1975) [Hereinafter cited as MC § _]. (2) An investigatory stop, supported by articulable suspicion that a person has committed or is about to commit a crime. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Coleman v. State, 553 P.2d 40 (Alaska 1976); Metzker v. State, 658 P.2d 147 (Alaska App.1983); see MC § 110.2. (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. Schmid v. State, 615 P.2d 565, 574 (Alaska 1980). The factor which distinguishes an on-the-scene investigation from an investigatory stop or arrest is that the person encountered "on the scene" is under no obligation to remain, may decline to listen to any questions, and may go on his way. Florida v. Royer, — U.S. -, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983); Henry v. State, 621 P.2d 1 (Alaska 1980). An inquiry of someone at the scene is not necessarily a fourth amendment seizure. An investigatory stop and an arrest are fourth amendment seizures. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Henry v. State, 621 P.2d at 3. The line between an investigatory stop and a full arrest is less clear, but seems to turn on the duration and intrusiveness of the restraint. In Florida v. Royer, the Supreme Court said: 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 . - U.S. at -, 103 S.Ct. at 1329, 75 L.Ed.2d at 242. The Alaska Supreme Court has placed additional restrictions on the use of investigatory stops in this jurisdiction. See Coleman v. State, 553 P.2d 40, 46 (Alaska 1976) (temporary detention only permitted for questioning where the police officer has a reasonable suspicion that imminent public danger exists or serious harm to persons or property has recently occurred). The Howards argue that there is a further restriction on investigatory stops in Alaska. They contend that a forcible seizure at gunpoint followed by immediate handcuffing constitutes an arrest requiring probable cause. They rely on Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959), United States v. Ramos-Zaragosa, 516 F.2d 141, 144 (9th Cir.1975), and United States v. Strickler, 490 F.2d 378, 380 (9th Cir.1974), and contend that the rule of these cases was adopted in Nome v. Ailak, 570 P.2d 162 (Alaska 1977), and Richardson v. State, 563 P.2d 266 (Alaska 1977). The Howards contend that these latter cases stand for the proposition that any show of force creating an actual restraint or submission to authority constitutes an arrest, not a stop, under AS 12.25.050 and AS 12.25.160, which provide: Sec. 12.25.050. Method of making arrest. An arrest is made by the actual restraint of a person or by his submission to the custody of the person making the arrest. Sec. 12.25.160. Arrest defined. Arrest is the taking of a person into custody in order that he may be held to answer for the commission of a crime. The state counters that drawn guns and handcuffing, standing alone, do not convert an investigatory stop into an arrest and that a reasonable suspicion that the person stopped has engaged in a crime of violence and is armed and dangerous justifies drawn guns and handcuffs without turning an investigatory stop into an arrest. The Model Code of Pre-Arraignment Procedure is in agreement with the state's position. MC § 110.2(3). The state argues that Henry v. United States has been substantially undercut by Terry v. Ohio, and that Ramos-Zaragosa and Strickler clearly represent a minority view. See 3 W. LaFave, Search and Seizure § 9.2(d), at 28-33 (1978). Finally, the state contends that the broad language of AS 12.25.050 is qualified by AS 12.25.160 and was further modified by the legislature's enactment of AS 11.81.370, which specifically authorizes a peace officer to use nondeadly force and threaten to use deadly force to the extent necessary in making a lawful stop. The state's view of this statute appears to be supported by the legislative comment accompanying its enactment: Subsection (a) provides that a peace officer may use nondeadly force and may threaten to use deadly force whenever he reasonably believes it necessary to make an arrest, to terminate an escape or attempted escape from custody, or to make a lawful stop. In providing that non-deadly force may be used to effect a lawful stop, the Code insures that a peace officer will not be criminally liable for an assault prosecution for conducting a lawful stop of the kind described in Coleman v. State, 553 P.2d 40, 46 (Alaska 1976). 2 Senate Journal, Supp. No. 47, at 129-31 (June 12, 1978); and see Alaska Criminal Code Revision Part II, 59-62 (Tent. Draft 1977), where the drafters say: Further, in providing that physical force may be used to effect a lawful stop, subsection (a) insures that a peace officer will not be criminally liable for an assault prosecution for conducting a lawful search for weapons of the kind described in Terry v. Ohio, 392 U.S. 1 [88 S.Ct. 1868, 20 L.Ed.2d 889] (1968) when the use of physical force is necessary to accomplish this limited type of search. If in conducting this search, sufficient probable cause is established to warrant an arrest, the continued use of physical force will be justified if necessary to effectuate that arrest. AS 11.81.370 therefore supports the state's theory that a show of force followed by temporary restraint and submission to custody does not necessarily turn a stop into an arrest. AS 12.25.160 supports the state's theory that a person is not arrested until he is "held to answer for the commission of a crime." We, therefore, conclude that drawn guns and handcuffing do not necessarily turn a stop into an arrest. 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. In Alaska investigatory stops are limited to the investigation of crimes of violence or crimes involving serious and substantial loss to property. 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. See 3 W. La-Fave, supra § 9.2(f), at 40. 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 (Conn.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. Cf. AS 12.25.070 (no peace officer or private person may subject a person arrested to greater restraint than is necessary and proper for his arrest and detention). This last factor is very important since stops frequently precede searches which are defended on the basis of "consent." See Henry v. State, 621 P.2d 1, 4 (Alaska 1980). Many courts have expressed concern that a stop not be permitted to become a pretext for a search, since a show of force might intimidate the person stopped into giving consent to the subsequent search. On the other hand, if Alaska limits investigatory stops to situations creating a great risk of violence, then it would seem counterproductive to preclude an investigatory stop wherever the police must make a show of force in order to effectuate the stop. As Professor LaFave points out: The better view, then, is that an otherwise valid stop is not inevitably rendered unreasonable merely because the suspect's car was boxed in by police cars in order to prevent it from [being] moved. Likewise, it cannot be said that whenever police draw weapons the resulting seizure must be deemed an arrest rather than a stop and thus may be upheld only if full probable cause was then present. The courts have rather consistently upheld such police conduct when the circumstances (e.g., suspicion that the occupants of a car are the persons who just committed an armed robbery) indicated that it was a reasonable precaution for the protection and safety of the investigating officers. This is not to suggest that in the course of stopping suspects for investigation the police may, as a matter of routine, utilize modes of restraint which might commonly be employed incident to arrest. For example, though it may be unobjectionable to lock an arrested person in a squad car pending arrival of a squadrol [s/c] to transport him to the station, it cannot be said that such action would ordinarily be a permissible part of stopping for investigation. Nor can it be said that such action would never be permissible, for there may be unique circumstances in which such confinement is reasonably related to the investigative activity, as illustrated by United States v. Lee [372 F.Supp. 591 (W.D.Pa.1974) ]. There, a single officer reported to a bank on a day when large amounts of cash would be in the bank and transported from the bank to meet local payrolls, and learned that for some time two men had been loitering near the bank under highly suspicious circumstances. When the officer approached the men, one of them fled, so he seized the remaining suspect and locked him in the back of the police cruiser while he pursued the other man. The court quite correctly concluded that this action was reasonable under the circumstances because it was "reasonably calculated to maintain the status quo" while an effort was made to seize the other suspect. Similarly, handcuffing of the suspect is not ordinarily proper, but yet may be resorted to when necessary to thwart the suspect's attempt to "frustrate further inquiry." [Citing United States v. Purry, 545 F.2d 217 (D.C.Cir.1976).] 3 W. LaFave, supra § 9.2(d), at 30-31 (emphasis in original). We have evaluated the totality of the circumstances facing the officers as they first stumbled into the Howards' camp. In light of these factors, we are satisfied that both Varnell's initial contact with Jon Howard, at gunpoint, resulting in Jon Howard's being handcuffed and placed on a log, and Officer Mallott's initial contact with Grady Howard, resulting in Grady Howard being handcuffed and returned to the clearing, constituted investigatory stops and not arrests. First, the victims' statements provided probable cause to believe first-degree sexual assault had been committed two days prior to the officers encounter with the Howards. Sexual assault is a serious crime of violence. Second, the officers restrained the Howards for the limited purpose of maintaining the status quo while they checked the Howards' appearance against the description furnished by the victims, asked Jon Howard about the cowboy hat found at the scene of the incident, and questioned Grady Howard about the wound allegedly suffered by the older assailant during the course of the assault. Third, the detention was limited as to place. Jon Howard was detained at the campsite where he was found, while Grady Howard was returned to that campsite. Fourth, the stop was limited as to duration. The entire encounter between the officers and the Howards lasted less than twenty minutes. Fifth and finally, the amount of force used was proportional to the risk reasonably to be foreseen by the officers. The encounter took place in a heavily wooded area. The officers could not be sure that the Howards did not have allies hidden in the brush. The persons being sought were wanted for a serious crime of violence, were known to be armed, and the older assailant had told the victims that he was an escaped, armed robbery. When the officers entered the clearing, the person later identified as Grady Howard ran away carrying a .22 rifle. There were two known suspects and only two officers, Mr. Spear having come along only as a guide. Under these circumstances, it was not unreasonable to maintain the status quo by handcuffing the Howards until they could be brought together in the clearing and compared with the descriptions given by the victims of the assault. We are satisfied that the officers had an articulable suspicion justifying an investigatory stop when they entered the clearing. Prior information warranted their belief that the assailants might be camped along Ketchikan Creek. This information, coupled with their discovery of the two men, one of whom fled upon contact, warranted a brief investigatory stop to permit the officers to compare the two men detained with the men described by the victims. It is undisputed that the Howards matched the description given by the victims. It is also undisputed that Jon Howard was wearing the blue denim jacket with the fleece collar, as described by the victims, under his slicker, and that a leather jacket similar to the one described by L.J. was observed by Varnell under the tarp. After they were given Miranda warnings, Jon Howard conceded that he owned a hat similar to the one found at the scene of the rape but alleged that it was stolen two or three days before. Grady Howard acknowledged that he had a wound on his back. The Howards' physical appearance, coupled with the answers they gave to these questions, would warrant belief by reasonably prudent people that the Howards were the men who had sexually assaulted L.J. and E.H. The trial court did not err in failing to suppress evidence that was the fruit of the Howards' subsequent arrest. This decision disposes of Grady Howard's appeal. Jon Howard, in addition, challenges his sentence. Jon Howard pled nolo contendere to sexual assault in the second degree, a class B felony. AS 11.41.-420. A person convicted of a class B felony may be sentenced to a definite term of imprisonment of not more than ten years. The presumptive terms for second and third offenders are respectively four and six years. AS 12.55.125(d). Judge Lewis sentenced Jon Howard to serve eight years with three years suspended. Since Jon Howard was a first felony offender, Judge Lewis carefully considered the sentencing criteria established in AS 12.55.005. Be cause the defendant argued that mitigating factors existed and the prosecutor argued that Jon Howard should receive a sentence in excess of the presumptive sentence for a second felony offender, Judge Lewis also carefully considered the aggravating and mitigating factors established in AS 12.55.-155. He concluded that Joh Howard's conduct was among the most serious conduct included in the definition of the offense of second-degree sexual assault. See AS 12.-55.155(c)(10). This conclusion was based on a number of factors. Judge Lewis found that: (1) the assault was, to a certain extent, premeditated between Grady and Jon Howard, that is, that they had discussed "forcible seduction" of some stranger before encountering the victims of this offense; (2) Jon Howard's "sexual contact" closely approximated "sexual penetration" which would have made the crime first-degree sexual assault; (3) Grady Howard used a knife to subdue the victims without any protest by Jon Howard; (4) Jon Howard actively assisted Grady in subjugating the two victims. Judge Lewis found some mitigating factors, including Jon Howard's youth, his being a follower rather than the leader and his being substantially influenced by his older brother, the fact that his judgment was to some degree impaired by alcohol, and his cooperation with the authorities. Taking all of these factors together, the trial court imposed a sentence of eight years with three years suspended. Given the nature of the crime and the background of the defendant, this sentence was not clearly mistaken. See McClain v. State, 519 P.2d 811 (Alaska 1974). The judgments of the superior court are AFFIRMED. . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Neither Howard complains of a Miranda violation.

10356825

Charlie A. HAYS, Appellant, v. STATE of Alaska, Appellee

Hays v. State

1993-04-23

No. A-4355

651

653

850 P.2d 651

850

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

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

CAP

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

Charlie A. HAYS, Appellant, v. STATE of Alaska, Appellee.

Charlie A. HAYS, Appellant, v. STATE of Alaska, Appellee. No. A-4355. Court of Appeals of Alaska. April 23, 1993. Kathleen Murphy, Asst. Public Defender, Palmer, and John B. Salemi, Public Defender, Anchorage, for appellant. David G. Berry, Asst. Dist. Atty., Kenneth J. Goldman, Dist. Atty., Palmer, and Charles E. Cole, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and MANNHEIMER, JJ.

985

5935

OPINION COATS, Judge. Charlie A. Hays, Jr., pleaded no contest to driving while license suspended, in violation of AS 28.15.291. Hays reserved his right to appeal the trial court's denial of his motion to suppress all evidence gathered after his truck was stopped by State Trooper Jeannine Santora. See Cooksey v. State, 524 P.2d 1251 (Alaska 1974). Trooper Santora stopped Hays' pickup because she suspected that it was the vehicle involved in a recently reported "gas drive-away", a theft in which a driver had pumped gas into his vehicle and then left without paying for the gas. Hays argues that Santora's suspicion was not reasonable. Santora testified that after getting a radio report that a green Ford pickup had driven away from the 7-11 store in Wasilla without paying for gas, she responded by driving toward Wasilla on the Parks Highway, watching traffic coming in the other direction. Approximately fifteen minutes after receiving the report, Santora saw a green Ford pickup on the highway coming from the direction of Wasilla. After she pulled Hays' pickup over, but before she got out of the patrol car, Santo-ra realized that there was some discrepancy between the truck she had just stopped and the vehicle description she had been given. She saw that the truck had only two male occupants, rather than the two male and one female reported by the person who called in the gas theft. Santora also realized that the pickup's license plate number did not match the license number that had been reported. Still, according to her testimony, Santora was "not convinced" that she had the wrong vehicle. She therefore walked over to the pickup and asked the driver, Hays, if he had just come from the Wasilla 7-11. Santora also asked Hays for identification, and it was then that she learned that his driver's license had been revoked. Under Alaska law, an investigative stop is permitted where an officer "has a reasonable suspicion that imminent public danger exists or serious harm to persons or property has recently oecurred[.]" Cole man v. State, 553 P.2d 40, 46 (Alaska 1976). In determining the legality of a stop we use a flexible approach, balancing the seriousness and recency of the suspected crime and the strength of the officer's suspicion against the intrusiveness of the stop. State v. G.B., 769 P.2d 452, 455-56 (Alaska App.1989). As we noted in G.B., a well-founded suspicion that a crime is in progress or has just been completed may justify a stop even though the crime itself is not a particularly serious one. Conversely, a crime that is a more serious threat to public safety may provide sufficient basis for a stop based on reasonable suspicion even after considerable time has passed. The report Santora received was a minor crime and included no suggestion of an imminent threat to public safety. The amount of time that passed between Santo-ra's receipt of the report and the stop in this case was significant considering the fact that both Santora and Hays were traveling in motor vehicles. Santora was not in Wasilla when she got the report of the gas theft. Santora testified that she did not recall having been given any indication of the gas thief's direction of travel. She responded to the report by driving towards Wasilla on the Parks Highway; fifteen minutes later, she saw Hays' pickup coming from the direction of Wasilla. At highway speed, San-tora would have travelled almost fifteen miles between receiving the call and spotting Hays. During this time the gas thief could also have driven fifteen miles in any direction. Santora provided no information of how far from Wasilla the stop occurred. Santora did not articulate any particular reason to suspect she would encounter the thief where and when she contacted Hays. Moreover, there was little correspondence between the suspect vehicle and Hays'. Hays' truck matched the description only in that it was a green Ford pickup. The number of passengers differed from that reported. More importantly, Hays' license plate number did not match that of the truck involved in the gas theft. The state argued that Santora acted reasonably in pulling Hays' truck over because at the time Santora had not yet noticed that the license number and the number of occupants in the truck did not match the description she had been given. This argument begs the real question, which is whether it was reasonable for Santora to pull the truck over before checking the license number. The state bears the burden of showing that Santora's action was reasonable. There is no indication in the record that anything prevented Santora from simply following Hays' truck on the highway to determine the number of occupants and if his license number matched the one reported to her. Had Santora done this, instead of stopping the truck as soon as she saw it, she would presumably have realized that the variance between Hays' truck and the reported description made it unreasonable to suspect Hays of the gas theft. When we review investigative stops, "the fundamental inquiry in each case is whether 'a prompt investigation [was] required . as a matter of practical necessity.' " State v. G.B., 769 P.2d at 456, quoting Coleman v. State, 553 P.2d at 46. In this case the record discloses no practical necessity for Santora's immediate stop of the Hays' vehicle. We conclude that the trial court erred in denying Hays' motion to suppress. The judgment of conviction is REVERSED. . No connection was ever established between Hays and the gas theft.

10426157

IRBY-NORTHFACE, a joint venture, Appellant, v. COMMONWEALTH ELECTRIC COMPANY, Harrison Western Corporation-Newbery Alaska, Inc., a joint venture d/b/a Susitna Constructors and the Alaska Power Authority, Appellees; HARRISON WESTERN CORPORATION-NEWBERY ALASKA, INC., a joint venture d/b/a Susitna Constructors, Cross-Appellant, v. COMMONWEALTH ELECTRIC COMPANY and the Alaska Power Authority, Cross-Appellees

Irby-Northface v. Commonwealth Electric Co.

1983-04-29

Nos. 7632, 7649

557

562

664 P.2d 557

664

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

IRBY-NORTHFACE, a joint venture, Appellant, v. COMMONWEALTH ELECTRIC COMPANY, Harrison Western Corporation-Newbery Alaska, Inc., a joint venture d/b/a Susitna Constructors and the Alaska Power Authority, Appellees. HARRISON WESTERN CORPORATION-NEWBERY ALASKA, INC., a joint venture d/b/a Susitna Constructors, Cross-Appellant, v. COMMONWEALTH ELECTRIC COMPANY and the Alaska Power Authority, Cross-Appellees.

IRBY-NORTHFACE, a joint venture, Appellant, v. COMMONWEALTH ELECTRIC COMPANY, Harrison Western Corporation-Newbery Alaska, Inc., a joint venture d/b/a Susitna Constructors and the Alaska Power Authority, Appellees. HARRISON WESTERN CORPORATION-NEWBERY ALASKA, INC., a joint venture d/b/a Susitna Constructors, Cross-Appellant, v. COMMONWEALTH ELECTRIC COMPANY and the Alaska Power Authority, Cross-Appellees. Nos. 7632, 7649. Supreme Court of Alaska. April 29, 1983. Stephen M. Ellis, William E. Moseley and Marc D. Bond, Delaney, Wiles, Hayes, Reit-man & Brubaker, Inc., Anchorage, for appellant Irby-Northface. Robert J. Dickson, Atkinson, Conway, Bell & Gagnon, Anchorage, for appel-lee/cross-appellee Com. Elec. Co. Donald W. McClintock and Ross A. Kop-perud, Asst. Attys. Gen., Anchorage, and Norman C. Gorsuch, Atty. Gen., Juneau, for appellee/cross-appellee the Alaska Power Authority. Richard L. Wagg and Lawrence T. Fee-ney,' Faulkner, Banfield, Doogan & Holmes, Anchorage, for appellee/cross-appellant Harrison Western Corp. Newbery Alaska, Inc. Dimond, Senior Justice, sitting by assignment made pursuant to article IV, section 11, of the Constitution of Alaska,

2919

18532

OPINION Before BURKE, C.J., RABINOWITZ, MATTHEWS and COMPTON, JJ., and DIMOND, Senior Justice. COMPTON, Justice. The single issue that must be addressed to resolve this appeal and cross-appeal is whether a joint venture qualifies as an Alaska bidder under the Alaska bidder preference statute, AS 37.05.230, when only one of its venturers would individually qualify as an Alaska bidder. For the reasons set forth below, we conclude that such a joint venture does qualify. I. FACTUAL AND PROCEDURAL BACKGROUND On October 25, 1982, the Alaska Power Authority ("APA") issued invitations to bid on Transmission Line Construction Contract # 1 for the Anchorage-Fairbanks Intertie. The bids received by the APA that are at issue in this case were as follows: Irby-Northface $ 28,437,328.00 Susitna $ 28,931,030.00 Commonwealth (original) $ 30,877,773.00 Commonwealth (amended) $ 28,777,773.00 The Alaska bidder preference statute, AS 37.05.230, specifies that state contracts for construction projects must be awarded to the "lowest responsible bidder," with the exception that "a bid shall be awarded to an Alaska bidder if his bid is not more than five per cent higher than the lowest nonresident" bid. AS 37.05.230(5) defines an Alaska bidder as a person who: (A) holds a current Alaska business license, (B) submits a bid for goods or services under the name as appearing on his current Alaska business license, [and] (C) has maintained a place of business within the state for a period of six months immediately preceding the date of his bid. Irby-Northface is a joint venture entered into by Irby Construction Co. and North-face Construction, Inc. It does not have an Alaska business license and did not maintain a place of business within the state for the six months preceding its bid submission. Northface, however, has been a licensed general contracting business in Alaska since 1977. Irby, on the other hand, is not licensed to conduct business in Alaska. It specializes in the construction of electrical transmission line systems and has built such systems in over thirty-nine states. Susitna is a joint venture entered into by Harrison Western Corp. and Newbery Alaska, Inc. The joint venture obtained an Alaska business license before bidding on this contract. The joint venture did not, however, maintain a place of business in the state for the six months preceding its bid. Nonetheless, both corporations were licensed in Alaska and had maintained a place of business in Alaska for the six months preceding the submission of their joint bid. The Commonwealth Electric Corp. is licensed to do business in Alaska and maintained a place of business in the state for the six months preceding its bid. Accordingly, it is the only indisputably qualified "Alaska bidder" under the statute, although it does not conduct its business exclusively in this state. Before Irby-Northface prepared its bid, it received assurance from the APA that it qualified as an Alaska bidder on the basis that Northface individually qualified. On February 16, 1983, the sealed bids were opened and the APA subsequently issued a notice of intent to award the contract to Irby-Northface, the apparent low bidder. Susitna then commenced this action in the superior court, challenging the intended award. It argued that Irby-Northface does not qualify as an Alaska bidder because the joint venture does not have an Alaska business license and did not maintain a place of business in the state for the six months preceding its bid. Furthermore, the joint venture is composed of two businesses, one of which could not qualify individually as an Alaska bidder. Susitna contended that it qualifies as an Alaska bidder, even though its joint venture did not maintain a place of business in the state for the six months preceding its bid, because each of its two venturers would individually qualify as an Alaska bidder. Finally, Susitna argued that Commonwealth's bid amendment was made improperly and was therefore ineffective. Susitna's bid was lower than Commonwealth's initial bid and was within five percent of Irby-Northface's bid; Susit-na therefore concluded that the contract should be awarded to it. Commonwealth joined in Susitna's suit. It agreed with Susitna that Irby-Northface should not be treated as an Alaska bidder. It argued, however, that its bid amendment was proper and effective. Its amended bid was lower than Susitna's bid and it therefore concluded that the contract should be awarded to it. Irby-Northface responded with several arguments. The only one relevant to this appeal is the argument that Irby-Northface does qualify as an Alaska bidder under the statute. The parties stipulated to the facts and agreed that there are no material issues of fact precluding the court from resolving the case on summary judgment. The parties also waived any further appeal rights from the administrative decision of the APA so that the superior court's judgment would be binding. The superior court rejected all of Irby-Northface's arguments and agreed with Susitna and Commonwealth that Irby-Northface should be treated as a nonresident bidder. It therefore concluded that it would be an abuse of discretion for the APA to award the contract to Irby-North-face because the bid of Susitna and the amended bid of Commonwealth were within five percent of Irby-Northface's bid. The court further concluded that Commonwealth's bid amendment was proper and effective. Commonwealth's amended bid was lower than Susitna's bid and the court therefore ruled that Commonwealth was the lowest Alaska bidder. Irby-Northface appeals from the superior court's judgment, repeating the arguments it made on the motion for summary judgment. Susitna cross-appeals, contending that the superior court was correct in ruling that Irby-Northface is a nonresident bidder, but erred in ruling that Commonwealth's bid amendment was proper. Commonwealth and the APA argue in response that the superior court's judgment was proper in all respects. The APA, however, has expressly declined to take any position before this court on the proper meaning of the term "Alaska bidder." As explained below, we disagree with the superior court's ultimate conclusion. We hold that the APA's determination was correct: Irby-Northface qualifies as an Alaska bidder under the statute. It submitted the lowest bid and it therefore should be awarded the contract. We accordingly find it unnecessary to address the other argu ments raised by the parties because they cannot affect the outcome of the case. II. DISCUSSION Commonwealth contends that, in order for a joint venture to qualify as an Alaska bidder, the joint venture itself must fulfill the requirements enumerated in AS 37.05.-230(5), which are: (1) hold a current Alaska business license, (2) submit its bid under the name appearing on the license, and (3) have maintained a place of business within the state for a period of six months immediately preceding the submission of its bid. Sus-itna contends that a joint venture may alternatively qualify as an Alaska bidder if each of the venturers would individually qualify. The superior court agreed with Susitna, stating: The Court recognizes that joint ventures are often formed for the purpose of making a bid on a particular job. Where principals of the joint venture have maintained a place of business within the state for a period of six months immediately preceding the date of the bid, this Court concludes that AS 37.05.230(5)(c) is substantially complied with. Furthermore, where the joint venture acquires a current business license in the joint venture name prior to award of the contract, and all members of the joint venture hold a current Alaska business license at the time of the bid, this Court concludes that AS 37.05.230(5)(a) and (b) are substantially complied with. We agree with this much of the superior court's decision and similarly hold that a joint venture may qualify as an Alaska bidder if each of the venturers would individually qualify. The court further held, however, that "all principals of a joint venture or any other bidder applying for a preference must have maintained places of business within the State of Alaska for at least six months prior to the bid to be eligible for the Alaska Bidders Preference." (Emphasis added.) In accordance with this analysis, Irby-Northface could not qualify as an Alaska bidder because one of the two venturers, Irby Construction, did not have an Alaska business license and had not maintained a place of business within the state for the six months preceding the joint venture's bid submission. Before it decided to submit a bid on the contract, Irby-Northface was uncertain whether its joint venture would qualify for bidder preference. The corporations accordingly inquired of the APA as to its policy. They were informed that the APA interpreted AS 37.05.230 as permitting a joint venture to qualify for preference if any of the venturers would qualify individually as an Alaska bidder. They were further informed that the APA has consistently granted preference to joint ventures when one of the venturers qualified individually as an Alaska bidder. The parties dispute the amount of deference this court should give to the APA's interpretation of the statute. As we recently indicated, "The independent judgment standard is used when agency expertise or the determination of fundamental policies are not involved... . However, even under the independent judgment standard . the court should give some weight to what the agency has done, especially where the agency interpretation is longstanding." National Bank of Alaska v. State, 642 P.2d 811, 815 (Alaska 1982) (citations omitted). The APA's longstanding interpretation of the bidder preference statute is based upon three factors: first, this is the same interpretation given to the statute by the Department of Administration; second, it is in accordance with the purpose of the statute; and third, it is harmonious with the only Alaska statute addressing an analogous situation. As to the first of these factors, the Department of Administration has indicated by affidavit that it interprets the statute as requiring that preference be given to a joint venture when any one of the venturers qualifies as an Alaska bidder "in order to accomplish the objectives of insuring that Alaskan firms receive a preference." The Department notes that "a more literal interpretation would result in joint ventures of Alaskan firms not receiving the bidder preference — a result clearly not intended by the statute." Turning to the second factor relied upon by the APA, the purpose of the statute, it is clear that the statute's purpose is to give Alaskan businesses a competitive chance with nonresident businesses in the award of state contracts. We need not and do not decide whether this is a constitutional purpose and whether the statute is reasonably related to that purpose. We do hold, however, that the APA's interpretation of the statute is the most consonant with that purpose. As a practical matter, an Alaskan business may be unable to bid on a contract by itself and may be unable to find another Alaskan business with which to associate on the bid. The Alaskan business may thus be compelled to associate with a nonresident bidder. The only means by which the legislative purpose of giving a preference to the Alaskan business can be fulfilled under these circumstances is by granting a preference to the entire joint venture. The mere fact that a nonresident bidder is accordingly also given preference does not make this interpretation unreasonable. When the bidder is a joint venture comprised of one corporation that would qualify for preference and another corporation that would not, a conflict in purpose arises. On the one hand, the legislature has indicated that nonresidents are not to be given preference, but on the other hand, it has also indicated that qualifying corporations are to be given preference. Under these circumstances, we believe the paramount interest is that qualifying corporations be given preference, which can only be accomplished by giving preference to the entire joint venture. As one commentator notes: Chancellor Kent made a classic observation that: "In the exposition of a statute the intention of the lawmaker will prevail over the literal sense of the terms; and its reason and intention will prevail over the strict letter.. . " If upon examination the general meaning and object of the statute is inconsistent with the literal import of any clause or section, such clause or section must, if possible, be construed according to that purpose. 2A C. Sands, Sutherland Statutory Construction § 46.05, at 57 (4th ed. 1973) (footnotes omitted). Accordingly, we conclude that the APA's interpretation of the statute is the proper one. This conclusion is supported by the third factor relied upon by the APA. The APA notes that there is only one statute addressing an analogous situation, AS 08.18.011. This statute provides as follows: It is unlawful for a person to submit a bid or work as a contractor until that person has been issued a certificate of registration by the Department of Commerce and Economic Development. A partnership or joint venture shall be considered registered if one of the general partners or venturers whose name appears in the name under which the partnership or venture does business is registered. (Emphasis added.) As indicated in this statute, contractors are not permitted to bid on state projects unless they are registered in this state. A situation analogous to the one posed by this case arises when a joint venture wishes to bid on a contract, but only one of the venturers is a registered contractor. The state legislature resolved this problem by holding that the joint venture may bid on the project as long as one of the venturers is a registered contractor. We believe that the legislature intends the same result to occur with respect to "Alaska bidders." We therefore conclude that the proper interpretation of the bidder preference statute is that a joint venture must be given preference if one of the venturers qualifies individually for the preference. In its bid evaluation, the APA concluded that Irby-Northface qualified for preference, stating as follows: [Irby-Northface] submitted the bid on the appropriate forms, properly completed and signed, all addendums were acknowledged and bid security was furnished as required. Both joint venture partners are registered as Contractors in the State of Alaska. The bidder qualifies for Alas ka Bidders Preference based on the fact that one of the joint venture partners (Northface Construction) possesses a valid business license (BL # 048240) and has been in business for more than the required six months. This evaluation is in accordance with the interpretation of AS 27.05.230 that we have made in the exercise of our independent judgment, giving some weight to the APA's longstanding interpretation. Accordingly, the contract should be awarded to Irby-Northface, the lowest responsive bidder. The judgment of the superior court is REVERSED.

10373954

Mackey MARSH, Appellant, v. STATE of Alaska, Appellee

Marsh v. State

1992-10-02

No. A-4166

819

821

838 P.2d 819

838

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T18:22:06.660714+00:00

CAP

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

Mackey MARSH, Appellant, v. STATE of Alaska, Appellee.

Mackey MARSH, Appellant, v. STATE of Alaska, Appellee. No. A-4166. Court of Appeals of Alaska. Oct. 2, 1992. René L. Wright, Asst. Public Defender, Kenai, and John B. Salemi, Public Defender, Anchorage, for appellant. David M. Weingartner, Asst. Atty. Gen., Kenai, and Charles E. Cole, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and MANNHEIMER, JJ.

812

4914

OPINION MANNHEIMER, Judge. Mackey Marsh pleaded no contest to the offense of driving while his license was revoked, AS 28.15.291, reserving his right to appeal the district court's denial of his motion to suppress the evidence against him. Cooksey v. State, 524 P.2d 1251 (Alaska 1974). We affirm. While on routine patrol during the early evening hours of November 24, 1990, Alaska State Trooper Simon Brown observed a car which appeared to be stalled on the side of the Kenai Spur Highway. Brown activated his overhead lights and pulled up behind the car. As Brown did so, he noticed the driver start the engine. When Brown spoke to the driver, he learned that the driver was Marsh and that Marsh's license had been revoked. Marsh argues that the trooper's use of his overhead lights was a clear signal that Marsh was not free to leave, thus turning the contact into an investigative stop. Marsh then argues that, because there was nothing to justify an investigative stop, the evidence of his identity and the fact that his license was revoked should have been suppressed. Trooper Brown testified that he activated his overhead lights for safety reasons in accordance with standard police procedure so that traffic on the highway could see him parked along the road in the dark. Brown also testified that it is standard policy for the troopers to stop and check on stalled vehicles. Based on Brown's testimony, the State argues that Brown's actions were not an "investigative stop" but were, instead, actions taken pursuant to Brown's community caretaker duties described in Crauthers v. State, 727 P.2d 9, 10 (Alaska App.1986). The State asserts that, when an officer stops at night to aid a motorist in an apparently stalled car, a reasonable person in the motorist's position would view the officer's use of overhead lights as merely a measure to protect both the patrol car and the stalled vehicle from being hit in the dark. Noting that an objective test is employed to determine whether an officer's actions constitute a "seizure" for Fourth Amendment purposes, Waring v. State, 670 P.2d 357, 364 (Alaska 1983), and Ozhuwan v. State, 786 P.2d 918, 920-21 (Alaska App.1990), the State argues that Brown's use of his patrol car's lights would not have seemed coercive to a reasonable (innocent) motorist in a stalled vehicle. Thus, according to the State, there was no seizure and therefore the State did not need to establish reasonable suspicion to justify Brown's actions. We need not resolve the issue raised by the State because we find that there was a reasonable basis for Brown's actions, even if Brown's contact with Marsh is viewed as an investigative stop. [IJntrusive police conduct may be acceptable when there is a legitimate reason to be concerned for the welfare of a motorist.... To justify conduct that would amount to an investigative stop, an officer must be aware of at least some specific circumstances supporting a reasonable belief that the occupants of a vehicle need assistance. Ozhuwan, 786 P.2d at 922. Brown testified that he believed the car was stalled because it was parked on the side of the highway on a cold day and because the driver was making movements as if attempting, unsuccessfully, to start the ignition. Under these circumstances, Brown was justified in making contact with Marsh in order to determine whether Marsh needed assistance. Marsh contends that Brown's actions cannot be justified under this rationale be cause, just as Brown pulled in behind him, Marsh succeeded in starting his car. However, at the time Marsh started his car, Brown had already initiated the investigative stop. Moreover, Marsh's success in getting the engine to turn over did not necessarily rule out the possibility that there was a continuing problem with the vehicle. The "reasonable suspicion" test did not require Brown to affirmatively negate all other explanations before stopping to help Marsh, nor did it require the State to show that it was "more probable than not" that Marsh needed assistance. Rather, the State had to establish only that there was a substantial possibility that police assistance was required. See the analysis in Anchorage v. Cook, 598 P.2d 939, 941-942 (Alaska 1979), and W. LaFave, Search and Seizure (2nd ed. 1987), § 9.3(b), Yol. 3, pp. 431-432. Once Brown contacted Marsh, Brown was authorized by AS 28.15.131 to request to see Marsh's driver's license, the act that led to the discovery that Marsh's license had been revoked. The judgement of the district court is AFFIRMED.

10426483

Jeffrey MURDOCK, Appellant, v. STATE of Alaska, Appellee; Manuel ROBINSON, Appellant, v. STATE of Alaska, Appellee

Murdock v. State

1983-05-27

Nos. 5173, 5289

589

603

664 P.2d 589

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.

Jeffrey MURDOCK, Appellant, v. STATE of Alaska, Appellee. Manuel ROBINSON, Appellant, v. STATE of Alaska, Appellee.

Jeffrey MURDOCK, Appellant, v. STATE of Alaska, Appellee. Manuel ROBINSON, Appellant, v. STATE of Alaska, Appellee. Nos. 5173, 5289. Court of Appeals of Alaska. May 27, 1983. Christine Schleuss, Asst. Public Defender, and Dana Fabe, Public Defender, Anchorage, for appellant Murdock. J. Randall Luffberry, Palmer, for appellant Robinson. John A. Scukanec, Asst. Atty. Gen., Anchorage, and Wilson L. Condon, Atty. Gen., Juneau, for appellee.

7755

47334

OPINION Before BRYNER, C.J., and COATS and SINGLETON, JJ. COATS, Judge. Jeffrey Murdock was indicted on October 6, 1978, on two counts of armed robbery, former AS 11.15.240 and former AS 11.15.-295. These charges arose out of a robbery which took place in an apartment on September 30, 1978. Murdock was charged with committing this robbery with accomplices Manuel Robinson and Michael Hughes. Murdock was also charged with attempted armed robbery, former AS 11.-05.020 and same statutes as above, and manslaughter, former AS 11.15.040. These charges arose out of an attempted robbery of a restaurant which took place later in the day on September 30, 1978. This crime was also allegedly committed with accomplices Robinson and Hughes. The trial court dismissed the manslaughter charge against Murdock on September 27, 1979. Murdock was ultimately convicted of one count of armed robbery and one count of assault with a dangerous weapon (as a lesser included offense of the armed robbery), former AS 11.15.220, as a result of the apartment robberies. He pled no contest to the attempted robbery charge that arose from the attempted restaurant robbery. Mur-dock was sentenced on January 14, 1980, to concurrent terms of twelve years for armed robbery, seven years for assault with a dangerous weapon, and five years for attempted armed robbery. Murdock appeals to this court requesting us to reverse his armed robbery and assault convictions and remand the case for a new trial on these charges. He also requests that the court reverse his sentences for all charges and remand the case for resentenc-ing. Manuel Robinson was also indicted on October 6, 1978, for two counts of armed robbery for the apartment robbery, and for attempted armed robbery and manslaughter for the attempted restaurant robbery. The trial court dismissed the manslaughter charge against Robinson on September 16, 1979. Robinson was convicted of one count of armed robbery (for the apartment robbery) and one count of attempted armed robbery (for the attempted restaurant armed robbery). He was sentenced to five years imprisonment on the attempted armed robbery conviction, concurrent with ten years imprisonment with three years suspended for the armed robbery conviction. Robinson appeals his convictions and sentences. Because Murdock and Robinson have raised some of the same points on appeal, we have combined their cases for purposes of this opinion. We find that we must remand the convictions for further proceedings and thus do not reach the sentencing issues. FACTUAL BACKGROUND Michael Cornett and Dennis Vandelaar picked up two juvenile prostitutes, J.L. and A.L., on Anchorage's Fourth Avenue on the night of September 29, 1978. After arriving at Cornett's Arctic Boulevard apartment, Cornett and Vandelaar refused to pay for the girls' services. One girl was allegedly raped by both men, and one was allegedly forced to disrobe and subjected to an attempted rape. The girls were then driven back downtown and dropped off in an alley. The girls related their version of what happened in the apartment to two friends — Michael Hughes and Manuel Robinson. Early on the morning of the 30th, Hughes, Robinson and their friend Murdock forced their way into Cornett's apartment, beat up Cornett and Vandelaar, and stole guns, ammunition, stereo equipment, jewelry, clothing and money from the apartment. On the night of the 30th, Hughes, Mur-dock and Robinson attempted an armed robbery of Chino's Restaurant. Restaurant owner Joseph Hochong ("Chino") began shooting at the robbers, and was shot to death by Hughes while Hughes was trying to escape. Murdock was captured by the police a few blocks from the restaurant and was identified at the scene of the crime. Hughes and Robinson escaped. Robinson and Hughes left their residence after the attempted robbery of Chino's and moved in temporarily with acquaintance Keith Kmet until they could raise enough money to leave the area. On October 2, 1978, Anchorage police received an anonymous telephone tip. The caller stated that he had seen guns in apartment number three at 143 West Eleventh, and that one of these guns had been stolen from a friend of his. Officers Coffey and Smith went in plainclothes to investigate and saw the names K. Kmet and J. Bell on the mailbox. They learned from the police computer that a Keith Kmet, listed at a different address, had been a possible burglary suspect at an unspecified date, but was not wanted on any charges. The officers rang the doorbell about ten times without receiving an answer; then the door was opened by C.R., Kmet's fifteen-year-old live-in girlfriend. Officer Coffey asked C.R. if Kmet was home, and when she said that he was not, the officers showed her their badges and asked if they could come in to talk. She allowed them to enter. The officers entered the living room, and Officer Coffey saw A.L. seated on a couch, a pistol placed on a stereo speaker, and three empty gun holsters on the floor. Officer Coffey placed himself between the girls and the pistol and asked if C.R. and the other girl were the only ones in the apartment. C.R. said no one else was in the apartment; Coffey repeated the question. C.R. replied that only the two girls were there. He then heard what he though were suspicious, muffled, rustling noises. Leaving Officer Smith in the living room with the girls, he opened the door to the bedroom from which he thought the noises came. He observed a sleeping juvenile, J.L., in bed, Robinson apparently attempting to hide in the closet, and part of a rifle barrel projecting from underneath the bed. Coffey had experienced previous police contact with Robinson, including an arrest for armed robbery. He escorted Robinson to the living room. Officer Coffey returned to the bedroom to retrieve J.L. He woke her up, allowed her to put some pants on, and was escorting her into the living room when he heard noises in the apartment's bathroom. He requested the occupant to come out, and five to ten seconds later Hughes emerged. Hughes and J.L. were placed in the living room with the others, and Officer Coffey reentered the bedroom to search under the bed. He found seven to nine rifles and shotguns under the bed, returned to the living room, and told Officer Smith to call in for backup officers. Officer Coffey seized the guns he had found under the bed, and two shotguns he found in the closet in which he had found Robinson. Upon being asked if anybody knew anything about these guns, the occupants replied they did not know anything about them. A general, warrantless search of the apartment was undertaken, which the state now indicates was unconstitutional. Later on, officers conducted a warrant search of the apartment. PEREMPTORY CHALLENGE Murdock first argues that he should have been allowed to peremptorily challenge Judge Ripley, or at least have been able to more fully set out reasons why he should have been able to do so. Peremptory disqualifications are set forth in the Alaska Statutes and Rules of Criminal Procedure. AS 22.20.022 provides in part: Peremptory disqualification of a superior court judge, (a) If a party or a party's attorney in a district court action or a superior court action, civil or criminal, files an affidavit alleging under oath that a belief that a fair and impartial trial cannot be obtained, the presiding district court or superior court judge, respectively, shall at once, and without requiring proof, assign the action to another judge of the appropriate court in that district, or if there is none, the chief justice of the supreme court shall assign a judge for the hearing or trial of the ac tion. The affidavit shall contain a statement that it is made in good faith and not for the purpose of delay. (d) No party or his attorney may file more than one affidavit under this section in an action and no more than two affidavits in an action. Alaska Rule of Criminal Procedure 25(d)(1) states: Entitlement. In any criminal case in superior or district court, the prosecution and the defense shall each be entitled as a matter of right to one change of judge. When multiple defendants are unable to agree upon the judge to hear the case, the trial judge may, in the interest of justice, give them more than one change as a matter of right; the prosecutor shall be entitled to the same number of changes as all the defendants combined. The Murdock, Robinson and Hughes cases were consolidated for pretrial proceedings. The case was originally assigned to Judge Ralph Moody, who granted Hughes' motion peremptorily challenging him. Although Hughes served Murdock's counsel with this motion, neither Murdock nor his counsel was consulted on the exercise of the peremptory challenge or was present when Hughes exercised the challenge. Judge Moody ruled that whichever defendant exercised the first peremptory challenge would be "the winner," and would thus exercise the peremptory challenge for the group. After Judge Moody was disqualified the case was assigned to Judge Mark Rowland, who was peremptorily challenged by the prosecution. The case was then assigned to Judge Justin Ripley. Murdock filed a motion to peremptorily challenge Judge Ripley. The state filed a motion objecting to the peremptory challenge, arguing that the defendants had already filed a peremptory challenge and that, under the rule, the three defendants were only entitled to one peremptory challenge. Judge Moody denied Murdock's request to disqualify Judge Ripley. Murdock then filed a motion objecting to the fact that Judge Moody had ruled on the motion, arguing that Judge Moody had no authority to act on the case because he had disqualified himself. Murdock filed a memorandum in support of his motion. This motion was then extensively argued before Judge Ripley. After listening to argument, Judge Ripley indicated he would rule on the motion de novo. He then denied the motion to allow Murdock to peremptorily challenge him. Murdock then asked Judge Ripley to allow the defendants to show reason why they should be allowed additional peremptory challenges. Murdock alleged that the cases were factually different, that there were different legal issues in the various cases and that the individual attorneys had different ways of treating the various issues. Judge Ripley indicated that he had already been fully informed about those matters, had considered them, and had ruled. Murdock argues two grounds in urging us to find the trial court abused its discretion. First, Judge Moody did not follow the procedure for peremptory challenges set out in Hawley v. State, 614 P.2d 1349 (Alaska 1980). In Hawley the supreme court stated that "the following procedure should be observed in multiple defendant cases. The trial court should inquire if this is a joint decision or, at least, require that the defendants confer before rendering its decision." Id. at 1361 n. 34. Second, Murdock argues that Judge Ripley abused his discretion in not allowing Mur-dock to show specific reasons why Judge Ripley should have allowed further peremptory challenges. These grounds do not warrant an abuse of discretion finding. Hawley was decided well after the peremptory challenge issue arose in this case. Therefore, the trial court did not have the benefit of the Haw-ley language which set forth a procedure where multiple defendants were required to consult with each other before a peremptory challenge was exercised. Furthermore, in Hawley itself the court did not find an abuse of discretion where multiple defendants did not confer before exercising a peremptory challenge. Id. In any event, although the preferable procedure is to have multiple defendants confer in reaching a decision to exercise a peremptory challenge, neither the peremptory challenge rule, the statute, nor the Hawley decision require the decision to exercise a peremptory challenge to be a joint decision. After the various defendants and counsel did confer after Judge Moody was peremptorily challenged, Hughes made no request to withdraw his challenge of Judge Moody. The only request was to allow Murdock to peremptorily challenge Judge Ripley. We fail to see how Murdock was prejudiced by his inability to confer with the other defendants before Hughes peremptorily disqualified Judge Moody, since it appears Hughes was determined to peremptorily challenge Judge Moody. We also conclude that Murdock had numerous opportunities in his various peremptory challenge motions and the argument on these motions to make specific allegations concerning the asserted conflicts that might have led Judge Ripley to grant additional peremptory challenges. There simply was no indication in the court below, nor has there been any suggestion on appeal, that there were any specific reasons why Judge Ripley abused his discretion in not granting an additional peremptory challenge. We note that Murdock made no attempt to disqualify Judge Ripley for cause. We also note that, aside from the fact that Murdock had numerous opportunities to set forth specific reasons why Judge Ripley should grant additional peremptory challenges, there is a serious question whether the request for the trial judge to consider more specific reasons why he should disqualify himself after he ruled on the motion to disqualify himself was a timely request. Murdock's motion to peremptorily disqualify Judge Ripley was filed in December, 1978. This motion was argued and denied in March, 1979. Only then did Murdock ask to present more specific reasons why Judge Ripley should disqualify himself. Defendants should file motions to disqualify a judge within five days of when the judge is assigned to the case. Alaska R.Crim.P. 25(d)(2). Murdock's request to show additional grounds why Judge Ripley should disqualify himself appears to have been untimely. See Wamser v. State, 587 P.2d 232, 235 (Alaska 1978). We find no abuse of discretion. STANDING Murdock and Robinson raise several issues concerning the entry into and the search of the Kmet apartment. The state first contends that Murdock does not have any standing to complain about the search of the Kmet apartment. This court has ruled that a defendant must have standing to challenge a violation of search and seizure rights. Unger v. State, 640 P.2d 151, 156-57 (Alaska App.1982); G.R. v. State, 638 P.2d 191, 201-05 (Alaska App.1981). However, the state has waited until appeal to raise its standing objection even though Murdock clearly asserted that he had standing in his suppression memorandum filed in the trial court. On this record we must find that Murdock has established that he has standing. See Unger v. State, 640 P.2d at 156 n. 6. We conclude that the state has waived any objection that it might have had to Murdock's standing to raise the search and seizure issues. THE KMET APARTMENT ENTRY Murdock and Robinson argue that the apartment entry was illegal because the officers did not have a valid consent to enter the apartment. Trial judge Justin Ripley decided that C.R.'s actions in admitting the officers into the apartment constituted a valid consent for the officers to enter. Therefore, we review the evidence in the light most favorable to the state. Gray v. State, 596 P.2d 1154, 1158 n. 18 (Alaska 1979). We conclude that the evidence was sufficient for the trial court to find that the state met its burden of proving a consent entry. C.R. had actual authority to allow the officers to enter the common-area of the apartment, since she was living in the apartment. Furthermore, it was reasonable for the officers to conclude that a teenage girl who answered the door and invited them inside had authority to do so. Doyle v. State, 633 P.2d 306, 307-09 (Alaska App.1981). The facts of the entry are consistent with the trial court's conclusion that C.R. consented to the police entry and that the entry was not a product of duress or coercion. THE KMET APARTMENT SEARCH The state contends that the initial search of the apartment was justified as a protective search. The trial court agreed, finding that "the record will clearly show that well-trained police officers, not responding to an unreasonable fear, properly moved through that apartment swiftly in the interest of their own safety . I do not find . . . from the facts before me that this was at all an orchestrated sham search." Alaska recognizes the protective search exception to the warrant requirement, but a) the officers must have reasonable cause to believe that their safety is in danger before engaging in such a search, and b) the search must be narrowly limited to areas where they could find dangerous persons. Mattern v. State, 500 P.2d 228, 231 n. 7 (Alaska 1972); Taylor v. State, 642 P.2d 1378, 1381-82 (Alaska App.1982). To show such reasonable cause to search, the state should "demonstrate a factual basis for a reasonable belief that additional suspects [beyond those under police control] were present and posed a threat to the safety" of the officers. State v. Spietz, 531 P.2d 521, 525 (Alaska 1975). In reviewing the trial court's decision, we review the evidence in the light most favorable to the state. Gray v. State, 596 P.2d at 1158 n. 18. We conclude that the evidence was sufficient to justify a protective search in this case. There were specific articulable facts from which the trial court could conclude that the police officers had reasonable cause to believe their safety was in danger and that a protective search was necessary for the officers to protect themselves. The officers had a tip that a stolen gun was present in the apartment, in addition to numerous other guns. The police then learned that a burglary suspect possibly lived in the apartment. Upon entering the apartment, the police saw one gun and three empty holsters. Then, after being assured that no one was in the back of the apartment, the police heard noises from which they could have reasonably concluded that someone was present in the apartment. Given this situation, the court concluded that it was reasonable for the officers to fear that an armed suspect who could ambush them might be in the back of the apartment. Taking the evidence in the light most favorable to the state, we conclude the trial court did not err in finding that the protective search was justified. Murdock argues that the police illegally seized various weapons" from the Kmet apartment. The state argues . that the weapons were in plain view. The trial court ruled that the weapons were in plain view. In order to establish that the guns were properly seized under the plain view exception to the search warrant requirement, the state had to prove at the suppression hearing that the officer's intrusion which afforded the view of the guns was lawful, that discovery of the guns was inadvertent, and that the incriminating nature of the guns was immediately apparent. Deal v. State, 626 P.2d 1073, 1078-79 (Alaska 1980); Klenke v. State, 581 P.2d 1119, 1121 (Alaska 1978). We do not find the trial court erred in ruling that the weapons were properly seized under the plain view theory. Officer Coffey knew of an anonymous tip that a large number of weapons were present at the Kmet apartment, and that one of them could be stolen. Upon entering the apartment, he saw one pistol and three empty holsters. He was told by the two girls in the apartment that no one else was present, yet when performing the protective search he found three other people, including Robinson, who was apparently trying to hide in a closet. Coffey saw a gun barrel under the bed in the room where he seized Robinson. We conclude that the trial court could find that for his own safety Officer Coffey had a right to seize the weapon that he saw under the bed and to look in the closet where he found Robinson. The court could also find that in seizing the weapon which he saw under the bed Officer Coffey discovered the other weapons in plain view. Once Officer Coffey discovered that there were seven to nine rifles and shotguns hidden under the bed and two shotguns in the closet where Robinson had been hiding, it was reasonable for him to assume the weapons that he found were stolen. We therefore conclude that the trial judge did not err in finding that the weapons were properly seized. After seizing the weapons, Officers Coffey and Smith searched the Kmet apartment. Many of the items that they found as a result of this search, including stereo equipment and a ring taken from Hughes, were later identified as property stolen in the Cornett-Vandelaar robberies. The state concedes that this search was unlawful. We agree. Neither the state nor the defendants has adequately argued the effects of this illegal search to this court. We do not know what illegally seized evidence was used in trial or what evidence may have been the poisonous fruit of the illegally seized evidence. We therefore remand to the trial court the issue of what effect the suppression of this evidence should have. THE ADMISSION OF ROBINSON'S STATEMENT After the police seized the weapons and searched the apartment, they took Robinson, Hughes, and the other residents of the apartment to the police station for questioning. All of these people, including Robinson, made statements. Robinson first argues that the police illegally seized all the other people who were present in the apartment and argues that therefore all evidence obtained against him as a result of their statements should be suppressed. However, on this record, Robinson has no standing to assert that the police violated the rights of Hughes and the others. In G.R. v. State, 638 P.2d 191, 201-05 (Alaska App.1981), this court held that a defendant did not have standing to raise the fourth amendment rights of another where the defendant's own fourth amendment rights were not violated. Earlier in this opinion we upheld the trial court's decision that the police properly entered the Kmet apartment and conducted a protective search. Thus they properly encountered all the people whom they later questioned. Consequently, Robinson's fourth amendment rights were not violated by the original police contact with Hughes and the other residents. See Unger v. State, 640 P.2d 151, 156 (Alaska App.1982). Therefore, Robinson has no standing to argue that his rights were violated by any violation of the rights of Hughes and the other residents. Robinson next contends that he was illegally seized and that his statement was illegally taken in violation of his constitutional rights to remain silent and to have counsel. In a related point, Robinson contends the trial judge erred in striking his testimony and Hughes' testimony which was offered on the question of whether Robinson's statement was legally obtained. We agree with Robinson that the trial judge erred in striking his and Hughes' testimony. Consequently, we are unable to review the issue of whether Robinson's statement was illegally obtained and must remand the case for redetermination of that issue. Robinson and Hughes both testified concerning their detention by the police and the statements that they made to the police. Among other testimony, Robinson testified that he asked for an attorney before he made any statements, but the officers took no action on his request. During Robinson's and Hughes' testimony, which was given on the motion to suppress their state>-ments, both defendants, on the advice of their counsel, refused to answer certain questions asked of them on cross-examination on the ground that the answers might incriminate them. When Robinson and later Hughes refused to answer in spite of the court's order to answer, the trial judge ordered their testimony stricken. The trial judge apparently did not consider their tes timony in reaching his conclusion that Robinson's statement was legally obtained. We believe that the remedy of striking the entire testimony of Robinson and Hughes was too severe. We have indicated that we do not favor sanctions that result in the exclusion of evidence. State v. Lewis, 632 P.2d 547, 549-51 (Alaska App.1981). We have reviewed the record of the proceeding where Robinson and Hughes testified, and it does not appear that their invocation of their right to remain silent was in bad faith. Counsel for Robinson and Hughes both expressed concern that statements that their clients made during the suppression hearing might later be used against them. The court specifically refused to rule to what extent the testimony of the defendants might later be used against them. While we do not suggest that the court acted improperly by not ruling on an issue that had not been briefed, the record reflects that counsel's concern that their clients' testimony might be used against them at trial was not frivolous. In any event, we see no reason why, in a pretrial hearing, the court could not consider the testimony of Hughes and Robinson even though they invoked the fifth amendment right to remain silent on some questions. We see no reason why the court could not consider their testimony while weighing the fact that they could not be fully cross-examined by the state. We believe that the inability of the state to fully cross-examine should go to the weight of the testimony but should not prevent Robinson's and Hughes' testimony from being considered at all. Accordingly, we find the trial court abused its discretion in refusing to consider the testimony of Robinson and Hughes in ruling on the motion to suppress Robinson's statement. The case is therefore remanded for the trial court to redetermine the issue of whether it should suppress Robinson's statement. THE SEARCH OF ITEMS THAT MUR-DOCK LEFT AT THE YMCA Murdock argues that the trial judge erred in refusing to suppress evidence that was obtained by the police from possessions that Murdock had left at the YMCA. We hold the trial judge did not err in refusing to suppress the evidence. At the time of his arrest, Murdock was renting a bed and storage locker at the F Street YMCA. When the YMCA manager heard of the arrest, to free up locker space she ordered a janitor to empty Murdock's locker, even though Murdock had paid the YMCA enough money to store his belongings in the locker for over two months. The locker's contents were placed in a general storage area. When two men attempted to claim Murdock's property, the manager became suspicious. She gave the property to a police officer, who took it from the YMCA to the police station. The officer did not open the property's containers (a suitcase, a satchel bag, a plastic bag, and a paper bag), and later gave the property to the investigator for Murdock's attorney. The attorney gave the property to the prosecution. The prosecution subsequently secured a search warrant to open the containers, based upon testimony concerning the observations of the janitor who had cleaned out Murdock's locker. Murdock's possessions included several items similar to those that had been stolen in the Cornett apartment robbery. Murdock correctly argues that he had a reasonable expectation of privacy in the property stored at the YMCA. He next contends that the YMCA had no authority to give the property to the police on its own initiative, and that the property was thus illegally seized. This argument has no merit, since the police gave the prop erty to Murdock's attorney (who later gave it to the prosecution). Murdock does not allege that while the property was in police possession the officers looked into the containers, or that the prosecution used information obtained from the seized property to obtain the subsequent search warrant. The initial seizure therefore did not taint the subsequent warrant search. The only real issue is whether there was probable cause to support the search warrant issued by Judge Victor Carlson which enabled the police to search Mur-dock's possessions. The transcript of the testimony presented in the application for the search warrant shows that Murdock was definitely linked to the Cornett apartment robbery; that there was still unrecov-ered stolen property from that robbery; and that the janitor who had observed Mur-dock's property while removing it from the YMCA locker told the testifying officer that the items included a brown leather gun belt and holster and a small radio or portable tape player. The officer stated that the janitor observed "larger caliber cartridges" in the gun belt, such as .38 or .44 caliber. The robbery victim was missing a small cassette tape player, a brown leather gun belt and holster, and .357 or ,38 caliber cartridges placed in the gun belt. On the above facts, Judge Carlson did have probable cause to issue the warrant. Murdock contends that the judge's determination rested upon inaccurate and incomplete information. First, the judge was not informed that YMCA checkout card records indicated that Murdock had not slept at the YMCA between the time of the robbery and the time of his arrest. Cruse v. State, 584 P.2d 1141, 1146 (Alaska 1978) (footnote omitted) emphasized that "[p]oliee and prosecutors owe a duty of candor to the court [considering the issuance of the search warrant], particularly in light of the ex parte nature of these proceedings, and must not withhold information which may taint the source of the probable cause they put forth." See Gallagher v. State, 651 P.2d 1185, 1188 n. 6 (Alaska App.1982). The Cruse test states that before the court invalidates a warrant on the basis of concealment of facts,. the court must find that the omission of information materially influenced the issuance of the warrant. 584 P.2d at 1146. The withheld information in question was not significant under Cruse, since Murdock would not have to have slept at the YMCA to have placed the stolen goods in his locker. Thus, it does not seem that the information would have influenced the judge, and its omission was not material. See Gallagher, 651 P.2d at 1187-88. Second, Murdock argues that the state presented no information showing that Murdock had visited his locker during the relevant time period. This also is not that important, since there was no significant reason to believe that Murdock or an agent of his had not visited his locker. Third, Murdock contends that the janitor provided only vague descriptions of the stolen property. However, we conclude that the descriptions were detailed enough to establish that the items that the janitor observed were property stolen in the robbery. Fourth, Mur-dock asserts that the janitor later testified at trial that he only remembered seeing the holster. This is an out-of-eontext statement. The janitor's complete testimony shows that he remembered the holster, gun belt and bullets at the time of his subsequent testimony. From this testimony it appears more likely that he had forgotten about the radio or tape player by the time he testified at trial than it does that the officer falsely testified at the warrant hearing as to what the janitor had earlier told him (when the observations were more freshly imprinted in the janitor's mind). Fifth, Murdock correctly asserts that the janitor did not specify the caliber of the bullets. But at the warrant hearing, the officer testified that "[the janitor] didn't specifically say, you know, that they were a certain caliber. . . . " It appears that Judge Carlson knew that the ".38 or .44 caliber" description was the officer's interpretation of the janitor's less detailed "larger caliber" description. We conclude that the search warrant was properly issued and find no error. CROSS-EXAMINATION OF MICHAEL CORNETT Murdock argues that the trial court unduly restricted his cross-examination of Michael Cornett, one of the alleged victims of the apartment robbery. At trial, Cornett testified about Murdock's participation in the robbery. He also testified that he had not touched the teenage prostitute friends of Hughes and Robinson and denied that he sexually assaulted them. Murdock attempted to impeach Cornett's credibility on these points. Murdock wished to show that Cornett was a biased witness who had an interest in testifying favorably for the state. To demonstrate this bias, Murdock wished to show that Cornett had a long history of criminal charges and that most of these charges had been dismissed or had resulted in lenient dispositions. Murdock argued that Cornett thus had reason to exaggerate his testimony for the prosecution in repayment for past leniency and in anticipation of other favors from the prosecution in the future. Judge Ripley refused to allow this line of cross-examination. We have examined the record and conclude that Judge Ripley did not abuse his discretion in limiting the cross-examination in this area. We find that Judge Ripley did allow Mur-dock to adequately bring to the attention of the jury Cornett's reasons for bias in favor of the state. There is no question that Murdock had the right to demonstrate Cornett's possible bias. The supreme court has "consistently held that it is essential to a defendant's right to a fair trial that he be allowed every opportunity to show bias on the part of a witness testifying against him." Braham v. State, 571 P.2d 631, 645 (Alaska 1977), cert. denied, 436 U.S. 910, 98 S.Ct. 2246, 56 L.Ed.2d 410 (1978). See Davis v. Alaska, 415 U.S. 308, 316-18, 94 S.Ct. 1105, 1110-1111, 39 L.Ed.2d 347, 353-55 (1974); Whitton v. State, 479 P.2d 302, 318 (Alaska 1970). However, the trial court does have discretion at some point to limit impeachment evidence when that evidence is cumulative. United States v. Nunez, 668 F.2d 1116, 1123 (10th Cir.1981); Robinson v. State, 593 P.2d 621, 624 (Alaska 1979); Braham v. State, 571 P.2d at 648. We note that Judge Ripley found that there was no indication that Cornett had received past favors from the police or that Cornett had cooperated with the police in the past. This finding is supported by the record. The evidence of a history of lenient dispositions would clearly be stronger evidence of bias if there was also evidence that these lenient dispositions had been received in return for past cooperation. Judge Ripley permitted defense cross-examination on the fact that the state granted Cornett immunity against prosecution for possessing stolen guns and was not prosecuting him for his alleged sexual assaults on the young prostitutes prior to the apartment robbery. We believe that it was thus sufficiently clear to the jury that Cor-nett was being treated favorably by the prosecution in return for his testimony. The history of lenient dispositions could perhaps raise an inference that Cornett had received favorable treatment in the past and hoped for favorable treatment in the future, and thus was biased in favor of the state. However, we conclude that the trial judge did not abuse his discretion in deciding that the probative value of the evidence was outweighed by its prejudicial effect, including the danger that collateral issues concerning Cornett's past criminal record and cooperation or non-cooperation with the police would confuse the main issues before the court. A.R.E. 403. The fact that the evidence was cumulative to other evidence, and the fact that its probative value was limited, support the trial court's decision to exclude the evidence. Later in the trial Murdock desired to cross-examine Cornett on three specific past charges- — assault with a dangerous weapon, assault and battery, and inciting a young woman to pass five bad checks. Cor-nett had testified in response to leading questions on cross-examination that he had not hit or threatened to hit the young pros titutes because he did not do that type of thing and it was against his principles. Murdock wanted to introduce these three charges to help demonstrate to the jury that Cornett would use actual or threatened violence to commit sexual assault against the young prostitutes. This would serve two related purposes, according to Mur-dock: a) help bolster the bias theory by tending to show that Cornett was unafraid of prosecution for the alleged sexual assaults, not because he was innocent of the assaults but rather because of the state's informal grant of immunity, and b) act as a general rebuttal of Cornett's statement. The court found that the impeachment value of such cross-examination would be minimal, that the three charges did not demonstrate that Cornett would commit or threaten violence against young girls, and that such cross-examination would open up redirect examination on the charges, which would waste trial time. Murdock asserts that the rulings limiting his cross-examination of Cornett violate his sixth amendment confrontation right and Alaska Rule of Evidence 613(a), which allows evidence of witness bias or interest to be admitted to impeach the credibility of the witness. Murdock asserts that without evidence of the three aforementioned charges, the jury could have concluded that Cornett was not fearful of prosecution for the alleged sexual assaults because he actually had not committed them, rather than because of a de facto immunity which would motivate bias. Murdock argues that if the jury had known that Cornett had been violent, or had asserted his will on a young woman to incite her to commit a crime, it would have been more likely to believe that Cornett had used actual or threatened violence to commit sexual assault upon the young prostitutes, needed immunity from prosecution for this incident, and was thus biased toward the prosecution because of his self-interest. There are four problems with the probative value of such evidence. First, the two violent incidents were not directed against young women. In context, Cornett's testimony was to the effect that he did not threaten or commit violence against young women. Second, Murdock did not show that the inciting incident, which did involve an eighteen-year-old woman, involved threatened or actual violence. As the trial judge concluded, it is thus questionable whether these three incidents did substantially impeach Cornett's statement. Third, Cornett would be frightened of a sexual assault prosecution even if he had not committed the crime. The two girls had testified under oath that Cornett did sexually assault them, and at a trial it would have been their story against Cornett's and Van-delaar's story. In terms of his desire for immunity from prosecution, the fact that Cornett was accused under oath of sexual assault by two victims was arguably as important as whether he had actually threatened or used violence against them. Fourth, as Murdock's own counsel pointed out, even if the sexual activity with the juveniles was consensual, Cornett still could have been found guilty of a statutory rape of one of the juveniles. See former AS 11.15.120(2). Thus whether or not Cornett had used or threatened violence, he still desired immunity from prosecution for his asserted misconduct. When these factors are combined, it appears that the three charges had little extra probative value for determining Cornett's desire for immunity and his consequent bias toward the prosecution. Thus, we find Judge Ripley did not abuse his discretion in concluding that Murdock's bias theory did not mandate admission of the three incidents. Once past the bias issue and into the area of general rebuttal, the judge's discretion is enlarged. For the judge to refuse to allow Murdock to use the three prior charges as extrinsic evidence to contradict Cornett's testimony on a clearly collateral issue (whether he would use actual or threatened violence against young women) does not constitute an abuse of discretion. Moss v. State, 620 P.2d 674, 676-77 (Alaska 1980); Jones v. State, 576 P.2d 997, 999-1000 (Alaska 1978); McCormick's Handbook of the Law of Evidence § 47, at 98 (E. Cleary ed. 2d ed. 1972). We find no error. SENTENCING Both Murdock and Robinson argue that their sentences were excessive and that Judge Ripley improperly sentenced them in anticipation that they would be paroled at particular times. See Kelly v. State, 622 P.2d 432, 438 (Alaska 1981); Jackson v. State, 616 P.2d 23, 24-25 (Alaska 1980). We have already decided to remand these cases to allow the trial court to determine if Robinson's confession was obtained illegally and to determine whether Robinson's and Murdock's convictions must be reversed because they were tainted by illegally obtained evidence. We therefore do not reach the sentencing issues raised by Murdock and Robinson at this time. We note, however, that the state concedes that Robinson's case must be remanded for resentencing because the trial court improperly fixed his sentence in anticipation of early parole. Although we do not decide this issue at this time, wc do not preclude the trial court from resen-tencing either or both defendants in the event the trial court decides' the issues remaining in this case adversely to them. The ease is REMANDED for further proceedings. . The third accomplice, Michael Hughes, was convicted of two counts of armed robbery for the apartment robbery. He has not appealed those convictions. Hughes was convicted of manslaughter and attempted armed robbery for his participation in the attempted armed robbery of Chino's Restaurant and the killing of restaurant owner Joseph Hochong. Appeal in these convictions is currently pending in this court. Hughes v. State, File No. 5217. . The hearing in this case took place before adoption of the evidence rules. The extent to which the testimony of a defendant may be used at trial is now covered by A.R.E. 104(d), which reads: Testimony by Accused The accused does not, by testifying upon a preliminary matter, subject himself to cross-examination as to other issues in the case. Testimony given by the accused at the hearing is not admissible against him unless inconsistent with his testimony at trial. . Some of the guns stolen from Cornett in the apartment robbery were stolen to begin with.

10357001

Raymond D. CHEELY, Jr., Appellant, v. STATE of Alaska, Appellee

Cheely v. State

1993-04-23

No. A-4107

653

663

850 P.2d 653

850

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

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

CAP

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

Raymond D. CHEELY, Jr., Appellant, v. STATE of Alaska, Appellee.

Raymond D. CHEELY, Jr., Appellant, v. STATE of Alaska, Appellee. No. A-4107. Court of Appeals of Alaska. April 23, 1993. John E. McConnaughy, III, and Larry Cohn, Anchorage, for appellant. Eric A. Johnson, Asst. Atty. Gen., Office of Special Prosecutions and Appeals, Anchorage, and Charles E. Cole, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and MANNHEIMER, JJ.

5761

35429

OPINION MANNHEIMER, Judge. Raymond D. Cheely was found guilty of second-degree theft, AS 11.46.130(a), following a jury trial in the Anchorage superi- or court. Cheely appeals his conviction, contending that the evidence against him should have been suppressed, and also that the trial court misinstructed the jury. We affirm. An Anchorage grand jury indicted Cheely for stealing a black 1990 Chevrolet S-15 pickup truck from Alaska Sales and Service, an Anchorage car dealer. The theft was discovered after Anchorage police were called to Chugiak High School to in vestigate a pickup truck found parked in the school's faculty parking lot. School officials were concerned because the pickup had two shotguns in the rack in the cab, and the truck did not belong to any member of the faculty. Because no one else had permission to park a vehicle in the faculty lot, school officials called upon the police to find out who owned the truck. The police checked the license plate number on the truck and found that the vehicle was apparently registered to Cheely. However, the registration records contained a vehicle identification number (YIN) that was different from the VIN visible on the truck's dashboard. When the police spoke with Cheely, he affirmed that he was the owner of the truck. The police asked Cheely about the discrepancy between the vehicle identification numbers. Cheely told the officers that the license plates had actually belonged to another Chevy pickup, a 1988 S-10, that had been destroyed in a fire. Cheely said that, after his first truck was destroyed, he had built a new truck from assorted parts of other trucks, then had placed the license plates from the destroyed truck on his newly assembled vehicle. The police took the truck from Cheely and later scrutinized its structure. The officers ascertained that, despite Cheely's claim that the vehicle had been assembled from parts of several other trucks, the vehicle identification numbers stamped on the engine, the transmission, and the frame all matched the VIN displayed on the dashboard. Because this recurring VIN did not match the VIN listed in the registration records, the officers investigated further and discovered that the truck was in fact a 1990 Chevy S-15 that had been stolen from Alaska Sales and Service. Cheely's attorney filed a motion to suppress all evidence the police obtained from their detailed examination of the truck. Cheely asserted that the police's warrant-less seizure of the truck had been illegal. The State responded that Cheely had given the officers permission to take his truck and search it. The superior court held an evidentiary hearing on Cheely's suppression motion. The only witness was Anchorage Police Officer Leslie Withers. Officer Withers testified that he and another officer, Dennis Long, had gone to Chugiak High School to investigate the truck. The two officers spoke with Cheely in a school conference room. Cheely affirmed that he was the owner of the truck. The officers asked Cheely about the variance between the truck's VIN and the VIN on record under Cheely's license plate number, and Cheely gave his explanation (that the original truck had been destroyed and that he had assembled the present truck from assorted parts of other vehicles). Cheely then gave the officers permission to search his truck. Withers produced the "search waiver" form that Cheely had signed in his and Officer Long's presence. Withers testified that this form "advises that Mr. Cheely is giving myself, Officer Long, and the Anchorage Police Department permission to search his 1988 Chevy truck . and it authorizes me to take from the [truck] any letters, papers, materials, or other property which I desire." Withers further testified that Cheely had not been under arrest when he signed the form, that Cheely had not expressed any reluctance to have the police search the truck, and that Cheely had not been threatened in any way or promised anything to induce him to consent to the search. Additionally, from the time Cheely signed the consent form until the police towed his truck away, Cheely never indicated that he had changed his mind about consenting to the search. On cross-examination, Cheely's attorney focused on the fact that the written consent-to-search form, while it explicitly authorized the police, to search the truck and its contents, did not specifically authorize the police to impound the vehicle (tow it away). Cheely's attorney attempted to demonstrate that Cheely had never consented to the seizure (as opposed to the search) of the truck. However, Officer Withers disagreed: DEFENSE ATTORNEY: And did [Cheely] give you permission to seize the truck, as opposed to . [seizing] papers and things of that nature? Basically, he never said, "Go ahead and take the truck". You just took the truck? WITHERS: No, that's not correct. DEFENSE ATTORNEY: So when did he say, "Go ahead and take the truck"? WITHERS: Mr. — as a matter of fact, Mr. Cheely was told while we were still inside the [school] building, when we were simply sitting down, speaking, Mr. Cheely was told that, because of the conditions present there [at the school], that it might not be possible to do [the] complete inspection of the vehicle which might be necessary_ Mr. Cheely had been told before we exited out into the parking lot, where we were discussing this, that we might not be able to do a full inspection there and we'd need to take it into the station or into the police department to examine it. And he signed the waiver and indicated that he was not objecting to that. After pointing out again that the wording of the consent-to-search form did not seem to encompass seizure of the truck, Cheely's attorney announced to the court, "I don't have anything further, Your Hon- or. I'm willing just to rely without argument on the testimony." Even after the prosecutor presented a short argument opposing suppression, Cheely's attorney reiterated, "I have no argument." Superior Court Judge Milton M. Souter declared that he believed the State had met its burden of proving that Cheely had consented to the seizure and search of the truck. Judge Souter agreed with Cheely that the wording of the consent-to-search form did not explicitly authorize the police to seize the truck and tow it away, but Judge Souter found that Cheely had verbally consented to the seizure. Judge Souter further found that Cheely's consent had been uncoerced and had been otherwise valid. Based on these conclusions, Judge Souter denied Cheely's suppression motion. On appeal, Cheely does not question the superior court's finding that he verbally consented to the impoundment of his truck. Instead, Cheely asserts that his verbal consent was obtained through "bait and switch" tactics — the police first obtaining his consent to a search of the vehicle, then telling him that it was necessary to tow the truck away in order to accomplish this search. Cheely argues that the evidence presented at the hearing was inadequate to establish that the police explained the true scope of the consented-to search. Cheely suggests that, after he signed the consent form, he may not have understood that he still retained the right to insist that the truck remain on-site. None of these claims was advanced in the superior court. Cheely's written motion to suppress simply asserted that a warrantless search and seizure had occurred, and that it was the State's burden to justify its actions. The State responded that Cheely had consented to the search and seizure. In support of this argument, the State presented the testimony of Officer Withers. Withers testified that he and his fellow officer told Cheely that they not only wished to search the truck but also wished to remove the truck to another location to perform this search. Withers also testified that Cheely freely consented to this, and that Cheely never indicated he wished to reconsider or revoke that consent. Following this testimony, Cheely's attorney explicitly told Judge Souter that he had nothing further to say, and that he was willing "to rely without argument on the [officer's] testimony". Thus, Cheely's claims are not preserved, and we will not consider them. Burford v. State, 515 P.2d 382, 383 (Alaska 1973); Lumbermen's Mutual Casualty Co. v. Continental Casualty Co., 387 P.2d 104, 109, 111-12 (Alaska 1963). Moreover, even if we were to entertain Cheely's claims, the record contains no evidence- to support Cheely's suggestions that his consent to the impoundment was something less than knowing and voluntary. His arguments in support of this claim are based on complete speculation. We affirm the superior court's denial of Cheely's suppression motion. Cheely's second claim on appeal concerns the trial judge's answers to questions posed by the jury during deliberations. The State's theory at trial was that Cheely had stolen the pickup truck from the Alaska Sales and Service lot. In his short opening statement, Cheely's attorney told the jury that, in the main, the defense was not going to dispute the testimony of the State's witnesses; instead, the defense was going to argue that the State had failed to prove beyond a reasonable doubt that Cheely had stolen the pickup. In closing argument, the defense theory of the case became more explicit: Cheely conceded that the State might have proved that he had purchased or taken possession of the pickup knowing it was stolen, but Cheely argued that the State had not proved beyond a reasonable doubt that Cheely himself had physically removed the truck from the dealer's lot. DEFENSE ATTORNEY: So what is the other reasonable alternative? The other reasonable alternative is that someone else stole the truck and Ray Cheely ended up with it, and that's not what he's charged with in this case. He's not charged with receiving the stolen truck. He's not charged with buying a stolen truck. He's not charged with driving a stolen truck. He's charged with stealing the truck, and he didn't steal the truck. [Tjhere's no question [that the defendant "obtained the property of another"]. Ray Cheely had the property of another — he had the truck. Did he actually go to the lot and obtain it? No. Did he obtain it through buying it from somebody? Possibly. Did he get it from someone? Possibly. We don't know how Ray Cheely got that truck. But, you know, it's equally [likely] that he bought the truck from someone who had stolen it. I'm arguing reasonable alternatives . [One] reasonable alternative is [that] someone else [stole] that car and Ray Cheely ended up with it, and he didn't even know it was stolen. The only thing he knew is he got a real cheap car. And maybe he had a gut feeling it was stolen, but that still doesn't make him the person who stole it from this dealership. On that, you have to find him not guilty. The prosecutor responded to this argument by reiterating the reasons to believe that Cheely himself had been the person who removed the truck from the lot. During its deliberations, the jury asked the court if Cheely's argument was really a defense to theft. The jurors sent the court a note which asked if they were required to find that Cheely had personally taken the truck from the dealer's lot, or if they had to find merely that someone had taken the truck and that Cheely had then obtained it with intent to permanently deprive the owner. Instruction 16 of the court's original jury instructions informed the jury that: A person commits the crime of theft in the second degree if, with intent to deprive another of property or appropriate property of another to himself or a third person, he or she obtains the property of another and the value of the property is $500 or more. In order to establish the crime of theft in the second degree, it is necessary for the state to prove beyond a reasonable doubt the following: First, that the event in question occurred at or near Anchorage and on or about January 27, 1990; Second, that Raymond D. Cheely, Jr., intended to deprive another of property or appropriate property of another to himself or a third person; Third, that the defendant obtained the property of another; and Fourth, that the value of the property was $500 or more. The jurors' question to the court read: [In Instruction 16], does "event" mean [that] a theft occurred, or [does it mean that] RDC, Jr., stole a truck . ? Which way should this be interpreted[?] [D]oes [Instruction 16] mean "physically stealing [the] car off [the] lot", or what? . Are we being asked if Raymond Cheely Jr. stole the truck off the lot? Judge Souter told the parties that he proposed to answer the jurors' question this way: In order for you to find the defendant guilty as charged in the indictment, it is not necessary that the evidence prove that he was the person who removed the vehicle from the Alaska Sales and Service lot, but it is necessary that the evidence prove that he obtained or appropriated the vehicle with culpable intent on or about January 27, 1990, as the terms "obtain" and "appropriate" are defined in Instructions Number 20 and 21. Despite the fact that Cheely's defense was apparently premised on the distinction between theft by asportation and theft by receiving, neither of Cheely's attorneys objected to the court's proposal, and the court instructed the jury as indicated. Later, the jury asked the court to clarify the culpable mental state required for the crime of theft if Cheely had not been the one who actually took the truck. At this point, Cheely's attorneys argued for the first time that it would be fundamentally unfair to allow the jury to convict Cheely on a theft-by-receiving theory. Judge Souter nevertheless gave the jury a further instruction on theft by receiving. When the jury convicted Cheely, the verdict form they returned to court stated that they had found Cheely guilty of "theft", without specifying the theory. On appeal, Cheely renews his assertion that the trial court should not have allowed the jury to consider a theft-by-receiving theory. To analyze Cheely's arguments, it is necessary to examine the definition of theft contained in AS 11.46.100: Sec. 11.46.100. Theft defined. A person commits theft if (1) with intent to deprive another of property or to appropriate property of another to oneself or a third person, the person obtains the property of another; (2) the person commits theft of lost or mislaid property under AS 11.46.160; (3) the person commits theft by deception under AS 11.46.180; (4) the person commits theft by receiving under AS 11.46.190; (5) the person commits theft of services under AS 11.46.200; (6) the person commits theft by failure to make required disposition of funds received or held under AS 11.46.210. Cheely first argues that, because his indictment lists the charging statute as "AS 11.46.100(1)", there would be a material variance between the crime charged in the indictment and the crime for which Cheely was convicted if the jury found Cheely guilty of theft by receiving, which is listed in AS 11.46.100(4). Judge Souter ruled, however, that subsection (1) defines the crime of theft generally and is broad enough to include the specific instances of theft mentioned in subsections (2)-(6). Thus, Judge Souter concluded, a charge of theft under AS 11.46.100(1) encompasses both theft by asportation and theft by receiving. Judge Souter correctly interpreted the statute. When the Alaska Criminal Code Revision Subcommission drafted our current Title 11, one of the Subcommission's stated goals was to consolidate the various preexisting categories of theft crimes into one, all-embracing theft offense: Existing [i.e., pre-1980] Alaska law . retains the ancient distinctions between larceny, embezzlement[,] and obtaining money by false pretenses although these distinctions serve no practical pur-pose_ The effect of these [purposeless distinctions] on existing law is highlighted by Professors Wayne LaFave and Austin Scott: We have seen that English legal history explains the fact that, in most American jurisdictions today, the wrongful appropriation of another's property is covered by three related but separate, non-overlapping crimes— larceny, embezzlement, and false pretenses. This fact, together with the fact that the borderlines between the three crimes are thin and often difficult to draw, has given rise to a favorite indoor sport played for high stakes in our appellate courts: A defendant, convicted of one of the three crimes, claims on appeal that, though he is guilty of a crime, his crime is one of the other two. Sometimes this pleasant game is carried to extremes: A defendant, charged with larceny, is acquitted by the trial court (generally on the defendant's motion for a directed verdict of acquittal) on the ground that the evidence shows him guilty of embezzlement. Subsequently tried for embezzlement, he is convicted; but he appeals on the ground that the evidence proves larceny rather than embezzlement. The appellate court agrees and reverses the conviction. [Footnote omitted]. LaFave and Scott, Criminal Law, 673 (1972). Today [i.e., in 1978], 42 states have either adopted or are considering revised criminal codes. Virtually all of these revisions have repudiated the unnecessary and outdated distinctions among the most common theft offenses. The Theft and Related Offenses Article of [our] Revised Code accomplishes this result in Alaska. The primary purpose of the Theft Offense Article of the Revised Code is the consolidation of a number of crimes that have traditionally been thought of as theft offenses. The traditionally distinct crimes of larceny, larceny by trick, embezzlement, theft of mislaid property, obtaining property by false pretenses[,] and receiving stolen property are now combined into a single crime of "theft". Alaska Criminal Code Revision, Tentative Draft (1978), Part 3, pp. 16-18. As Judge Souter correctly perceived, AS 11.46.100 was drafted so that subsection (1) constitutes the general definition of theft, with subsections (2)-(6) being merely varying ways in which the basic crime defined in (1) can be committed. The Tentative Draft is explicit on this point: Subsection (1), referring to a person who "takes, appropriates, obtains[,] or withholds the property of another" with the requisite intent is broad enough to cover all forms of thievish conduct. See State v. Jim [13 Or.App. 201] 508 P.2d 462 (Or.App.1973), interpreting the identical language in the Oregon consolidated theft statute. However, as a concession to the potential hold of tradition, subsections (2)-(4) specifically list conduct traditionally not included within the definition of common law larceny. Subsections (2)-(4) refer the reader to specific statutes describing in detail how theft of lost property, theft by deception^] and theft by receiving may be committed. It is important to note that the conduct described in these specific statutes do not create separate crimes. [For example, there] is no separate offense of theft by deception in the Revised Code. Tentative Draft, Part 3, p. 19 (emphasis added). See also the legislative commentary to AS 11.46.100: 1978 Senate Journal, Supplement No. 47 (June 12), pp. 30-32. The drafters also rejected the particular argument Cheely raised at his trial — that theft by asportation was an offense distinct from theft by receiving: The definition of "obtain" . extends the concept of taking to include constructive acquisition of property_ [Aspor-tation or "carrying away" of property is not an element of theft under the consolidated theft statute[.] Tentative Draft, Part 3, p. 20, and legislative commentary, 1978 Senate Journal, Supp. No. 47, p. 31. To further accomplish the goal of consolidating theft offenses, the drafters proposed and the legislature enacted AS 11.-46.110. That statute reads, in pertinent part: Sec. 11.46.110. Consolidation of theft offenses: Pleading and proof. (b) An accusation of theft is sufficient if it alleges that the defendant committed theft of property or services of the nature or value required for the commission of the crime charged without designating the particular way or manner in which the theft was committed. (c) Proof that the defendant engaged in conduct constituting theft as defined in AS 11.46.100 is sufficient to support a conviction based upon any indictment, information, or complaint for theft. The Criminal Code Revision Subcommission explained the need for AS 11.46.110: Under the Revised Code, a charge of theft is sufficient without designating the particular means by which the property was obtained.... The necessity for this section was acknowledged by the primary drafter of the Oregon Revised Criminal Code. [D]espite the substantial consolidation of theft offenses, the tendency to cling to the old categories is so strong that it is considered advisable to state expressly what logically follows [from the legal consolidation].... [T]he state will not be required in most cases to designate the particular way or manner in which the crime was committed. A general allegation that the defendant committed theft of property of the nature or value required . will be supportable by proof that he engaged in conduct constituting theft as defined by the Revised Code. The proof might be that the defendant engaged in conduct amounting to common law larceny, "embezzlement", "theft by receiving", or some other type of thievish conduct. Tentative Draft, Part 3, pp. 22-23, quoting Paillette, "The Oregon Theft Laws: Consolidation v. Conglomeration", 51 Ore. L.Rev. 525 (1972). The legislative intent underlying AS 11.-46.100 and AS 11.46.110 was explicitly recognized and adopted by this court in Williams v. State, 648 P.2d 603 (Alaska App.1982). The defendant in that case was convicted of the theft of equipment that had disappeared from the yard of a Fairbanks construction company. The indictment charged that Williams "did unlawfully commit the theft" of the equipment, a "violation of AS 11.46.130(a)". Williams, 648 P.2d at 605 n. 3. On appeal, Williams asserted that this indictment had not given him proper notice of the offense with which he was charged because it did not allege a specific theory of theft: Williams claims that the evidence presented at the grand jury showed that the state's theory was that Williams had personally stolen the [equipment] and that this is the charge . he was prepared to defend. However, at the close of the evidence at trial the state offered jury instructions on the charge of theft by receiving^] and the judge instructed only on this theory of theft. Williams, 648 P.2d at 605-06. Williams asserted that he had been denied due process, but this court rejected Williams's argument: We believe that the indictment adequately informed Williams of the offense with which he was charged and [we] therefore find no due process viola-tion_ AS 11.46.110(b) provides that: (b) an accusation of theft is sufficient if it alleges that the defendant committed theft of property or services of the nature or value required for the commission of the crime charged without designating the particular way or manner in which the theft was committed. . [Under] this statutory scheme[,] a person charged with theft is put on notice that he may be convicted of theft under different theories. The accused is not without remedies in finding out more specifically the crime with which he is charged. He has access to the record of the grand jury proceeding. . An accused can also ask for a bill of particulars.... Liberal discovery of the state's case is also permitted.... Given these liberal discovery rules, we conclude that an accused does have the ability to obtain adequate discovery of the state's case and to get adequate notice of the state's theory or theories of prosecution. We therefore find no merit to Williams' attack on the indictment. Williams, 648 P.2d at 606. Several other jurisdictions with similar consolidated theft statutes have seen appeals in which a defendant, indicted for theft under the general definition, objected when the jury was instructed on theft by receiving. These courts, recognizing that a general charge of theft encompasses all the various forms of theft, have upheld the defendants' convictions. State v. Winter, 146 Ariz. 461, 706 P.2d 1228, 1230-33 (App.1985); Commonwealth v. Day, 599 S.W.2d 166 (Ky.1980); State v. Taylor, 570 P.2d 697 (Utah 1977); State v. Jim, 13 Or.App. 201, 508 P.2d 462 (1973); State v. Donnelly, 124 Conn. 661, 2 A.2d 214 (1938). See also Cameron v. Hauck, 383 F.2d 966 (5th Cir.1967), cert. denied, 389 U.S. 1039, 88 S.Ct. 777, 19 L.Ed.2d 828 (1968) (federal habeas corpus litigation: conviction affirmed against the defendant's challenge that he had not adequately been apprised of the charge against him when evidence showed theft by false pretenses rather than by trespassory taking), and People v. Martinez, 37 Colo.App. 71, 543 P.2d 1290 (1975) (subject-matter jurisdiction over the crime upheld when the evidence showed that the defendant, even though he had unlawfully taken the property in another state, had unlawfully withheld the property while in Colorado). We therefore reject Cheely's argument that, because his indictment charges theft under AS 11.46.100(1), it was improper to instruct the jury on theft by receiving. Theft by receiving is not a separate crime; it is but one of the methods by which theft can be committed. Under AS 11.46.110(b) and this court's decision in Williams, Cheely was on notice that he might be convicted of theft by receiving even if he could show that he did not personally take the truck from the Alaska Sales and Service lot. The evidence supported the inference that Cheely had received the truck with knowledge that it was stolen, or with reckless indifference to whether it was stolen, and with intent to appropriate the truck to his own use. Ace v. State, 672 P.2d 159, 161-62 (Alaska App.1983). Thus, an instruction on theft by receiving was presumptively proper. Cheely, however, argues that he was prejudiced by the peculiar manner in' which his case was litigated. As described above, Cheely's defense was that, while he might have committed theft by receiving, he was not the person who actually took the truck off the dealership lot. Cheely asserts that he formulated this defense in reliance on the wording of the indictment: The grand jury charges that on or about the 27th day of January, 1990, at or near Anchorage, . Raymond D. Cheely, Jr., did unlawfully commit theft of a black 1990 GMC S-15 pickup truck, . the property of Alaska Sales and Service, having a value of $500 or more. All of which is . contrary to and in violation of AS 11.46.130(a)(1) and against the peace and dignity of the State of Alaska. The statute mentioned in this indictment, AS 11.46.130(a)(1), defines the crime of theft in the second degree. It states that a person commits second-degree theft "if the person commits theft as defined in AS 11.-46.100 and the value of the property . is $500 or more". The wording of Cheely's indictment is essentially the same as the wording of the indictment in Williams, wording that this court declared was sufficient to notify the defendant that he might be convicted of theft by receiving. Nothing in the wording of the indictment restricted the State to pursuing a theory of theft by asportation to the exclusion of other theories. If Cheely believed that this indictment allowed him to defend by asserting that he was guilty, not of theft by asportation, but of theft by receiving, his belief was unreasonable and completely unfounded in law. Cheely further asserts, however, that, even if the indictment itself did not limit the potential theories of theft, the prosecutor's conduct of the litigation implicitly committed the State to a theft-by-asportation theory. Cheely points out that the prosecutor did not seek a jury instruction on theft by receiving and did not argue this theory, even as an alternative, during the State's summation to the jury. Cheely relies on this court's decision in Rollins v. State, 757 P.2d 601 (Alaska App.1988). In Rollins, the defendant was indicted for third-degree assault — placing another person in fear of imminent serious physical injury. AS 11.41.220(a)(1). After the close of the evidence, the defense ini tially requested a jury instruction on the lesser included offense of fourth-degree assault (placing another in fear of imminent, non-serious physical injury) but then withdrew this request. The State did not object to submitting the case to the jury with the jury's deliberations limited to third-degree assault. Rollins, 757 P.2d at 602. During final argument, Rollins's attorney focused on the element of serious physical injury, arguing that the victim might have reasonably feared some physical injury but not the serious physical injury necessary for conviction of third-degree assault. The jury, apparently crediting the defense attorney's argument, sent a note to the judge asking what they should do if they found that the victim had reasonably feared only non-serious injury. In reply, and over Rollins's objection, the judge instructed the jury on fourth-degree assault, and the jury convicted Rollins of this lesser charge. Id. On appeal, this court reversed Rollins's conviction. This court recognized that Rollins was, as a matter of law, on notice that fourth-degree assault was a potential lesser included offense. Nevertheless, this court held that, after the State and the trial judge agreed to send the case to the jury solely on the charge of third-degree assault, Rollins was entitled to rely on this posture of the case when formulating his summation to the jury. More specifically, this court concluded that Rollins had justifiably relied to his detriment on the restricted charge when he decided to focus his argument on the State's failure to prove the element of fear of imminent "serious physical injury". Id. at 602-03. Cheely analogizes his case to Rollins. He argues that, even if he could not justifiably rely on a theft-by-receiving "defense" before the evidence closed, he became entitled to rely on this "defense" when the prosecutor failed to explicitly seek conviction under a theft-by-receiving theory and allowed the case to go to the jury under the general charging language of AS 11.46.100. At this point, Cheely asserts, he could justifiably argue to the jury that he should be acquitted because he had only received stolen property and had not stolen the truck himself. Cheely's argument ignores the fact that there no longer exist separate crimes of "theft by taking" and "theft by receiving". As Judge Souter recognized, a person who takes possession of stolen property with the required culpable mental states has committed the crime defined in AS 11.46.-100(1) and alleged in Cheely's indictment— has, "with intent to deprive another of property or to appropriate property of another to oneself or a third person, . obtain[ed] the property of another". Judge Souter's original packet of jury instructions defined the crime of theft in the broad language of AS 11.46.100(1). The court instructed the jury that Cheely was guilty of theft if, "with intent to deprive another of property or appropriate property of another to himself or a third person, he . obtain[ed] the property of another". In explanation of this main instruction, the jury was informed that "deprive another of property" means to withhold property of another or cause property of another to be withheld permanently or for so extended a period or under such circumstances that the major portion of its economic value or benefit is lost to that [other] person[;] that "appropriate property of another to oneself or to a third person" means to exercise control over property of another or aid a third person to exercise control over property of another, permanently or for so extended a period or under such circumstances as to acquire the major portion of the economic value or benefit of the propertyQ] and that "[ojbtain" means to bring about a transfer or purported transfer of a legal interest in the property to the obtainer or another[,] or to exert control over property of another. As discussed above, the drafters of the criminal code crafted these definitions to be broad enough to cover all the methods of theft, including theft by receiving. Thus, the jury's original instructions, without any supplementation, allowed the jury to convict Cheely of theft if they were convinced that he had committed theft by receiving. In Rollins, this court reversed the defendant's conviction because the defense attorney had detrimentally relied on the government's acquiescence in the defendant's proposal to litigate the case on the main charge alone, without the alternative of a lesser included offense. The government's failure to object when the defendant withdrew his proposed instruction on fourth-degree assault amounted to the government's affirmative indication that it was willing to have the case litigated "all or nothing". In contrast to Cheely's case, the original jury instructions in Rollins did not allow the jury to return a verdict on any crime or theory other than the one argued by counsel. The defense attorney in Rollins could reasonably and justifiably formulate his final argument in reliance on this fact. Cheely, however, can claim no similar detrimental reliance. As discussed above, the court's initial instructions to the jury (which Cheely does not challenge) encompassed theft by receiving as well as theft by asportation. Unlike the defendant in Rollins, Cheely has no justifiable claim that he formulated his theft-by-receiving "defense" in reliance on the court's original instructions. And while it is true that the prosecutor's final argument to the jury did not urge the jury to consider a theft-by-receiving theory, the prosecutor never affirmatively disavowed reliance on such a theory. In short, when Cheely's attorney formulated his summation to the jury, he had no justifiable expectation that theft by receiving would be a defense to the charge against his client. In the absence of justifiable, detrimental reliance of the kind that was present in Rollins, Cheely's "defense" that he committed theft by receiving rather than theft by asportation amounted to a concession that he committed the crime he was charged with, in a slightly different manner than argued by the prosecution but in a manner still covered by the definition of theft contained in the court's instructions to the jury. Granting an acquittal to Cheely under these circumstances would return us to the days of "indoor sport" decried by LaFave and Scott and specifically rejected by the Alaska legislature when it enacted our present theft statutes. We uphold Judge Souter's decision to instruct the jury on theft by receiving in response to their questions. The judgement of the superior court is AFFIRMED.

10357135

William J. JOURNEY, Appellant, v. STATE of Alaska, Appellee; STATE of Alaska, Petitioner, v. David JEFFERSON, Respondent

Journey v. State

1993-04-23

Nos. A-4018, A-4076

663

668

850 P.2d 663

850

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

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

CAP

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

William J. JOURNEY, Appellant, v. STATE of Alaska, Appellee. STATE of Alaska, Petitioner, v. David JEFFERSON, Respondent.

William J. JOURNEY, Appellant, v. STATE of Alaska, Appellee. STATE of Alaska, Petitioner, v. David JEFFERSON, Respondent. Nos. A-4018, A-4076. Court of Appeals of Alaska. April 23, 1993. Paul Canarsky, Asst. Public Defender, Fairbanks, and John B. Salemi, Public Defender, Anchorage, for appellant. Kenneth M. Rosenstein, Asst. Atty. Gen., Office of Special Prosecutions and Appeals, Anchorage, and Charles E. Cole, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and MANNHEIMER, JJ.

2897

18901

OPINION BRYNER, Chief Judge. In these consolidated cases we are asked to consider the circumstances under which courts may order criminal records expunged. FACTS 1. Journey William Journey was convicted of disorderly conduct after pleading no contest to the charge; he received a suspended imposition of sentence and was placed on probation. After successfully completing his probation, Journey moved to have his conviction set aside in accordance with the provisions of AS 12.55.085(e). At the evidentiary hearing on his motion, Journey requested District Court Judge Charles Pengilly to expunge all records relating to his arrest and conviction. Journey asserted that he had originally understood that his record would be expunged upon completion of the suspended imposition of sentence; Journey testified that he had been hampered in attempting to secure employment because of his arrest record. Judge Pengilly set aside Journey's conviction but declined to order his record expunged. The judge concluded that the suspended imposition of sentence statute did not expressly authorize the court to order Journey's record expunged and that the court had no inherent authority to issue such an order. Journey then appealed. 2. Jefferson David Jefferson was charged with misconduct involving a controlled substance in the third degree for selling a small quantity of cocaine to an undercover agent. He moved to suppress the evidence against him, arguing that the undercover agent's surreptitious electronic monitoring of the transaction had violated the requirements of State v. Glass. After Jefferson prevailed on his suppression motion, the state dismissed the charge. More than two years later, Jefferson moved to expunge all records relating to the arrest and charge. At an evidentiary hearing, he testified that his arrest record had hampered his efforts to secure employment. In addressing Jefferson's motion to expunge, Superior Court Judge Mary E. Greene initially determined that sentencing courts have inherent authority "to take action to remove materials from a person's criminal record, and I don't think there's any separation of powers problem." The judge next found that computer-generated arrest records can work hardship and unfairness because they are confusing and potentially misleading when interpreted by employers and other members of the public. Thus, in Judge Greene's view, the central question in Jefferson's case was: "When does it become so unfair that the court should exercise [its] inherent power?" In answer to this question, the judge reasoned that, because Jefferson's case had been dismissed as the result of a violation of his constitutional rights, it was "an appropriate case to expunge the arrest record for the dangerous drugs in so far as law enforcement and the public are concerned." The state petitioned this court to review Judge Greene's decision. We granted the petition and ordered Jefferson's case consolidated with Journey's appeal. DISCUSSION The issue presented in these cases is one of first impression for Alaska. In their briefing on the issue, the parties agree that no Alaska statute, rule, or judicial decision expressly vests sentencing courts with the power to expunge criminal records; nor is the exercise of such power expressly prohibited. For this reason, the parties concentrate their arguments on inherent judicial authority to order records expunged. In our view, however, this case requires no definitive resolution of the inherent authority issue. Even assuming that Alaska courts have inherent power to order criminal records expunged, we believe that this power could not properly be exercised in Journey's or Jefferson's case. Decisions dealing with various forms of request to expunge criminal records are plentiful and reach diverse results. In states whose statutes do not expressly grant the power, a few courts have flatly declined to find inherent judicial authority to expunge criminal records, deeming the subject to fall within the sole province of the legislative and executive branches. See, e.g., State v. Gilkinson, 57 Wash.App. 861, 790 P.2d 1247 (1990); Billis v. State, 800 P.2d 401 (Wyo.1990). But see Eddy v. Moore, 5 Wash.App. 334, 487 P.2d 211 (1971). Many courts, however, have tended toward a more flexible approach, finding power to expunge when a constitutional right of the arrestee (typically the right to privacy) is shown to outweigh the public's interest in retaining the disputed records. See, e.g., Davidson v. Dill, 180 Colo. 123, 503 P.2d 157 (1972) (en banc). Other courts have deemed this balancing approach unnecessary, finding that existing statutory or regulatory provisions restricting the use and dissemination of criminal records adequately protected the right to privacy. See, e.g., Loder v. Municipal Court, 17 Cal.3d 859, 132 Cal.Rptr. 464, 553 P.2d 624 (1976). Courts in this category have nevertheless acknowledged inher ent authority to expunge records in exceptional cases, when necessary to prevent or avoid constitutional violations. See, e.g., Springer v. State, 50 Or.App. 5, 621 P.2d 1213, 1219 (1981). Federal courts have uniformly claimed inherent power to expunge criminal records, but have tempered their claim with the recognition that this power should only be used to preserve basic legal rights in extraordinary circumstances. These courts have consistently proclaimed that the power to expunge is "a narrow one, [which] should not be routinely used whenever a criminal prosecution ends in acquittal, but should be reserved for the unusual or extreme case." United States v. Linn, 513 F.2d 925, 927 (10th Cir.1975). The types of exceptional circumstances in which the federal courts have found it appropriate to expunge records have included the case of an arrest that was made solely on the basis of the arrestee's status, see Sullivan v. Murphy, 478 F.2d 938, 968-69 (D.C.Cir.1973), an arrest that was made under an unconstitutional statute, see Kowall v. United States, 53 F.R.D. 211, 213-14 (W.D.Mich.1971), arrests that were made for the purpose of harassment or intimidation, or that resulted from entrapment, see United States v. McLeod, 385 F.2d 734, 750 (5th Cir.1967), and a purported arrest that was shown never to have actually been made, see Menard v. Saxbe, 498 F.2d 1017, 1019 (D.C.Cir.1974). Few of the decisions finding inherent authority to order records expunged pinpoint the source from which this power arises. On the whole, they suggest that the power to expunge inheres either in the court's expressly conferred authority to preside over trials and sentencings in criminal cases or in its traditional role as enforcer of constitutional guarantees. No matter what theoretical source of power they base their decisions on, however, courts finding inherent judicial authority to expunge criminal records make it clear that this power — arising, as does all inherent judicial authority, from necessity — should be sparingly used. Notably, no court has seriously questioned the legitimacy or importance of the government's interest in obtaining and retaining records dealing with individuals who pass through our criminal justice system; none has viewed inherent judicial authority to expunge as a power to be used routinely; and none has suggested that the government's interest in maintaining accurate criminal histories can be outweighed by an individual's right to privacy in any but exceptional circumstances. For present purposes it is sufficient to observe that neither Journey's nor Jefferson's case presents the type of exceptional circumstances that could conceivably warrant a discretionary exercise of inherent judicial authority to expunge. This conclusion follows regardless of whether we analyze Journey's and Jefferson's cases on the assumption that inherent authority to expunge emanates from the trial court's statutory jurisdiction to hear criminal cases or from its duty to enforce constitutional guarantees. We turn first to the issue of whether an order to expunge might have been justified in Journey's and Jefferson's cases by inherent authority arising from the trial court's general power to preside over criminal cases. Journey was convicted of disorderly conduct after pleading no contest to the charge. Although Journey received a suspended imposition of sentence and had his conviction set aside after he successfully completed his assigned period of probation, he has never established his factual innocence or formally challenged the validity of the conviction or the legitimacy of the underlying arrest. Journey asserted below that he expected his criminal record to be expunged when he completed his probation. But this expectation was evidently neither engendered nor fostered by the state; it reflects, at most, Journey's misunderstanding of the suspended imposition of sentence statute, which offers no such relief. If Journey believed that he entered an uninformed plea of no contest based on his mistaken understanding of the law, he could have requested that his plea be withdrawn. His mistaken expectation afforded him no basis for an order expunging his record. Jefferson stands on somewhat different footing than Journey. Jefferson was never convicted; his charge was dismissed after the superior court found that the state had obtained evidence in violation of the limitations of a Glass warrant. Nevertheless, the primary purpose of the exclusionary rule that mandated the dismissal of Jefferson's case — deterrence of unlawful police conduct — was wholly unrelated to the fairness of the prosecution. The dismissal implicated neither the validity of the substantive information upon which Jefferson's charge was brought nor the fundamental fairness of the charges against him. Cf. Moreau v. State, 588 P.2d 275, 280 (Alaska 1978). While the deterrent purpose of the exclusionary rule justified the suppression order that led to dismissal, the same rationale cannot justify an order expunging Jefferson's arrest record, since the incremental effect of the additional sanction would at most be negligible. Cf. Waring v. State, 670 P.2d 357, 362 (Alaska 1983). Nor does the constitutional violation in Jefferson's case involve the type of flagrant, shocking, or deliberate misconduct that might require corrective measures beyond the usual remedy of suppression. Id. at 362-63. In similar situations, courts holding themselves inherently empowered to expunge criminal records have recognized that an order to expunge cannot be justified. See United States v. Bagley, 899 F.2d 707, 708 (8th Cir.1990). In short, whatever inherent authority to expunge criminal records Alaska courts might possess by virtue of their expressly granted powers to preside over criminal cases, invocation of that authority would have amounted to an abuse of discretion in the specific circumstances of Journey's and Jefferson's cases. We turn next to the question of whether the court's inherent power to enforce constitutional guarantees might have justified ordering Journey's or Jefferson's record expunged. Journey and Jefferson insist that the issuance of orders to expunge in their cases can be justified by the need to enforce the Alaska Constitution's guarantees of liberty, privacy, and due process of law. They allege that they have encountered difficulty with potential employers who had access to their arrest records. Both also assert that the records are potentially misleading, and they complain that, under Alaska law, no procedures have been enacted to protect them against inaccuracy or against the inappropriate dissemination of their records. Citing State Department of Revenue v. Oliver, 636 P.2d 1156, 1167 (Alaska 1981), Journey and Jefferson maintain that the state must shoulder the burden of showing a compelling interest in the retention of criminal records that outweighs the harm they have suffered. We find this argument unpersuasive in its current context. Oliver established a balancing test for enforcement of the right to privacy in the context of a governmental effort to obtain information from potential taxpayers to determine their liability under the Alaska's income tax laws. The taxpayers' case dis puted the government's authority to obtain the information, which was exclusively in their possession in the form of financial records and other personal documents. By contrast, in the present case, the propriety of the state's having initially obtained and retained information relating to Journey's and Jefferson's criminal histories is undisputed and, we think, indisputable. Journey and Jefferson have cited no precedent questioning — on constitutional grounds or otherwise — the state's authority to obtain and retain information relating to individuals lawfully brought before the courts to answer to criminal charges. Indeed, the complaints Journey and Jefferson voice relate not to the obtaining or retention of such information, but rather to its potential misuse and unwarranted dissemination. It is of course readily conceivable that actual or potential misuse of criminal records could, in some cases, pose a sufficient threat to the constitutional guarantees of liberty, privacy, or due process to require intervention by the courts, either on behalf of an individual or a class of individuals. It is also arguable that, under certain circumstances, an order expunging criminal records might be appropriate to prevent or remedy a violation of these rights, even though the disputed records were properly obtained and retained in the first instance. However, in such cases, because the need to avoid or remedy a constitutional violation is the source of the court's power to expunge, no order expunging records would be justified absent proof that a constitutional violation had actually occurred or was threatened. Moreover, even upon proof of a past or imminent constitutional violation, an order to expunge would be justified only upon a further showing that less drastic remedies — such as limiting, regulating, or enjoining misuse or improper dissemination of the disputed criminal records — could not cure or prevent the threatened harm. Neither Journey nor Jefferson made any such showings. At most, they advanced speculative testimony, based on supposition or hearsay, suggesting possible misuse or unwarranted dissemination of their criminal records. In any event, the proper forum for cases like the present ones — which advance claims of misuse or inappropriate dissemination of criminal records but do not call into question the validity of the original prosecution or the legitimacy of the state's right to obtain the disputed information in the first instance — would appear to be a separate civil action against the state. Even assuming the existence of inherent judicial power to expunge as a remedy for a claimed constitutional violation stemming from misuse or inappropriate dissemination of criminal records, it is entirely unclear, as a procedural and jurisdictional matter, how such a claim could be properly raised and entertained in the procedural context of a previously-filed criminal case — especially a closed criminal case. Beyond questions of procedure and jurisdiction, sound policy, too, would appear to dictate requiring the assertion of such a claim in a separate civil action — a more formal and structured procedural setting in which the respective burdens of the parties are clearly defined, all relevant factual and legal issues can be fully developed and explored, and a wide array of potential remedies will be available to the court. CONCLUSION In the present cases, we conclude that Judge Pengilly did not err in denying Journey's request to expunge his criminal record. We further conclude that Judge Greene erred in ordering Jefferson's record expunged. Accordingly, the court's order as to Journey is AFFIRMED; the court's order as to Jefferson is REVERSED. . AS 12.55.085(e) provides that when a person successfully completes probation after receiving a suspended imposition of sentence, "the court may set aside the conviction and issue to the person a certificate to that effect." . State v. Glass, 583 P.2d 872, 881 (Alaska 1978), aff'd on reh'g, 596 P.2d 10 (1979). . For a voluminous review of cases on the subject, see Vitauts M. Gulbis, Annotation, Judicial Expunction of Criminal Record of Convicted Adult, 11 A.L.R.4th 956 (1982); Deborah Spren-ger, Annotation, Expunction of Federal Arrest Records in Absence of Conviction, 97 A.L.R.Fed. 652 (1990); and Gary D. Spivey, Annotation, Right of Exonerated Arrestee to Have Fingerprints, Photographs, or Other Criminal Identification or Arrest Records Expunged or Restricted, 46 A.L.R.3d 900 (1972). . The court in Davidson v. Dill adopted the following balancing test: [A] court should expunge an arrest record or order its return when the harm to the individual's right of privacy or dangers of unwarranted adverse consequences outweigh the public interest in retaining the records in police files. 180 Colo. 123, 503 P.2d 157, 161 (1972) (en banc). . See, e.g., United States v. Schnitzer, 567 F.2d 536, 538 (2d Cir.1977), cert. denied, 435 U.S. 907, 98 S.Ct. 1456, 55 L.Ed.2d 499 (1978); Morrow v. District of Columbia, 417 F.2d 728, 740 (D.C.Cir. 1969); United States v. Linn, 513 F.2d 925, 927 (10th Cir.1975); Menard v. Saxbe, 498 F.2d 1017, 1023 (D.C.Cir.1974); United States v. McMains, 540 F.2d 387, 389 (8th Cir.1976); Natwig v. Webster, 562 F.Supp. 225, 227 (D.R.I.1983); United States v. Bohr, 406 F.Supp. 1218, 1219 (E.D.Wisc.1976). . Article 1, section 1 of the Alaska Constitution guarantees "that all persons have a natural right to life, liberty, the pursuit of happiness, and the enjoyment of the rewards of their own industry!.]" Article 1, section 22 of the Alaska Constitution provides that the "right of the people to privacy is recognized and shall not be infringed." Article 1, section 7 of the Alaska Constitution states: No person shall be deprived of life, liberty, or property, without due process of law. The right of all persons to fair and just treatment in the course of legislative or executive investigations shall not be infringed. . Cf. Davidson v. Dill, 180 Colo. 123, 503 P.2d 157, 159, 161 (1972) (espousing a balancing test for a situation involving an individual who had been arrested for and was subsequently acquitted of loitering).

10356674

Bruce COLE (deceased) and Lorena Cole (widow), Appellants, v. KETCHIKAN PULP COMPANY and Alaska Timber Insurance Exchange, Appellees

Cole v. Ketchikan Pulp Co.

1993-04-23

No. S-4783

642

647

850 P.2d 642

850

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

Bruce COLE (deceased) and Lorena Cole (widow), Appellants, v. KETCHIKAN PULP COMPANY and Alaska Timber Insurance Exchange, Appellees.

Bruce COLE (deceased) and Lorena Cole (widow), Appellants, v. KETCHIKAN PULP COMPANY and Alaska Timber Insurance Exchange, Appellees. No. S-4783. Supreme Court of Alaska. April 23, 1993. Chancy Croft, Anchorage, for appellants. J.W. Peterson, Ziegler, Cloudy, King & Peterson, Ketchikan, for appellees. Before MOORE, C.J., and RABINOWITZ, BURKE, MATTHEWS and COMPTON, JJ.

3191

19740

OPINION RABINOWITZ, Justice. I. BACKGROUND Bruce Cole (Cole) suffered a back injury on August 31, 1982 while working for Ket-chikan Pulp Company (Ketchikan Pulp). Cole was paid disability compensation benefits for a period of time until disputes between the parties resulted in his benefits being terminated. In January 1988, Cole's attorney, Phillip Pallenberg (Pallenberg), offered to settle Cole's claims for $150,000 plus statutory attorney's fees. Ketchikan Pulp's attor ney, Paul Hoffman (Hoffman), made a counteroffer of $30,000 plus statutory attorney's fees. The parties were not able to reach an agreement. While Cole's disability claim was pending, the parties continued to dispute a number of issues. On May 9, 1989, Cole was deposed by Hoffman. Pallenberg testified that following the deposition, Pallenberg and Cole talked about settling the case. By the end of May the parties were discussing a settlement of $75,000 plus statutory attorney's fees. Lorena Cole testified that at the time of settlement negotiations, Cole had not as yet been diagnosed as having cancer. Cole learned that he had prostate cancer on May 23, 1989. Hoffman and Pallenberg had telephone conversations on May 24th and 25th and reached agreement to settle for $75,000 on May 30, 1989. Pallenberg confirmed the agreement by letter to Hoffman. The letter reads as follows: Dear Paul: This is to confirm that we have agreed to settle this case for a gross settlement amount of $75,000.00. This amount will be allocated $68,500.00 to Mr. Cole, and $6,500.00 for costs and attorneys fees. Hoffman then drafted a Compromise and Release. During the settlement discussions Pallenberg did not disclose to Hoffman that Cole had been diagnosed as having cancer. Hoffman sent the Compromise and Release to Pallenberg on June 7, and requested that Cole and Pallenberg both sign and return the document so that it could be filed with the Workers' Compensation Board (Board) for its approval. Pallenberg signed the Compromise and Release and mailed it to. Cole. In the June 9th transmittal letter, Pallenberg indicated that he was aware of Cole's serious "unrelated health condition" and urged Cole to "execute the agreement quickly." Pallenberg also advised Cole that "it is important that this settlement be signed as soon as possible, because of the possibility that [the Employer] could back out of it if they learn of your illness before it is approved." Cole underwent prostate and bowel surgery on June 7, 1989. A blood clot formed and migrated, resulting in Cole's death. Cole died before receiving and signing the Compromise and Release. Pallenberg subsequently filed an Application for Adjustment of Cole's Temporary Total Disability (TTD) benefits, but did not submit the Compromise and Release to the Board for approval. Pallenberg testified that in his view, at the time of Cole's death, the settlement was not enforceable. Hoffman testified that he saw no need to withdraw the agreement, because in his view it was void as soon as Cole died. Thus, no action was taken by either attorney to enforce or to withdraw the settlement. Cole was survived by Lorena, his wife of 44 years, and four daughters. On May 31, 1990, represented by different counsel, Lorena submitted the Compromise and Release to the Board for its approval. After hearing the matter the Board refused to approve the Compromise and Release because in its opinion the agreement, which had been signed only by Mr. Pallenberg, failed to meet the signature requirements of 8 Alaska Administrative Code (AAC) 45.-160(b) (1991). Lorena then appealed the Board's decision to the superior court. The superior court affirmed the Board's decision concluding that the Board: [H]ad the power to waive the signature. I don't believe that they had to. I think that the information with respect to having cancer and so forth is something that they could be concerned about and feel like that in those circumstances it simply wasn't the equitable thing to do.... And I think that at this time when the board got this agreement that the parties were not all in agreement, and I think that they had the discretion not to waive the signature. II. STANDARD OF REVIEW Since the superior court was acting as an intermediate court of appeal, this court may "independently [scrutinize] directly the merits of the administrative determination." Tesoro Alaska Petroleum Co. v. Kenai Pipe Line Co., 746 P.2d 896, 903 (Alaska 1987). This matter requires us to address the appropriate standard of review regarding two issues: First, the Board's interpretation of AS 23.30.012 and the statute's im-plementating regulation, 8 AAC 45.160(b), and secondly, the Board's interpretation of 8 AAC 45.195, the regulation concerning waiver of procedures. The parties contest the appropriate standard of review for each issue. Cole argues that both the question of whether the unsigned Compromise and Release Agreement complied with AS 23.30.-012 and whether the Board "erred in failing to apply 8 AAC 45.195 so as to prevent a 'manifest injustice' " are questions of law that require us to substitute our independent judgment for the judgment of the Board. Cole contends that the issues do not involve agency expertise. Ketchikan Pulp argues that the language of AS 23.30.012 commits the approval or denial of Compromise and Releases "to agency expertise or agency discretion," and that therefore this court should review such actions using the rational basis standard under the logic of Phillips v. Houston Contracting, Inc., 732 P.2d 544, 547 (Alaska 1987), appeal after remand, Houston Contracting, Inc. v. Phillips, 812 P.2d 598 (Alaska 1991). Similarly, Ketchikan Pulp contends that in our review of the waiver issue we should employ the rational basis standard, and restrict our scrutiny to the question of whether the Board engaged in reasoned decisionmaking. In Tesoro Alaska Petroleum v. Kenai Pipe Line, 746 P.2d 896, 903 (Alaska 1987) this court stated that "[t]he rational basis test is used where the questions [of law] at issue implicate special agency expertise or the determination of fundamental policies within the scope of the agency's statutory function." Since no special expertise is required to determine whether or not a proposed settlement agreement conforms with the requirements of 8 AAC 45.160 we review this issue under the substitution of judgment standard. Similarly, we review the question of whether the Board, under 8 AAC 45.195, has authority to waive the signature requirement of 8 AAC 45.160(b) under the substitution of judgment standard. III. DID THE WORKERS' COMPENSATION BOARD ERR IN DENYING LORENA COLE'S REQUEST TO APPROVE A COMPROMISE AND RELEASE AGREEMENT WHICH WAS NEGOTIATED BUT NOT EXECUTED BEFORE COLE'S DEATH? Cole initially contends that the Compromise and Release met the statutory requirements of AS 23.30.012. This statute provides: Agreements in regard to claims. At any time after death, or after 30 days subsequent to the date of the injury, the employer and the employee or the beneficiary or beneficiaries, as the case may be, have the right to reach an agreement in regard to a claim for injury or death under this chapter in accordance with the applicable schedule in this chapter, but a memorandum of the agreement in a form prescribed by the board shall be filed with the board. Otherwise, the agreement is void for any purpose. If approved by the board, the agreement is enforceable the same as an order or award of the board and discharges the liability of the employer for the compensation notwithstanding the provisions of AS 23.30.130, 23.30.160, and 23.30.245. The agreement shall be approved by the board only when the terms conform to the provisions of this chapter and, if it involves or is likely to involve permanent disability, the board may require an impartial medical examination and a hearing in order to determine whether or not to approve the agreement. The board may approve lump-sum settlements when it appears to be to the best interest of the employee or beneficiary or beneficiaries. More specifically, Cole argues that the parties reached an agreement in regard to a claim; a memorandum of the agreement in a form prescribed by the Board was filed with the Board; and the settlement was in the best interests of Lorena Cole. Ketchikan Pulp responds that the Board was correct in finding that the Compromise and Release was not enforceable because it did not meet the mandatory requirements of AS 23.30.012 and 8 AAC 45.160. Ketchi-kan Pulp notes that AS 23.30.012 both requires a memorandum of the settlement agreement to be filed with the Board in a prescribed form, and conditions Board approval on the agreement's conformance with the provisions of the chapter. Ketchi-kan Pulp contends that, read as whole, "the process which [AS 23.30].012 contemplates is that C & R's [sic] will be filed with the Board and subject to Board approval before they are enforceable." Additionally, Ketchikan Pulp notes that Cole's position is inconsistent with the requirements of 8 AAC 45.160(b), (c), and (d). Since 8 AAC 45.160 was adopted by the Board pursuant to its general power under AS 23.30.005 to adopt regulations Ketchi-kan Pulp submits that "the regulation carries with it a presumption of validity and . reflects that the Board is charged with specialized expertise in its statutory interpretation of § .012." Ketchikan Pulp further asserts that the Compromise and Release by its very terms is unenforceable as it conditions enforceability on Board approval. It refers to that portion of the agreement which states: [T]he parties agree that upon approval of this Compromise and Release by the Alaska Workers' Compensation Board and the payment of the compromise funds aforesaid in accordance with the provisions of this Compromise and Release, this Compromise and Release shall be enforceable and shall forever discharge from liability the employer.... Cole is incorrect in her assertion that the agreement is valid under the Workers' Compensation Act and binding on the parties. Alaska Statute 23.30.012 unambiguously mandates that "a memorandum of the agreement in a form prescribed by the board shall be filed with the board. Otherwise, the agreement is void for any purpose. If approved by the board, the agreement is enforceable.... " Further, AS 23.30.012 provides in part that "the agreement shall be approved by the board only when the terms conform to the provisions of this chapter_" Pursuant to this statutory authorization the Board promulgated 8 AAC 45.160 which provides a regulatory scheme for obtaining the approval of agreements. In addition to requiring agreements to be submitted in writing and signed by all parties, the regulation expressly indicates when agreements are considered final. "Agreed settlements between the employer and the employee . are not final until approved by the board." 8 AAC 45.160(d). Thus, it is clear that enforceability of any agreement is conditioned upon Board approval. Cole additionally argues that the Board erred in not waiving the requirement that all settlement agreements "must be signed by all parties to the action." In support of this contention Cole relies on the fact that the Board's own regulations allow waiver of procedural requirements if manifest injustice to a party would result from strict application of the regulation. Cole contends that the Board's decision omitting any reference to 8 AAC 45.195 which controls procedural waivers, and its decision to withhold approval of the Compromise and Release, resulted in "manifest injustice." Ketchikan Pulp contends that Cole's waiver arguments are misplaced because under 8 AAC 45.195 "waiver may not be employed merely to excuse a party from failing to comply with the requirements of law or to permit a party to disregard the requirements of law." Ketchikan Pulp quotes the following passage from the Board decision in the Adamson case in which the Board considered a similar issue: The employer asks us to be "flexible" and, in essence, disregard the clear language of AS 23.30.012. We believe that request cannot properly be granted by an administrative agency attempting to apply the law as it exists. The employer's policy arguments are more properly the province of a court of competent jurisdiction. However, we specifically reject the argument that 8 AAC 45.195 (which permits us to waive procedural requirements of our regulations where manifest injustice would otherwise result) gives us such "flexibility". 8 AAC 45.195 concludes "a waiver may not be employed merely to excuse a party for failing to comply with the requirements of law or to permit a party to disregard the requirements of law. Adamson v. University of Alaska, AWCB Decision and Order 88-0066 (March 31, 1988). Ketchikan Pulp argues that even if the Board could waive the statutory requirements of AS 23.30.012, there is no manifest injustice here because Lorena received the TTD amount that survives Cole's death under the statutory scheme. "The additional amount she seeks here is in essence a windfall." The Board refused to approve the Compromise and Release because it believed that it was not within its power to approve an agreement that departed from the form prescribed by 8 AAC 45.160(b). In this regard the Board stated: Although it would be in Lorena Cole's best interest to do so, we regretfully conclude that we may not approve the C & R. The statute, AS 23.30.012 provides that the C & R must be filed with us, in the form which we prescribe; "[ojtherwise the agreement is void for any purpose." We have prescribed the form for C & Rs in our regulation 8 AAC 45.190(b). Our regulation clearly provides that C & Rs must be signed by both parties and their attorneys. Only Mr. Pallenberg signed the C & R. However, 8 AAC 45.195 authorizes the Board to waive procedural requirements of its own regulations "if manifest injustice to a party would result from a strict application of the regulation." In its decision in the instant case the Board failed to discuss the waiver provisions of 8 AAC 45.195 but did note that "it would be in Lorena Cole's best interest" to approve the Compromise and Release. We construe 8 AAC 45.195 as empowering the Board, in circumstances such as are present in this record, to waive the signature requirement of subsection (b) of 8 AAC 45.160. The Board withheld its approval of the Compromise and Release on the basis that it lacked the authority to waive the signature requirement. Therefore, the Board never engaged in the reasoned decision making that we are obligated to ensure under a rational basis review. We conclude that the Board's decision must be vacated and the matter remanded to the Board to redetermine whether it should approve the Compromise and Release in question in this case. Upon remand the Board must determine whether or not the requirement of the parties' signatures should be waived. In the event the Board decides that it should waive the signature requirement pursuant to 8 AAC 45.195, the Board should further consider whether the terms of the Compromise and Release conform to the provisions of the Workers' Compensation Act. This reflects our belief that any conformity issue should first be presented to the Board for resolution. The Board seemed to anticipate the conformity issue in its decision, stating: Due to employee's condition, he would have been entitled to unscheduled permanent partial disability compensation under AS 23.30.190(a)(2). Disability compensation may be awarded after the death of an employee, but surviving spouses and children of the deceased employee are not entitled to receive unscheduled permanent partial disability compensation payable to the employee. The Board, however, did not rule on the issue of whether, assuming that the agreement was signed by the employee before his death but not presented for approval to the Board until after the employee's death, the terms of the agreement would conform to the provision of the Workers' Compensation statute. Because of this and because nonconformity was not briefed or argued on appeal, we believe that any conformity issue should first be presented to the Board for resolution. REVERSED and REMANDED to the superior court with directions to remand to the Board to conduct further proceedings in conformity with this opinion. . The Workers' Compensation Board requires that there be a bona fide dispute between the parties in order for a Compromise and Release to be approved. The parties agree that there were many disputed issues throughout the years the claim was pending. . 8 AAC 45.160 AGREED SETTLEMENTS (b), (c), and (d) read as follows: (b) All settlement agreements must be submitted in writing to the board, must be signed by all parties to the action and their attorneys or representatives, if any, and must be accompanied by form 07-6117. (c) Every agreed settlement must conform strictly to the requirements of AS 23.30.012 and, in addition, must (1) be accompanied by all medical reports in the parties' possession, except that, if a medical summary has been filed, only those medical reports not listed on the summary must accompany the agreed-upon settlement; (2) include a written statement showing the employee's age and occupation on the date of injury, whether and when the employee has returned to work, and the nature of employment; (3) report full information concerning the employee's wages or earning capacity; (4) state in detail the parties' respective claims; (5) state the attorney's fee arrangement between the employee or his beneficiaries and the attorney, including the total amount of fees to be paid; (6) itemize in detail all compensation previously paid on the claim with specific dates, types, amounts, rates, and periods covered by all past payments; and (7) contain other information the board will, in its discretion and from time to time, require. (d) The board will inquire into the adequacy of all agreed settlements and will, in its discretion, set the matter for hearing to determine whether an agreement should be approved or disapproved. Agreed settlements between the employer and the employee or other persons claiming benefits under the Act are not final until approved by the board. . 8 AAC 45.195 reads: WAIVER OF PROCEDURES. A procedural requirement in this chapter may be waived or modified by order of the board if manifest injustice to a party would result from a strict application of the regulation. However, a waiver may not be employed merely to excuse a party from failing to comply with the requirements of law or to permit a party to disregard the requirements of law. Cole analogizes the Compromise and Release signature requirement to the Statute of Frauds, in part because "under the Statute of Frauds, a contract which does not satisfy the requirements of AS 09.25.010, but which is otherwise valid is enforceable if the party against whom enforcement is sought admits, in pleadings or in any other action or proceeding the making of an agreement." AS 09.25.020(4). Cole submits that the Compromise and Release should be enforced in the instant case "because the employer has admitted . the making of the agreement." . At oral argument counsel for Ketchikan Pulp conceded that the Board possessed this authority under 8 AAC 45.160.

10426597

Adele MARTIN, Appellant, v. STATE of Alaska, Appellee

Martin v. State

1983-06-10

No. 6665

612

621

664 P.2d 612

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.

Adele MARTIN, Appellant, v. STATE of Alaska, Appellee.

Adele MARTIN, Appellant, v. STATE of Alaska, Appellee. No. 6665. Court of Appeals of Alaska. June 10, 1983. A. Lee Petersen, Anchorage, for appellant. W.H. Hawley, Asst. Atty. Gen., Office of Sp. Prosecutions and Appeals, Anchorage, and Norman C. Gorsuch, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

4972

30536

OPINION SINGLETON, Judge. Adele Martin was convicted of murder in the first degree, AS 11.41.100. She received the minimum twenty-year sentence. She appeals arguing that the court improperly instructed the jury, erred in denying her motion for judgment of acquittal, and erred in denying a motion for mistrial. Martin also contends that the minimum twenty-year sentence for first-degree murder is unconstitutional. We affirm. Adele Martin shot and killed Clyde Paus-tian, a man with whom she had lived for approximately ten years at the time of the shooting. During November 1980, Paustian indicated that he was dissatisfied with their relationship. Nevertheless, for the next four months they continued to reside together, often bickering about their relationship. During that time Martin contemplated suicide. Ultimately it occurred to Martin that Paustian was seeing another woman, and approximately one week before the shooting, Martin discovered who she was. In conversations with friends she discussed destroying Paustian's possessions, and shooting him or the other woman. Martin confronted Paustian with her concerns and was dissatisfied with his responses. In her brief she described what happened thereafter as follows: [Martin] went and got her gun and-shot him. He had just bent over the sink to wash his hands and he looked at her in terror and cried out and she was horrified with herself. He turned toward her and she pulled the trigger again. He fell sideways and grabbed the door. She was terrified and backed away, wanting to run. She thought she should run away from him, because he would kill her and the door flew open and she heard noise. He was staggering and motioned toward the gun and she pulled the trigger again. His face went blank and he lay down. He just lay down in front of her with a big sigh and stretched out and his elbows came up once. She was terrified, thinking he would get up and kill her, but he didn't. A gurgling noise came in his throat and she was sorry she had done it. She didn't even know why she had done it. She thought he was strangling to death and she said his name and cried a little and then put the gun to his head twice and shot him in the head. Martin stated that she was "in a rage" when she shot Paustian. Martin's trial strategy centered on proving diminished capacity. Dr. Ronald Ohl-son, a clinical psychologist, administered the Minnesota Multiphasic Personality Inventory to Martin. He testified that the test showed her to have a marked degree of psychological disturbance. The test profile also showed that Martin was very shy, quiet, withdrawn and anxious. Dr. Ohlson stated that the test gave indications that Martin was chronically depressed. • Dr. Ohlson interviewed Martin for five hours. He testified that Martin felt her whole world stopped after Paustian told her that he did not want anything to do with her. He stated that before getting the gun, Martin felt utterly helpless, alone, hopeless, and extremely confused. He related: At that point she had no idea where she was going or what she was going to do. And it seemed like to her that her whole world had come to an end. Had stopped at that moment. At that point she went in the other room, feeling nothing, picked up the gun, went back and — and shot him. Dr. Ohlson also said Martin did not seem to be thinking clearly after the shooting. Dr. Ohlson believed that at the time she shot Paustian, Martin was suffering from a form of depression known as dysthymic reaction, was irrational, and could not really appreciate the wrongfulness of what she was doing. Based on the difficulty he had reading transcripts of Martin's interviews with the police because of her incoherent sentences and based on his difficulty in following her thinking, Dr. Ohlson concluded that Martin was "borderline mentally ill." He stated that the psychological term mental illness coincides to a great extent with the legal term "insanity." He concluded by stating that Martin "fits more under the concept of the depressive neurosis with the deteriorated ability to think," rather than in the class of mental illness. Dr. Ohlson conceded that Martin s actions after the killing were to a certain extent logical and that she was motivated to shoot Paustian to end his relationship with his paramour. Dr. Aron S. Wolf, a psychiatrist, also testified on behalf of Martin. He described Martin as extremely depressed at the time of the murder. He stated that Martin suffered from a kind of depression that caused agitation and an inability to think clearly. Dr. Wolf's opinion was that Martin's state of mind at the time of the killing "would have been disordered sufficiently as to inhibit her from making certain moves that would require specific intent." Martin told Dr. Wolf that she felt that the devil came to her and manifested himself in the three days before the killing. Dr. Wolf felt that this was further evidence that this depression at that particular point in time had reached psychotic proportions. That not only was there a panic, not only was there a feeling of having to do something, but that somehow in addition a feeling of super-naturalness had come into it, and that she clearly then was in less control of herself than — than she normally is. Dr. Wolf conceded that Martin intentionally killed Paustian, but concluded that her act of killing was irrational because she had not thought out the consequences of the act of killing and because part of her motive in killing was to know where Paustian was and to deprive the other woman of his company. The state called Dr. Irvin A. Rothrock, a Fairbanks psychiatrist, in rebuttal. Dr. Rothrock believed Martin, at the time of the killing, was undergoing an acute depressive episode precipitated by the threatened breakup of her relationship with Paus-tian. Dr. Rothrock concluded that Martin's insight was reasonably good, but that her judgment was quite poor. He stated that he believed that Martin intended to kill Paustian when she shot him. JURY INSTRUCTIONS Extreme Emotional Disturbance Martin contends that the trial court erred in refusing to give Alaska Pattern Jury Instruction (Criminal) 41.120(a)(1) (1980) defining manslaughter. It provides that if without legal justification, a person acts with either an intentional, knowing, or reckless state of mind and causes the death of another person under circumstances not amounting to murder in the first or second degree, that person is guilty of manslaughter. This instruction is based on AS 11.41.-120(a)(1) which is derived from former AS 11.15.040 which was a catchall provision governing all unlawful killings which were not murder. Alaska Criminal Code Revision Part 1 at 97 (Tent. Draft 1977) [hereinafter cited as Tentative Draft]. In the context of this case Martin contends manslaughter was a lesser-included offense. Martin's proposed instruction differed somewhat from the pattern instruction. It told the jury that Martin could be found guilty of manslaughter if she knowingly caused the death of another under circumstances not amounting to murder in the first or second degree. At the request of the prosecution and over Martin's objection the term "knowingly" was stricken and in its place "recklessly" was substituted. Martin contends that this substitution amounted to prejudicial error. The prosecutor successfully persuaded the trial court that on the facts of Martin's case any intentional or knowing homicide would be first or second-degree murder, not manslaughter, since only "heat of passion" could reduce a knowing or intentional homicide to manslaughter under current law. The prosecutor also successfully argued that Martin was not entitled to an instruction on heat of passion. Martin objects to this conclusion as well which will be discussed hereafter. Assuming arguendo that the court was correct in excluding an instruction on heat of passion, Martin nevertheless contends that she could have been guilty of an intentional or knowing homicide which would be manslaughter, not murder. She reasons that the trial court should have permitted her to argue the Model Penal Code concept of "extreme emotional disturbance" as a defense to murder. See Model Penal Code Part II § 210.3 commentary at 49 (1980). She notes that Model Penal Code § 210.3 provides in relevant part: Manslaughter. (1) Criminal homicide constitutes manslaughter when: (b) a homicide which would otherwise be murder is committed under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse. The reasonableness of such explanation or excuse shall be determined from the viewpoint of a person in the actor's situation under the circumstances as he believes them to be. Id at 43. She points out that there is a substantial difference between "extreme emotional disturbance" and common law heat of passion, and concludes that she was entitled to have the jury instructed that either theory, if established to the jury's satisfaction, would warrant conviction of manslaughter rather than murder. We are satisfied that the legislature did not intend to make "extreme emotional disturbance" a defense to murder. We reach this conclusion based upon our evaluation of the Revised Code and particularly the part the Tentative Draft played in its enactment. See Neitzel v. State, 655 P.2d 325 (Alaska 1982) (relationship between the Tentative Draft and the Revised Code discussed). AS 11.41.100 (murder in the first degree) is based in part on Tentative Draft § 11.41.110, except that the Revised Code differentiates murder into first and second-degree murder while the Tentative Draft had only one classification of murder. Compare AS 11.41.100 and AS 11.41.110 with Tentative Draft § 11.41.110(a). The Tentative Draft provisions governing murder are based in part upon Oregon Revised Statutes § 163.005-115 and in part upon similar provisions from Illinois Criminal Code, Chapter 38 § 9-l(a)(l), (2) and 9-2(a). Tentative Draft, supra at 97. Oregon adopted "extreme emotional disturbance" as a defense to murder in reliance on the Model Penal Code. See State v. Carson, 292 Or. 451, 640 P.2d 586 (Or.1982) (discussing and applying former ORS 163.125(l)(b)). The Alaska legislature did not enact a similar statute thus making clear its awareness of this defense and its intention to refuse to enact it. Under these circumstances it would be inappropriate for us to read "extreme emotional disturbance" into the new code as a defense. Heat of Passion Martin contends that the trial court erred in denying an instruction on "heat of passion." AS 11.41.115 enumerates defenses to murder. It provides in relevant part: (a) In a prosecution under § 100(a)(1) or 110(a)(1) of this chapter, it is a defense that the defendant acted in a heat of passion, before there had been a reasonable opportunity for the passion to cool, when the heat of passion resulted from a serious provocation by the intended victim. (f) In this section, (1) "intended victim" means a person whom the defendant was attempting to kill or to whom the defendant was attempting to cause serious physical injury when he caused the death of the person he is charged with killing; (2) "serious provocation" means conduct which is sufficient to excite an intense passion in a reasonable person in the defendant's situation, other than a person who is intoxicated, under the circumstances as he reasonably believed them to be; insulting words, insulting gestures, or hearsay reports of conduct engaged in by the intended victim do not alone or in combination with each other, constitute serious provocation. This section is derived from Tentative Draft § 11.41.110 which provided in relevant part: (b) In a prosecution [for murder], it is a defense that the defendant acted in a heat of passion, before there had been a reasonable opportunity for the passion to cool, when the heat of passion resulted from a serious provocation by the intended victim. Nothing in this subsection precludes a prosecution for or conviction of manslaughter or any other crime. The defendant shall have the burden of injecting the issue of a defense under this section. (f) In this section (1) "intented victim" means a person who the defendant was attempting to kill or to whom the defendant was attempting to cause serious physical injury when he caused the death of the person he is charged with killing; (2) "serious provocation" means conduct which is sufficient to excite an intense passion in a reasonable person in the actor's situation under the circumstances as he reasonably believed them to be; the term does not include mere insulting words, mere insulting gestures, or hearsay reports of conduct by the intended victim. Tentative Draft, supra at 18-20. This provision in the Tentative Draft was based on Illinois Criminal Code, Chapter 38 § 9-2(a). Id. at 97. This Illinois code section as amended in 1972 provided in relevant part: Voluntary Manslaughter, (a) A person who kills an individual without lawful justification commits voluntary manslaughter if at the time of the killing he is acting under a sudden and intense passion resulting from serious provocation by: (1) The individual killed, or (2) Another whom the offender endeavors to kill, but he negligently or acci-dently causes the death of the individual killed. Serious provocation is conduct sufficient to excite an intense passion in a reasonable person. Since the Alaska statute is based upon an Illinois statute, cases and commentary interpreting the Illinois statute published pri- or to the adoption of AS 11.41.115 are persuasive as to its meaning. See Gray v. State, 463 P.2d 897, 902 (Alaska 1970); Carman v. State, 658 P.2d 131, 136 n. 2 (Alaska App.1983). The committee comments to the Illinois statute indicate that the heat of passion defense as codified parallels the common law. The definition and various recognized categories of "serious provocation" appear to have remained in much of the same form as under the common law. The test is that of the reasonable man, and only a few categories of provocation have been recognized — substantial physical injury or assault, mutual quarrel or combat, illegal arrest, and adultery with the offender's spouse; but not mere words or gestures or trespass to property. Section 9-2 is intended to be a concise statement of the common-law offense, compatible with the reported cases in this State. "Sudden and intense passion" is submitted as a brief but adequate descriptive phrase which means the same as the former "sudden violent impulse of passion supposed to be irresistible," followed by a description of the "cooling-off" period which negatives such passion. Illinois Criminal Code, Chapter 38 § 9-2, Committee Comments at 393-94 (1972) (citations omitted). There are two lines of Illinois authority dealing with factual situations similar to this case. The first line of cases is consistent with the general Illinois view that only substantial injury or assault, sudden quarrels leading to mutual combat, illegal arrests, and adultery with the offender's spouse can mitigate murder to manslaughter. These decisions have sustained trial court refusals to give lesser-included offense instructions on voluntary manslaughter where a person kills his lover or spouse after learning during a verbal quarrel that his victim intends to terminate their relationship. See, e.g., People v. Arnold, 17 Ill.App.3d 1043, 309 N.E.2d 89 (Ill.App.1974). Another line of cases involving similar facts appear to reach an inconsistent result. In these cases a lesser-included offense instruction on voluntary manslaughter was given by the trial court at defendant's request and he was convicted of manslaughter. The defendant then appealed citing the first line of cases and arguing that on the facts the crime was either mur der or nothing. Understandably, the appellate courts affirmed the manslaughter conviction finding sufficient evidence of "heat of passion." The two lines of cases are discussed in United States ex rel. Peery v. Sielaff, 615 F.2d 402 (7th Cir.1979). There the court stated: Some cases do suggest that the breakup of a marriage can give rise to a sudden and intense passion.... All of these cases are challenges to manslaughter convictions. They illustrate at most the deference of the reviewing courts to the fact finder's determinations. Id. at 406 (citations omitted). It is not necessary for us to determine in this case whether we will follow Illinois in limiting the "heat of passion" defense to situations of substantial violence or discovered adultery. We are satisfied that even a substantially broader reading of our statute would not entitle Martin to an instruction on "heat of passion" viewing the facts of this case most favorably to her. We reach our conclusion based upon the totality of the circumstances, taking into account the following: (1) Martin learned that Paustian was dissatisfied with their relationship over four months prior to the killing on March 12,1981; (2) in mid-February, 1981, approximately thirty days before the killing, Martin learned Paustian was seeing another woman; (3) two weeks before the killing, Martin learned who Paus-tian was seeing; (4) during the three days preceding the killing Martin spoke on a number of occasions to friends, comparing her situation with that of Jean Harris, whose murder of her lover, Dr. Tarnower, under similar circumstances, had received substantial publicity, and telling them that she could kill Paustian and his new woman friend; (5) at the time of the killing, Paus-tian had not raised his voice, threatened Martin, or tried to strike her; finally (6) Martin testified that immediately prior to the shooting she had asked Paustian how he expected them to get along when he wouldn't have anything to do with her. He had responded, "I don't want anything to do with you now." Martin stated that this rejection precipitated her actions. She went to her art room in a fury to get her loaded gun. She then returned and shot Paustian in the side while he was washing his hands. When Paustian turned in horror, she shot him again and continued to shoot him after brief lapses of time until her gun was nearly empty. Under all these circumstances, we believe the trial court properly found that there was insufficient evidence of "heat of passion" to warrant an instruction on that defense. See LaLonde v. State, 614 P.2d 808, 809 (Alaska 1979). Jury Consideration of Punishment The trial court instructed the jury: In arriving at a verdict in this case, the subject of penalty or punishment is not to be discussed or considered by you as that matter is one that lies solely with the court and must not in any way affect your decision as to the innocence or guilt of the defendant. (Emphasis added.) Martin did not object to this instruction at trial and therefore must establish "plain error" to prevail on appeal. Alaska R.Crim.P. 30(a); Alaska R.Crim.P. 47(b). A plain error in an instruction is one that is both obvious and substantially prejudicial. Carman v. State, 658 P.2d 131, 137 (Alaska App.1983); Marrone v. State, 653 P.2d 672, 676 (Alaska App.1982). Martin makes two arguments. First, she contends that the instruction was factually inaccurate since it told the jury that punishment lies "solely" with the court when in fact the legislature has established a minimum twenty-year penalty for first-degree murder. Second, she argues the instruction invaded the jury's province because it prevented the jury from tempering justice with mercy. Martin argues that the jury should have been permitted to evaluate her conduct in light of a minimum twenty-year sentence and determine whether, in the jury's collective view, her conduct warranted such a severe sentence. If the jury concluded that it did not Martin contends the jury could properly return a verdict of not guilty of first-degree murder regardless of its factual findings on the elements of that offense. We find no plain error. The instruction accurately told the jury that it should not consider punishment in determining whether Martin was guilty of an offense. See United States v. Caldwell, 543 F.2d 1333, 1364-65 (D.C.Cir.1975), cert. denied, 423 U.S. 1087, 96 S.Ct. 877, 47 L.Ed.2d 97 (1976); United States v. Del Toro, 426 F.2d 181, 184 (5th Cir.), cert. denied, 400 U.S. 829, 91 S.Ct. 58, 27 L.Ed.2d 60 (1970); Commonwealth v. Ferreira, 373 Mass. 116, 364 N.E.2d 1264, 1270 (Mass.1977). We are satisfied that the instruction in context did not mislead the jury. Martin's reliance on United States v. Glick, 463 F.2d 491, 493-94 (2d Cir.1972), is misplaced. There the trial court, in the absence of the defendant, responded with a single word, "yes," to a jury question whether the court would consider a recommendation for leniency. The appellate court was concerned that the response might have swayed jurors entertaining reasonable doubts to vote for conviction because they believed it was in their power to soothe their consciences by causing little or no punishment to be imposed. In the instant case the instruction was given as part of the general instructions. There is no indication that the Martin jury was ever "hung." Our decision that jurors should not be permitted to consider punishment in arriving at their verdict is consistent with the supreme court's decision in Schade v. State, 512 P.2d 907, 917-18 (Alaska 1973). In Schade, the court followed a decision of the District of Columbia Circuit Court of Appeals, Lyles v. United States, 254 F.2d 725, 728 (D.C.Cir.1957), cert. denied, 356 U.S. 961, 78 S.Ct. 997, 2 L.Ed.2d 1067 (1958), which held that a defendant, on request, was entitled to an instruction telling the jury that a verdict of not guilty by reason of insanity would not necessarily result in the freedom of the defendant but could result in a hospitalization order if the trial court was convinced that the defendant was dangerous. See United States v. Brawner, 471 F.2d 969, 997 (D.C.Cir.1972) (modifying Lyles instruction to reflect 1970 statute). In United States v. Caldwell, the court distinguished Lyles in the following way: In Lyles v. United States, supra note 61, we concluded that not all laymen can be presumed to know the true meaning and impact of a verdict of not guilty by reason of insanity. Therefore, we held, jurors must be informed of the relevant consequences of such a finding, to supplement their common knowledge of the simpler verdicts of guilty and not guilty.... That, of course, is a situation very different from the one present here [whether to instruct jurors on the penalties that would result from various verdicts]. 543 F.2d at 1365 n. 164. We are satisfied that the distinction drawn by the District of Columbia Court of Appeals is sound and that the trial court properly declined to inform the jury of the minimum penalties prescribed by law for those found guilty for first-degree murder. Since the jury was properly instructed not to consider punishment at all in reaching its conclusions, it necessarily follows that any misconceptions individual jurors may have had regarding sentencing discretion would be irrelevant to their function and could not constitute prejudicial error. SENTENCE For the first time on appeal Martin challenges the constitutionality of the twenty-year minimum sentence for first-degree murder. She argues that it constitutes cruel and unusual punishment in violation of article 1, § 12 of the Alaska Constitution, and the eighth amendment of the United States Constitution. She also claims that it deprives her of substantive due process and the equal protection of the laws in violation of the fourteenth amendment to the United States Constitution and of the comparable provisions in the Alaska Constitution. The state points out that Martin did not raise these issues in the court below and suggests that we may not consider them unless we are satisfied that the minimum sentence constitutes "plain error." Alaska R.Crim.P. 47(b). Without foreclosing further consideration of these issues in the future in light of a more adequate record, we have elected to address Martin's constitutional arguments at this time. Martin contends that the statute establishing a twenty-year minimum sentence for first-degree murder is unconstitutional on its face and not only as applied to her. Thus she contends that it is void and that the trial court had no jurisdiction to impose the penalty upon her. The state's argument misconceives the distinction between jurisdictional errors which deprive the court of power to act and alleged plain errors which, while affecting fundamental rights and being substantially prejudicial, do not affect the trial court's jurisdiction. While an appellate court has a great deal of discretion in determining whether to identify a given alleged error as "plain" it must reach challenges to the jurisdiction of the trial court to act. Where the record is inadequate for this purpose a remand is the normal recourse. We are satisfied that a remand is not necessary in this case. We find little merit in Martin's argument predicated on article 1, § 12 of the Alaska Constitution or her due process, cruel and unusual punishment and equal protection challenges. Legislatures have traditionally reserved the highest penalties for intentional homicide. Our legislature could reasonably label it an unclassified offense and conclude that a minimum twenty-year sentence was necessary for affirmation of community norms and deterrence of others. The special significance attached historically to murder answers Martin's constitutional claims. We note that AS 12.55.155 sets out mitigating and aggravating factors to be considered by the trial judge in imposing sentences on those convicted of classified crimes, and 12.55.005 sets out factors to be considered by trial judges in imposing sentences on first offenders convicted of classified crimes. We are satisfied, however, that the legislature has in effect established mitigating factors for homicides by differentiating between degrees of murder, by differentiating murder and manslaughter, and by enumerating specific defenses to murder. The only distinction between the treatment of murder and other felonies is that the aggravating and mitigating factors for classified offenses are determined by the trial judge, while those factors deemed in aggravation or mitigation of homicide are to be determined by the jury. This distinction did not deny Martin the equal protection of the laws. The judgment of the superior court is AFFIRMED. . Former AS 12.45.085 read as follows: Evidence of mental disease or defect. Evidence that the defendant suffered from a mental disease or defect is admissible whenever it is relevant to prove that the defendant did or did not have a state of mind which is an element of the offense. However, evidence of mental disease or defect excluding responsibility is not admissible unless the defendant, at the time of entering his plea of not guilty or within 10 days thereafter or at such later time as the court may for good cause permit, files a written notice of his intent to rely on that defense. . Martin raises three other issues which we briefly address: (1) Martin argues that the trial court erred in instructing the jury that "insanity is not an issue." There was clearly evidence in the record from which a jury could have found Martin not guilty by reason of insanity (NGI) under the standard established in Christie v. State, 580 P.2d 310 (Alaska 1978). We are satisfied, however, that Martin knowingly, intelligently and voluntarily waived the right to present this issue to the jury. Her counsel assured the trial court that he did not want instructions based on former AS 12.45.083 (mental disease or defect excluding responsibility). Martin no doubt expected to be acquitted or found guilty of manslaughter and feared that an instruction on the statutory defense might result in a NGI verdict followed by a substantial period of institutionalization. See Clark v. State, 645 P.2d 1236 (Alaska App.1982) (a woman was charged with attempted murder and found NGI; she was then committed for a period not to exceed twenty years). At oral argument Martin reiterated her position that insanity was not an issue and that she did not want the jury instructed on former AS 12.45.083. Under these circumstances the trial court did not err in giving the instruction it did. In reaching this conclusion we have considered the possible adverse effect of the instruction on Martin's defense of diminished capacity and note that she did not object to the instruction on this ground. Also, considering the context in which the instruction was given, we are satisfied that the jury was not misled into believing that it referred to the defense of diminished capacity. (2) Martin argues she was entitled to a judgment of acquittal on the ground that diminished capacity was established as a matter of law. We are satisfied that reasonable jurors could differ as to whether the state proved that Martin intentionally shot Paustian despite her mental problems. See former AS 12.45.085. The trial court did not err in denying her motion for judgment of acquittal on the charge of first-degree murder. (3) Martin argues that the trial court erred in denying her motion for mistrial when the prosecutor asked Dr. Wolf, "Isn't it true a trial judge accused you of having a defense bias?" The trial court sua sponte disallowed the question and instructed the jury to disregard it. While the question was clearly improper and warranted sanction, we do not believe that it amounted to incurable error under the circumstances of this case. We note Dr. Ohlson, who also testified on behalf of Martin, and Dr. Roth-rock, who testified on behalf of the state, were in general agreement with Dr. Wolf regarding Martin's diagnosis as it might pertain to the defense of diminished capacity. Under these circumstances, the trial court did not err in denying the motion for mistrial. See Sheakley v. State, 644 P.2d 864 (Alaska App.1982); Roth v. State, 626 P.2d 583 (Alaska App.1981).

10421947

John L. DODGE, Appellant, v. Frederick D. WILKINSON, Appellee

Dodge v. Wilkinson

1983-05-13

No. 6518

157

160

664 P.2d 157

664

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

John L. DODGE, Appellant, v. Frederick D. WILKINSON, Appellee.

John L. DODGE, Appellant, v. Frederick D. WILKINSON, Appellee. No. 6518. Supreme Court of Alaska. May 13, 1983. John L. Dodge, Fairbanks, pro se. Christopher E. Zimmerman, Fairbanks, for appellee. Before BURKE, C.J., and RABINOWITZ, MATTHEWS and COMPTON, JJ.

1647

9888

OPINION PER CURIAM. This appeal arises from a gold claim dispute. John L. Dodge sought land to mine in the Fairbanks area. In the fall of 1977, he located several claims on federal public land at the headwaters of Miller Creek, above an area on the creek where Frederick D. Wilkinson was operating a substantial placer mining venture. Dodge named his claims P, R, 0, F, I, and T, the "PROFIT" group. Dodge met Wilkinson at Wilkinson's mining operation that fall and told him that he had staked the claims. Wilkinson contended that he had located claims on October 3, 1976, in the same area. Wilkinson's new claims, part of the "Kelly Group," were identified by him as 18A, 19A and 20A. These claims abutted older claims of Wilkinson's on Miller Creek, which ended in an area identified as 17A. Wilkinson controlled the only road along the creek. During the fall of 1977, he permitted Dodge to use this road to work his claims. When Dodge arrived to resume work the next spring, however, Wilkinson refused to permit him access to the road. Wilkinson contended that Dodge was trespassing on his claims and he removed Dodge's equipment. Dodge responded by sending a letter to Wilkinson in which he stated that he had not found any record of Wilkinson's claims in the recorder's office and that "[e]xten-sive on-site searches conducted over the past three year period have failed to reveal any physical evidence whatsoever of the area as having been previously or presently under mining claim." In September of 1978, Dodge made another discovery on the Miller Creek headwaters. He located four new claims, which he called the "Grizzly Group": Grizzly and Grizzly 1, 2 and 3. The PROFIT, Grizzly and Kelly claims lie roughly as indicated on the following map, prepared by this court: The dam indicated on this map was constructed years ago by Wilkinson's predecessor, whose work mostly lay well downstream of the areas now in dispute. Wilkinson's work on his claims was largely confined to the claims downstream from the dam, although he had also performed some roadwork up to the dam. On December 31, 1979, Wilkinson filed a complaint pursuant to AS 09.45.630 for the ejectment of Dodge from his claims 15A through 20A and for damages caused by Dodge's extraction of gold from the disputed area. At trial, Wilkinson traced his interest in the Miller Creek claims back to his grandfather, who had located the claims in 1903. In 1922, his grandfather had consolidated his discoveries and the claims he had purchased. The consolidated claims passed to Wilkinson in 1969. Not all of the claims disputed in this action were noted on the documents that accomplished the consolidation and the transfer of the claims. The 1922 consolidation of claims only included the claims up to 17A. Wilkinson relied upon his 1976 location for claims 18A, 19A and 20A. He admitted at trial that he had not brushed out or otherwise marked the boundaries of these claims; he had staked them simply by leaning four-by-fours that were about three feet tall against some trees. The jury denied Wilkinson any relief on claims 18A, 19A and 20A, apparently on the basis that Wilkinson had never sufficiently located these claims because he had not placed permanent monuments on the ground to mark the boundaries of the claims. Dodge was accordingly held to have title to all of his Grizzly Group claims and some of his PROFIT Group claims. The jury, however, awarded Wilkinson title to his claims identified as 15A, 16A and 17A. As to these claims, the jury apparently concluded that Wilkinson had validly taken title to the claims, which was not forfeited by his failure to maintain any boundary markings. These areas were therefore not open for relocation at the time Dodge made his claims. Dodge appeals from the superior court's judgment, contending that it was error to eject him from claims 15A, 16A and 17A. Dodge argues that the jury's verdict is contrary to the law. He does not argue that the initial location of these claims was invalid or that the claims have been abandoned. Instead, he argues that Wilkinson forfeited the claims by failing to maintain any boundary markings on the ground. Wilkinson concedes that there are no longer any visible boundary markings for these claims, but he contends that the law of mining is that when boundary/ markings are obliterated through no fault of the claimant, the claims are not forfeited by the lack of markings. Forfeitures of mining claims are disfavored by the courts. See, e.g., Lowe v. U.S. Smelting, Refining, & Mining Co., 175 F.2d 486, 487-88 (9th Cir.), vacated on other grounds, 338 U.S. 954, 70 S.Ct. 493, 94 L.Ed. 588 (1949). A subsequent claimant must establish the forfeiture by clear and convincing evidence. Id. See generally 2 Rocky Mtn. Min.LJnst., American Law of Mining § 8.7G (1982). The rule established early in the development of mining law has been that once a claim has been validly located and properly marked on the ground, the subsequent obliteration of the boundary markings through no fault of the locator, does not cause a forfeiture of the claim. Eg., Loeser v. Gardiner, 1 Alaska 641, 646 (D.Alas.1902); Perigo v. Erwin, 85 F. 904, 906-07 (D.Utah 1898), aff'd, 93 F. 608 (8th Cir.1899); Book v. Justice Mining Co., 58 F. 106, 114 (D.Nev.1893); McEvoy v. Hyman, 25 F. 596, 598 (D.Colo.1885). The rationale for this rule is explained as follows: "[I]t is a well-known fact that boundary markings, etc., are prone to disappear within a comparatively short time after establishment^] the law [therefore] does not require their maintenance or replacement by the locator in order to keep his location good." 54 Am.Jur.2d Mines & Minerals § 52 (1971). Dodge has failed to present any compelling reasons for revising this longstanding rule, and independent research has failed to reveal any. Furthermore, we believe we would be unable to revise the rule even if we thought it proper to do so. The area subject to dispute is located on federal public land, rather than state land. State law is applicable to the location of claims and claim disputes involving federal public land only to the extent that the state law is not inconsistent with federal law. See 30 U.S.C. § 22 (1971). There is no requirement in the federal law that boundary markers be maintained and the above-cited authorities indicate that the federal law is to the contrary. We believe, accordingly, that if we were to judicially adopt a rule requiring the maintenance of boundary markers under penalty of forfeiture of the claim, the rule would be invalid as being inconsistent with federal law. Dodge has not raised any other possibly valid argument for reversing the judgment of the superior court and the judgment is accordingly AFFIRMED. . "Locate" is a technical term in mining law. To locate a claim on federal public land, a prospector must first make a "discovery," which requires ascertaining the existence of ore in "valuable quantities." See 30 U.S.C. § 22, 28(1971); AS 27.10.010; Alyeska Pipeline Service Co. v. Anderson, 629 P.2d 512, 517-21 (Alaska), cert. denied, 454 U.S. 1099, 102 S.Ct. 674, 70 L.Ed.2d 641 (1981). The claimant must next post notice of the claim at the site. AS 27.10.010; AS 27.10.030(1); AS 27.10.040(1). Finally, the prospector must mark the boundaries of his claim on the ground. See 30 U.S.C. § 28 (1971); AS 27.10.010; AS 27.10.040(2). . It is generally held that a prospector who pleads his case as a relocator, rather than as a locator, concedes the validity of the initial locations. See, e.g., Rodgers v. Berger, 55 Ariz. 433, 103 P.2d 266 (Ariz.1940). The only claims Dodge contended were void ab initio were Wilkinson's 1976 claims, as to which Dodge prevailed at trial. . Abandonment is the intentional relinquishment of a mining claim. Wilkinson has evidenced an intent to maintain all of his claims by filing affidavits of annual assessment work each year since 1969 for each of his claims, including 15A, 16A and 17A. It appears that all of Wilkinson's claims were subject to relocation for a considerable period of time because no annual assessment work was performed on the claims. See 30 U.S.C. § 28 (1971); AS 27.10.150(b). Wilkinson's resumption of assessment work during the late 1960's, however, cured this default because it occurred prior to any relocation by another person. See 30 U.S.C. § 28 (1971). Dodge's mining activities began well after Wilkinson resumed his work on the claims. . The purpose for requiring the maintenance of boundary markings would be to provide actual notice to subsequent locators that the area is already claimed. The federal statutes, however, indicate a definite preference for relying upon constructive notice, through the recordation of documents describing the location of the claim, rather than upon actual notice. E.g., 30 U.S.C. § 28 (1971) (requiring the annual filing of a certificate of labor or improvements on the claims); 43 U.S.C. § 1744 (1982) (requiring the annual filing of a notice of intention to hold the mining claim with a sufficient description of the location of the claim). This preference is defensible in view of the obvious problems inherent in requiring maintenance of boundary markings (proneness to natural or deliberate removal or destruction). The jury was instructed that recordation was necessary to preserve the validity of properly located claims. In finding that Wilkinson was the lawful holder of claims 15A, 16A and 17A, it implicitly concluded that Wilkinson had complied with recordation requirements. On appeal, Dodge does not raise or discuss the adequacy of record notice.

10422094

Jeffrey Neal BOVEE, Appellant, v. Donald LaSAGE, Appellee

Bovee v. LaSage

1983-05-13

No. 6527

160

166

664 P.2d 160

664

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

Jeffrey Neal BOVEE, Appellant, v. Donald LaSAGE, Appellee.

Jeffrey Neal BOVEE, Appellant, v. Donald LaSAGE, Appellee. No. 6527. Supreme Court of Alaska. May 13, 1983. Arthur L. Robson, Fairbanks, for appellant. Ralph R. Beistline, Hughes, Thorsness, Gantz, Powell & Brundin, Fairbanks, for appellee. Before BURKE, C.J., and RABINOWITZ, MATTHEWS and COMPTON, JJ.

4063

24191

OPINION RABINOWITZ, Justice. Jeffrey Bovee appeals a judgment entered by the superior court dismissing with prejudice his suit against Donald LaSage, a Fairbanks police officer, and awarding La-Sage costs and attorney's fees. The suit was based upon allegations that LaSage used excessive force in restraining Bovee during the course of an arrest. It was dismissed during trial at Bovee's request. On appeal, Bovee claims the superior court coerced him to move for dismissal of the suit, and thus that the judgment was essentially granted sua sponte, becoming either an involuntary dismissal under Alaska R.Civ.P. 41(b), or summary judgment, under Alaska R.Civ.P. 56(b). Bovee «ra- tends that such a dismissal improperly deprived him of an opportunity to litigate his claim. He also challenges as excessive the superior court's grant to LaSage of $5,577.93 in costs and attorney's fees. Bo-vee additionally claims that the superior court unreasonably restricted his opportunity to question jurors on voir dire. FACTS The incident which gave rise to this suit occurred on March 19, 1979, in the early morning hours, during a confrontation at the College Inn Grocery in Fairbanks. Bo-vee was about to enter the College Inn Grocery to purchase some ice cream, when Officer Layman, of the Fairbanks police, approached him and requested that he remain outside. Layman had observed Bovee driving just prior to his arrival at the grocery store, and considered his conduct sufficiently suspicious to warrant further investigation. Bovee disregarded the command, entered the store and walked toward the freezer. Layman followed him and asked to see his driver's license. When Bovee failed to comply, Layman asked him to go outside. Bovee refused, demanding witnesses. Layman called on Cadet Veith, who was waiting in the patrol car, for assistance. Veith and Layman unsuccessfully attempted to remove Bovee from the store. Officer LaSage heard Layman's radio call for assistance and reached the College Inn Grocery while the three men were struggling inside. LaSage entered the store and proceeded to assist Layman and Veith in their attempts to remove Bovee from the store premises. In so doing, LaSage grabbed Bovee's right arm and in the course of attempting to place Bovee's arm behind his back struck Bovee in the head with his (LaSage's) elbow. Bovee was then handcuffed. His watchband was bent during the handcuffing episode. Bovee admitted that he did not know which of the three officers placed the handcuffs on him or who had bent his watch. He was frisked, given a pat-down search, and placed in Layman's patrol car. Bovee did not see LaSage again. Bovee did not seek or receive medical attention for injuries allegedly sustained during the arrest. Bovee subsequently filed suit against La-Sage for use of excessive force, seeking actual and punitive damages for injuries sustained during the arrest. The case went to trial before a six-person jury. Counsel initially conducted voir dire, questioning the jurors individually. The superi- or court, without objection, completed the voir dire in an effort to expedite the impaneling of the jury. After counsel completed their opening statements, Bovee's counsel informed the court that two witnesses were not yet available. The court suggested that either Bo-vee or LaSage testify, since both were present at that time. Bovee then testified. After direct and cross-examination of Bo-vee was completed, the jury was given a recess. Out of the presence of the jury, the trial judge apprised Bovée and his trial counsel that Bovee would be liable for LaSage's actual costs and attorney's fees if his case was no stronger than that established by his own testimony. The superior court then recessed to permit Bovee to decide whether he wished to proceed with the trial in light of the probable expense of doing so. After the recess, and in the absence of the jury, Bovee's counsel expressed a decision not to pursue the action, indicating that he felt "constrained" to do so by the possibility of incurring substantial liability for costs and attorney's fees. The superior court reiterated that Bovee was free to proceed, and that its appraisal of the merits of Bovee's case, which had also been given to Bovee's counsel at a pretrial conference, was not tantamount to a dismissal, but merely intended to permit Bovee to avoid unnecessary expenditures. Bovee's counsel responded that he "appreeiate[d] that," but had concluded that "the only wise thing to do at this point is simply to fold our tents." Thereafter, Bovee moved to dismiss the action. After another recess, counsel for La-Sage indicated his non-opposition to the motion to dismiss with prejudice and it was granted. The superior court subsequently awarded LaSage $577.93 in costs and $5,000 in attorney's fees. THE NATURE OF THE DISMISSAL On appeal, Bovee attempts to characterize the voluntary abandonment of his claim during trial as an involuntary dismissal effected at the instance of the superior court. He argues that the trial judge coerced him to move for a dismissal and that the propriety of that action should be gauged in accordance with standards governing rulings on motions for summary judgment and involuntary dismissal. We are not persuaded by Bovee's contention that the superior court coerced the dismissal. Before accepting Bovee's motion, the superior court made it clear that he was free to pursue his claim, and simply informed him of the costs he might incur in pursuing it any further. In response to a statement by Bovee's counsel that his client felt constrained, under the circumstances, to move for a dismissal, the superior court stated: The record should reflect that I relayed the same information a month ago, before we got to this stage, and I didn't relay it at this stage for any other reason than to try to save Mr. Bovee some money, which I could see was coming. So, if you want to classify that as a constraint, that's up to you one way or the other. But — you know — I'm certainly not preventing you from proceeding and trying to win in front of the jury, and win on appeal if you want to. I just want to let him know where it stands right now, so he doesn't have to spend the money. Counsel for Bovee responded: Appreciate that. We did discuss it at the time before. We were not in a situation where we currently are, and where the Court has had the advantage of hearing the things — you know — hearing the case, and set this up, and so I think the only— the only wise thing to do at this point is simply to fold our tents. Formalizing his motion, counsel for Bovee concluded: If it is a matter of semantics, your Honor, based on the constraints indicated, we will move for the dismissal, yes. In accordance with the dictates of Civil Rule 41(a)(2), the court properly inquired into LaSage's position on the motion before making its ruling, ensuring that its order would rest upon such terms and conditions as justice required. See Sherry v. Sherry, 622 P.2d 960, 964 (Alaska 1981); Dome Laboratories v. Farrell, 599 P.2d 152, 156 (Alaska 1979). Since LaSage had no objection to the motion, the superior court dismissed Bovee's claim for relief with prejudice. We will only disturb a trial court's decision to grant a Civil Rule 41(a)(2) motion for dismissal if it is shown that the superior court failed to exercise or abused its discretion, or exercised an unpermitted discretion. Dome Laboratories, 599 P.2d at 156. From the record before us, we hold that the superior court did not err in granting the Civil Rule 41(a)(2) dismissal. COSTS AND ATTORNEY'S FEES Bovee contests the superior court's award of costs and attorney's fees to LaSage on three grounds. First, he claims that a portion of the sum pertained to expenditures made by LaSage in defending against suits pursued by his original co-plaintiffs, which were severed from, and thus unrelated to, his own cause of action. Second, Bovee contends that a portion of LaSage's defense was conducted by the City of Fairbanks, that the court held Bovee liable for expenses for these services as well, and that pursuant to State v. Fairbanks North Star Borough School District, 621 P.2d 1329 (Alaska 1981), such an award of attorney's fees for duplicate work was impermissible. Third, Bovee argues that since the court could not justifiably have made a finding that his case was frivolous after hearing only a portion of his case, an award of partial rather than full attorney's fees was in order. Alaska R.Civ.P. 82 governs the award of attorney's fees in this case. Since Bovee's suit was dismissed with prejudice, LaSage was the prevailing party within the meaning of Alaska R.Civ.P. 82. It is well-settled that a trial court's discretion in awarding attorney's fees under Civil Rule 82 will be interfered with only when manifestly unreasonable. F/V American Eagle v. State, 620 P.2d 657, 673 (Alaska 1980); Alaska Placer Co. v. Lee, 553 P.2d 54, 63 (Alaska 1976). Bovee's first claim rests on the correct premise that only fees and costs incurred by LaSage in defending against his cause of action should be awarded under Alaska R.Civ.P. 79(b) and 82. As we observed in Alaska State Housing Authority v. Riley Pleas, Inc., 586 P.2d 1244, 1249 (Alaska 1978), "Civil Rule 82 only applies to 'costs of the action' not attorney's fees incurred in the conduct of a prior arbitration" or unrelated proceeding. Similarly, Civil Rule 79(b) characterizes "items allowed as costs" as "expenses necessarily incurred in order to enable a party to secure some right accorded him in the action or proceeding." (Emphasis added.) Bovee's challenge to the award of costs is well-taken. The trial court's award of $577.93 failed to reflect the deletions made by LaSage in eliminating expenses incurred in his defense against other actions. These alterations reduced the Bill of Costs to $444.93. The judgment should be reduced accordingly. The record does not indicate whether the trial judge considered the supplemental affidavit submitted by counsel for La-Sage which reduced his demand for attorney's fees from $8,020 to $7,018, eliminating expenses incurred in defending against the other actions. In any event, his award of $5,000 was substantially less than both sums, and did not constitute an abuse of discretion. Bovee also contends that he is being charged for work already billed to the City of Fairbanks, alleging that this is impermissible under State v. North Star Borough, where we observed that "to the extent that work performed is duplicative and unnecessary, it should not be considered in determining a proper award under Civil Rule 82." 621 P.2d at 1335. However, we then rejected that claim in North Star Borough because it was not supported by any concrete examples from the record, or otherwise. Similarly, in the absence of any specific evidence in support of Bovee's allegations, we conclude that he has failed to meet his burden of showing a clear abuse of discretion by the superior court. Finally, Bovee claims that an award of "full" attorney's fees was improper. Since the purpose of Civil Rule 82 is to compensate partially the prevailing party for costs and fees incurred in litigation, Malvo v. J.C. Penney Co., 512 P.2d 575, 588 (Alaska 1973), we have previously held that full reimbursement is appropriate only if the claim raised by the losing party is "frivolous, vexatious or devoid of good faith." State v. University of Alaska, 624 P.2d 807, 818 (Alaska 1981). See also Davis v. Hallett, 587 P.2d 1170, 1171-72 (Alaska 1978); Malvo v. J.C. Penney Co., 512 P.2d 575, 587 (Alaska 1973). However, in light of the fact that the trial court did not award La-Sage the entire $7,018.00 he requested in attorney's fees, we find it unnecessary to consider the merits of Bovee's contention that the court could not have found his claim "frivolous" before he had presented his entire case. In sum, we conclude that the superior court did not abuse its discretion in awarding LaSage $5,000 in attorney's fees, but remand for redetermination of the award of costs in accordance with the reductions noted on the Bill of Costs. SELECTION OF THE JURY We decline to consider the merits of Bo-vee's claim that the superior court erred in limiting questioning by counsel. No objection was made at the time the court undertook to question remaining jurors, and the issue is raised for the first time on appeal. Therefore, it is not properly before us. Wickwire v. McFadden, 633 P.2d 278, 281 n. 6 (Alaska 1981). Furthermore, the jury took no part in the disposition of the case, since it was dismissed by the superior court upon Bovee's request. Given our holding that the dismissal was not coerced, it is unnecessary to address the merits of this claimed error. AFFIRMED in part, REVERSED in part, and REMANDED. . Alaska R.Civ.P. 41(a) governs the voluntary dismissal of actions. Alaska R.Civ.P. 41(a)(2), which governs voluntary dismissal by order of the court, states in full: Except as provided in paragraph (1) of this subdivision of this rule, an action shall not be dismissed at the plaintiffs 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 plaintiffs 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. . Alaska R.Civ.P. 41(b) governs the involuntary dismissal of actions, and states in full: For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against him. After the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence. If the court renders judgment on the merits against the plaintiff, the court shall make findings as provided in Rule 52(a). Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an adjudication upon the merits. .Alaska R.Civ.P. 56(b) states: 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. . The suit was originally filed on behalf of four plaintiffs, including Bovee, against LaSage and the City of Fairbanks. The allegations arose out of separate incidents, and the case was severed at the defendants' request. The other three cases were dismissed. On July 13, 1981, the superior court granted a motion to dismiss Bovee's claim against the City and denied Bo-vee's motion to name Officer Layman as an additional party defendant. None of these rulings are challenged in this appeal. . The court's statement, in full, was as follows: THE COURT: Mr. Bovee, I told your counsel a month ago if facts came out as indicated in Mr. Beistline's memorandum that when this case was over with I'd assess actual costs. I don't know what Mr. Beistline's hourly rate is, but I can assure you, in excess of $100.00 an hour. Based on your own testimony in this case at this stage, it's unlikely to me the case is going to get better than your own testimony. But even if the jury should find liability and damages, which I find impossible to believe, I'd be forced to turn the verdict around after the verdict came around, just based on your testimony. And when that happens, I will award actual costs and fees, including attorneys fees, as I'd have to make a finding that this is a frivolous lawsuit. So, if you want to continue, that's up to you, but I can almost give you a guaranty it's going to cost you at least $100.00 an hour to do that. But it's up to you. We'll recess. . On August 19, 1981, LaSage moved for $8,020.00 in attorney's fees. The accompanying memorandum stated that this sum represented legal fees incurred between August 27, 1980, when Bovee's deposition was taken, and August 13, 1981, two days after dismissal of the action. Of this amount, $3,280.00 represented fees incurred between July 13,1981, the date of the pretrial conference, and August 13, 1981. LaSage submitted a Bill of Costs totall-ing $577.93. Bovee opposed the statement of costs and attorney's fees on the ground that a portion thereof pertained to fees incurred in defending against the claims asserted by his original co-plaintiffs. However, LaSage had reduced the Bill of Costs to $444.93 to eliminate such expenditures on August 28, 1981, three days before Bovee submitted his opposition to La-Sage's motion for costs. Similarly, on September 9, 1981, counsel for LaSage submitted a supplemental affidavit eliminating $902.00 in fees which pertained to "work done in the Bovee case but . also related to [the] three other claims previously filed against Donald LaSage." Thus, LaSage ultimately demanded $7,018.00 in attorney's fees, and $444.93 in costs. Judge Blair granted $5,000 in attorney's fees and $577.93 in costs, failing to take note of the corrections in the Bill of Costs. . Alaska R.Civ.P. 41(a)(2) is set out at n. 1, supra. . The dialogue, in full, went as follows: MR. BEISTLINE (counsel for LaSage): Yes, your Honor, we don't — we don't oppose the motion to dismiss with prejudice. We've had some discussions among ourselves about attorney's fees, and that hasn't been resolved yet. THE COURT: Very well. Anything further at this time, then? MR. ROBSON (counsel for Bovee): I concur with what Mr. Beistline has said, your Honor. THE COURT: Very well. The motion to dismiss with prejudice will be granted. . The record does not support Bovee's contention that the warning regarding potential liability was tantamount to a coerced dismissal. Thus, we find inapposite cases Bovee relies upon in contesting the ruling, as they established criteria to be used in determining the propriety of an involuntary dismissal at the request of a defendant, rather than a voluntary dismissal obtained pursuant to Civil Rule 41(a). .LaSage was under the misconception that cases voluntarily dismissed under Alaska R.Civ.P. 41(a)(2) did not entitle an opposing party to attorney's fees under Civil Rule 82. This is incorrect. Cases voluntarily dismissed without prejudice cannot give rise to a claim under Civil Rule 82 because there is technically no prevailing party. Thus, any award of fees in these instances is made pursuant to the court's authority under Civil Rule 41(a)(2) to condition a dismissal on terms it deems just. We have upheld such rulings on several occasions. See Sherry v. Sherry, 622 P.2d 960, 964 (Alaska 1981); Dome Laboratories v. Farrell, 599 P.2d 152, 159-60 (Alaska 1979); Miller v. Wilkes, 496 P.2d 176 (Alaska 1972). However, a dismissal with prejudice operates as an adjudication on the merits. Miller v. Johnson, 370 P.2d 171, 173 (Alaska 1962). Thus, it is possible to make a "prevailing party" determination for purposes of applying Civil Rule 82 if a case is dismissed with prejudice pursuant to Alaska R.Civ.P. 41(a)(2). . Bovee alleges on appeal that the City of Fairbanks paid for LaSage's defense until the pretrial conference. Only $3,280.00 in attorney's fees was incurred by LaSage after that date, and Bovee contends his liability should be limited to that sum. However, this claim was not raised below, and there is no evidence in the record that supports Bovee's allegation. For this reason, we disregard it.

10422262

Manuel Robert PENA, Jr., Appellant, v. STATE of Alaska, Appellee

Pena v. State

1983-05-06

No. 6174

169

178

664 P.2d 169

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.

Manuel Robert PENA, Jr., Appellant, v. STATE of Alaska, Appellee.

Manuel Robert PENA, Jr., Appellant, v. STATE of Alaska, Appellee. No. 6174. Court of Appeals of Alaska. May 6, 1983. George E. Weiss, Whittier, for appellant. Donald W. McClintock, Asst. Atty. Gen., Anchorage, and Wilson L. Condon, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

5683

35114

OPINION BRYNER, Chief Judge. Manuel Robert Pena, Jr., appeals his conviction and sentence for manslaughter. See AS 11.41.120(a)(1). There is little dispute as to the facts relating to the principal issue raised on appeal. Shortly before 11 p.m. on September 2, 1980, a pickup truck driven by Pena collided with an automobile at the intersection of C Street and Potter Road in Anchorage. Pena had been driving south on C Street, while the other automobile, driven by Chris Sciscente, was headed west on Potter Road when the collision occurred. Billy S. Dow-ney, a passenger in Sciscente's automobile, was killed. Anchorage police officers called to the scene of the accident observed that Pena had apparently been drinking; Pena was arrested and taken to the police station, where he refused a request to take a breathalyzer examination. Police then obtained a search warrant authorizing seizure of a sample of Pena's blood for testing. Pena was taken to the Alaska Hospital at approximately 2:4& a.m. on September 3, 1980, where a sample of his blood was drawn. The state ultimately charged Pena with manslaughter, and his case proceeded to trial before a jury beginning on March 2, 1981. During trial, evidence was admitted by the state showing that Pena's blood sample was found to contain an alcohol level of .213%. A pathologist from the Alaska Hospital, Dr. Probst, testified that the .213% reading would have yielded a blood alcohol level of .273% at the time of the fatal collision, about four hours before the blood sample was drawn. Dr. Probst also testified about the deleterious effect on a person's ability to drive of such substantial quantities of alcohol. On March 10, 1981, Pena's jury returned a verdict finding him guilty as charged. Pena's primary argument on appeal is that evidence of his blood alcohol level was improperly obtained and should therefore have been suppressed at trial. Pena does not rely on constitutional grounds to challenge the validity of the warrant authorizing seizure of his blood; the issue that he raises is strictly one of statutory construction. Specifically, Pena's argument is predicated on the assertion that seizure and testing of blood after a refusal to submit to a breathalyzer test is prohibited by the Alaska Implied Consent Statute, AS 28.35.-031-.034. The two crucial provisions of this statute for purposes of Pena's claim are contained in AS 28.35.031 and AS 28.35.-032(a). At the time of Pena's offense, these provisions stated: AS 28.35.031. Implied Consent. A person who operates or drives a motor vehicle in this state shall be considered to have given consent to a chemical test or tests of his breath for the purpose of determining the alcoholic content of his blood or breath if 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 intoxicated. The test or tests shall be administered at the direction of a law enforcement officer who has reasonable grounds to believe that the person was operating or driving a motor vehicle in this state while intoxicated. [Emphasis added.] AS 28.35.032. Refusal to Submit to Chemical Test, (a) If a person under arrest refuses the request of a law enforcement officer to submit to a chemical test of his breath as provided in AS 28.-35.031, after being advised by the officer that his refusal will result in the suspension, denial or revocation of his license and that the refusal may be used against him in a civil or criminal action or proceeding arising out of an act alleged to have been committed by him while operating or driving a vehicle under the influence of intoxicating liquor, a chemical test shall not be given. [Emphasis added.] In asserting his claim on appeal, Pena relies on the interpretation given to these provisions by the Alaska Supreme Court in Anchorage v. Geber, 592 P.2d 1187 (Alaska 1979). Geber involved four separate cases in which motorists had been subjected to warrantless, non-consensual blood alcohol tests after being arrested for driving while intoxicated (DWI). The defendants relied upon AS 28.35.082(a), contending that the breathalyzer test was the only proper means by which police could have obtained evidence of blood alcohol content. The supreme court characterized the issue presented in Geber as follows: [T]he question in the cases at bar is whether the language of AS 28.35.032(a), providing that, upon a person's refusal to submit to a chemical test of his breath, "a chemical test shall not be given," means that law enforcement officials are precluded from performing other chemical tests in order to determine whether alcohol is present in the person's blood. Id. at 1190 (emphasis in original). After a review of the legislative history of the Alaska Implied Consent Statute, the court concluded: The express language of AS 28.35.032(a), coupled with the legislative history described above, leads us to the conclusion that in enacting the Implied Consent Statute the legislature intended that once a breath test had been refused no other chemical test would be allowed. Id. at 1191. In reaching this conclusion, the court expressly rejected the argument that a blood test was not a "chemical test" within the meaning of AS 28.35.032(a): We interpret the language of AS 28.35.-032(a), stating that after refusal to submit to a test of the breath "a chemical test shall not be given," to mean any chemical test, be it of the breath, blood, urine or otherwise. Thus, we reject the state and municipality's argument that such language means only that no other chemical test of the breath shall be given. Id. at 1191 (emphasis in original). The state argues vigorously that Geber ⅛ interpretation of AS 28.35.032(a) should be applied only to prosecutions for DWI and that the Geber holding should not be extended to felony charges arising out of incidents involving drunk driving. We fail to perceive any basis for the narrow reading of AS 28.35.032(a) proposed by the state. It is manifest that the provisions of the Implied Consent Statute are not restricted to DWI prosecutions. Instead, by the express and unequivocal terms of the statute itself, implied consent applies to all cases in which a person is "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 intoxicated." AS 28.35.031. The language of AS 28.35.032(a), which expressly prohibits any additional chemical tests to determine blood alcohol levels from being given once a breathalyzer test has been refused, specifically applies in all cases in which "a person under arrest refuses the request of a law enforcement officer to submit to a chemical test of his breath as provided in AS 28.85.-031 . " AS 28.35.032(a) (emphasis added). Thus, the plain language of the Implied Consent Statute leaves little room to distinguish between treatment of DWI cases and cases involving more serious crimes predicated upon a person's operation of a vehicle while intoxicated. At least one prior decision of the Alaska Supreme Court also militates against limiting application of AS 28.35.032(a) to DWI prosecutions. In Layland v. State, 535 P.2d 1043 (Alaska 1975), the court considered whether results of a warrantless blood test taken from the defendant were admissible in a negligent homicide prosecution. A sample of Layland's blood was drawn without his consent following an automobile accident that involved a fatality; Layland was not under arrest when his blood was taken. In deciding the case, the court expressly considered whether the taking of Layland's blood could be justified by reliance on the Implied Consent Statute. The court noted that the provisions of AS 28.35.-031 authorized only a chemical test of the breath and, furthermore, that they required a lawful arrest prior to testing. Since neither condition was satisfied in the ease, the court concluded that Layland could not be deemed to have impliedly consented to have his blood drawn for testing. In so holding, the Layland court attributed no importance whatsoever to the fact that the defendant had been charged with the felony offense of negligent homicide instead of with DWI, a misdemeanor. See id. at 1046 & n. 13. Relevant case law from other jurisdictions also weighs against distinguishing between DWI eases and prosecutions for more serious offenses in applying the admonition of AS 28.35.032(a) that "a chemical test shall not be given" following a breathalyzer refusal. Courts that have distinguished between DWI cases and felonies predicated on the offense of driving while intoxicated have in almost all instances done so on the basis of implied consent statutes that referred only to DWI prosecutions or on the basis of statutes whose legislative history affirmatively indicated an intent to restrict the scope of implied consent to DWI prosecutions. See, e.g., People v. Sanchez, 173 Colo. 188, 476 P.2d 980, 982 (Colo.1970); State v. Singleton, 174 Conn. 112, 384 A.2d 334, 336 (Conn.1977); People v. Moselle, 57 N.Y.2d 97, 454 N.Y.S.2d 292, 296, 439 N.E.2d 1235, 1239, (N.Y.1982); State v. Heintz, 34 Or.App. 175, 578 P.2d 447,448-49 (Or.App.), modified on other grounds, 35 Or.App. 155, 580 P.2d 1064 (Or.App.1978), aff'd, 286 Or. 239, 594 P.2d 385, 392-93 (Or.1979); State v. Krieg, 7 Wash.App. 20, 497 P.2d 621, 624-25 (Wash.App.1972). Given the foregoing considerations, we conclude that AS 28.35.032(a) cannot be restricted to apply solely to DWI prosecutions. To the extent that the statute, by providing that "a chemical test shall not be given" following a breathalyzer refusal, affirmatively limits the manner in which evidence of intoxication may be obtained, its limitation must apply with equal force in all prosecutions "arising out. of acts alleged to have been committed while [the defendant] was operating or driving a motor vehicle while intoxicated." AS 28.35.031. In the present case it is undisputed that Pena's manslaughter charge was predicated on the allegation that he caused the fatal accident on September 2, 1980, by driving his truck while under the influence of intoxicating liquor. Therefore, the Implied Consent Statute applies to Pena's case to the same extent that it would if he had simply been charged with DWI. We must, however, separately consider whether the restrictions of AS 28.35.032(a) against further testing after a breathalyzer refusal apply to situations where a blood sample is obtained by the police not in reliance upon the implied consent of the accused, but pursuant to a lawfully issued search warrant. The Alaska Supreme Court has never squarely considered this question, since Layland v. State and Anchorage v. Geber —the court's prior decisions discussing the permissible scope of authority under the Implied Consent Statute to take samples of blood for chemical testing — both involved warrantless seizures of blood. We recognize, however, that a forceful case can be made for the proposition that this question was resolved in Anchorage v. Geber. For the holding of the court in that case was couched in broad language, seemingly not restricted to cases involving warrantless seizures of blood: As we interpret the Implied Consent Statute, it was intended to provide an exclusive method for obtaining direct evidence of a suspect's blood alcohol content, absent his or her express consent to the use of some other form of testing. 592 P.2d at 1192. See also State v. Hitchens, 294 N.W.2d 686 (Iowa 1980). As we have previously noted, no constitutional issue is presented, and the sole question is one of statutory construction. Though the question is extremely close and the countervailing arguments very strong, we are nevertheless inclined to hold that the result in Geber is not controlling in the present case. We believe that Geber is susceptible of a narrower reading than its broad language would at first glance suggest. Anchorage v. Geber involved war-rantless seizures of blood; however, the seizures in Geber had occurred following lawful arrests for DWI. The primary issue considered in Geber was whether a war-rantless blood sample taken after a breathalyzer refusal constituted a "chemical test" within the contemplation of AS 28.35.032(a). Despite the sweeping language of its holding, nothing in Geber indicates that the court gave consideration to the independent question of whether a lawfully issued warrant could properly be used to justify a seizure of blood for purposes of performing blood alcohol testing. To the contrary, a close reading of the case leaves the impression that the court's chief concern was with defining the extent to which a warrantless seizure of blood, undertaken after a breathalyzer refusal could be deemed to be justified by reliance on the implied consent of the defendant. In this regard it is evident that Geber held the provisions of AS 28.35.032(a) to act as a complete prohibition. It is far from clear, however, that the court in Geber intended to go farther by holding that AS 28.35.- 032(a) acted to prohibit all forms of chemical testing for alcohol other than the breathalyzer, even when — as in the case of lawfully issued search warrants — the authority for conducting such tests is predicated on a source entirely independent of the Implied Consent Statute. Moreover, Geber ⅛ treatment of Layland v. State seems consistent with a narrow reading of the case. In Layland, 535 P.2d at 1046 & n. 13, the supreme court suggested that a warrantless seizure of blood in connection with an offense arising from an act committed while a person was driving under the influence of alcohol might be authorized by the terms of the Alaska Implied Consent Statute as long as the person whose blood was seized had formally been arrested, as required by AS 28.35.031, and as long as the warrantless seizure was carried out in compliance with constitutional requirements. By overruling the discussion in Layland which seemed to intimate that a warrant-less seizure of blood might, in certain circumstances, be authorized by the Implied Consent Statute, Geber only emphasized its conclusion that implied consent cannot be invoked to justify chemical tests of blood alcohol obtained by any means other than the breathalyzer. There is nothing that compels an inference that the court in Ge-ber, by overruling Layland, intended to establish a rule affirmatively prohibiting law enforcement officers from seizing samples of blood for chemical testing in cases where their authority to make such seizures arises from a source entirely separate from and independent of the implied consent statute. We believe that the narrow interpretation of Geber is the proper one. Construing the holding in the case to constitute a sweeping prohibition against the use of lawfully issued search warrants in all cases where a breathalyzer test has been refused would in essence amount to a ruling that AS 28.35.032(a) works a partial repeal by implication of AS 12.35.020(4), which expressly authorizes the issuance of warrants for the seizure of any property which "constitutes evidence of a particular crime or tends to show that a certain person has committed a particular crime." Yet under well-settled principles of statutory construction, implied repeal is disfavored; one legislative enactment will not be presumed to impliedly repeal another in the absence of clear legislative intent or inconsistency so fundamental as to be fatal. See Hafling v. Inlandboatmen's Union of Pacific, 585 P.2d 870 (Alaska 1978). Here, it cannot be said that the implied consent limitation contained in AS 28.35.032(a) is fundamentally inconsistent with the provisions authorizing issuance of search warrants for evidence of crime that are contained in AS 12.35.020. Both statutory provisions can be given full effect by reading AS 28.35.032(a) to restrict the use of chemical tests other than a breathalyzer only in situations where the implied consent statute is relied on as the exclusive source of authority for subjecting a person to alcohol testing. In short, we do not think it can be said that by enacting the Implied Consent Statute the legislature has clearly manifested an intent to abrogate the traditional and long-accepted procedure of obtaining evidence by reliance on search warrants duly issued by a judge or magistrate. Furthermore, it would seem to serve little purpose to preclude seizure and testing of blood samples pursuant to a search warrant. As the state correctly observes in its brief, the policy of avoiding physical confrontations, which underlies the Implied Consent Statute's limitation on testing, carries little force when a lawfully issued search warrant is obtained. By the time a warrant has been secured the process of arrest will normally have been completed, and the potential for physical confrontation typically associated with an arrest situation will no longer exist. More significantly, an arres-tee who is faced with a warrant for seizure of his blood is confronted not so much by the physical threat of an individual officer — whose actions he may well perceive as both biased and arbitrary — as by the legal compulsion of a formal order issued by the court. Realistically, there seems to be little reason to fear the consequences of confrontation in such circumstances to a greater extent than they are feared in any other case requiring execution of a warrant for the search of a person. We are unpersuaded by the reasoning of cases such as State v. Hitchens on this point. In Hitchens, the court reasoned that administrative revocation of a driver's license following a breathalyzer refusal served as a "trade-off" for the potential loss of evidence to the state resulting from the refusal. This quid pro quo was seen as justifying an absolute restriction against any form of testing other than the breathalyzer. Thus, in the view of the court, a person who is willing to suffer revocation of his license was given "the right to refuse a breathalyzer." We think this reasoning is strained. The prohibition against additional testing embodied in AS 28.35.032(a) is a recognition that it is unrealistic to extend the concept of implied consent to situations in which the forceful taking of blood or breath would be required. It hardly seems accurate, however, to assert that the legislature viewed an administrative license revocation as the equivalent of a potential DWI conviction. It seems even more apparent that a license revocation was not viewed as a fair "trade-off" for a potential manslaughter conviction. It is significant that the Alaska Supreme Court, contrary to the position of the court in State v. Hitchens, has expressly rejected the notion that AS 28.35.032(a) creates a "right to refuse a breathalyzer test." See Palmer v. State, 604 P.2d 1106, 1110 (Alaska 1979). See also Coleman v. State, 658 P.2d 1364, 1365 (Alaska App.1983). Quite recently, the Alaska Supreme Court has given a relatively circumspect reading to Geber ⅛ holding that no right to refuse the breathalyzer test existed. In Copelin v. State, 659 P.2d 1206, 1212-1213 (Alaska 1983), the supreme court recognized the existence of a "right to refuse" in the sense that an arrested person has the power to refuse. The court in Copelin reasoned that, since a person has the power to refuse, and since, under AS 28.35.031, further testing is prohibited after a breathalyzer refusal, the Implied Consent Statute in effect allows defendants a choice between taking the breathalyzer test or refusing it and suffering the consequences. Id. at 1213 & n. 17. The existence of this choice, according to the court, justified allowing a person arrested for DWI to contact an attorney before taking the breathalyzer test. However, we do not regard the court's holding in Copelin as weighing against the position that we adopt in the present case. In Copelin, the court did not overrule its earlier statement in Geber that there is no right to refuse a breathalyzer test. To the contrary, the court expressly acknowledged that, as a constitutional and statutory matter, no "right" existed. Similarly, while indicating that the structure of the Implied Consent Statute allows defendants a choice as to taking the test, the court never indicated that administrative sanctions for a breathalyzer refusal were intended as a "trade-off" for the test. Nor did the court indicate any view concerning the permissibility of obtaining a blood test pursuant to a duly issued search warrant — a means entirely independent of the Implied Consent Statute. A broad reading of Geber could, moreover, lead to anomalous results. Armed with the knowledge that a breathalyzer refusal would deprive them of potentially crucial evidence, law enforcement officers investigating crimes arising from the operation of a motor vehicle under the influence of intoxicating liquor, especially in the most serious situations, could be expected to avoid the chance of a breathalyzer refusal by postponing any arrest until a warrant authorizing seizure and testing of blood is obtained and served. Thus, extending the holding in Geber to preclude the use of search warrants as a means of obtaining blood would only encourage officers to alter their handling of investigations by circumventing the restrictions of the implied consent provision. In conclusion, while it is evident that the Implied Consent Statute, as it read at the time of Pena's offense, prohibited any warrantless blood alcohol testing following a breathalyzer refusal, we find little to indicate that the legislature intended the statute to act as an affirmative prohibition against the independent means of using a search warrant to obtain a sample of blood from a person who has refused to submit to a breathalyzer test after being arrested for an offense arising from an act committed by him while driving under the influence of intoxicating liquor; we also find little practical or logical justification for such a prohibition. Accordingly, we decline to extend the holding of Anchorage v. Geber to cases in which police have obtained samples of blood for alcohol testing pursuant to lawfully issued warrants. We conclude that the seizure of Pena's blood in the present case must be upheld. Pena has raised one additional issue that merits discussion. Upon conviction, Pena was sentenced by Judge Seaborn Buckalew to serve three years' imprison ment, with all but nine months of the sentence suspended. As a special condition of his suspended sentence, Pena was required to pay $4,100 in restitution to Chris Scis-cente, the driver of the automobile with which he had collided. On appeal, Pena contends that the restitution order is illegal. AS 12.55.100(a)(2) controls awards of restitution when imposed as a condition of suspended sentences or probation. This statute provides, in relevant part: [T]he defendant may be required . to make restitution or reparation to aggrieved parties for actual damages or loss caused by the crime for which the conviction was had . Pena insists that Sciscente cannot properly be deemed one of the "aggrieved parties" to "the crime for which the conviction was had." We disagree. Under AS 12.55.100(a)(2), consideration of the precise crime for which Pena was convicted is of paramount importance in determining whether Sciscente was an aggrieved party. Pena's conviction was for the crime of manslaughter. This offense was alleged to have resulted from a collision caused by Pena's recklessness in operating his pickup truck while under the influence of intoxicating liquor. Sciscente was injured and his passenger killed in the collision. Under the circumstances, property damages and injuries directly sustained by Sciscente were unquestionably the consequence of precisely the same conduct and intent on Pena's part as the conduct and intent that caused the death with which Pena was charged and which led to Pena's conviction. Since it was uncontested that Sciscente was the driver of the car with which Pena collided, Pena's conviction of the manslaughter of Sciscente's passenger necessarily encompasses, both as a matter of fact and of law, the injuries directly caused to Sciscente and to his property. Sciscente was therefore an aggrieved party under AS 12.55.100(a)(2), since it is manifest that the injuries and damage he suffered were directly caused by the crime for which Pena was convicted. We hold that the restitution order imposed by Judge Buckalew was authorized under AS 12.55.-100(a)(2). The conviction and sentence are AFFIRMED. . The statutory language considered by the court in Geber differed slightly from the language applicable to Pena's case. In the interim between the Geber decision and the date of commission of Pena's offense, the legislature amended AS 28.35.031 and AS 28.35.032 to provide that a person's refusal to take a breathalyzer test could be admitted in evidence at trial. Neither Pena nor the state has argued that the amendments have any impact upon the issue decided by the court in Geber. For the purpose of disposing of the issue raised in this appeal, we consider the version of the Implied Consent Statute applicable to Pena to be substantially identical to that considered in Geber. . The state argues that AS 28.35.032(b) provides a basis for distinguishing between DWI prosecutions and more serious charges arising from a defendant's conduct of driving while intoxicated. AS 28.35.032(b) provides, in relevant part: (b) Upon receipt of a sworn report of a law enforcement officer that a person has refused to submit to a chemical test authorized under AS 28.35.031, containing a' statement of the circumstances surrounding the arrest and the grounds upon which his belief was based that the person was operating or driving a motor vehicle in violation of AS 28.35.030 [Alaska's DWI statute], the Department of Public Safety shall notify the person that his license or nonresident privilege to drive or operate a motor vehicle in the state is revoked or suspended . [Emphasis added.] The state contends that the fact that this provision refers only to Alaska's DWI statute as a basis for suspending or revoking a license for refusal to submit to a breathalyzer signifies that the legislature intended to limit the effect of the implied consent provisions only to misdemeanor DWI prosecutions. This contention is without merit. When read in context, the limited reference in AS 28.35.032(b) to prosecutions under Alaska's DWI statute merely indicates a recognition of the fact that, regardless of whether the defendant is ultimately charged with DWI or with a more serious offense such as manslaughter, there will always be probable cause to arrest for DWI if the defendant was originally "lawfully arrested for an offense arising out of acts alleged to have been committed while . operating or driving a motor vehicle while intoxicated." . The supreme court's decision in Anchorage v. Geber is also illuminating. The result reached by the court in Geber was inconsistent with portions of the court's prior holding in Layland that discussed the scope of Alaska's Implied Consent Statute. Although the court could easily have distinguished the Geber case from its holding in Layland based on the fact that Layland involved a felony prosecution for negligent homicide, as to which implied consent would not apply, it chose not to do so; instead, the court expressly overruled the inconsistent language of the Layland case, thereby implying that AS 28.35.032(a) applies to felony prosecutions. Anchorage v. Geber, 592 P.2d at 1192 n. 8. . In this regard, the state's position is severely undercut by the legislature's recent enactment of AS 28.35.035, which expressly provides that a nonconsensual test for blood alcohol content may be administered in cases where the defendant is under arrest for driving while intoxicated and the arrest results from an accident causing death or physical injury to another person. Implicit in the enactment of AS 28.35.-035 is the conclusion that, under prior law, no exemption from the provisions of AS 28.35.031 existed for cases potentially involving charges more serious than driving while intoxicated. . As Pena correctly argues in his brief, State v. Hitchens supports the view that Geber should be construed to be dispositive in the present case. In Hitchens, the Iowa Supreme Court interpreted an implied consent statute that was essentially identical to AS 28.35.032(a). The case involved a prosecution for manslaughter in which a blood test was obtained pursuant to a search warrant issued after the defendant refused to take a breathalyzer examination. The court concluded that the statutory provision against giving any further chemical test after the breathalyzer refusal precluded the use of a warrant to obtain blood for chemical testing. The court cited Anchorage v. Geber as directly supporting its conclusion. See State v. Hitchens, 294 N.W.2d at 688. . See Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). . Pena has also raised an array of issues that do not require full discussion. These issues, and our disposition of them, are as follows: (a) Pena complains that six instructions given to the jury by the trial judge were improper. Our holding that Pena's blood test was admissible resolves his claim as to three of these instructions. The remaining three instructions set out and defined the elements of the lesser-included offense of negligent homicide. Because Pena's jury convicted him of manslaughter, the greater offense, any error as to the lesser-included offense instructions would at most be harmless. Christie v. State, 580 P.2d 310, 320 (Alaska 1978). (b) Pena asserts that the trial court improperly refused to suppress certain statements that he made to police following his arrest. Though the issue is noted in Pena's opening brief, it is not discussed. Pena asserts that the issue was adequately briefed in a prior petition for review to this court, which he incorporated by reference in his brief. Examination of the referenced petition reveals that the suppression issue was not in fact raised therein. We hold that the issue has been abandoned by Pena's failure to brief it. Condon v. State, 498 P.2d 276, 281 n. 3 (Alaska 1972). (c) Pena alleges error in the trial court's denial of his motion to dismiss the indictment against him. The issue has not been briefed, and we therefore deem it abandoned. Condon v. State, id. (d) Pena contends that the trial judge erred in refusing to grant a motion for mistrial made after the jury indicated that it was deadlocked. The judge denied the motion, and after inquiring of the jury, submitted a supplemental instruction defining recklessness. Pena also asserts that the court committed error in giving this supplemental instruction; he contends that the instruction was equivalent to an Allen charge and that it was especially objectionable because the jury had violated the court's instructions by indicating the number of jurors voting for acquittal and conviction. Having reviewed the record, we find no abuse of discretion by the trial judge in failing to grant the requested mistrial or in submitting a supplemental instruction on recklessness to the jury. See Des Jardins v. State, 551 P.2d 181, 189 (Alaska 1976); Koehler v. State, 519 P.2d 442, 449 (Alaska 1974). (e) Pena challenges admission of a group of more than 60 photographs taken at the accident scene and used in evidence at trial. He objects to the group generically, without specifying separate grounds applicable to particular photographs. Pena's objection is based upon the contention that the photographs were cumulative, potentially distracting and prejudicial, and basically irrelevant to any contested issue at trial. Upon examination, the bulk of the photographs appear to be mundane, although some of the photographs depict the deceased immediately following the accident. The challenged photographs were extensively relied upon by witnesses to illustrate their testimony concerning the manner in which the collision occurred, the condition of the vehicles involved in the collision, and the conditions prevailing at the scene of the accident. The photographs were offered into evidence to assist the jury in attempting to form their own judgment as to the manner in which the collision occurred. We hold that the trial court did not abuse its discretion in admitting the photographs into evidence. Valentine v. State, 617 P.2d 751, 754 (Alaska 1980); Watson v. State, 387 P.2d 289, 294 (Alaska 1963). (f) Pena urges that the trial judge erred in excluding testimony of a defense witness offered to establish Pena's good character. Pena has not briefed this issue, and we deem it abandoned. Condon v. State, 498 P.2d at 281 n. 3. (g) Pena asserts that the trial judge erred in refusing to award costs and attorney's fees to him as a result of the prosecution's filing of a superseding indictment in his case. We find this issue to be frivolous. (h) Pena maintains that the trial judge erred in refusing to grant a mistrial or continuance when the prosecution presented, for the first time at trial, documentary evidence concerning a traffic signal located at the scene of the collision. We conclude that this issue was not properly preserved at trial, since Pena's counsel was given the opportunity to talk to and consult with the witness who produced the documentary evidence. In fact, Pena's counsel was given access to the documents and to the state's witness over the course of the afternoon and evening immediately after the documentary evidence came to light. The following morning, at trial, Péna's counsel failed to renew his motion for mistrial or to request any further continuance. We find, additionally, that this issue has not adequately been briefed on appeal, and we conclude that the record before us fails to establish any prejudice to Pena resulting from the untimely production of the challenged documents. (i) Pena claims that his trial was "fraught with constitutional error" and that the cumulative impact of the error required reversal of his conviction. He relies for this contention either on the individual claims of error that he has separately raised and that we have rejected or on claims of error that he has not briefed. We find no merit to this claim. . Cf. DeSacia v. State, 469 P.2d 369 (Alaska 1970) (jury verdicts finding the defendant guilty of one count and not guilty of another held fatally inconsistent where defendant was charged with two counts of manslaughter in connection with an automobile accident in which both the driver and the passenger of the automobile that defendant collided with were killed).

10426797

Marcelo QUINTO, Jr., Appellant, v. CITY AND BOROUGH OF JUNEAU, Appellee

Quinto v. City & Borough of Juneau

1983-06-17

No. 7334

630

636

664 P.2d 630

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.

Marcelo QUINTO, Jr., Appellant, v. CITY AND BOROUGH OF JUNEAU, Appellee.

Marcelo QUINTO, Jr., Appellant, v. CITY AND BOROUGH OF JUNEAU, Appellee. No. 7334. Court of Appeals of Alaska. June 17, 1983. Loren Domke, Juneau, for appellant. John A. Leque, Asst. City-Borough Atty., and Gerald Sharp, City-Borough Atty., Juneau, for appellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

3238

20402

OPINION BRYNER, Chief Judge. Early in the morning of May 31, 1982, Marcelo Quinto, Jr., was arrested for driving a motor vehicle while under the influence of intoxicants (DWI) in violation of City and Borough of Juneau Municipal Code § 72.10.010. Quinto was observed driving his Ford Bronco erratically near Whittier Street in downtown Juneau by a Juneau police officer, who communicated Quinto's location, license plate,number, and make of car to another officer, Corporal Karl Lewkowski. Lewkowski drove to the area and saw a "Bronco-type vehicle" with its brake lights on at the top of a ramp leading to the Prospector Hotel; no other vehicles were in sight. Lewkowski drove up the ramp and verified the license plate number on the Bronco. He then approached Quinto, who was behind the wheel; as he walked towards the Bronco, Lewkowski activated a small tape recorder that was attached to his belt. When he got to the Bronco, Lewkowski noticed that Quinto had bloodshot eyes and smelled of alcohol. Lewkowski concluded that Quinto was intoxicated and asked him to perform field sobriety tests. After performing poorly on the sobriety tests, Quinto was arrested. All pre-arrest communications between Lewkowski and Quinto were recorded without Quinto's knowledge on Lewkowski's tape recorder. Quinto later repeated the sobriety tests on videotape at the Juneau Police Department, but he refused to submit to a breathalyzer examination. On appeal, Quinto asserts that the trial court committed error by refusing to allow expert testimony concerning Quinto's blood alcohol level at the time of his arrest, by excluding testimony concerning Quinto's reputation for sobriety in the community, and by denying a motion to suppress the tape recording that was made without Quinto's permission prior to his arrest. We reverse. At trial, Quinto attempted to introduce expert testimony by Dr. Gary Christian concerning Quinto's blood alcohol level at the time of his arrest. The trial court permitted Quinto to voir dire Dr. Christian for the purpose of establishing Dr. Christian's qualifications. Dr. Christian stated that he was a tenured professor of chemistry at the University of Washington and had studied the breathalyzer machine, as well as several alternative methods of establishing blood alcohol levels. If allowed to testify, Dr. Christian would have used a method known as "Widmark's formula" to establish-Quin-to's blood alcohol level at the time of his arrest. According to Dr. Christian, an accurate measurement of a person's blood alcohol level can be obtained through use of Widmark's formula when the amount and weight of the alcohol consumed, the weight of the consumer, and the time sequence of the consumption are all known. For his computations, Dr. Christian apparently planned to rely upon Quinto's testimony with respect to the nature, amount, and timing of his drinking prior to arrest. Using these figures, Dr. Christian would presumably have testified that Quinto's blood alcohol level was relatively low at the time of his arrest. Upon completion of voir dire, defense counsel stated that Dr. Christian's testimony was offered to show that Quinto was not under the influence of intoxicating beverages when driving and to corroborate Quin-to's testimony that he was not intoxicated. The prosecution objected to admission of Dr. Christian's testimony, arguing that evidence concerning Quinto's blood alcohol level was irrelevant to the charge of DWI; the prosecutor maintained that Quinto's blood alcohol level would have been relevant only if he had been charged with the separate offense of driving with an excessive blood or breath level, in violation of CCBJ 72.10.-011 . The trial court concluded that in the absence of a breathalyzer result for Quinto, testimony about Quinto's blood alcohol level established by a method other than the breathalyzer was irrelevant. The trial court also found that Dr. Christian's testimony would unnecessarily distract and confuse the jury. On appeal, Quinto argues that the trial court abused its discretion by excluding Dr. Christian's testimony. Quinto asserts that Dr. Christian's testimony would have been relevant, under Evidence Rule 401, to the question of whether Quinto was intoxicated. Quinto also disputes the accuracy of the trial court's finding that exclusion of this testimony was necessary because of its potential for jury confusion. We conclude that Quinto's arguments concerning the trial court's exclusion of Dr. Christian's testimony are meritorious. In Denison v. State, 630 P.2d 1001 (Alaska App.1981), we considered a factual situation which was the converse of that presented in this case. Denison was charged with driving with a blood alcohol level of .10% or greater. At trial, Denison attempted to offer into evidence a videotape made by police, after her arrest, as circumstantial proof that her breathalyzer result was incorrect. Denison also attempted to present witnesses to testify about her apparent sobriety and the amount of alcohol she consumed before her arrest. The district court refused to permit Denison to offer either the videotape or hdl witnesses, ruling that nontechnical evidence offered to prove the inaccuracy of a breathalyzer result was inadmissible unless technical evidence of inaccuracy was also presented. In reversing Denison's conviction, we found that the evidence offered was relevant circumstantial evidence of the possibility that Denison's breathalyzer result was erroneous, and we noted the preference for admission of relevant evidence that is established under Evidence Rule 402. We also concluded that exclusion of Denison's testimony was not justified, under Evidence Rule 403, by the danger that the jury would be misled: "[W]e fail to see how a jury, properly instructed as to the purpose for which such evidence was offered, could have been prejudiced, confused, or misled." Denison v. Anchorage, 630 P.2d at 1003. We subsequently relied upon Denison in Byrne v. State, 654 P.2d 795 (Alaska App.1982). Byrne was convicted of driving with a blood alcohol level of .10% or more, in violation of AS 28.35.030; on appeal Byrne contended that the trial court erred by admitting testimony that he was driving erratically and appeared intoxicated at the time of his arrest. We found this point to be controlled by Denison, and we stated: We are satisfied that there is a sufficient nexus between erratic driving and other indicia of intoxication and an elevated blood alcohol level that such evidence would tend to corroborate a breathalyzer reading showing an elevated blood alcohol level. The evidence was therefore relevant to this prosecution. Byrne argues, nevertheless, that the probative value of the evidence was so weak and its prejudice so obvious that the trial court abused it discretion in failing to exclude the evidence under Alaska Rule of Evidence 403. We disagree. We believe the evidence in question highly probative of the accuracy of the breathalyzer reading. While we agree with Byrne that evidence of his appearance and erratic driving tended to portray him to the jury as a drunk driver, we believe that such a portrayal was a necessary corollary of the prosecution in question. It certainly is not the kind of prejudice that Evidence Rule 403 seeks to prevent, i.e., a decision by a jury on grounds totally unrelated to the elements of the crime in question. Byrne v. State, 654 P.2d at 796. In the present case, the City of Juneau argues that Denison and Byrne are factually distinguishable because they involved charges of driving with a blood alcohol level of .10% or greater and because the challenged testimony was that of witnesses who had direct knowledge of the defendants' appearance and alcohol consumption prior to arrest. The City of Juneau also argues that, even if relevant, Dr. Christian's testimony was properly excluded because of its potential for distracting and misleading the jury. We disagree with the narrow reading of 'Denison and Byrne proposed by the City of Juneau. As we noted in those cases, the relationship between high blood alcohol levels and intoxication is a matter of common sense and understanding. In Denison and Byrne, testimony and evidence concerning the defendants' apparent condition prior to arrest was offered as circumstantial proof of the accuracy or inaccuracy of blood alcohol tests. Here, a blood alcohol computation was offered as evidence that the defendant's actual condition was not impaired by consumption of alcohol. The City of Juneau has failed to demonstrate why evidence of a defendant's blood alcohol level is less relevant to establish lack of actual impairment than evidence of apparent sobriety or lack of sobriety is relevant to confirm or impeach the results of blood alcohol tests. We find that Dr. Christian's testimony was circumstantial evidence that would have been relevant to rebut the accuracy of Corporal Lewkowski's testimony concerning Quinto's apparent intoxication. Similarly, we disagree with the City of Juneau's assertion that this evidence could properly be excluded under Evidence Rule 403. The potential for confusion of the jury would have been minimal if the court had instructed the jury concerning the proper use of circumstantial evidence. While the evidence upon which Dr. Christian would have based his testimony — Quin-to's own testimony as to the amount of alcohol he had consumed — might be subject to a healthy measure of skepticism in light of Quinto's refusal to take a breathalyzer test, this is plainly a matter of credibility that should properly have been decided by the jury. The issue is certainly not so inherently confusing or obscure as to justify excluding Dr. Christian's testimony out of fear that the jury might be misled. We hold that exclusion of Dr. Christian's testimony was error. In the context of the evidence presented at trial, we cannot say that the error was harmless. Accordingly, Quinto's conviction must be reversed. While we have concluded that Quin-to's conviction must be reversed, we must also consider the merits of Quinto's other arguments, since they raise issues that are likely to recur upon retrial. Quinto contends that the court erred in refusing to permit testimony by Kyle Reiger, Quinto's co-worker, that Quinto had a reputation in the community for being "a cautious, sober individual." The trial court did allow testimony by Mr. Reiger that Quinto had a reputation for truthfulness and veracity in the community. Quinto argues that the testimony as to sobriety was properly admissible under Evidence Rule 404(a)(1), which states: (a) Character Evidence Generally. Evidence of a person's character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except: (1) Character of Accused. Evidence of a relevant trait of his character offered by an accused, or by the prosecution to rebut the same. . . . We fail to see why testimony about Quin-to's reputation for sobriety in the community would not tend to establish a relevant trait of his character, within the meaning of Evidence Rule 404(a); certainly, a reputation for sobriety is as relevant to a charge of DWI as is a reputation for truthfulness or veracity. We hold that Quinto should not have been precluded from offering this testimony at trial. Finally, Quinto argues that the trial court erred in not suppressing the recording Lewkowski made of his conversation with Quinto during administration of the field sobriety tests prior to Quinto's arrest. Quinto contends that reversal of the trial court's decision is mandated by State v. Glass, 583 P.2d 872 (Alaska 1978). In Glass, a police informant carried a concealed radio transmitter into the home of Glass, from whom the informant had arranged to purchase heroin. The conversation between Glass and the informant was electronically monitored and recorded by police officers located outside the home. The supreme court concluded that article 1, section 22 of the Alaska Constitution prohibits the surreptitious electronic monitoring of conversations upon the consent of only one participant. 583 P.2d at 879-81. The court relied, in part, on the two pronged standard for determining privacy that was articulated by Justice Harlan in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967): (1) Whether the defendant exhibited an actual expectation of privacy; and (2) whether that expectation was one that society is prepared to recognize as reasonable. See id. at 361, 88 S.Ct. at 516-17, 19 L.Ed.2d at 588 (Harlan, J., concurring). Quinto argues that Glass must be read to prohibit the warrantless recording of his pre-arrest conversation with Corporal Lewkowski. In response, the City of Juneau asserts that Glass applies only to situations in which warrantless, nonconsensual electronic surveillance is conducted by use of an informant or an undercover officer. The city maintains that because Corporal Lewkowski was in uniform and involved in a routine investigatory stop when the recording was made, any expectations on the part of Quinto that his conversation was private was unrealistic. The city also contends that Palmer v. State, 604 P.2d 1106 (Alaska 1979), supports its restrictive reading of Glass. In Palmer, the defendant relied on Glass to argue that the trial court erred in refusing to suppress a videotape made without his consent after he was arrested for DWI. The supreme court disagreed and found Glass to be distinguishable: We think the situation in the case at bar, however, is readily distinguishable. When the videotape recording was made, Palmer was already under arrest. After being transported to police headquarters, he was asked to submit to a breathalyzer examination and to perform a number of sobriety tests. Assuming, arguendo, that he had any actual or subjective expectation at that point that his actions would not be recorded, we are convinced that that expectation is not one that society is prepared to recognize as reasonable. Accordingly, we hold that there was no violation of the right of privacy guaranteed to Palmer by article 1, section 22, of the state constitution. Palmer v. State, 604 P.2d at 1108 (emphasis in original). We think that the Glass holding cannot be restricted to situations involving undercover police informants. One of the basic premises of the supreme court's opinion in Glass is that warrantless monitoring of conversations has a definite chilling effect upon freedom of expression when only one of the participants has consented. State v. Glass, 583 P.2d at 877-78. Because of the factual setting in which the case arose, much of the discussion in Glass is couched in terms of police informers and undercover agents. However, there is also broad language implying that the warrant requirement is applicable to the situation posed by the present case: [W]e believe that Alaska's privacy amendment prohibits the secret electronic monitoring of conversations upon the. mere consent of a participant . We conclude that the expectation that one's conversations will not be secretly recorded or broadcast should be recognized as reasonable. State v. Glass, 583 P.2d at 879-80. We believe that Palmer actually lends support for Quinto's interpretation of Glass. In Palmer, the supreme court was afforded an opportunity to limit Glass by rejecting the reasonableness of an individual's expectation of privacy in his communications with uniformed police officers. Instead, the court focused on Palmer's arrest, detention, and presence in the police station as the significant factors justifying the conclusion that there could be no reasonable expectation of privacy. 604 P.2d at 1108. We conclude that the warrant requirement of Glass must be read to include situations involving routine nonconsensual recording of pre-arrest conversations between citizens and uniformed officers. We therefore hold that the trial court committed error in denying Quinto's motion to suppress the tape recording made by Corporal Lewkowski; upon retrial, the recording should not be admitted as evidence. Quinto's conviction is REVERSED and the case is REMANDED for further proceedings consistent with this opinion. . City and Borough of Juneau Code (CCBJ) § 72.10.010 reads: Driving While Under the Inñuence of Intoxicants. A person commits the crime of driving while under the influence of intoxicants if he operates or drives a motor vehicle: (1) While under the influence of intoxicating liquor, depressant, hallucinogenic, stimulant or narcotic drugs as defined in state law; or (2) While he is under the combined influence of intoxicating liquor and another substance. . CCBJ 72.10.011 reads: Driving With Excessive Blood or Breath Alcohol Level. A person commits the crime of driving with excessive blood or breath alcohol level if he operates or drives a motor vehicle when there is 0.10 percent or more by weight of alcohol in his blood or 100 milligrams or more of alcohol per 100 milliliters of his blood, or when there is 0.10 grams or more of alcohol per 210 liters of his breath. . A.R.E. 401 provides: Relevant evidence means evidence having any tendency to make the existence of any fact more probable or less probable than it would be without the evidence. . A.R.E. 402 states: All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States or of this state, by enactments of the Alaska Legislature, by these rules, or by other rules adopted by the Alaska Supreme Court. Evidence which is not relevant is not admissible. . A.R.E. 403 reads: 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. . The City of Juneau contends that Quinto failed to preserve this point on appeal by neglecting to make an offer of proof as to the exact blood alcohol level Christian's calculations would reveal. We find this contention to be without merit. The trial court refused to permit Christian to arrive at the exact calculation of Quinto's blood alcohol level through the use of Widmark's formula. Additionally, the trial court believed that the evidence would have shown Quinto's blood alcohol level to be relatively low. We note that the trial court expressly stated for the record, following voir dire by counsel, that Professor Christian's expert qualifications were recognized. We further note that the City of Juneau did not attempt to challenge the accuracy of Widmark's formula. We express no opinion as to either question. . Alaska Const.; art. I, § 22 reads: The right of the people to privacy is recognized and shall not be infringed. The legislature shall implement this section. . We stress that in this case Corporal Lewkow-ski apparently recorded his encounter with Quinto as a routine matter. There is nothing in the record to indicate that Lewkowski activated his recorder because he thought that the situation was one in which electronic monitoring was necessary for any particular reason. The city made no effort in the trial court to argue that exigent circumstances justified the warrantless monitoring of Lewkowski's contact with Quinto, and no such argument has been advanced in this appeal.

10373761

Eirik P. PETERSEN, Appellant, v. STATE of Alaska, Appellee

Petersen v. State

1992-09-04

No. A-3394

812

816

838 P.2d 812

838

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T18:22:06.660714+00:00

CAP

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

Eirik P. PETERSEN, Appellant, v. STATE of Alaska, Appellee.

Eirik P. PETERSEN, Appellant, v. STATE of Alaska, Appellee. No. A-3394. Court of Appeals of Alaska. Sept. 4, 1992. R. Scott Taylor, Kevin F. McCoy, Asst. Public Defenders, and John B. Salemi, Public Defender, Anchorage, for appellant. W.H. Hawley, Asst. Atty. Gen., Office of Sp. Prosecutions and Appeals, Anchorage, and Charles E. Cole, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., COATS, J., and ANDREWS, Superior Court Judge. Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution.

2523

15629

OPINION BRYNER, Chief Judge. Eirik P. Petersen was charged with one count of sexual abuse of a minor in the first degree, AS 11.41.434, and two counts of sexual abuse of a minor in the second degree, AS 11.41.436. The first-degree sexual abuse charge and one of the second-degree sexual abuse charges related to Petersen's six-year-old niece, M.B. The remaining second-degree sexual abuse charge related to another six-year-old niece, S.K. The second-degree sexual abuse charge involving M.B. was dismissed. Petersen was convicted by a jury of the second-degree sexual abuse charge relating to S.K.; he was acquitted of the first-degree sexual abuse charge relating to M.B. Petersen appeals, contending that the trial court erred in failing to dismiss his case for violation of Alaska's speedy trial rule. Petersen also contends that the court erred in failing to dismiss the count of the indictment relating to S.K. due to the prosecution's reliance on hearsay before the grand jury. Finally, Petersen argues that the court erred in refusing to sever the charges involving M.B. from the charge involving S.K. We affirm. Petersen was arrested on November 10, 1986, and initially entered a plea of not guilty. On May 11, 1987, he changed his plea to no contest. While awaiting sentencing, Petersen moved to withdraw the no contest plea and reinstate his original plea of not guilty. His motion was granted on August 3,1987. Eighteen days later, on August 20, 1987, Petersen moved for a continuance and entered a waiver of speedy trial for the resulting period of delay. On October 2, 1987, the state moved for reconsideration of the order allowing Petersen to withdraw his no contest plea. The court granted the state's motion for reconsideration on October 22, 1987; Petersen's no contest plea was thus reinstated. Almost nine months later, on August 11, 1988, Petersen was again allowed to withdraw his no contest plea (Petersen's sentence had not yet been imposed). On August 22, 1988, Petersen moved for a continuance until December 5, expressly waiving his right to a speedy trial until that time. Thereafter, Petersen filed motions to dismiss and to sever. The court eventually dismissed the two counts relating to M.B. pursuant to an oral order, January 24, 1989, signed on April 5, 1989. The state reindicted on these counts on February 9, 1989. After reconsideration, the court reinstated the first-degree sexual abuse charge relating to M.B., and denied Petersen's motion to sever the charges relating to M.B. and S.K. On January 23, 1989, Petersen moved to dismiss his charges, alleging a violation of his right to be tried within 120 days of his arrest, as provided for under Alaska Rule of Criminal Procedure 45. Judge Katz de nied Petersen's motion; allowing for various periods excludable under Alaska R.Crim.P. 45(d), Judge Katz calculated that seventeen days remained before the 120-day speedy trial period expired. Petersen challenged this ruling on appeal, arguing that Judge Katz erred with respect to several excluded periods of delay. Petersen maintained that, with proper computation of excluded periods, 131 days had elapsed — eleven days over the allowable speedy trial limit. The state disputed Petersen's computation of excludable delay, arguing that a total of only 94 days had elapsed under the speedy trial rule. In their original briefs, however, both Petersen and the state assumed that the speedy trial rule had commenced running immediately on both occasions when the superior court allowed Petersen to withdraw his no contest plea. We directed supplemental briefing on the following issue: When the defendant in a criminal case withdraws a plea of no contest or guilty, should the speedy trial rule be deemed to commence running again on the date withdrawal is allowed, or should a reasonable period of time be excluded to allow the case to be restored to the calendar and to accommodate the state's need to marshall its resources and prepare anew for trial? Having reviewed the supplemental briefs, we conclude that this case is controlled by our decision in Sundberg v. State, 657 P.2d 843 (Alaska App.1982), modified on reh'g, 667 P.2d 1268 (Alaska App.1983). Sundberg dealt with the 120-day speedy trial period in the context of a case that had been interrupted twice by petitions for interlocutory appellate review by the Alaska Supreme Court. On appeal, this court considered the amount of delay properly excludable as a result of the petitions, an issue that required us to construe Alaska R.Crim.P. 45(d)(1), which provides: (d) Excluded Periods. The following periods shall be excluded in computing the time for trial: (1) 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.... We interpreted the statutory phrase "delay resulting from other proceedings concerning the defendant" to encompass not only the actual period when the petitions for review in Sundberg were pending, but also "all subsequent delay which [was] occasioned by and attributable to" the petitions. Sundberg, 657 P.2d at 846 (quoting Russell v. Anchorage, 626 P.2d 586, 589 (Alaska App.1981)). Our original Sundberg opinion held that the state would be required to present evidence in each case establishing the "specific period of time [that] was necessary to gather its witnesses and proceed to trial." Sundberg, 657 P.2d at 846. We concluded that, absent such evidence, no period could be excluded beyond the time during which the petition for review was actually pending. Id. In dissent, Judge Coats argued for an automatic thirty-day exclusion: [A] thirty-day period of delay in addition to the time the case was actually pending in the supreme court would be a reasonable period of additional delay to attribute to that petition for review. I conclude that the trial judge could assume this period of delay resulted from the . petition for review without any additional proof from the state. Id. at 849 n. 1. Following a petition for rehearing, we modified our original opinion, adopting the position originally advocated in Judge Coats' dissent. We held that, in the absence of specific proof, a thirty-day period in addition to the time during which each of Sundberg's petitions was pending could properly be excluded under Alaska R.Crim.P. 45(d)(1). Sundberg, 667 P.2d at 1270. In support of this conclusion, we stated: Common sense leads us to conclude that a trial court cannot immediately plug a case into its trial calendar after a remand. Some time is needed to ensure that the remanded case is worked into the trial calendar; the calendar may already contain a number of criminal cases equally entitled to consideration under Criminal Rule 45. In addition, the prosecution will need a reasonable time to marshall its witnesses, whether local or out of state, and adjust the remanded case to its own calendar of criminal cases, some of which may have Criminal Rule 45 claims. Id. The circumstances of the present case are directly analogous to those in Sund-berg, and we see no reason to reach a result different from the one we reached there. Petersen attempts to distinguish Sundberg by pointing out that the present case involves delays resulting from withdrawal of a no contest plea, not from the filing of a petition for review. This is a distinction without a difference. Petersen's case was twice interrupted by the entry of no contest pleas, which effectively terminated active prosecution of his charges. Both interruptions were for significant periods of time. Here, as in Sund-berg, it would be unreasonable to expect the trial court, upon reinstatement of active prosecution, to be capable of immediately reinstating Petersen's case on the trial calendar. And here, as in Sundberg, we believe that "a reasonable time should be allowed the court and prosecution to get the case back on the calendar before Criminal Rule 45 begins to run...." Sundberg, 667 P.2d at 1270. Petersen argues that no time beyond the date upon which his no contest pleas were withdrawn should be excluded absent proof that withdrawal of the pleas actually necessitated the delay. This argument, however, is virtually identical to the argument that we considered and rejected on rehearing in Sundberg. When a defendant is allowed to reinstate a plea of not guilty a substantial period of time after entering a plea of guilty or no contest, "it seems clear that at least an additional thirty-day period of time should be allowed to restart the proceedings_" Sundberg, 667 P.2d at 1270. To hold otherwise would, in our view, serve only to discourage trial judges from permitting defendants to withdraw pleas of guilty or no contest, and to encourage unnecessary, delay-generating litigation on the appropriate period of exclusion in each case of a plea withdrawal. Applying the Sundberg rationale to the circumstances of the present case, we conclude that Petersen's speedy trial right was not violated. Petersen's speedy-trial computation assumes that, on both occasions when the court allowed him to withdraw his plea of no contest, the 120-day period began to run immediately. By Petersen's own reckoning, no more than 131 days of unexcluded delay occurred prior to his trial. Even assuming Petersen is correct in all other aspects of his computation, deducting the additional periods excludable under Sundberg brings Petersen's case well within the permissible 120-day speedy-trial limit. Accordingly, the trial court did not err in denying Petersen's motion to dismiss on speedy trial grounds. . Petersen's two remaining claims require only brief discussion. Petersen claims that the superior court erred in refusing to dismiss the count of his indictment relating to S.K. because the state presented the grand jury with a video tape of an interview with S.K., instead of live testimony. The superior court's order denying the motion to dismiss this charge was based on the court's conclusion that the video tape was sufficiently reliable and corroborated to warrant admission before the grand jury under AS 12.40.110(a): Hearsay evidence in prosecutions for sexual offenses, (a) In a prosecution for an offense under AS 11.41.410-11.41.440 or 11.41.455, hearsay evidence of a statement related to the offense, not otherwise admissible, made by a child who is the victim of the offense may be admitted into evidence before the grand jury if (1) the circumstances of the statement indicate its reliability; (2) the child is under 10 years of age when the hearsay evidence is sought to be admitted; (3) additional evidence is introduced to corroborate the statement; and (4) the child testifies at the grand jury proceeding or the child will be available to testify at trial. Having reviewed the record, we are satisfied that the superior court did not abuse its discretion in determining the admissibility of this evidence before the grand jury. See, e.g., Murray v. State, 770 P.2d 1131, 1136 (Alaska App.1989). Cf. In the Matter of A.S.W. and E.W., 834 P.2d 801, (Alaska 1992). Petersen further contends that the superior court erred in refusing to sever the charge relating to S.K. from the charges relating to M.B. In our view, however, the issue is controlled by Coleman v. State, 621 P.2d 869, 874-75 (Alaska 1980). At the time the trial court issued its order denying Petersen's motion to sever, Petersen was apparently contemplating a defense of accident or inadvertence to the second-degree sexual abuse charges. Petersen expressly declined the court's invitation to stipulate that he did not intend to rely on such a defense. For this reason, under Coleman, the court did not abuse its discretion in ordering continued joinder. Petersen ultimately decided not to defend on the basis of accident or inadvertence. However, at no point did he renew his request for severance. Under the circumstances, the trial court's failure to order severance sua sponte did not amount to plain error. Cf. United States v. Jordan, 602 F.2d 171 (8th Cir.1979). The judgment of conviction is AFFIRMED. MANNHEIMER, J., not participating. . Relying on Russell v. Anchorage, 626 P.2d 586 (Alaska App.1981), the state argues that the 120-day speedy trial period should commence running anew when a defendant is allowed to withdraw a plea of guilty or no contest. For the reasons expressed in our initial opinion in Sundberg, 657 P.2d at 846-48, we decline to hold that reinstatement of a not guilty plea should automatically trigger a new 120-day period. We nevertheless note that our adoption in the present case of 30 days as a presumptively reasonable period of additional delay assumes the absence of specific evidence justifying exclusion of a greater period. In Russell, the defendant failed to appear for court. A substantial period of time elapsed before his eventual arrest on a bench warrant. We held that the specific circumstances of the case justified commencement of a new 120-day period. Similarly, in cases involving withdrawal of a no contest or guilty plea, we would not foreclose the exclusion of a period in excess of 30 days under Alaska R.Crim.P. 45(d)(1) if exclusion of an extended period were supported by case-specific evidence. . Petersen's first motion to withdraw his no contest plea was granted on August 3, 1987. Eighteen days later, on August 21, Petersen moved for a continuance and entered into an express waiver tolling the 120-day speedy trial period from that date forward. Under Sund-berg, the eighteen day period between August 3 and August 21 must also be excluded as "delay resulting from other proceedings concerning the defendant." Alaska R.Crim.P. 45(d)(1). Similarly, Petersen's second motion to withdraw his no contest plea was granted on August 11, 1988. Eleven days later, on August 22, Petersen moved for a continuance, thereby tolling the speedy trial rule. The eleven days between August 11 and August 22 must also be excluded under Sundberg. . Petersen points out that a claim of accident or inadvertence is unavailable to a defendant charged with sexual abuse of a minor in the first degree. See Pletnikoff v. State, 719 P.2d 1039, 1044 n. 4 (Alaska App.1986). On this basis, he contends that joinder could not properly have been based on his anticipated reliance on a defense of accident or inadvertence. However, Petersen would not have been barred from raising a defense of accident or inadvertence to the charge of second-degree sexual abuse involving S.K. Evidence of his abuse of M.B. would be admissible to counteract such a defense. Although the unavailability of an accident defense to the first-degree sexual abuse charge involving M.B. would have rendered evidence of his abuse of S.K. irrelevant and not cross-admissible as to that charge, and would thereby arguably have justified severance, Petersen's acquittal on the first-degree sexual abuse charge renders any error harmless.

10361318

Stephen R. CARVALHO, Appellant, v. Denise D. CARVALHO, Appellee

Carvalho v. Carvalho

1992-09-04

No. S-4029

259

263

838 P.2d 259

838

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:22:06.660714+00:00

CAP

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

Stephen R. CARVALHO, Appellant, v. Denise D. CARVALHO, Appellee.

Stephen R. CARVALHO, Appellant, v. Denise D. CARVALHO, Appellee. No. S-4029. Supreme Court of Alaska. Sept. 4, 1992. Allison E. Mendel, Mendel & Huntington, Anchorage, for appellant. Charlene A. Lichtmann, Law Offices of Charlene Lichtmann, Anchorage, for appel-lee. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

2752

16906

OPINION BURKE, Justice. I. FACTS & PROCEEDINGS Stephen and Denise Carvalho were divorced in 1981. Pursuant to their divorce settlement, Denise received sole custody of the parties' two children, and Stephen was ordered to pay $600.00 a month in child support. On February 22, 1990, Denise initiated this action seeking $36,789.00 in child support arrears. Her motion for arrears was supported by affidavits and exhibits. On March 15, 1990, Stephen filed a request for hearing and an opposition to Denise's motion. The opposition contested the total amount Stephen owed as well as the amount he had previously paid. An affida vit from Stephen's present wife, Jessica Carvalho, supported the opposition, but Stephen did not file an affidavit himself. Stephen requested a hearing "so that the contested factual matters may be resolved by a Judge." Judge Madsen granted the request for a hearing. A hearing was set for April 17, 1990, in Kodiak. On April 16, Denise filed a reply to Stephen's opposition and a motion to participate in the hearing telephonically pursuant to Alaska Civil Rule 99. Judge Madsen granted her Rule 99 motion on the day of the hearing. Stephen did not file a motion to participate telephonically but did submit, on the day of the hearing, a child support guidelines affidavit with attachments. Denise and Stephen both lived outside Alaska during this period. At the hearing, only Judge Madsen was physically present in the courtroom; all the other participants were on the telephone. The telephone participants included Denise, Ms. Lichtmann (Denise's attorney), and Ms. Mendel (Stephen's attorney). Stephen was not listening on the telephone but was apparently available and willing to testify at the hearing. The hearing consisted entirely of the attorneys' oral argument. The attorneys referred the judge to the affidavits and mem-oranda which they had previously submitted to the court. After both attorneys had stated their positions, Ms. Mendel attempted to present evidence as to the disputed child support issues. The following exchange occurred: Ms. Mendel: Your honor, may I address the evidentiary issue? The Court: I think you've had your opportunity, Ms. Mendel. Ms. Mendel: Well, I just want the Court to be aware that my client, although he's not on the phone now, he's available to testify now. The Court: Well, you should have made arrangements before now to put on any testimony, or submit anything further. It's a little bit late in the.... Ms. Mendel: Well, my understanding with Ms. Lichtmann was that we were doing this hearing telephonically, and he is available by telephone to testify. Ms. Lichtmann: Your Honor, I have been told in many conversations that Mr. Car-valho is not available. There was an extension granted already in this case because Mr. Carvalho was out in the Bush somewhere. It seems that he's available when they need him, but not when we need him to have him testify. They've had weeks to get ready for this hearing, and it's too late for them to present his testimony now. The Court: Well, it was my understanding that this was on for oral arguments, not for a hearing. Ms. Mendel: Your Honor, it was my understanding the reason that we put off this hearing was because we were having an evidentiary hearing on the merits. And, furthermore,, it's incorrect that there's nothing in the record; there is an Affidavit from Mrs. Carvalho [i.e., Jessica Carvalho] who, you know, was equally in control of a financial situation. It's not an incompetent Affidavit, and he has submitted his child support guidelines Affidavit. It's not at all true that the file is devoid of any opposition. He's available to testify. We were under the understanding that this was an evidentiary hearing. If that's not the Court's understanding that's fine, but that's what we're prepared to do. Judge Madsen never responded to Ms. Mendel's offers to present evidence. Without indicating the facts upon which he based his decision, Judge Madsen orally entered a judgment for $41,220.00 in child support arrears and indicated that he would sign an income withholding order. In May 1990, Denise submitted to the court a prejudgment computation sheet which listed $41,220.00 in child support arrears as of the date of the hearing plus $14,883.65 accrued interest (from July 1,1982, to April 30, 1990) for a total judgment of $56,-103.65. On May 18, 1990, Judge Madsen signed without comment Denise's proposed "Judgment for Child Support Arrears and Order to Withhold and Deliver Property." Stephen appealed the judgment and sought a stay of execution. The record does not reveal whether the trial court granted the stay. However, Stephen maintains on appeal that funds to satisfy the judgment have already been deducted from his paycheck and sent to Denise. II. DISCUSSION Stephen argues that he was deprived of a substantial property interest without being allowed to participate in the hearing or defend himself. He claims that his counsel did not specifically object to the lack of opportunity to call or cross-examine Denise because the trial court had already ruled that the hearing was limited to oral argument. Finally, Stephen argues that he had no opportunity to defend himself at a later execution of judgment proceeding because the income withholding order was such that money to satisfy the judgment was deducted directly from his paycheck. Stephen cites two cases, Johnson v. Johnson, 544 P.2d 65 (Alaska 1975), and Ryfeul v. Ryfeul, 650 P.2d 369 (Alaska 1982), in support of his due process argument. In Johnson, a trial judge summarily modified a divorce decree without allowing the parties an opportunity to brief the issues or conduct oral argument. Johnson 544 P.2d at 68. Prior to the trial court's decision, Ms. Johnson had moved to reduce alimony and child support arrears to judgment. Id. The trial court appointed a trustee and ordered, inter alia, that the trustee "was to do everything necessary to collect arrearages in both alimony and child support" and use the arrearages to offset losses to a trust which had been established for the education of the parties' children. Id. Ms. Johnson was unhappy with certain aspects of the modified decree and moved the trial court to reconsider its decision. After full briefing and oral argument, the trial court denied her motion. Id. Ms. Johnson appéaled claiming that the trial judge's summary manner in initially modifying the decree and ordering ar-rearages to be used to compensate the trust deprived her of a property interest without due process of law. Johnson, 544 P.2d at 70. We explained that procedural due process under the state constitution requires "notice and opportunity for hearing appropriate to the nature of the case." Id. (quoting Aguchak v. Montgomery Ward Co., 520 P.2d 1352, 1356 (Alaska 1974)). We further noted that the due process clause of the federal constitution requires that every person 'shall have the protection of [a] day in court, and the benefit of the general law, a law which hears before it condemns, which proceeds not arbitrarily or capriciously, but upon inquiry, and renders judgment only after a trial....' More specifically, due process requires notice and an opportunity to be heard prior to the deprivation of a property interest protected by the fourteenth amendment. Johnson, 544 P.2d at 70 (quoting Truax v. Carrigan, 257 U.S. 312, 332, 42 S.Ct. 124, 129, 66 L.Ed. 254 (1921)) (footnote omitted). We went on to state that had Ms. Johnson appealed the trial court's decision directly "the due process violation would have been readily established, and the necessity of remand clear." Johnson, 544 P.2d at 71. However, we noted that Ms. Johnson had moved for reconsideration and had an opportunity to brief the issues and orally argue "substantially the same arguments she has made before this court on appeal." Id. Therefore we concluded that Ms. Johnson was afforded her day in court. Under the particular facts of this case where the trial court was enforcing the terms of the prior decree, ample opportunity was afforded to brief and argue the merits and to introduce any evidence tending to disprove any of the trial judge's adverse findings. Id. (emphasis added). In Ryfeul, we concluded that a custody modification proceeding held in a father's absence was a violation of the father's due process rights where the trial court knew that the father had attempted to attend the hearing but was arrested on an outstanding bench warrant when he entered the courthouse. Ryfeul, 650 P.2d at 372. We emphasized the "relative ease with which his presence could have been secured, and the importance of the questions at issue in the modification hearing." Id. Stephen argues that he was similarly denied an opportunity to participate in the hearing because the trial court refused to admit his telephonic testimony. Ryfeul may be distinguished from the present case because Stephen did not attempt to physically attend the hearing nor did he file a motion to telephonically participate prior to the hearing as required by Civil Rule 99. Cf. Ryfeul, 650 P.2d at 374 (where the husband's "failure to attend the modification hearing was not negligent or intentional but was caused by factors beyond his immediate control"). However, given that Stephen was apparently available to testify by telephone and the desirability of allowing him a meaningful opportunity to present his defenses, we conclude that the trial court abused its discretion by refusing to allow him to testify. In Ry-feul we stated that "absent compelling circumstances to the contrary, a party to a proceeding like the hearing in this case has the right to be present, regardless of whether he is in a position to affect the outcome of the proceeding." Ryfeul, 650 P.2d at 374 (emphasis added). It is perhaps not surprising that Judge Madsen assumed that the hearing was only open for oral argument. Stephen acquiesced to a telephonic hearing in which neither party was physically present in the courtroom; such a proceeding does not lend itself to the give and take of evidence. Also, Stephen's attorney could and should have been more forceful in directing the court's attention to its order granting Stephen's request for an eviden-tiary hearing. See In re C.L.T., 597 P.2d 518, 522 (Alaska 1979) ("By consenting to certain procedures or by failing to object to others, a party may waive those rights which are arguably encompassed within due process guarantees."). Finally, we recognize that in a proceeding to collect past due child support some procedural safeguards are reasonably eased to ensure that the child's welfare is protected. Id. at 523 (quoting Otton v. Zaborac, 525 P.2d 537, 539 (Alaska 1974)) ("Due process is flexible, and the concept should be applied in a manner which is appropriate [to] the nature of the proceeding."). However, even taking these factors into account, we must conclude that the trial court's refusal to admit Stephen's testimony or take other evidence at the hearing deprived Stephen of a meaningful opportunity to be heard. See Johnson, 544 P.2d at 70; see also Malone v. Malone, 591 P.2d 296, 298 (Okla.1979) ("Due process requires an orderly proceeding adapted to the case in which the parties have an opportunity to be heard, and to defend, enforce and protect their rights."); In re Moseley, 34 Wash.App. 179, 660 P.2d 315, 318 (1983) ("Notice, open testimony, time to prepare and respond to charges, and a meaningful hearing before a competent tribunal in an orderly proceeding are all elements of civil due process."). This case clearly involved contested facts. Stephen's only opportunity to present live testimony or to cross-examine Denise came at the hearing. See Malone, 591 P.2d at 298 ("Where important decisions turn on questions of fact, due process requires an opportunity, in almost every situation, to confront and cross-examine adverse witnesses."). Based on these considerations, we vacate the judgment and remand the case for further proceedings. The trial court should also enter findings of fact supporting its final judgment. See Alaska R.Civ.P. 52(a). REVERSED and REMANDED. . A proceeding to collect past due child support is governed by AS 25.27.226 (1991), formerly AS 47.23.226. The statute provides that if a custodial parent has filed a motion for arrears with a supporting affidavit and together with "notice of the obligor's right to respond," the obligor must respond: no later than 15 days after service by filing an affidavit with the court. If the obligor's affidavit states that the obligor has paid any of the amounts claimed to be delinquent, describes in detail the method of payment or offers any other defense to the petition, then the obligor is entitled to a hearing. After the hearing, if any, the court shall enter a judgment for the amount of money owed. If the obligor does not file an affidavit under this section, the court shall enter a default judgment against the obligor. Id.; see also AS 25.27.225 (providing that periodic support payments become vested judgments "when each payment becomes due and unpaid"). . Denise's reply claimed that Stephen's opposition was deficient under AS 25.27.226 because he did not file an affidavit himself, relying instead on his wife's affidavit. Denise requested that the trial court enter a default judgment. . The judgment lists the principal sum as $41,-221.00. The dollar discrepancy between the oral and written judgments appears to be a typographical error. . The determination whether a state action or procedure violates the due process protections of the state and federal constitutions is a question of law, and we review the matter using our independent judgment. See Property Owners Ass'n of the Highland Subdivision v. City of Ketchikan, 781 P.2d 567, 571 (Alaska 1989). . In addition, Stephen raises two arguments in his brief that he did not argue below or include in his points on appeal. First, he argues that service of process was defective under AS 25.-27.226 because Denise did not inform him of his right to respond to the motion. Second, he argues that the income withholding order which allowed for an employer deduction of 55% of Stephen's disposable income and a direct payment to Denise violated AS 25.27.062 and 25.27.-250. We need not address these issues here because Stephen has failed to preserve them for appeal. See Alaska R.App.P. 210 (appellate court will only consider issues and arguments included in points on appeal); see also Wetzler v. Wetzler, 570 P.2d 741, 742 n. 2 (Alaska 1977) (supreme court will not consider issues that are argued in brief but not set forth in points on appeal). . In this case, Stephen has appealed Judge Mad-sen's decision directly. Furthermore, Judge Madsen did not provide the factual findings upon which he based his decision. Even if it is assumed that the judge implicitly found Denise's affidavits and supporting documents entirely credible and Stephen's affidavits incredible, Stephen was denied an opportunity to introduce evidence, other than pre-hearing affidavits, which tended to disprove any of the trial court's adverse findings. . Alaska Civil Rule 94 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. See, e.g., Gregg v. Gregg, 776 P.2d 1041, 1042 (Alaska 1989) (where trial court relaxed the technical requirements of Rule 99). We have held that a trial court may abuse its discretion by failing to relax procedural rules in circumstances where a strict adherence to the rule does not advance the rule's objective and results in a denial of substantial justice. See Palzer v. Serv-U Meat Co., 419 P.2d 201, 206 (Alaska 1966). . Although Judge Madsen assumed the hearing was limited to oral argument, his order did not inform Stephen of this limitation. In fact, given Stephen's request for a hearing so that "contested factual matters may be resolved by a Judge," Judge Madsen's order must be construed as granting an evidentiary hearing. Denise argues on appeal that Stephen was not entitled to an evidentiary hearing because he failed to file his own affidavit in response to her motion for arrears. We need not address this argument because any defect in Stephen's opposition was cured by Judge Madsen's order granting the hearing and Denise's failure to object or file a cross-appeal. See In re C.L.T., 597 P.2d 518, 522 (Alaska 1979).

10380222

Debra L. JOHNSON, Appellant, v. George E. SIEGFRIED, M.D., Appellee

Johnson v. Siegfried

1992-10-02

No. S-4721

1252

1257

838 P.2d 1252

838

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:22:06.660714+00:00

CAP

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

Debra L. JOHNSON, Appellant, v. George E. SIEGFRIED, M.D., Appellee.

Debra L. JOHNSON, Appellant, v. George E. SIEGFRIED, M.D., Appellee. No. S-4721. Supreme Court of Alaska. Oct. 2, 1992. Rehearing Denied Oct. 29, 1992. Ralph D. Pittle, Medical Legal Consultants of Washington, Seattle, Wash., and Brett von Gemmingen, Anchorage, for appellant. Matthew K. Peterson, Hughes, Thorsness, Gantz, Powell & Brundin, Anchorage, for appellee. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

2559

15361

OPINION COMPTON, Justice. I. FACTUAL AND PROCEDURAL BACKGROUND On May 10, 1989, Debra Lee Johnson filed a complaint pro se against George Siegfried, M.D., alleging medical malpractice occurring in the performance of liposuction on May 12, 1987. Service of process was not made on Siegfried at that time. On May 30, 1990, a Notice and Order of Dismissal was issued pursuant to Alaska Rule of Civil Procedure 41(e). The notice directed Johnson to "show cause in writing within 30 days why this case should not be dismissed" for lack of prosecution. Johnson responded by letter on June 28, 1990 explaining that she was suffering from depression and had moved to Seattle to pursue a college degree. She also noted that she had been recovering from mycoplasmic pneumonia and laryngitis for six months. She requested additional time to obtain counsel and pursue her claim. On July 3, 1990, Judge Brian Shortell signed an order granting Johnson 180 days "to take action to prepare her case for trial." The order further provided that the court would review the case in 180 days and dismiss it pursuant to Civil Rule 41(e) "if no proceedings have been taken during that time." Johnson obtained counsel in Seattle who agreed to investigate her case and determine whether to represent her. Between August and November Johnson's counsel sent three letters to Siegfried requesting Johnson's medical records. The records were not sent to counsel until the end of December. Johnson's Seattle counsel, and Anchorage counsel retained by him, also prepared a summons, an amended complaint and an application for an appearance by an out of state counsel to be filed forthwith if they determined that Johnson's claim had merit. The documents were filed on December 28, prior to receipt of the medical records on December 31. A summons was issued by the clerk of court on January 2, 1991, delivered to a process server on January 3, and served on Siegfried along with the complaint on January 10. Siegfried answered and filed a motion to dismiss based on Johnson's failure to prosecute. Judge Peter A. Michalski granted the motion, dismissing the case with prejudice. Johnson appeals. We reverse. II. DISCUSSION A. Standard of Review The determination of whether Johnson's claim was properly dismissed involves interpretation of an order of the trial court. This determination is a question of law to which this court will apply its independent judgment. See Ford v. Municipality of Anchorage, 813 P.2d 654, 655 & n. 2 (Alaska 1991) (noting that interpretation of Civil Rule 41(e) is a question of law, but that the question of whether good cause excused the delay was reviewed under the abuse of discretion standard). This court has applied its independent judgment before when interpreting the term "proceedings" in Civil Rule 41(e). See, e.g., Power Constructors, Inc. v. Acres American, 811 P.2d 1052, 1054 (Alaska 1991); Shiffman v. "K", Inc., 657 P.2d 401, 403-04 (Alaska 1983) (noting that inquiry was not whether trial court had abused its discretion but whether it "lacked discretion to dismiss the case under that Rule"); Zeller v. Poor, 577 P.2d 695, 697 (Alaska 1978). See also First Nat'l Bank of Fairbanks v. Taylor, 488 P.2d 1026, 1031-32 (Alaska 1971) (interpreting "pending in court for more than one year" by applying independent judgment). To the extent that this court examines the merits of the court's dismissal pursuant to the order of Judge Shortell, the examination will be under an abuse of discretion standard. This court will not overturn such an order unless it finds that the trial court abused its discretion. See Power Constructors, 811 P.2d at 1054 (reviewing a Rule 41(e) dismissal). B. Propriety of Dismissal of Johnson's Action Judge Shortell's order granted Johnson a grace period to "prepare her case for trial." That was the Civil Rule 41(e) adjudication. Judge Shortell thus asserted control over the litigation and a subsequent dismissal for failure to prosecute could be made only if the requirements of that order were not met. Siegfried does not contest the validity of that order. Although the order provided potentially for a dismissal pursuant to Civil Rule 41(e), we look only to the requirements of Judge Shortell's order and not to the arguably different requirements of Rule 41(e) in determining whether Judge Michalski's dismissal was proper. We believe that Johnson's actions during the 180 day period sufficiently complied with Judge Shortell's order. Johnson's initial delay was excused by Judge Shortell. Her use of the full 180 day period was authorized. The order was granted so that Johnson would have more time to "prepare her case for trial." Steps taken on and off the record were preparatory for trial. Johnson pursued her claim in one manner or another for most of the 180 day period. She engaged both Washington and local counsel and requested her medical records from Siegfried. Pleadings were prepared in anticipation of a favorable review of the medical records. There was significant activity on the record after the complaint was filed and served on Siegfried before the motion to dismiss was filed. The order conditioned dismissal on a lack of "proceedings." Although, as noted above, we are not analyzing the Rule 41(e) requirements, our previous interpretations of the similar language of that rule are helpful. We do not believe that the "proceedings" required by this order were intended to be any more demanding than "proceedings" required by Rule 41(e). This court has defined "proceeding" as a "step, act or measure of record, by either party, which reflects that the suit is not stagnant." Shiffman, 657 P.2d at 403. A suit is considered stagnant "when to the court it appears that for lack of activity of record neither party has taken the steps, acts or measures to be reasonably expected in the pursuit or defense of the particular cause of action." Id. In this case Johnson's actions on the record during the 180 day period included the filing of the amended complaint and the Application of Non-Resident Attorney for Permission to Appear and Participate in the Supérior Court for the State of Alaska, Third Judicial District, both filed on December 28, 1990. The summons was filed on December 28 and issued on January 2. We conclude that Johnson's actions were sufficient to demonstrate that the case was not stagnant. The amended complaint and the request for appearance both demonstrate that Johnson had a serious determination to pursue her cause of action. These "proceedings" are comparable to those which we have held "terminate the period of lapse" in a Rule 41(e) dismissal. Shiffman, 657 P.2d at 403 (filing of defendant's answer); Zeller, 577 P.2d at 697 (letter requesting a trial date). Cf. Cleary Diving Serv. v. Thomas, Head & Greisen, 688 P.2d 940, 943 (Alaska 1984) (holding that a note asking the court not to dismiss the action was not a sufficient "proceeding"). Siegfried argues that there was no "effective action" during the 180 day period. He notes that the summons was not issued until January 2 and was not served until January 10. He notes further that the amended complaint served on January 10 was defective. However, we do not believe that the "proceedings" requirement, or any other language in the July 3 order, requires specifically that a sufficient complaint be filed or served, but only that measures be taken which are "reasonably expected in the pursuit of the cause of action." See Shiff-man, 657 P.2d at 403. Johnson's actions were sufficient to show that she was moving the case forward and preparing for trial. That is all Judge Shortell's order required. Siegfried argues that the policy underlying the statute of limitations would be contravened by allowing Johnson to proceed. He notes that she did not file her original complaint until two days before the expiration of the limitations period and that she did not serve him with the complaint until 20 months later. He argues that since the object of the statute of limitations is to protect against "the difficulties caused by lost evidence, faded memories and disappearing witnesses," Byrne v. Ogle, 488 P.2d 716, 718 (Alaska 1971), Johnson's delay of over three and one-half years from the surgery until service of the complaint should not be condoned. See Anderson v. Air West, Inc., 542 F.2d 522, 525 (9th Cir.1976) (holding that permitting a delay in service of process when the plaintiff filed immediately prior to the running of the limitations period "undercuts the purposes served by the statute"). However, these concerns are not determinative in this case. Resolution of this case will depend largely on a review of medical records and expert testimony. There is not a significant threat of lost evidence or disappearing witnesses. See Lee Houston & Assoc. v. Racine, 806 P.2d 848, 855 (Alaska 1991) (reasoning that a longer limitations period was appropriate for cases based largely on available documentary evidence). There is no evidence that Siegfried was prejudiced by the delay. We conclude that the trial court abused its discretion in dismissing Johnson's case. She pursued her case continuously, although perhaps not urgently, throughout the 180 day period. The case was obviously moving toward resolution. The dismissal served no purpose, once the case was progressing, except to sanction Johnson for the slow pace at which she initiated the action. See First Nat'l Bank of Fairbanks v. Taylor, 488 P.2d 1026, 1032 (Alaska 1971) (holding that it was "neither necessary or (sic) justifiable to allow dismissal" where the case had seen progress despite an earlier lapse in excess of a year). III. CONCLUSION The trial court's dismissal of Johnson's claim pursuant to Civil Rule 41(e) is REVERSED. . Civil Rule 41(e) provides in part: Actions which have been pending in a court for more than one year without any proceedings having been taken may be dismissed as a matter of course, for want of prosecution, by the court on its own motion or on motion of a party to the action. . Siegfried contends that off the record activity is irrelevant. However, the requirement that activity be on the record is only present in the inquiry into what constitutes "proceedings." See Shiftman v. "K", Inc., 657 P.2d 401, 403 (Alaska 1983). Generally the court, in determining whether to dismiss a suit, should look to any features and circumstances of the litigation including the off the record efforts of the plaintiff. Brown v. State, 526 P.2d 1365, 1368 (Alaska 1974). Siegfried's reliance on Power Constructors, Inc. v. Acres American, 811 P.2d 1052 (Alaska 1991) is thus misplaced. In Power Constructors we rejected the suggestion that a pretrial memorandum filed after the notice of dismissal was a "proceeding." Id. at 1054. We also found that the plaintiffs delay was not excused. Id. Neither of these holdings is relevant in the present case. . Siegfried contends the extension order anticipates a greater degree of activity than does Civil Rule 41(e). He contends that the language of the order allowing Johnson an extension to "prepare her case for trial" contemplated that a valid complaint would be filed and served upon him before the expiration of the extension period. However, the cases cited by Siegfried do not support the proposition that "prepare her case for trial" creates a more demanding burden. In fact, none of those cases use the relevant language. See Zeller, 577 P.2d at 695-98; Atlas Enter. v. Consolidated Construction Co., 572 P.2d 68 (Alaska 1977); First Nat'l Bank of Fairbanks v. Taylor, 488 P.2d 1026 (Alaska 1971); Silverton v. Marler, 389 P.2d 3 (Alaska 1964). .The parties dispute the date on which the 180 day period expired. The order was filed on July 3, 1990, and mailed to the parties on July 5, 1990. Johnson contends that the extension period should run from July 5, pursuant to Alaska Rule of Civil Procedure 58.1(c)(2). The 180th day from July 5, 1990 is January 1, 1991. July 5 is not counted according to Civil Rule 6(a). Since January 1 is a legal holiday, the period extends to January 2, 1991 pursuant to Civil Rule 6(a). Siegfried contends that the period ended on December 31, 1991. Apparently he calculates 180 days from July 3. The 180th day would be December 30, 1990 which was a Sunday. Therefore, pursuant to Civil Rule 6(a), the period would run to December 31, 1990. We assume that his use of December 31, 1991 was a mistake. Civil Rule 58.1(c)(2) applies to the date of notice of written orders. The date of notice is the date on which the time to file a notice of appeal or request for review or reconsideration begins running. Civil Rule 58.1(b). Written orders are considered effective on the date they are entered, that is, the date on which the order is signed. Civil Rule 58.1(a), (a)(2). This case does not involve the filing of a notice of appeal or request for review or reconsideration. The extension period thus began to run on July 3, the day the order was entered. The 180 day period ended on December 31, 1990. . The amended complaint was not in compliance with Civil Rule 15(e), which requires that an amended complaint be "complete in itself' and restate every pleading incorporated from the original complaint. The amended complaint filed on December 28 incorporated many of the allegations of the original complaint by reference only. Siegfried claims that this defect is especially prejudicial here where he was never served with the original complaint. . This case is distinguishable from Silverton v. Marler, 389 P.2d 3 (Alaska 1964). In Silverton, the case was dismissed for failure to prosecute based on an unexcused two year and eight month delay between filing of the complaint and service of process. Id. at 6. Johnson's initial delay was excused by the trial court. Service of process was ultimately accomplished soon after the amended complaint was filed.

10380168

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

Palmer v. Borg-Warner Corp.

1992-09-25

No. S-4101

1243

1252

838 P.2d 1243

838

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:22:06.660714+00:00

CAP

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

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

Lorraine F. PALMER and Edward E. Dillon, Jr., Personal Representatives of the Estate of Merrett P. Palmer, Appellants, v. BORG-WARNER CORPORATION and its Division Marvel-Schebler/Tillotson, Facet Aerospace Products Company, Facet Enterprises, Inc.; and Edward DePriest, Appellees. No. S-4101. Supreme Court of Alaska. Sept. 25, 1992. Sanford M. Gibbs, Hagans, Brown, Gibbs and Moran, Anchorage, Steven D. Smith, Anchorage, and H. Van Z. Lawrence, Fairbanks, for appellants. David T. Hunter and Michael K. Nave, Lane Powell Spears Lubersky, Anchorage, for appellees. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

5762

35768

OPINION COMPTON, Justice. This appeal is from the trial court's denial of an Alaska Civil Rule 60(b) motion for relief from a Judgment of Dismissal. We reverse and direct the court to reconsider the motion. 1. FACTUAL AND PROCEDURAL BACKGROUND On September 8, 1986, a Piper PA-18 aircraft crashed in the Brooks Range, roughly thirty miles south of Umiat. Kenneth Swanson, the pilot, and Merrett P. Palmer, his sole passenger, died in the accident. Palmer's widow was informed of her husband's death at least by September 11, 1986. On October 1, 1986, the aircraft's engine was removed by helicopter from the scene of the crash and later transported to Fairbanks. The National Transportation Safety Board (NTSB) then began an investigation into the cause of the crash, issuing its findings in July 1987. The NTSB's report concluded that there was probable cause to believe that the crash was caused by pilot error. The report noted that the "engine teardown revealed only impact and fire damage." The report also noted that the "carburetor was intact and showed no signs of external damage other than heat damage" and that the "carburetor was equipped with a fibre composite float which was heavily damaged by the fire." On July 30, 1987, the personal representatives of the Palmer estate filed a wrongful death action against the estate of Kenneth Swanson and his employer, Dennis Reiner, alleging negligent operation of the aircraft. In November the Swanson estate answered, asserting inter alia, that (a) third parties were responsible for the accident; and (b) the Palmer estate had failed to join indispensable third parties. Neither the basis for the third parties' liability nor the third parties were identified. On September 7, 1988, one day before the second anniversary of the crash, Swanson's estate filed a wrongful death action against the Borg-Warner Corporation (Borg-Warner), the carburetor manufacturer, specifically alleging that a defective carburetor caused the crash. On September 19, 1988, the Palmer estate, after learning that the cause of the crash was more likely a defective carburetor float than pilot error, agreed to the dismissal of its suit against the Swanson estate and Reiner. The Palmer estate filed suit against Borg-Warner the next day, two years and nine days after Palmer's widow first learned of the accident. Borg-Warner moved for summary judgment against the Palmer estate, arguing that the estate's suit for wrongful death was barred by the two-year statute of limitations provided in AS 09.10.070. The Palmer estate filed a cross-motion for partial summary judgment arguing that "[a]s of September 20, 1986, Plaintiffs did not know, nor could they have reasonably been expected to know, that the carburetor of the aircraft . may have been defective." The estate claimed that its suit against the manufacturer was timely. On March 14, 1989, the superior court granted summary judgment for Borg-Warner, ruling the claim time-barred as a matter of law. An Order of Dismissal was entered against the Palmer estate, and the estate appealed. We affirmed the superior court's dismissal, ruling that the estate's suit against Borg-Warner was untimely filed. Palmer v. Borg-Warner Corp., 818 P.2d 632, 636-37 (Alaska 1990) [Palmer I). Alleged fraudulent concealment of the cause of the crash was not then an issue at either the trial or appellate level. In February 1990, after a two-week bench trial in the Swanson estate's suit, Judge Hodges issued a memorandum decision and findings of fact and conclusions of law. He found that: [T]he float in the carburetor of the Swanson aircraft absorbed fuel becoming heavy and sinking causing a sudden unexpected engine failure; the absorption of the fuel by the float was a result of a defect in the manufacturing process or a change in the structure of the float over time; the product was defective at the time it was manufactured or did not perform as a reasonable consumer would expect under normal use. Judge Hodges held Facet Enterprises, Inc. (Facet) legally responsible for the death of Kenneth Swanson due to Facet's failure "to manufacture a carburetor and carburetor float that would perform in a manner that a reasonable consumer would expect." He also found by clear and convincing evidence that: Facet knew that some 30-628 and 30-759 Rogers composite floats contained an open cell structure as a result of the manufacturing process; that they knew these floats would absorb fuel and become "heavy"; that they knew a heavy carburetor float would adversely affect the performance of the aircraft engine in which it was installed; that they knew this could cause an unexpected loss of power while in flight; that although they suspected the use of auto gas adversely affected the properties of a Rogers' composite float, none of the tests conducted by them substantiated this; that in spite of the lack of evidence, they published to the FAA, the engine manufacturer and the public, as fact, that auto gas had an adverse affect on the Rogers' composite float; that the estimated cost of changing the existing composite floats to metal floats was approximately 23 million dollars; that if Facet could convince the FAA to issue an AD requiring replacement of the composite floats with metal floats, this cost would be borne by the consumers; that if a manufacturing defect was acknowledged, it is probable that the cost would have been borne by Facet and/or Rogers; that Facet concealed from the consumers (the engine manufacturer, the airplane manufacturer, and the ultimate user) the fact that some floats in use had open-cell structures which were formed during the manufacturing process; that this failure to disclose is outrageous conduct and a reckless disregard of the rights of others entitling Swanson to an award of punitive damages. Borg-Warner settled with the Swanson estate prior to entry of final judgment, and the suit was dismissed with prejudice pursuant to stipulation. On April 23,1990, the Palmer estate filed a Civil Rule 60(b) motion for relief from judgment. The Palmer estate argued that the finding in the Swanson estate's case that Borg-Warner had engaged in misconduct by concealing from the public the cause of carburetor failure, required that the earlier judgment dismissing the Palmer estate's case be vacated. Judge Hodges denied this motion without comment, findings or conclusions. The Palmer estate appeals. II. ELEMENTS REQUIRED TO SET ASIDE A JUDGMENT UNDER RULE 60(b)(2) Civil Rule 60(b)(2) provides that a court may relieve a party from a final judgment because of "newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b)." Motions for relief from judgment under Rule 60(b) are left to the sound discretion of the trial court and will be reversed on appeal only for an abuse of discretion. Babinec v. Yabuki, 799 P.2d 1325, 1332 (Alaska 1990); Nordin Const. Co. v. City of Nome, 489 P.2d 455, 472 (Alaska 1971). Abuse of discretion exists "only where the appellate court is left with a definite and firm conviction on the whole record that the trial judge has made a mistake." Babinec, 799 P.2d at 1332. We articulated the elements required to set aside a judgment under Rule 60(b)(2) in Montgomery Ward v. Thomas, 394 P.2d 774, 776 (Alaska 1964). [T]he evidence: (1) must be such as would probably change the result on a new trial; (2) must have been discovered since the trial; (3) must be of such a nature that it could not have been discovered before trial by due diligence; (4) must be material; (5) must not be merely cumulative or impeaching. Id. The parties disagree whether evidence of Borg-Warner's allegedly fraudulent concealment of the cause of the crash would change the result in a new proceeding. The Palmer estate argues that Borg-Warner's allegedly fraudulent concealment would change the result "since counsel could have argued that equitable estoppel prevented Borg-Warner from asserting the statute of limitations defense upon which the case was dismissed." This case is complicated because that evidence of fraudulent concealment is presented in the context of a motion for relief from a final judgment under Rule 60(b)(2). Typically, a plaintiff would raise evidence of fraudulent concealment in response to a defendant's argument that the statute of limitations was a defense to the plaintiff's claims. In this case, to determine whether the court abused its discretion when it denied the Palmer estate's Rule 60(b)(2) motion, we must determine whether evidence of fraudulent concealment and the doctrine of equitable estoppel would probably change the result in a new proceeding. We will later return to a discussion of the other Rule 60(b)(2) requirements. A. FRAUDULENT CONCEALMENT AND EQUITABLE ESTOPPEL. "[A] party who fraudulently conceals from a plaintiff the existence of a cause of action may be estopped to plead the statute of limitation if the plaintiff's delay in bringing suit was occasioned by reliance on the false or fraudulent representation." Sharrow v. Archer, 658 P.2d 1331, 1333 (Alaska 1983) (quoting Chief v. Stern, 561 P.2d 1216, 1217 (Alaska 1977)). See also Pedersen v. Zielski, 822 P.2d 903, 908-09 (Alaska 1991); Russell v. Municipality of Anchorage, 743 P.2d 372, 376 (Alaska 1987). Equitable estoppel generally requires that "the party seeking to assert it show that the other party made some misrepresentation, or false statement, or acted fraudulently and that he reasonably relied on such acts or representations of the other party, and due to such reliance did not institute suit timely." Groseth v. Ness, 421 P.2d 624, 632 n. 23 (Alaska 1966). 1. Reliance as an Element of Equitable Estoppel. Borg-Warner argues that the Palmer estate failed to meet the reliance requirement of equitable estoppel, and therefore Judge Hodges' finding of fraudulent concealment in Swanson would not change the result at a new proceeding in Palmer. Specifically, Borg-Warner contends that the estate has not pled facts which could show that Borg-Warner's conduct in any way caused the estate's late filing. We find Borg-Warner's argument unpersuasive and conclude that Palmer's pleadings satisfy the reliance element of equitable estoppel. In making this analysis we rely to some extent on authorities discussing the tort of deceit, a claim which is not pled in this case. However, estoppel based on intentional misrepresentation has important elements in common with deceit: knowing false representation; justifiable reliance; and damage. W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 105 at 728, 733-34 (5th ed. 1984). Palmer could have filed a claim for deceit instead of or in addition to the 60(b) motion, claiming the loss of its cause of action through the running of the statute of limitations because of Borg-Warner's misrepresentation. In important respects Palmer has made such a claim defensively in the context of its equitable estoppel claim. Relevant to our discussion is Anson v. American Motors Corp., 155 Ariz. 420, 747 P.2d 581 (App.1987), cited in Mine Safety Appliances Co. v. Stiles, 756 P.2d 288, 292 n. 4 (Alaska 1988). In Anson the trial court granted American Motors' motion to dismiss a wrongful death action against it on the ground that the action was filed after the statute of limitations had expired. On appeal, appellants claimed that "American Motors through its agents made representations to the public concerning the safety and 'ruggedness' of the Jeep CJ that concealed defects of the product and induced reliance by the appellants" and therefore the statute of limitations was tolled. Id. 747 P.2d at 589. Appellees maintained that "the manufacturer is entitled to publicly defend its product and that 'there is a significant distinction between advertising a product to the general public and affirmatively concealing information between a plaintiff and the manufacturer of the product during the limitation period.' " Id. In reversing the trial court's dismissal, the court held: [T]he appellants cite a number of studies and tests done on the Jeep CJ which indicate that the manufacturer was aware of the defects more than a decade prior to the accident that killed their son. The appellants allege that these reports and tests are important because they reveal the appellee's knowledge that the Jeep CJ tended to overturn and its roll bar could not provide protection during a roll over. And that, despite the manufacturer's knowledge of these dangers, it continued to misrepresent the Jeep CJ as a rugged and safe vehicle. The appellants claim they could not reasonably be expected to know of the cause of their son's death prior to the consent decree between American Motors and the Federal Trade Commission. The appellants explain that they were unaware of the cause of the jeep's roll over because the appellees fraudulently concealed the defects with the Jeep CJs, and that it was not until February 23, 1982 that news of the consent order became public as its contents were outlined in the Wall Street Journal. It was at this time that the appellants had sufficient information regarding the severe dangers created by defects in the Jeep CJ to file a claim. In stark contrast, appellant claims that ap-pellees had this information since the late 1960's, and [AMC] failed to pass this information along to the appellants and other consumers but instead made false representations concerning the safety of the Jeep CJ. Clearly, if appellant's allegations are true, they would be sufficient to toll the limitation period under both the discovery rule and the doctrine of fraudulent concealment. Id. at 589-90. We are also aided in our determination by the factually similar case of Baker v. Beech Aircraft Corp., 39 Cal.App.3d 315, 114 Cal.Rptr. 171 (1974). In Baker, the complainant's pleading contained allegations that an aircraft manufacturer fraudulently concealed dangerous defects in a fuel system, while making representations to the Federal Aviation Administration (FAA) that the fuel system was safe, and that the complainant relied on these false representations. The court held that this pleading was legally sufficient to show fraudulent concealment which would toll the statute of limitations. In applying Baker to the facts before it, the Anson court explained: [In Baker], there were no circumstances alleged which would have indicated to a reasonable person, without extensive testing, that a defect in the fuel system caused the crash. There was, therefore, no reason for a reasonable person to doubt the truth of the representations made by Beech regarding the safety of the fuel system, and consequently nothing to put the appellants in that case on notice that either the particular fuel system in question was faulty or that Beech's representations were false. Here, the appellants allege that the false representations made by AMC prevented them from discovering defects in the jeep. Thus, the appellants argue that they had no knowledge of important facts related to the cause of death of their son, and were not sufficiently aware of the causal relationship between the defects in the jeep and their son's death to file a claim. Anson, 747 P.2d at 588. Neither the Anson nor Baker courts required detailed pleading of facts demonstrating reliance on the fraudulent concealment. In Anson, the court was satisfied with the appellant's allegation that "the false representations . prevented them from discovering defects...." Anson, 747 P.2d at 588. In Baker, an allegation that appellants were "lulled into inaction" was sufficient. Baker, 114 Cal.Rptr. at 176. Where fraudulent concealment of facts is successful, the defrauded party's response is inaction, a failure to discover the truth. There will be no "reliance" in the sense of a conscious change of position. Where fraudulent concealment of facts is successful, injured parties are ignorant of the concealment itself and will not act due to their ignorance. However, this is not the type of ignorance for which a party must be penalized. Ignorance may result from inadequate inquiry by the injured party. Ignorance in the sense here used, however, rests on a structure of false representations or fraudulent concealment of critical facts. Such structured ignorance may cause the loss of a valid claim for negligence or products liability by reason of the expiration of the statute of limitations for such claims. See First Interstate Bank of Fort Collins v. Piper Aircraft Corp., 744 P.2d 1197, 1200-01 (Colo.1987); Baker, 114 Cal.Rptr. at 176. In these circumstances the "reliance" element of equitable estop-pel will he satisfied where injured parties allege and prove they were lulled into inaction by a manufacturer's false representations. Fraudulent concealment of defects and false representations which prevent the discovery of defects are particularly offensive in the context of manufacturing industries which are heavily regulated because of user safety concerns. The aviation industry is the subject of extensive federal regulation as a result of concerns for user safety with the result that Borg-Warner has a duty to disclose defective parts. In an environment where product safety is regulated and a manufacturer has a duty to reveal a potentially dangerous product defect, the regulatory framework acts to inform the public about such defects. The reports of regulatory agencies convey to the public the representations of manufacturers, both true and false, regarding the safety of products. Once public, information about a product defect serves to alert a victim of an alleged tort about a possible cause of the victim's injury. Under these circumstances, parties may reasonably believe that products are not defective, absent adverse reports from regulatory agencies. In other words, these parties "rely" on an absence of adverse information in concluding that a product is safe. In the instant case, the Palmer estate alleged that Borg-Warner actively and deceptively cultivated the auto gas theory of causation (use of auto gas as the cause of carburetor failure), while concealing the true cause of carburetor failure from the public, the NTSB and the FAA. Otherwise stated, the Palmer estate alleged that Borg-Warner purposely placed false information in the public domain in order to divert suspicion away from it and onto the pilot of an aircraft for operating on auto gas. The estate further alleged that it did pursue an investigation based upon the information reasonably available to it, including the NTSB report, but that Borg-Warner's false representations "prevent[ed] an investigation [by the estate] from revealing any relevant results." These allegations meet the reliance requirement of the equitable estoppel doctrine. 2. Due Diligence as an Element of Equitable Estoppel. Borg-Warner also argues that in a new proceeding the Palmer estate would fail to meet the due diligence requirement of equitable estoppel, relying on the following language: "We have cautioned: 'a plaintiff generally cannot invoke estoppel unless he has exercised due diligence in attempting to uncover the concealed facts.' Russell, 743 P.2d at 376." Mine Safety Appliances Co., 756 P.2d at 293. This language does not create a new factor which must be considered separately from a "discovery rule" analysis. Under our discovery rule, the statute of limitations begins to run when the "claimant discovers, or reasonably [through the exercise of due diligence] should have discovered, the existence of all elements essential to the cause of action.... We look to the date when a reasonable person has enough information to alert that person that he or she has a potential cause of action or should begin an inquiry to protect his or her rights." Id. at 291 (citations omitted). In the context of alleged fraudulent concealment, whether in the form of an action for deceit or in the context of a claim for equitable estoppel, the due diligence requirement involves a determination of when the plaintiff discovered or reasonably should have discovered the fact that evidence of a potential cause of action had been fraudulently concealed. Once a plaintiff discovers or reasonably should discover that evidence has been fraudulently concealed, she risks losing the protection of equitable estoppel unless she takes timely action. Gudenau & Co., Inc. v. Sweeney Ins., Inc., 736 P.2d 763, 769 (Alaska 1987) ("In order to establish a right to equitable estoppel . [p]laintiff must also show that it resorted to legal action within a reasonable period after the circumstances ceased to justify delay."). The determination of when a fraudulent misrepresentation or concealment should have been discovered is a question of fact for the trial court to decide. However, the standard of conduct imposed on the plaintiff is not the absence of mere negligence. Carter v. Hoblit, 755 P.2d 1084, 1087 (Alaska 1988). Where there is an intent to mislead such a standard would be "clearly inconsistent with the general rule that mere negligence of the plaintiff is not a defense to an intentional tort." Keeton, supra, § 108 at 750. Thus, a party should be charged with knowledge of the fraudulent misrepresentation or concealment only when it would be utterly unreasonable for the party not to be aware of the deception. We noted the question whether the absence of reasonable diligence should be a defense available to one who has committed a fraud or willful concealment in Pedersen, and commented on "the growing trend of courts 'to move toward the doctrine that negligence in trusting in a misrepresentation will not excuse positive willful fraud or deprive the defrauded person of his remedy.' Carter v. Hoblit, 755 P.2d 1084, 1087 (Alaska 1988) (quoting W. Jaeger, Williston on Contracts, § 1515B, at 487 (3rd ed. 1970))." Pedersen v. Zielski, 822 P.2d 903, 910 n. 9 (Alaska 1991). Based on the analysis above, we conclude that the first element required to set aside a judgment under Rule 60(b)(2) is satisfied. The evidence of fraudulent concealment in conjunction with the doctrine of equitable estoppel would probably change the result in a new proceeding. See Montgomery Ward, 394 P.2d at 776. Because the trial court denied the Palmer estate's Rule 60(b)(2) motion without comment, we must conclude that the court abused its discretion by failing to consider the evidence of fraudulent concealment and the doctrine of equitable estoppel. Therefore, we must remand the case for reconsideration of the Rule 60(b)(2) motion. B. DUE DILIGENCE AS A RULE 60(b)(2) REQUIREMENT If the Rule 60(b)(2) motion is to be granted on remand, the other Montgomery Ward elements must be established. Significantly, it must be determined that evidence of Borg-Warner's fraudulent concealment "must have been discovered since the trial" and "must be of such a nature that it could not have been discovered before trial by due diligence." Montgomery Ward, 394 P.2d at 776. While the nature of this inquiry is not distinct from that described above regarding due diligence in the context of the doctrine of equitable estoppel, the relevant time of discovery of the fraudulent concealment is different. Whether the Rule 60(b)(2) motion should be granted depends on a determination of whether the Palmer estate discovered or should have discovered the fraudulent concealment before trial— in this case, before summary judgment was entered on March 14, 1989. On remand, the trial court is directed to enter findings concerning the existence of fraudulent concealment. If such concealment is found, the court should determine whether the Palmer estate knew or through the exercise of diligence should have known of such concealment prior to entry of summary judgment. REVERSED and REMANDED for reconsideration of the Palmer estate's Rule 60(b)(2) motion in accordance with this opinion. . Mrs. Palmer submitted an affidavit indicating that she first had notice of her husband's death on September 10. The superior court found that Mrs. Palmer had such notice on September 11. For purposes of this appeal, the discrepancy is irrelevant. . The NTSB controls access to aircraft wreckage from the time of a crash until the NTSB investigation is completed. Relevant federal regulation provides as follows: Preservation of aircraft wreckage, mail, cargo, and records. (a) The operator of an aircraft involved in an accident or incident for which notification must be given is responsible for preserving to the extent possible any aircraft wreckage, cargo, and mail aboard the aircraft, and all records . until the Board takes custody thereof or a release is granted pursuant to § 831.12(b) of this chapter. (b) Prior to the time the Board or its authorized representative takes custody of aircraft wreckage, mail, or cargo, such wreckage, mail, or cargo may not be disturbed or moved except to the extent necessary. (1) To remove persons injured or trapped; (2) To protect the wreckage from further damage; or (3) To protect the public from injury. (c) Where it is necessary to move aircraft wreckage, mail or cargo, sketches, descriptive notes, and photographs, shall be made, if possible, of the original positions and condition of the wreckage and any significant impact marks. . The carburetors were manufactured by Borg-Warner's subsidiary, Marvel-Schebler/Tillot-son. The Marvel-Schebler carburetor line was later purchased by Facet Enterprises, Inc. . Judge Hodges concluded that as of September 11, 1986, the Palmer estate was obligated under Alaska law to investigate in some manner its potential claims for wrongful death. The facts indicate that during the course from September 11, 1986 until the lawsuit— the [Swanson estate's] lawsuit was filed, the plaintiffs in this case did [no] meaningful investigation with respect to any other defendants, other than [Swanson and Swanson's employer]. . We published our opinion in Palmer I on November 16, 1990. We later published a corrected opinion to remedy technical errors. 818 P.2d 632. On November 29, 1990, in a memorandum in support of a petition for rehearing, the Palmer estate contended that Borg-Warner had concealed evidence regarding a carburetor float problem and that this concealment would have prevented even a diligent plaintiff from discovering the defect. In response, Borg-Warner contended that this issue was properly part of the Palmer estate's appeal from the denial of its Rule 60(b)(2) motion. We deferred consideration of the issue to this appeal. . The newly discovered evidence standard in Alaska Civil Rule 60(b)(2) applies not only to judgments entered after a trial, but also to summary judgments. See e.g. Brotherhood of Railway, Airline and Steamship Clerks, Freight Handlers, Express & Station Employees v. St. Louis Southwestern Ry. Co., 676 F.2d 132, 139 (5th Cir.1982) (applying Fed.R.Civ.P. 60(b)). . The Palmer estate argues that Borg-Warner was equitably estopped from claiming the benefit of the statute of limitations defense under AS 09.55.580(a), the Alaska wrongful death statute, by virtue of Borg-Warner's fraudulent concealment of the defective carburetor float that was the cause of the crash. Borg-Warner contends that the issue of equitable estoppel is improperly before the court because the estate raised only collateral estoppel in its Statement of Points on Appeal. In its Statement of Points on Appeal, the estate raised the issue of whether the trial court erred "by failing to grant relief pursuant to Rule 60(b)(2)." In the trial court, the estate argued that the doctrine of equitable estoppel supported its Rule 60(b)(2) motion. Thus, Borg-Warner was adequately apprised that equitable estoppel was an issue included in the present appeal. The issue of equitable estoppel is properly before us. See Lewis v. Anchorage Asphalt Paving Co., 535 P.2d 1188, 1195 (Alaska 1975). .The complication occurs because the issue of whether the Palmer estate exercised due diligence is relevant to the determination of whether the Palmer estate has presented a viable equitable estoppel argument and to whether the Rule 60(b)(2) motion should be granted. . In Palmer I, we held that the statute of limitations began to run on the date the Palmer estate became aware of the crash because it "reasonably should have known from [that] date that potential claims existed against the pilot, the carrier, or the manufacturers." 818 P.2d at 634. This holding does not conflict with the rule that fraudulent concealment precludes a defendant from relying on the statue of limitations. Es-toppel is "used as a means of preventing [a party] from taking an inequitable advantage of a predicament in which his [or her] own conduct had placed his [or her] adversary." W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 105 at 733 (5th ed. 1984). Estop-pel does not require that defendant's representation be the sole cause of plaintiffs predicament. It is enough that the representation influenced plaintiffs conduct. As Professor Keeton notes, when a defendant accomplishes his or her goal of deceiving the plaintiff, then it should not matter that the plaintiff is partly at fault for his or her predicament unless his or her conduct is utterly unreasonable. Id. at § 108 at 749; see also Cousineau v. Walker, 613 P.2d 608, 616 (Alaska 1980) ("A buyer of land, relying on a[ ] . misrepresentation, is barred from recovery only if the buyer's acts in failing to discover defects were wholly irrational, preposterous, or in bad faith."). . We have acknowledged that: The settled rule is that the mere failure by a person to disclose a fact concerning a cause of action which arises against him does not suffice to toll the statute [of limitations] unless the defendant owed a duty of disclosure. Russell v. Municipality of Anchorage, 743 P.2d 372, 376 (Alaska 1987). However, government regulations impose upon Borg-Warner a duty of disclosure. The Congress of the United States has delegated regulatory authority over aircraft safety to the Department of Transportation: (a)Minimum standards; rules and regulations The Secretary of Transportation is empowered and it shall be his duty to promote safety of flight of civil aircraft in air commerce by prescribing and revising from time to time: (1) Such minimum standards governing the design, materials, workmanship, construction, and performance of aircraft, aircraft engines. and propellers as may be required in the interest of safety; 49 U.S.C.A.App. § 1421(a) (West Supp.1991). Regulations promulgated under this statutory authority require disclosure of defective aircraft parts: (b) [Regulated parties] shall report any defect in any product, part, or article manufactured by it that has left its quality control system and that it determines could result in any of the occurrences listed in paragraph (c) of this section. (c) The following occurrences must be reported as provided in paragraphs (a) and (b) of this section: (10) An engine failure. 14 C.F.R. § 21.3 (1991). . We do not mean to imply by the foregoing that the manufacturer of a product in an unregulated industry also does not have a duty to reveal potentially hazardous defects. . Borg-Warner argues that the Palmer estate was put on inquiry notice about the carburetor defect by the answer it received in the estate's suit against the pilot. In that action the Swanson estate answered that (a) third parties were responsible for the accident; and (b) the Palmer estate had failed to join indispensable third parties. We do not agree with Borg-Warner's contention. It cannot be said as a matter of law that the estate reasonably should have known of a potential cause of action against Borg-Warner merely because of the Swanson estate's answer. See Russell v. Municipality of Anchorage, 743 P.2d 372, 375 (Alaska 1987) (Ordinarily summary judgment on this issue would be inappropriate.). Moreover, Borg-Warner's argument is misfo-cused because in this appeal, the critical inquiry is whether the Palmer estate knew or through the exercise of diligence should have known of such concealment prior to entry of summary judgment. . In this case the estate filed its suit within two years and nine days after Palmer's widow learned of the accident. This was some sixteen months before Judge Hodges found in the Swanson litigation that Borg-Warner had failed to disclose the float problem and is clearly within a reasonable time after the earliest point at which the Palmer estate might be charged with knowledge of the fraud. . In Palmer I we held that the Palmer estate had not exercised due diligence and that a diligent inquiry would have revealed the elements of the Palmer estate's cause of action against Borg-Warner. Id. at 635-36. However, if the Palmer estate is able to show fraud or intentional concealment of material facts on the part of Borg-Warner, the Palmer estate's failure to engage in a reasonable inquiry will be excused. . In Carter we held that there is no requirement that a fraud victim reasonably inquire in order to be entitled to the benefit of what was in that case a statutory discovery rule. We observed in Carter that in actions not involving the statutory discovery rule, reasonable reliance remains an element of estoppel. However, because willful misconduct is qualitatively different from mere negligence, we see no reason why the Carter holding should not apply to all statute of limitations cases. In Dressel v. Weeks, 119 P.2d 324, 330 (Alaska 1989), we discussed the rule that a "properly recorded title normally precludes an equitable estoppel against assertion of that title" because it prevents the party seeking to raise the estop-pel from arguing that he lacked a reasonable means of discovering the true state of the title. We added, however, that "an equitable estoppel may exist, notwithstanding that the records disclose the actual state of title" where there is "some act of a positive or affirmative quality, which was calculated to produce a wrong im-pression_" Id. at 330 (citations omitted). . On remand, should the trial court deny the Palmer estate's 60(b)(2) motion, the estate may have a new cause of action based strictly on fraud. Such an action would require proof of the five elements of the tort action for deceit: (1) a false representation; (2) the defendant knows that the representation is false; (3) the defendant intends to induce the plaintiff to refrain from action; (4) the plaintiff justifiably relies on the false statement in refraining from taking action; and (5) damage to the plaintiff. W. Page Keeton et al., Prosser and Keeton on the Law of Torts, § 105 at 728 (5th ed. 1984). In this case damage to the plaintiff would be loss of the cause of action for negligence or products liability as a result of the false representation. Thus the suit would require the plaintiff to prove that she had a good case for products liability or negligence but she lost it through the running of the statute of limitations by reason of the fraudulent misrepresentation.

10368176

Clair J. RAMSEY, Appellant/Cross-Appellee, v. Sandra S. RAMSEY, Appellee/Cross-Appellant

Ramsey v. Ramsey

1992-07-24

Nos. S-4206, S-4207

807

810

834 P.2d 807

834

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:00:54.631596+00:00

CAP

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

Clair J. RAMSEY, Appellant/Cross-Appellee, v. Sandra S. RAMSEY, Appellee/Cross-Appellant.

Clair J. RAMSEY, Appellant/Cross-Appellee, v. Sandra S. RAMSEY, Appellee/Cross-Appellant. Nos. S-4206, S-4207. Supreme Court of Alaska. July 24, 1992. Kathleen A. Weeks, Law Offices of Kathleen A. Weeks, Anchorage, for appellant/ cross-appellee. Sharon L. Gleason, Rice, Volland & Gleason, P.C., Anchorage, for appellee/cross-appellant. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

1678

10482

OPINION MATTHEWS, Justice. FACTS AND PROCEEDINGS Clair and Sandra Ramsey were married on April 11, 1964. At the time the divorce decree was issued, August 27, 1990, both were 47 years old. Clair earns at least $120,000 a year as a real estate agent for Jack White Company. Sandra has operated her own interior design business since 1979. In 1989 the net earnings from her business were $7,829. The parties physically separated in the summer of 1988. Clair filed for divorce in May 1989. After trial in August 1990, Judge Johnstone issued the decree and findings at issue in this appeal. In those findings, the court concluded that the parties did not cease functioning as an economic unit until the summer of 1990. Neither party was given credit for payments made before that date to preserve marital assets or provide spousal support. The court awarded Sandra rehabilitative alimony in the amount of $1,500 a month for four years. The award was designed to facilitate her plan to make her interior design business self-supporting. Based on the Merrill factors and in light of the alimony award, the court made an "approximately equal division of the assets." ' In addition, the court awarded Sandra $5,000 for attorney's fees and expert costs. DISCUSSION A. Credit for Post-Separation Payments Clair argued below that the economic partnership created by the marriage ended upon separation, thus he . was entitled to credit for post-separation payments made to maintain the marital estate and to support Sandra. Judge Johnstone, however, found that due to the extensive commingling of finances, "the parties continued to function economically as a single unit until the summer of 1990." Based on that finding, the court identified all of the parties' marital assets as of May 11,1990. We find that the court's economic unit finding was clearly erroneous. The first step in the process of marital property division is to determine "what property is available for distribution." Chotiner v. Chotiner, 829 P.2d 829, 831 (Alaska 1992). Specifically, the court must "identify what marital property, as distinct from separate property, exists at the distribution date." Id. In Ogard v. Ogard, 808 P.2d 815, 819 (Alaska 1991), we distinguished between the date, marital property is identified as such and the date it is valued; the latter should "be as close as practicable to the date of trial." A valuation date should be chosen which will provide the most current and accurate information possible and which avoids inequitable results. It is distinct from the date marking the termination point for inclusion of property within equitable distribution. The latter date marks the end of the marital team effort. Since this date may be well in advance of the dissolution proceedings, a valuation date linked to it may result in stale financial information. L. Golden, [Equitable Distribution of Property, ] at § 7.01 [(1983)]. Id. In Schanck v. Schanck, 717 P.2d 1, 3 (Alaska 1986), we stated the general rule for determining when property acquired after separation is properly excluded from the category of marital property: As a general rule, we hold that property accumulated with income earned after a final separation that is intended to, and does in fact, lead to a divorce is excluded from the category of marital property, as long as it is obtained without the invasion of any pre-separation marital asset. (Emphasis supplied.) In this case, the parties separated permanently in the summer of 1988. That point represented "a final separation that [was] intended to, and [did] in fact, lead to a divorce." Sandra's continuing economic dependence alone does not indicate the continuance of the marital economic unit. The court's determination that the marital enterprise continued until May 11, 1990, was clearly erroneous. We have required that trial courts consider payments made to maintain marital property from post-separation income when dividing marital property. Doyle v. Doyle, 815 P.2d 366, 369 n. 5 (Alaska 1991). We have not, however, held that the spouse who makes such payments must necessarily be given credit for them in the final property division. Clair argues that there are public policy reasons which require that some credit be given for such payments. He argues that not doing so tends to promote hostile relations between the parties and may result in a potential wasting of marital assets. While these arguments have some weight, it is our view that no fixed rule requiring credit in all cases should be imposed. Instead, the fact that one party has made payments from non-marital income to preserve marital property should be considered as one of the circumstances to be weighed by the trial court in dividing the marital property. This rule is consistent with our treatment of payments made from separate property acquired prior to the marriage which are used to acquire marital property. See Chotiner, 829 P.2d at 834-35 (court did not abuse its discretion in failing to give credit for separate property contribution of husband, but on remand court was authorized to grant credit). Since the trial court erred in determining the termination date of the marital partnership, this case must be remanded. On remand the court should consider whether Clair should be given credit for contributions he made from separate property in order to preserve marital property, and should make written findings on this point. B. Rehabilitative Alimony Based on the business plan Sandra. presented to the court, Judge Johnstone awarded her rehabilitative alimony for four years. The award was designed to "enable her to more fully provide for her own future needs through job development." In general, "our decisions have established a preference for meeting the parties' needs with the division of property, rather than with alimony, where marital assets are adequate to do so." Schanck, 717 P.2d at 5 (citing Bussell v. Bussell, 623 P.2d 1221, 1224 (Alaska 1981) and Malone v. Malone, 587 P.2d 1167, 1168 (Alaska 1978)). Although the preference does not apply to awards of alimony for a limited duration, Bays v. Bays, 807 P.2d 482, 485 (Alaska 1991), "where marital assets are adequate to equitably provide for both parties, . rehabilitative alimony is properly limited to job training or other means directly related to the end of securing for one party a source of earned income." Schanck, 717 P.2d at 5. Here Sandra has operated an interi- or design business since 1979. She is an experienced designer. In addition she had a transition period of two years between separation and divorce to develop the business into a self-sufficient enterprise. Under these circumstances her need for rehabilitative alimony seems both speculative and unwarranted. We therefore vacate the award of rehabilitative alimony. On remand the court is authorized to adjust the property division if equitably required by this change. C. Property Division In light of our conclusion that the marriage terminated as a joint enterprise on the date of separation, the court must adjust the allocation of property. "The rule that has evolved in Alaska for dividing assets acquired after a separation resulting in a divorce is based on the source of the payment with which those assets are acquired." Schanck, 717 P.2d at 2. The rule states that "property accumulated with income earned after a final separation that is intended to, and does in fact, lead to a divorce is excluded from the category of marital property, as long as it is obtained without the invasion of any pre-separation marital asset." Id. at 3. In accordance with this rule, any business-related commissions Clair earned after the summer of 1988 are his separate property. Schanck, 717 P.2d at 3. Also, post-separation earnings Clair contributed to his Keogh account should not be considered part of the marital estate. D. Attorney's Fees Sandra claims that the court erred by awarding her only $5,000 of $17,-500 in outstanding attorney and expert witness fees. As 25.24.140 authorizes the court to award attorney's fees based on economic need. This court has interpreted that provision to give broad discretion to the trial courts. " 'An abuse of discretion is established where it appears that the trial court's determination as to attorney's fees was manifestly unreasonable.' " Kowalski v. Kowalski, 806 P.2d 1368, 1372 (Alaska 1991) (quoting Palfry v. Rice, 473 P.2d 606, 613 (Alaska 1970)). Here the court's award of $5,000 was not "manifestly unreasonable." See Mann v. Mann, 778 P.2d 590 (Alaska 1989) (affirming a lower court's refusal to award attorney's fees to a spouse despite lesser earning capacity and a smaller award of marital property). Nonetheless, in light of the significant adjustments which may be required as a result of this opinion, the award of attorney's fees should be vacated so that the superior court may recalculate fees once it determines an appropriate property division. CONCLUSION The Ramseys' marriage terminated as a joint enterprise on the date of separation. The award of rehabilitative alimony is vacated. We remand the case for the trial court to equitably allocate the marital property in light of the proper date of termination, Clair's post-separation contributions to the marital estate from post-separation income, and Sandra's needs in the absence of rehabilitative alimony. The award of attorney's fees is vacated. . Merrill v. Merrill, 368 P.2d 546 (Alaska 1962). . The decision to value the parties' assets as of May 11, 1990 was defensible. The court found "that upon consideration of all the facts and circumstances . all of the parties' assets should be valued on the same approximate date as close to trial as possible." . This case resembles Schanck v. Schanck, 717 P.2d 1 (Alaska 1986), where the court awarded the wife rehabilitative alimony for an eighteen-month period after the wife had re-entered the job market as a nurse. We found that since the wife was pursuing her chosen occupation she had no further need for rehabilitative alimony. Id. at 5.

10385547

Catherine M. ZUELSDORF and Patrick Daley, Appellants, v. UNIVERSITY OF ALASKA, FAIRBANKS, Appellee

Zuelsdorf v. University of Alaska

1990-06-01

No. S-3199

932

935

794 P.2d 932

794

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:52:46.410719+00:00

CAP

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

Catherine M. ZUELSDORF and Patrick Daley, Appellants, v. UNIVERSITY OF ALASKA, FAIRBANKS, Appellee.

Catherine M. ZUELSDORF and Patrick Daley, Appellants, v. UNIVERSITY OF ALASKA, FAIRBANKS, Appellee. No. S-3199. Supreme Court of Alaska. June 1, 1990. Rehearing Denied July 10, 1990. Scott L. Taylor and Lloyd I. Hoppner, Hoppner & Paskvan, Fairbanks, for appellants. Gail M. Ballou, Law Office of Gail M. Ballou, Fairbanks, for appellee. Before MATTHEWS, C.J., and RABINOWITZ, BURKE, COMPTON and MOORE, JJ.

1941

12394

OPINION BURKE, Justice. This appeal presents the question whether two non-tenured assistant professors at the University of Alaska, Fairbanks, received proper notice of nonretention. The superior court entered summary judgment for the University. We reverse and remand. I. FACTUAL AND PROCEDURAL BACKGROUND Catherine M. Zuelsdorf and Patrick Daley were assistant professors at the University of Alaska Fairbanks during the 1985-86 academic year. Their letters of appointment stated that the conditions of their employment would be governed by the University personnel policies and regulations "in effect on the date of this letter and as duly amended thereafter." At the time of their appointments, personnel regulation 04.01.12(A)(3) entitled a full-time tenure track assistant professor with three or more years of service to fifteen months notice of nonretention. Thus, the parties agree that, under the original policy, the University had to notify Zuelsdorf and Daley no later than March 31, 1986, if it did not intend to hire them for the 1987-88 academic year. On December 12, 1985, the Board of Regents amended the policy to require notice of nonretention by June 30 of the year preceding the end of an appointment. The amendment, however, was to become effective on July 1, 1986, and was not intended to apply to existing contracts. On May 19, 1986, after the March 31 notice deadline for nonretention in 1987-88 had passed, the Regents advanced the effective date of the December 1985 amendment to May 19, 1986. Thus, under the new policy, the University had to notify a non-tenured professor by June 30, 1986, if he or she would not be hired for the 1987-88 academic year. The Regents amended the policy in response to a fiscal crisis created by a precipitous decline in world oil prices during 1986. On May 23 and May 19, 1986, respectively, the University notified Zuelsdorf and Daley that the 1986-87 academic year would be their last. Zuelsdorf and Daley filed grievances, arguing that they were entitled to contracts for the 1987-88 academic year because they did not receive notices of nonretention by March 31, 1986. The University denied the grievances. Zuelsdorf and Daley filed separate administrative appeals and a joint civil complaint against the University. The cases were consolidated. Following cross-motions for summary judgment, the superior court entered judgment for the University. This appeal followed. II. STANDARD OF REVIEW We will affirm a summary judgment if the evidence in the record presents no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Alaska R.Civ.P. 56(c). The interpretation of the words in a contract presents a question of law for the court, whereas resolution of disputes regarding surrounding circumstances is for the trier of fact. Norton v. Herron, 677 P.2d 877, 880 (Alaska 1984); Dresser Industries v. Foss Launch & Tug Co., 560 P.2d 393, 395 n. 3 (Alaska 1977). In this case, the extrin sic evidence is not in dispute; therefore, we may exercise our independent judgment to interpret the employment contract and personnel policies. III. ZUELSDORF AND DALEY DID NOT RECEIVE ADEQUATE NOTICE OF NONRETENTION Zuelsdorf and Daley argue that the University breached their employment contracts because it did not provide timely notice of nonretention pursuant to the personnel policies and regulations. The University contends that it did not breach the contracts because it gave timely notice pursuant to the amended policy. The relationship between non-tenured faculty and the university is created by contract and governed by principles of contract law. See Tondevold v. Blaine School Dist. No. 503, 91 Wash.2d 632, 634-36, 590 P.2d 1268, 1270 (Wash.1979); cf. Shotting v. Dillingham City School Dist., 617 P.2d 9, 12 (Alaska 1980) (non-tenured teacher has no constitutionally protected interest in continued employment). A contract is interpreted to give effect to the reasonable expectations of the parties, considering the language in the disputed provisions and the contract as a whole. In deciding contract interpretation questions, a court must look to the purpose of the contract, the circumstances surrounding its formation, and case law interpreting similar provisions. Craig Taylor Equipment Co. v. Pettibone Corp., 659 P.2d 594, 597 (Alaska 1983). When an employer drafts and uses a form contract, it is strictly construed against the employer because of the unequal bargaining power between employer and employee, who must accept the contract and personnel rules as offered. Duncan v. City of Fairbanks, 567 P.2d 311, 313-14 (Alaska 1977). "[A]n educational institution may undertake a contractual obligation to observe particular termination formalities by adopting procedures or by promulgating rules and regulations governing the employment relationship." Piacitelli v. Southern Utah State College, 636 P.2d 1063, 1066 (Utah 1981). As we recently recognized in Jones v. Central Peninsula General Hospital, 779 P.2d 783 (Alaska 1989), a personnel handbook promulgated by an employer may modify the terms of an at-will employment agreement. Whether a given manual will modify an employment agreement depends upon the particular facts of each case. Id. at 787. In Jones, we endorsed the reasoning of the Supreme Court of Michigan, which stated in Toussaint v. Blue Cross & Blue Shield, 408 Mich. 579, 292 N.W.2d 880, 885 (1980): While an employer need not establish personnel policies or practices, where an employer chooses to establish such policies and practices and makes them known to its employees, the employment relationship is presumably enhanced. The employer secures an orderly, cooperative and loyal work force, and the employee the peace of mind associated with job security and the conviction that he will be treated fairly.... It is enough that the employer chooses, presumably in its own interest, to create an environment in which the employee believes that, whatever the personnel policies and practices, they are established and official at any given time, purport to be fair, and are applied consistently and uniformly to each employee. The employer has then created a situation "instinct with an obligation." We hold that employer statements of . policy . can give rise to contractual rights in the employee, and, hence, although the statement of policy is signed by neither party, can be unilaterally amended by the employer without notice to the employee, and contains no reference to a specific employee, his job description or compensation, and although no reference was made to the policy statement in preemployment interviews and the employee does not learn of its existence until after his hiring. Id. 292 N.W. at 892 (footnote omitted); see also Moore v. Utah Technical College, 727 P.2d 634, 641-42 (Utah 1986) (the apparent intent of the parties to incorporate person nel policies into the contract of employment is not defeated merely because the university reserves the right of unilateral amendment). In this case, the University policies and regulations were a legally enforceable part of the employment contract. The letters of appointment for the 1985-86 academic year expressly stated that "[t]he conditions of your employment with the University of Alaska-Fairbanks are described in the Policy and Regulations Manual, Part IV, Personnel, in effect on the date of this letter and as duly amended thereafter." Part IV of the manual provided specific guidelines governing notice of nonretention to nontenured faculty members. University policies and regulations which are expressly incorporated into an employment contract may create vested contract rights in the employee. See Howard University v. Best, 484 A.2d 958, 968 (D.C.App.1984) (faculty member who is not given notice of nonretention required by faculty handbook may have a legitimate expectancy of reappointment). When one party acquires vested rights under a contract, the other party may not amend the terms of the contract so as to unilaterally deprive the first of its rights; such a change constitutes a modification of the agreement requiring mutual consent and consideration. See Holiday Inns of America v. Peck, 520 P.2d 87, 95 n. 19 (Alaska 1974); Atchison v. City of Englewood, 193 Colo. 367, 568 P.2d 13, 19 (1977); Logue v. City of Carthage, 612 S.W.2d 148, 150 (Mo.App.1981); Tondevold, 91 Wash.2d at 634-36, 590 P.2d at 1270. Once earned, a vested contract right may not be modified, diminished or eliminated without employee consent; subsequent unilateral amendments, if effective at all, are effective prospectively only. Bolling v. Clevepak Corp., 20 Ohio App.3d 113, 484 N.E.2d 1367, 1375 (Ohio App.1984). The University argues that, because it retained the right to unilaterally amend its policies, no vested rights could accrue thereunder as a matter of law. We disagree. . There is no question that the University was entitled to amend its policies and regulations during the contract term. However, as noted above, unilateral amendment could not change those rights which had already vested or accrued under the employment contract. Thus, Zuelsdorf and Daley both had a right to non-terminal contracts for the 1986-87 academic year, which became vested before the University amended its policy. The subsequent change in the governing policy could not affect that right without their consent. Had the University amended its policy pri- or to March 31, 1986, the outcome might be different. However, since the University did not act until after the deadline for giving notice of nonretention, we hold that the superior court erred in entering summary judgment for the University, and refusing to enter partial summary judgment for Zuelsdorf and Daley. The decision of the superior court is REVERSED and the case REMANDED for entry of an amended judgment, after such further proceedings as may be required by our opinion. . When Zuelsdorf and Daley accepted contracts for the 1985-86 academic year, Policy 04.01.-12(A)(3) provided: [NJotice of nonretention of an employee classified as exempt must, unless otherwise provided, be given in writing by the University in accordance with the following schedule: (3) At least fifteen months before the expiration of an appointment if by the expiration of the employee's current appointment the employee shall have been employed by the University continuously for at least three full academic years. . Policy 04.01.12(A)(2) (as amended) provides: Effective May 19, 1986, notice of nonretention of an employee classified as exempt must, unless otherwise provided, be given in writing by the University as follows: (2) Faculty members shall receive notice of nonretention in accordance with the following schedule: (c) Not later than June 30 of the year preceding the expiration of an academic year appointment after two or more years in the institution. . Although there was apparently a procedure for terminating employees due to financial exigency, the University did not purport to terminate Zuelsdorf and Daley pursuant to that procedure. The University does not allege that Zuelsdorf and Daley were terminated for cause. . Four tenured professors were also named plaintiffs in the civil suit; however, the parties stipulated to dismiss their claims with prejudice. . In University parlance, a "non-terminal contract" is one which will be renewed the following academic year. It is also called a tenure-track appointment. In contrast, a "terminal contract" is offered an employee who will not be offered another contract after the expiration of the contract period. . See Moore, 727 P.2d at 642 (the question whether an amendment applies to existing contracts depends on the intent of the university); see also In re Certified Question, 432 Mich. 438, 457 n. 17, 443 N.W.2d 112, 121 n. 17 (1989) (noting that a change in employer policy might not affect rights vested or accrued under the prior policy).

10377573

Gregory W. BELL, Appellant, v. Debra L. BELL, now Debra L. Reinwand, Appellee

Bell v. Bell

1990-06-22

No. 3615

97

103

794 P.2d 97

794

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:52:46.410719+00:00

CAP

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

Gregory W. BELL, Appellant, v. Debra L. BELL, now Debra L. Reinwand, Appellee.

Gregory W. BELL, Appellant, v. Debra L. BELL, now Debra L. Reinwand, Appellee. No. 3615. Supreme Court of Alaska. June 22, 1990. Sema E. Lederman, Hansen & Lederman and Timothy H. Stearns, Anchorage, for appellant. Joseph P. Palmier, Palmier & Stohr, Anchorage, for appellee. Before MATTHEWS, C.J., and RABINO WITZ, BURKE, COMPTON and MOORE, JJ.

3557

21889

OPINION MATTHEWS, Chief Justice. Greg and Debra Bell were married in January 1986. They separated sixteen months later in July 1987. Greg filed for divorce on September 14, 1987. A Partial Decree of Divorce was entered on March 4, 1988, leaving matters related to child custody, child support and property division to be determined by a trial which resulted in this appeal. On appeal, Greg challenges (1) the trial court's award of legal and physical custody of Scott, the parties' child, to Debra, (2) the court's basis for determining child support, and (3) the court's determination and division of marital property. CHILD CUSTODY A. Gregory "Scott" Bell was born on August 19, 1986. While married, Greg and Debra shared most child rearing tasks on an equal basis. Since both parents were employed, Sharon Nollman babysat Scott part time beginning about December 1986, and then full time in approximately February 1987. She continued to babysit full time until February 1988, then every other week until the trial. When Greg and Debra separated, they agreed to share custody of Scott, alternating physical custody every week or so. Both used Nollman to babysit. They accommodated each other's employment, social, and vacation schedules and shared babysitting expenses. A two-day interim custody hearing was held before Master Andrew Brown on October 15-16, 1987. Based upon the recommendations of an Alaska Court Custody Investigator, Master Brown issued a report recommending that Scott remain in the babysitting care of Nollman and that the parties continue their weekly alternating schedule of shared physical custody of Scott. The court approved the Master's report. Greg and Debra cooperated in the weekly custody exchanges for another ten and one-half months until trial on August 26 and 29, 1988. However, in early 1988, Debra unilaterally began placing Scott at the Saakaaya Daycare Center during the weeks that she had physical custody. Greg continued to use Nollman during the weeks that he had physical custody of Scott. In March 1988, the parties agreed to bifurcate the proceedings. A Partial Decree of Divorce was entered April 4, 1988. All other issues were reserved for a later adjudication or agreement of the parties. Greg and Debra continued to accommodate each other's schedules and to share physical custody of Scott on an alternating basis. They also cooperated in making major decisions about Scott's medical care. For example, after Scott was hospitalized with asthma in September 1987, Greg and Debra conferred together with medical specialists and agreed to have tubes implanted in Scott's ears. At trial, Ardis Cry, Custody Investigator, Alaska Court System, recommended that shared legal custody continue. She further recommended that Scott have a primary home and that Debra be the primary physical custodian. The trial court awarded legal and physical custody of Scott to Debra. The court also allowed Greg visitation with Scott (1) on alternate weekends from Friday afternoon through Monday morning and on Wednesday evening through Thursday mornings and (2) during four one-week periods spread throughout the year until Scott reaches school age. B. Greg contends that the trial court erred by not awarding joint custody to both parents pursuant to AS 25.20.060. AS 25.20.-060 states, in part: "The court may award shared custody to both parents if shared custody is determined to be in the best interests of the child." In making this best-interest determination, the trial court must consider factors listed in AS 25.20.-090 and AS 25.24.150(c). We will reverse the trial court's determination "only if we are convinced that the record shows an abuse of discretion or if controlling factual findings are clearly erroneous." McClain v. McClain, 716 P.2d 381, 384 (Alaska 1986). See also Julsen v. Julsen, 741 P.2d 642, 648-49 (Alaska 1987); Lone Wolf v. Lone Wolf, 741 P.2d 1187, 1190 n. 2 (Alaska 1987). In the present case, the trial court denied joint custody and determined that "the physical and legal custody of . [Scott] . should be vested with [Debra] subject to [Greg's] rights of visitation...." (Emphasis added.) In reviewing the propriety of the trial court's denial of joint custody, we find it necessary to distinguish between two interrelated aspects of a joint custody arrangement. First, an award of joint custody gives both parents "legal custody" of the child. This means that they "share responsibility in the making of major decisions affecting the child's welfare." 17 A.L.R.4th 1015 n. 1. Second, an award of joint custody gives both parents "physical custody" of the child. This means that "each is entitled to the companionship of the child over periodic intervals of time." Id. In an act amending AS 25.20.060, the legislature drew this distinction and expressed a policy favoring the award of joint legal custody, regardless of the physical custody arrangement: The legislature finds that . it is in the public interest to encourage parents to share the rights and responsibilities of child rearing. While actual physical custody may not be practical or appropriate in all cases, it is the intent of the legislature that both parents have the opportunity to guide and nurture their child and to meet the needs of the child on an equal footing beyond the considerations of support or actual custody. An Act Relating to Child Custody, ch. 88 § 1(a), SLA 1982. In light of this expression of legislative intent, and because the controlling factual finding underlying the trial court's ruling is. clearly erroneous, we reverse the award of sole legal custody to Debra. The trial court's award was apparently based on its finding that Greg and Debra "are incapable of meaningful communication and/or negotiation regarding the matters that relate to the best interests of [Scott]." If this finding is correct, joint custody would be inappropriate because "cooperation between the parents is essential if joint custody is to be in the child's best interest." Lone Wolf, 741 P.2d at 1189. Based on our review of the record, however, we hold that this finding is clearly erroneous. The trial court record and Debra's arguments on appeal indicate only one area of irreconcilable conflict between Greg and Debra — throughout the proceedings below they could not agree on what form of day care would be best for Scott. Greg wanted Scott in Nollman's home, and Debra wanted Scott in Saakaaya Daycare Center. Given the abundance of contrary evidence indicative of their ability to cooperate in Scott's best interest, however, we think that this one conflict does not warrant the trial court's finding of an "inability" to cooperate. Prior to the trial court ruling, Greg and Debra shared custody of Scott for 14 months, alternating physical custody every week or so. This arrangement was initially reached by mutual agreement. Throughout the 14 months, they accommodated each other's employment, social, and vacation schedules, and cooperated in making major decisions about Scott's medical care. Furthermore, after interviewing Greg and Debra, the custody investigator recommended "joint legal custody" because she found that they had the "ability . to deal with each other in a civil and mutual manner" and thought that they demonstrated "potential to facilitate cooperation and compromise." Both Greg and Debra also testified to their ability to work cooperatively in Scott's best interest. Moreover, Debra generally agreed with the investigator's recommendations and was willing to settle the custody issue under the terms the investigator recommended. Thus, at trial, both parties agreed that joint legal custody was appropriate. In light of such evidence, we are left with a firm conviction that the trial court's finding of an inability to cooperate was erroneous. We realize that the disagreement over daycare relates to a fundamental child care issue. But resolution of this issue did not require denial of that which the Alaska legislature recognizes as the favored course; i.e., joint legal custody. We therefore reverse the trial court's denial of joint legal custody and remand with instructions to enter an award of joint legal custody. Because we cannot ascertain the extent to which the trial court's erroneous finding influenced its decision regarding physical custody, that portion of its judgment is vacated. On remand, the trial court shall reconsider its physical custody/visitation determination, taking new evidence as may be appropriate. CHILD SUPPORT For the purpose of awarding child support under Civil Rule 90.3, the trial court found that Greg has a "net income of $2,500.00 per month." Based on our review of the record, we hold that this finding is clearly erroneous. The largest figure shown in the record for Greg's income is a gross income of $26,800 per year, or $2,233 in gross income per month. This figure was arrived at through cross-examination of Greg by Debra's attorney, and includes earned income, rents, and payments made by Greg's business for his car, insurance, gas and oil, and some meals. Thus, there is no basis in the record for the court's determination that Greg's net monthly income was $2,500. Nor did the trial court explain how it arrived at this figure. On remand, the trial court is instructed to make a more accurate determination of Greg's net income. PROPERTY DIVISION A. When Greg and Debra married in January 1986, Greg was the sole stockholder of Bay Area, Inc., which owned Valley Sawmill (Sawmill). Debra was a full-time political reporter for the Anchorage Times. At all times during the marriage, the parties maintained separate bank accounts and did not commingle their earnings. They both contributed to household expenses. In May 1987, Debra obtained a two-year signature loan of $2,000 so that Greg could buy a "lumber tree" for Sawmill. The loan payments are approximately $100 per month. At the time of trial, both parties had made payments on the loan, and Greg had retained possession of the lumber tree. Greg also owned a duplex at the time of the marriage. He purchased it for $103,-000 in 1980, and in 1986 it was valued at $181,000. At the time of trial, the duplex was valued at $121,000. Debra claimed no interest in Sawmill or the duplex. Greg also entered the marriage with ten acres of Point McKenzie bluff property, which he had purchased in June 1984 for $100,000 with $10,000 down and payments of $900 per month. During the marriage, both parties contributed to payments and improvements on the land. Upon separation, Greg had to deed the property back to the seller in lieu of foreclosure. Debra entered the marriage with a 1985 Honda with payments of approximately $174 per month, some household goods, and savings of $12,000. For eleven months during the marriage, both parties made payments on the Honda. They sold it in December 1986, receiving net proceeds of $2,311.41. Then they purchased a 1984 Chevrolet pick-up for $7,200, using the proceeds of the sale of the Honda, plus $4,300 from Debra's savings and $600 contributed by Greg. The pick-up was valued at $6,000 to $6,500 at the time of trial, and was in Greg's possession. During the marriage, Debra also made the following purchases: $1,500 for a king-size bed, $1,000 for a video camera, and $300 for a vacuum cleaner. At the time of the trial, Greg had retained possession of these items. At trial, Debra asked the court to have Greg reimburse her for all payments made during the marriage from her premarital funds. She claimed to have contributed premarital funds of $15,300 to the marital estate. The trial court ruled that each party would keep the property they had in their possession, and ordered Greg to reimburse Debra the sum of $15,300, as follows: 1. $1,000 for Debra's contribution to the king-size bed. 2. $1,000 for Debra's contribution to the video camera. 3. $300 for Debra's contribution to the vacuum cleaner. 4. $6,600 for Debra's contribution to the Chevrolet pick-up. 5. $2,000 for payments which Debra made on the signature loan used to buy a "lumber tree" for Sawmill. 6. $4,400 attributable to Debra's contributions from her premarital assets to the Point McKenzie or other payments made to Greg. B. Our decisions in Wanberg v. Wanberg, 664 P.2d 568 (Alaska 1983) and Merrill v. Merrill, 368 P.2d 546 (Alaska 1962) set forth the method for determining property dispositions upon divorce. This method involves (1) identifying the specific property available for distribution, (2) determining the value of this property, and (3) determining the most equitable division of the property, beginning with the presumption that an equal division is most equitable. Wanberg, 664 P.2d at 570, 574-75; Merrill, 368 P.2d at 547-48 n. 4 (setting forth factors relevant to determining the most equitable division). However, in Rose v. Rose, 755 P.2d 1121 (Alaska 1988), we recognized that an "alternative" method of distributing property may be appropriate in "marriages of short duration, where there has been no significant commingling of assets between the parties." Id. at 1124-25. Under this method, the property division is treated "as an action in the nature of rescission, aimed at placing the parties in, as closely as possible, the financial position they would have occupied had no marriage taken place." Id. at 1125. Applying this method in Rose, we upheld a trial court ruling which essentially permitted each party to retain assets each had acquired with premarital funds as well as money earned during marriage but kept in separate bank accounts. Id. at 1123-25. In the present case, the trial court found that "during this very short marriage, there was no merger of the assets and liabilities of the parties." The court then applied a remedy apparently aimed at rescinding the parties' financial relations. It permitted each party to retain whatever property was in his or her possession, and ordered Greg to reimburse Debra for contributions made by Debra for property which was retained by Greg. Greg claims that the trial court should have applied the three-step analysis set forth in Wanberg, and erred by applying a remedy in the nature of a rescission. He argues that Rose is inapplicable because the parties commingled assets during marriage. We agree. The parties combined thousands of dollars to acquire and improve various property. According to the trial court, Debra contributed approximately $4,400 in payments on the Point McKenzie property. Title to the property was in Greg's name, and he contributed a $10,000 down payment, as well as approximately $16,000 in monthly payments for its acquisition. Both parties also contributed towards improvements on the land, such as the construction of a road and some buildings. Both parties also made payments on Debra's Honda prior to its sale. The proceeds of that sale, $2,300, together with $4,300 from Debra's savings and a $600 contribution from Greg, were used to purchase the pick-up truck. Similarly, both parties made payments on the $2,000 loan which was obtained by Debra to finance the purchase of the "lumber tree." In light of the fact that each party earns less than $30,000 per year, the size of these commingled investments is hardly insignificant. This is in marked contrast to the situation in Rose, where the parties did not make any commingled investments and thereby "maintained completely separate economic identities." 755 P.2d at 1125. We also doubt the propriety of using a reimbursement remedy where the value of the assets to which there has been mutual contribution by the parties greatly depreciate or appreciate in value. See id. at 1125 (noting that none of the disputed assets appreciated in value during the marriage). To do so may result in one party bearing the entire loss (should there be depreciation) or enjoying the entire gain (should there be appreciation). In the present case, for example, there was uncontradicted testimony that most of the disputed assets greatly depreciated in value. Indeed, the Point McKenzie investment resulted in a total loss. By awarding Debra amounts at or near her original contributions to these assets, the trial court, without explanation, shifted the entire loss to Greg. We have considered and rejected as a solution an instruction to the trial court to reduce Debra's reimbursement award in proportion to the loss in value. The Rose approach to property division should be confined to those situations where unraveling the financial relations of the parties is a relatively simple task. We therefore reverse the trial court's ruling with respect to property division. On remand the trial court is instructed to divide the property in accordance with the approach we outlined in Wanberg. We note that all of the disputed property potentially available for distribution was acquired during marriage, and is therefore divisible. See AS 25.24.-160(a)(4). We do not reach questions related to its valuation and allocation. However, we point out that the length of the marriage, and the extent to which the parties separately contributed to the acquisition of these assets, is relevant to the question of equitable allocation. See Merrill, 368 P.2d at 547-48 n. 4. REVERSED and REMANDED. . At the time of trial, AS 25.20.090 provided: In determining whether to award shared custody of a child the court shall consider (1) the child's preference if the child is of sufficient age and capacity to form a preference; (2) the needs of the child; (3) the stability of the home environment likely to be offered by each parent; (4) the education of the child; (5) the advantages of keeping the child in the community where the child presently resides; (6)the optimal time for the child to spend with each parent considering (A) the actual time spent with each parent; (B) the proximity of each parent to the other and to the school in which the child is enrolled; (C) the feasibility of travel between the parents; (D) special needs unique to the child that may be better met by one parent than the other; (E) which parent is more likely to encourage frequent and continuing contact with the other parent; (7) any findings and recommendations of a neutral mediator; (8) whether there is a history of violence between the parents; (9) other factors the court considers pertinent. . AS 25.20.060(a) expressly requires consideration of the factors listed in AS 25.24.150(c). At the time of trial, AS 25.24.150(c) provided: The court shall determine custody in accordance with the best interests of the child under AS 25.20.060 — 25.20.130. In determining the best interests of the child the court shall consider (1) the physical, emotional, mental, religious, and social needs of the child; (2) the capability and desire of each parent to meet these needs; (3) the child's preference if the child is of sufficient age and capacity to form a preference; (4) the love and affection existing between the child and each parent; (5) the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity; (6) the desire and ability of each parent to allow an open and loving frequent relationship between the child and the other parent. . The trial court did not isolate any of the other AS 25.20.090 or AS 25.24.150(c) factors as being factually subsidiary to its ruling, other than a finding that Debra is a "much more capable" parent. With respect to denying Greg legal custody, however, the dispositive significance of this finding is undercut by the trial court's finding that "both parties can be classified as fit," and that Greg is a "good parent] ]." The record amply supports this latter finding. The record reflects, for example, that Greg studied child development and consulted with others about Scott's needs. The child custody investigator found that Greg loves Scott and would provide him with good care. Debra also testified that "Greg is a good parent." . In McClain, 716 P.2d at 385, we explained that the parents' agreement on a custody issue, although not dispositive of the best-interest determination, "is a pertinent factor because it demonstrates that cooperation between the parents is possible." . Rule 90.3 requires that child support awards be based on "adjusted annual income," which is arrived at by subtracting from gross income certain expenses; e.g., taxes. Civil Rule 90.-3(a)(1)(A). In addition to using a figure higher than the largest figure shown in the record, the trial court erred by failing to make necessary deductions. . The court stated that Greg could return the video camera and the vacuum cleaner to Debra in lieu of making a cash reimbursement for these items. . As indicated, all of these items were in Greg's possession except for the Point McKenzie property. . The parties were married for only 16 months. . Greg did not claim that he made any contributions to property retained by Debra. . Since the question whether the trial court employed the correct legal analysis is a question of law, review of Greg's claim is based upon our independent judgment. See Wanberg, 664 P.2d at 570. .Debra purchased the bed for $1,500, the video camera for $1,000, and the vacuum cleaner for $300. The pick-up was purchased by both parties for $7,200. At trial, Greg testified that the bed, camera, vacuum cleaner, and pick-up depreciated to values of about $400, $200, $150, and $6,000 to $6,500, respectively. . This would include the truck, lumber tree, bed, video camera, and vacuum cleaner.

10385672

Robert RAPOPORT, Appellant, v. TESORO ALASKA PETROLEUM CO., Appellee

Rapoport v. Tesoro Alaska Petroleum Co.

1990-06-29

No. S-3514

949

952

794 P.2d 949

794

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:52:46.410719+00:00

CAP

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

Robert RAPOPORT, Appellant, v. TESORO ALASKA PETROLEUM CO., Appellee.

Robert RAPOPORT, Appellant, v. TESORO ALASKA PETROLEUM CO., Appellee. No. S-3514. Supreme Court of Alaska. June 29, 1990. Daniel E. Winfree, Law Offices of Daniel E. Winfree, Fairbanks, for appellant. Ronald E. Noel and David V. Burglin, Hughes, Thorsness, Gantz, Powell & Brun-din, Fairbanks, for appellee. Before MATTHEWS, C.J., and BURKE, COMPTON and MOORE, JJ.

1501

9048

OPINION COMPTON, Justice. The sole issue in this case is whether the trial court erred in holding that the superi- or court's decision in Rapoport v. Tesoro Alaska Petroleum Co., No. 4FA-87-1176, aff'd, 790 P.2d 1374 (Alaska 1990) {Rapo-port I) collaterally estops Rapoport from asserting the same excuse which failed to justify setting aside the default judgment against him in that ease to justify setting aside the default judgment in this case. I. FACTS AND PROCEEDINGS Both parties agree on the operative facts. In 1986 Rapoport, as a shareholder in RRFG Investments, Ltd., a closely held corporation, bought all the stock of Interior Energy Corporation (IEC). On the date of the sale, August 29,1986, IEC owed Tesoro Alaska Petroleum Co. (Tesoro) approximately $1.4 million. As part of the purchase of IEC, Rapoport, inter alia, agreed to be held personally liable for specified IEC debt. Rapoport also agreed to guarantee all future IEC debt to Tesoro. On June 24, 1987 Tesoro filed two separate but related lawsuits against Rapoport. Both complaints alleged that Rapoport, inter alia, had personally guaranteed the debt owed by IEC to Tesoro. The first complaint, at issue in Rapoport I, sought to recover debt IEC incurred to Tesoro after the sale of IEC to Rapoport et al. The second complaint, at issue here, sought to recover the specified IEC debt owing at the time of the sale. Rapoport I was assigned to Superior Court Judge Richard D. Saveli whereas this suit was assigned to Superior Court Judge Jay Hodges. Rapoport was served by certified mail in both actions on July 13, 1987. Rapoport took no action in response to either service. On August 13, 1987 Tesoro moved for, and on the 14th received, a default against Ra-poport in both actions. A default judgment was entered in Rapoport I on August 14, 1987, but not until July 11, 1985 in this ease. On July 25, 1988 Rapoport moved to set aside the default judgment in Rapoport I under Civil Rule 60(b)(1), alleging excusable neglect. Rapoport alleged that he was too ill to appreciate the fact that he was being sued in regard to his guaranty. Judge Saveli denied his motion on January 31, 1989, finding that his claims of illness lacked credibility. Rapoport moved to set aside the default judgment in this case, also under Civil Rule 60(b)(1), on November 18, 1988. In a memorandum opinion dated July 10,1989, Judge Hodges denied this motion. Relying on Murray v. Feight, 741 P.2d 1148 (Alaska 1987), Judge Hodges held that collateral estoppel barred relitigation of the issue of excusable neglect. He noted that the excuse offered by Rapoport and the evidence presented in support of that excuse were the same as in Rapoport I. He also noted that the parties were the same as in Rapo-port I, and that the denial of Rapoport's Rule 60(b)(1) motion was a final judgment, despite its pending appeal. Rapoport appeals the collateral estoppel ruling. We affirm. II. DISCUSSION COLLATERAL ESTOPPEL BARS RAPO-PORT FROM SETTING ASIDE THE SECOND DEFAULT JUDGMENT. A. Standard of Review. Denials of relief from default judgments under Civil Rule 60(b) will be reversed only for abuse of discretion, i.e., if we are "left with the definite and firm conviction on the whole record that the trial judge has made a mistake." Gregor v. Hodges, 612 P.2d 1008, 1010 (Alaska 1980) (per curiam) (citation omitted). See also Rapoport I at 1377. In this case it is apparent that Judge Hodges did not definitively reach the Civil Rule 60(b) issue, finding relief precluded by the doctrine of collateral estop-pel. The applicability of collateral estoppel to a given set of facts is a question of law subject to independent review. McKean v. Municipality of Anchorage, 783 P.2d 1169, 1170-73 (Alaska 1989); Murray v. Feight, 741 P.2d 1148, 1153-56 (Alaska 1987); Pennington v. Snow, 471 P.2d 370, 374-79 (Alaska 1970). B. Applicability of Doctrine. In McKean, we set forth the three requirements for application of collateral estoppel: 1) [t]he plea of collateral estoppel must be asserted against a party or one in privity with a party to the first action; 2) [t]he issue to be precluded from re-litigation by operation of the doctrine must be identical to that decided in the first action; 3) [t]he issue in the first action must have been resolved by a final judgment on the merits. McKean, 783 P.2d at 1171, quoting Murray, 741 P.2d at 1153. The first prerequisite (party identity) is obviously fulfilled here; the parties are identical (Tesoro and Rapoport). The second prerequisite (same issue) is also obviously fulfilled here; the evidence offered by Rapoport to set aside the default in Rapoport I on the grounds of excusable neglect is exactly the same evidence he offers here. It is the third prong (the presence of a final judgment on the merits) that is contested here. In Calhoun v. Greening, 636 P.2d 69 (Alaska 1981), this court held that the denial of a Civil Rule 60(b) motion, while not technically a "judgment," will give rise to issue preclusion because it is an appealable final judgment for purposes of Appellate Rule 202. Calhoun, 636 P.2d at 72-73 & n. 4. Rapoport urges us to hold that judgments are not "final" for purposes of issue preclusion if they are pending on appeal. Calhoun rejects this contention; the reason supporting our determination that denied Civil Rule 60(b) motions are final judgments is the very fact that they are appeal-able. Calhoun, 636 P.2d at 72 n. 4. The irrelevance of a pending appeal is also supported by our other collateral es-toppel cases. See Pletnikoff v. Johnson, 765 P.2d 973, 976 (Alaska 1988) ("[o]nce a judgment has been reversed by an appellate court, the finality requirement is no longer satisfied") (emphasis added); Briggs v. State, Dep't of Pub. Safety, 732 P.2d 1078, 1082 (Alaska 1987) ("[fjactors supporting a conclusion that a decision is final for this purpose are 'that the parties were fully heard, that the court supported its decision with a reasoned opinion, that the decision was subject to appeal or was in fact reviewed on appeal.' ") (emphasis added), quoting Restatement (Second) of Judgments § 13 comment g (1982); Pennington, 471 P.2d at 374 ("[issue preclusion] is founded upon the principle that parties are not to be permitted to litigate the same issue more than once and that when a right or fact has been judicially determined by a court of competent jurisdiction or an opportunity for such trial has been given, the judgment of the court, so long as it remains unreversed, should be conclusive upon the parties-") (emphasis added), quoting State v. Baker, 393 P.2d 893, 896-97 (Alaska 1964). C. Full and Fair Opportunity to Litigate. In Murray, we recognized that the lack of an opportunity to fully and fairly litigate an issue might preclude the application of collateral estoppel despite the above mentioned three factors being fulfilled. Murray, 741 P.2d at 1153-56. See also Pennington, 471 P.2d at 378. Rapoport argues that the amount of the judgment in Rapoport I (approximately $375,000) was materially smaller than the amount at stake here (approximately $1.4 million). Such an argument was advanced to avoid issue preclusion in Pennington. Pennington, 471 P.2d at 378 ($2,500 and $50,000). More recently, however, we held in Murray that a disparity between $3,000 and $1.3 million, despite being "substantial," did not defeat application of collateral estoppel. Murray, 741 P.2d at 1156. The rationale underlying Murray and Pennington is to insure that the party had sufficient incentive to litigate "the issue to the fullest in the prior action," which it might not have had for several reasons, one of which is that the amount at stake in the first action was not sufficient. Id.; see also Pennington, 471 P.2d at 378. However, the Mur-rays would have done nothing materially different in the first case were more at stake. Murray, 741 P.2d at 1156. In this case, Rapoport obviously had sufficient incentive to litigate Rapoport I. Thus, regardless of the correctness of Judge Sa-veli's denial of relief, relitigation is precluded; it cannot be said that Rapoport is being deprived of an opportunity to adequately litigate this issue. AFFIRMED. . See Rapoport I at 1375-1377 for details concerning Rapoport's excusable neglect claim. . Rapoport argues in his brief that the fact that Tesoro and a co-defendent, Hayes, will be litigating the same claims and defenses that Rapo-port seeks to litigate here militates in favor of not applying issue preclusion to his case, since the end of judicial economy would not be served. However, Tesoro and Hayes have settled, thus undercutting the factual basis of Ra-poport's argument.

10371129

Veronica BOWLIN, Appellant, v. STATE of Alaska, Appellee

Bowlin v. State

1991-12-27

No. A-3677

676

680

823 P.2d 676

823

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T17:54:33.217185+00:00

CAP

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

Veronica BOWLIN, Appellant, v. STATE of Alaska, Appellee.

Veronica BOWLIN, Appellant, v. STATE of Alaska, Appellee. No. A-3677. Court of Appeals of Alaska. Dec. 27, 1991. Cynthia Drinkwater, Asst. Public Defender, Palmer, and John B. Salemi, Public Defender, Anchorage, for appellant. Eugene B. Cyrus, Asst. Dist. Atty., Kenneth J. Goldman, Dist. Atty., Palmer, and Charles E. Cole, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and MANNHEIMER, JJ.

2600

16035

OPINION MANNHEIMER, Judge. Veronica Bowlin was convicted of refusal to submit to a breath test, AS 28.35.031(a) and AS 28.35.032(f), following a jury trial in the district court at Palmer. The main issue at trial was whether Bowlin, who has asthma, was physically capable of blowing enough air into the Intoximeter machine to trigger the mechanism and run the breath test. The State's theory of the case was that Bowlin had willfully refused to blow enough air into the machine to activate the test. Bowlin testified that she had tried several times to activate the Intoximeter but, because of her asthma, she had failed despite her best efforts. The prosecutor asked the trial judge to allow the jurors to take turns blowing into the Intoximeter so they could gain personal knowledge of how forceful the flow of air must be to trigger the testing mechanism. District Court Judge Peter Ashman granted the State's motion; the judge, the attorneys, Bowlin, and the jurors went together to the Palmer police station, where the jurors took turns blowing into the Intoximeter and observing how much air was required to activate the machine's testing mechanism. On appeal, Bowlin challenges the district court's decision to allow the jurors to do this. The procedure adopted by the trial judge in Bowlin's case combines three traditional court procedures: (1) a jury view (having the jury leave the courtroom to inspect physical evidence that cannot practicably be brought to court) ; (2) a demonstration (having the jury observe the working of the Intoximeter machine); and (3) an experiment (testing the Intoximeter to see what amount of force was required to fill the testing chamber with enough air to trigger the machine's breath testing function). Moreover, because the jurors themselves blew into the Intoximeter (rather than watching someone else do it), Bowlin's case is also similar to cases involving jury experiments conducted upon or using items of physical evidence during deliberations. Bowlin points out that the jurors' manipulation and testing of the Intoximeter differed significantly from a normal "jury view" in which jurors merely look at something. See Alaska Criminal Rule 27(b) and Alaska Civil Rule 48(c). She asserts that when the jurors took turns blowing into the Intoximeter they created "new evidence"— evidence obtained outside of court, evidence that Bowlin could not subject to confrontation or cross-examination. But the words "new evidence" are not a talisman to charm a decision from the facts of this case. "Evidence" is not confined to the sworn words of witnesses or to small objects that can be easily handled, carried into the jury room, and placed in an envelope or box for transmission to an appellate court. Rather, any jury view and any physical demonstration will yield "evidence". Bowlin cites State v. Fricks, 588 P.2d 1828, 1334 (Wash.1979), for the proposition that the sole purpose of a jury view is to help the jury understand testimony already presented in court, and that a jury view is improper if it produces "new" evidence— that is, evidence which is not merely illustrative of witnesses' testimony. Many cases echo the Fricks rule. But this distinction between juror observations and the more usual forms of evidence heard in a courtroom does not make sense. McCormick on Evidence notes that this limitation on jury views is "uniformly condemned" by commentators on the law of evidence: This doctrine undoubtedly rests in large part upon the consideration that facts garnered by the jury from a view are difficult or impossible to embody in the written record, thus rendering review of questions concerning weight or sufficiency of the evidence impracticable. At the same time, however, this doctrine ignores the fact that many other varieties of demonstrative evidence are to some extent subject to the same difficulty, and further it is unreasonable to assume that jurors, however they may be instructed, will apply the metaphysical distinction suggested and ignore the evidence of their own senses when it conflicts with the testimony of the witnesses. McCormick on Evidence (2nd ed. 1972), § 216, p. 539. Accord, Wigmore on Evidence (Chadbourn rev. 1972), § 1168, Vol. 4, pp. 385-391. Thus, it is the fulfillment of purpose, not the creation of error, when the jury's observation of an intersection, a building, or a machine provides new information that allows the jury to better assess the credibility of witnesses and the weight to be given their testimony. During the jury's visit to the police station, the jurors observed the working of the Intoximeter machine. In particular, they tested the machine to see how much air flow would trigger it. Demonstrating the working of machinery is an accepted part of evidence. As Wigmore pointedly states: In general, when a question arises whether at a certain machine, house, field, mine, or other thing, a certain act can be done under given conditions of time, strength, skill, or achievement, one way [to obtain the answer] is to speculate about it, and another way is to try it; and it is a crude error to suppose that the law of evidence here prefers speculation to experience, abhors actual experiment, and delights in guesswork. Wigmore (Chadbourn rev.1979), § 460, Vol. 2, p. 592. Bowlin argues that, if the jury's visit to and operation of the Intoximeter led to the jury's obtaining more evidence, then that visit violated the fundamental rule of trial procedure prohibiting the reception of evidence by the jury outside of court. Wig-more (Chadbourn rev.1976), § 1802, Vol. 6, p. 334. But, for purposes of this rule, "court" means the presence of the judge, the jury, and the parties. When a physical object cannot practicably be brought to the courtroom, or when a demonstration cannot feasibly be performed in the courtroom, a trial judge has the discretion to bring the court to the evidence. Id. at 336-38; Wig-more (Chadbourn rev.1972), § 1162, Vol. 4, p. 362. In Bowlin's case, the judge, the attorneys, and Bowlin herself accompanied the jury to the police station and were present during the entire procedure. The propriety both of jury views and of courtroom demonstrations is unquestionable. This being so, there is no objection in principle to a combination of the two — the holding of a demonstration in the presence of the jury outside the courtroom. See Wigmore (Chadbourn rev.1976), § 1802, Vol. 6, pp. 336-38, indicating that it is proper for a court to hold proceedings at the site of a jury view and have witnesses testify there if this will aid the witnesses in imparting their information and the jury in understanding it. Bowlin contends, however, that it was error to allow the jurors themselves to participate in the demonstration of the In-toximeter. As noted above, the jurors took turns blowing into the machine and finding out how much breath was required to trigger the testing mechanism. Bowlin argues that this procedure turned each of the jurors into a new "witness" against her, a witness who could not be confronted or cross-examined. We do not believe that the performance of the Intoximeter test deprived Bowlin of the right to confront the evidence against her. The jurors were not allowed to take the Intoximeter and tinker with it in private; rather, they were given access to the machine at the police station to conduct one specific type of examination (blowing into the machine). The entire procedure occurred in the presence of both Bowlin's attorney and Bowlin herself. Bowlin was able to observe how the procedure was conducted, and the same Intoximeter machine employed in that procedure was available for Bowlin's inspection and testing. Nor is cross-examination an issue here. Normally, jurors rely upon human witnesses' descriptions of what happened; cross-examination is a method for testing the truthfulness and accuracy of these after-the-fact accounts. But when the jurors blew into the Intoximeter to see what amount of air pressure was needed to trigger the testing mechanism, the jurors were able to directly perceive the result for themselves rather than depending on someone else's account of it. See Wigmore, (Chadbourn rev.1976), § 1803, Vol. 6, p. 342. The Alaska Supreme Court has recognized that a defendant has a due process right, analogous to the right of cross-examination, to test the reliability of the results of the government's chemical analysis of a motorist's breath. Lauderdale v. State, 548 P.2d 376 (Alaska 1976). But the scientific test conducted in Lauderdale occurred outside the presence of the jury, and the jury was not in a position to directly assess or gauge the accuracy of the breath test reading. In Bowlin's case, on the other hand, the question is not whether chemical analysis has yielded a trustworthy result. Rather, the issue concerns a physical characteristic of the breath test machine itself: how much breath is required to trigger the machine's testing mechanism. This is a question that can be resolved through the jurors' direct experience, similar to the question of how much the machine weighs or whether it becomes warm to the touch when it is being operated. Nevertheless, Bowlin's argument is not trivial. As demonstrated by the cases involving juror manipulation and testing of physical evidence during jury deliberations, courts are often troubled when jurors, supplementing their usual role as mere hearers and observers of testimonial and demonstrative evidence, undertake more direct participation in the fact-finding process by examining or probing the physical objects introduced at trial. Notwithstanding this judicial trepidation, there are many cases upholding jury experimentation with physical evidence. In People v. Kurena, 87 Ill.App.3d 771, 43 Ill.Dec. 277, 410 N.E.2d 277 (1980), jurors constructed a cardboard replica of the knife admitted into evidence and used this replica to re-enact the assault, to see if the victim's wounds could have been inflicted by a left-handed or right-handed person, and to see if the weapon could have been concealed in a sleeve. In State v. Thompson, 164 Mont. 415, 524 P.2d 1115 (1974), jurors used the handgun admitted into evidence to re-enact the struggle described in the testimony and see if the gun could have been fired if held in the manner described in the testimony. In Allen v. State, 141 Tex.Crim. 94, 146 S.W.2d 384, 386 (1940), overruled on another point by Stiles v. State, 520 S.W.2d 894 (Tex.Crim.App.1975), the jury experimented with the pistol admitted into evidence to see if, as claimed by the defendant, the cylinder would "hang" or stick at a particular place in its revolution and cause the handgun to discharge accidentally. In State v. Best, 89 S.D. 227, 232 N.W.2d 447, 457 (1975), a defendant on trial for child abuse claimed that her infant's injuries had been inflicted when the baby's two-year-old brother had struck the baby with a telephone. The jurors experimented with the telephone (which had been admitted into evidence), testing its weight to see if it was conceivable that a two-year-old could have used it to inflict serious injury. In People v. Engler, 150 A.D.2d 827, 540 N.Y.S.2d 591, 594 (N.Y.App.1989), jurors experimented with a vaporizer to test the defendant's claim that a child's injuries had been sustained when the child carelessly played near the vaporizer. In perhaps the most extensive jury experiment, the jurors in Taylor v. Reo Motors, Inc., 275 F.2d 699, 705 (10th Cir.1960), actually dismantled a heat exchanger to test a witness's testimony about the way it functioned. We list these cases, not to indicate that we necessarily approve of each of these decisions, but to illustrate how much scope courts have been willing to grant juries who experiment with exhibits in the privacy of their deliberations. Bowlin's case is far easier to decide because the procedure at issue in Bowlin's case does not raise the same policy concerns as experimentation that occurs during jury deliberations. The courts which forbid jurors' manipulation of or experimentation with physical evidence generally base their decisions on one or both of two objections. First, courts object because jury deliberation occurs outside the presence of the parties; thus, the parties cannot point out the weaknesses or possible ambiguities in the jury's mode of examination, nor can they elucidate any lack of similarity between what the jury is doing with the exhibit and how the exhibit was actually used under the circumstances of the case. Second, courts object because they cannot exercise their normal power to exclude a physical demonstration with or experiment upon an object when the current condition of the object differs materially from its condition at the time at issue in the litigation. See, e.g., People v. Andrew, 156 A.D.2d 978, 549 N.Y.S.2d 268 (N.Y.App.1989). The first objection has no force here because the jurors' experiment with the In-toximeter occurred in the presence and under the scrutiny of Bowlin and her attorney. Likewise, the second objection does not apply to Bowlin's case either. Judge Ashman heard the parties argue the pros and cons of holding such an experiment before he exercised his discretion in favor of allowing the procedure. If Bowlin had believed that the current condition of the Intoximeter differed materially from its condition at the time of her arrest, she could have raised this objection. Finally, Bowlin argues that the jurors' testing of the Intoximeter differed substantially from the event being litigated — Bow-lin's act of blowing into the machine at the time of her arrest. Bowlin asserts that, because she has asthma while the jurors do not, the jurors would have found it significantly easier to activate the Intoximeter than she did. Bowlin therefore claims that the jurors' experience with the machine was misleading. Bowlin's argument misapprehends the purpose of the jurors' test. The jurors were not attempting to duplicate Bowlin's act of blowing into the Intoximeter. Rather, they were attempting to gain a better understanding of the witnesses' testimony by testing a physical characteristic of the Intoximeter, seeing how much air pressure was needed to activate the machine. This is similar to jury tests of the weight or working of a mechanical object upheld in Allen v. State, 146 S.W.2d at 386 (alleged defect in the cylinder of a revolver), State v. Best, 232 N.W.2d at 457 (weight of a telephone), People v. Engler, 540 N.Y.S.2d at 594 (functioning of a vaporizer), and Taylor v. Reo Motors, Inc., 275 F.2d at 705 (functioning of a heat exchanger). When the jurors tested the Intoximeter, they were already aware that Bowlin had asthma and that Bowlin's medical condition gave her a reduced ability to exhale forcefully. It was clear that the jurors could not duplicate Bowlin's act of blowing into the machine; it was equally clear that the jurors' ability to activate the machine did not necessarily mean that Bowlin could have done so too. Bowlin's attorney had the opportunity to emphasize these two propositions when the case was argued. For these reasons, we conclude that Judge Ashman did not abuse his discretion when he allowed the jurors in Bowlin's case to go to the Palmer police station and blow into the Intoximeter. The judgement of the district court is AFFIRMED. . Apparently, the trial judge decided to bring the jury to the Intoximeter rather than vice-versa because physical removal of the Intoximeter from its location at the police station jeopardizes its certification by the Department of Health and Social Services.

10357134

Douglas E. BURNETTE, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee

Burnette v. Municipality of Anchorage

1991-12-20

No. 1187

10

14

823 P.2d 10

823

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T17:54:33.217185+00:00

CAP

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

Douglas E. BURNETTE, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee.

Douglas E. BURNETTE, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee. No. 1187. Court of Appeals of Alaska. Dec. 20, 1991. Michael B. Logue, Gorton & Oberly, Anchorage, for appellant. Cesar O. Velasquez, Asst. Mun. Prosecutor, James F. Wolf, Mun. Prosecutor, and Richard McVeigh, Mun. Atty., Anchorage, for appellee. Before BRYNER, C.J., and MANNHEIMER, J., and ANDREWS, Superior Court Judge. Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution.

2111

12975

OPINION BRYNER, Chief Judge. Douglas E. Burnette pled no contest and was convicted of driving while intoxicated (DWI), in violation of Anchorage Municipal Code (AMC) § 09.28.020A. Because he had previously been convicted of DWI in Oregon in 1987, Burnette was sentenced as a second-time DWI offender. District Court Judge Glen C. Anderson imposed a sentence of 90 days with 70 days suspended and a $1,000 fine with $500 suspended. The 20 days Burnette was sentenced to serve and the $500 unsuspended portion of the fine coincide with the mandatory minimum penalties for second-time DWI offenders set forth in AMC § 09.28.020C. Burnette argues that the court erred in sentencing him as a second offender based on his Oregon DWI conviction. The court imposed its sentence pursuant to the authority of AMC § 09.28.020C, which provided at the time of Burnette's sentencing: Upon conviction under this section, the court shall impose a minimum sentence of: 2.Imprisonment not less than 20 consecutive days and a fine of not less than $500.00 if, within the preceding 10 years, the person has been previously convicted once in this or another jurisdiction of driving while intoxicated under this or another law or ordinance with substantially similar elements or refusal to submit to a chemical test under AS 28.35.032, AMC 9.28.022 or another law or ordinance with substantially similar elements. Burnette argues that his 1987 Oregon DWI should not have been treated as a previous conviction under AMC § 09.28.-020C, because the elements set forth in the Oregon DWI statute are not substantially similar to those set forth in AMC § 09.28.-020B. We agree, and accordingly reverse Burnette's sentence. AMC § 09.28.020B provides: A person commits the crime of driving while intoxicated if he or she operates, drives or is in actual physical control of a motor vehicle or operates an aircraft or a watercraft: 1. while under the influence of intoxi- , eating liquor, depressant, hallucinogenic, stimulant or narcotic drugs as defined in AS 11.71.140-190; or 2. when, as determined by a chemical test taken within four hours after the alleged offense was committed, there is 0.10% or more by weight of alcohol in the person's blood or 100 milligrams or more of alcohol per 100 milliliters of blood, or when there is 0.10 gram or more of alcohol per 210 liters of the person's breath; or 3. while the person is under the combined influence of intoxicating liquor and a drug or drugs, or intoxicating liquor and another substance that when introduced into the body acts as a central nervous system depressant or stimulant, to a degree which renders the person incapable of driving safely; or 4. while the person is under the influence of a drug or drugs, or another substance that when introduced into the body acts as a central nervous system depressant or stimulant, to a degree which renders the person incapable of driving safely. The corresponding Oregon statute, ORS 813.010, provides in relevant part: (1) A person commits the offense of driving while under the influence of intoxicants if the person drives a vehicle while the person: (a) Has .08 percent or more by weight of alcohol in the blood of the person as shown by chemical analysis of the breath or blood of the person made under ORS 813.100, 813.140 or 813.150; (b) Is under the influence of intoxicating liquor or a controlled substance; or (c) Is under the influence of intoxicating liquor and a controlled substance. The parties' dispute as to the similarity of the elements set forth in these two provisions centers on the blood alcohol percentages set forth in AMC § 09.28.020(B)(2) and ORS 813.010(l)(a). The district court, although conceding that it was "a close question," found that the elements of the two offenses were substantially similar. When determining whether a conviction from another jurisdiction is to be treated as a prior conviction for purposes of sentencing under Alaska law, the focus is not on the facts underlying the prior conviction, but rather on the language of the statute defining the offense. Walsh v. State, 677 P.2d 912, 915 (Alaska App.1984). We have not previously interpreted the statutory phrase "substantially similar elements," which appears in both AMC § 09.-28.020 and the corresponding state DWI statute, AS 28.35.030. However, we have applied the "substantially similar elements" standard in the context of Alaska's felony presumptive sentencing scheme. In Martin v. State, 704 P.2d 1341 (Alaska App.1985), we upheld the superior court's decision to treat Martin as a third-time felony offender for purposes of presumptive sentencing. Martin had argued that the Oklahoma statute under which he had been convicted for felony escape so differed from Alaska's felony escape statute that his Oklahoma conviction should not have been considered for presumptive sentencing purposes. AS 12.55.145(a)(2) provides: 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[.] We agreed with the superior court in Martin that the standard to be applied under this statute was whether the elements of the prior offense were "substantially similar" to those of an Alaska felony. Martin, 704 P.2d at 1342. In that case, we rejected Martin's argument that Alaska's escape statute was more narrowly drawn than the Oklahoma escape statute. We held: Although there are differences between the elements of the Oklahoma and Alaska statutes, those differences render the Oklahoma statute more restrictive than the Alaska statute. Accordingly, while it appears that there may be some cases where a defendant convicted under the Alaska statute would not be convicted under the Oklahoma law, the converse is not true: any offender who could be convicted under the Oklahoma law would be subject to conviction under the elements of the Alaska statute as well. Under these circumstances, any differences between the legislative schemes will not preclude a finding of substantial similarity- Id. at 1342. Here, we are faced with the converse of the situation presented in Martin. The Oregon DWI statute is less restrictive than the Anchorage ordinance. Under such circumstances, we have held that the earlier conviction cannot be treated as a prior conviction for purposes of enhanced or presumptive sentencing. See Harlow v. State, 820 P.2d 307 (Alaska App.1991) (Oregon felony conviction for "unauthorized use of a vehicle" is not a prior felony conviction for presumptive sentencing purposes, because unlike Alaska's felony joyriding statute, Oregon's statute does not require the state to prove that the defendant has been previously convicted of joyriding); Garroutte v. State, 683 P.2d 262 (Alaska App.1984) (prior conviction under former Alaska statute which penalized receiving and eon- cealing stolen property as a felony, did not qualify as a prior felony conviction for presumptive sentencing purposes because the former statute did not require proof of the value of the stolen property, whereas the current statute provided for a $500 jurisdictional minimum for felony theft convictions); Walsh v. State, 677 P.2d 912 (Alaska App.1984) (New York felony grand larceny conviction for theft of property valued at more than $50 but not exceeding $500 could not be used as prior felony conviction for presumptive sentencing purposes because of Alaska's $500 jurisdictional minimum for felony theft convictions); Lee v. State, 673 P.2d 892 (Alaska App.1983) (grand larceny conviction under former Alaska statute making theft of property valued in excess of $100 a felony could not be considered a prior felony conviction due to current $500 minimum for felony theft convictions). All of these cases but Harlow were decided under former AS 12.55.145(a)(2), which provided in part: a conviction in this or another jurisdiction of an offense having elements substantially identical to those of a felony defined as such under Alaska law is considered a prior felony conviction[.] Although the term "substantially identical" is somewhat narrower than "substantially similar," this distinction does not dilute the authority of Garroutte, Walsh, and Lee here. The reasoning in all three opinions extends beyond the narrow confines of the term "substantially identical." See Harlow, 820 P.2d at 309, in which we relied on Garroutte, despite the fact that it had been decided under the former statute. Burnette's plea of guilty to DWI charges in Oregon signified only his expectation that the state could meet its burden to prove that his blood alcohol level at the time he was driving was .08 percent or more. It would be as unfair under the "substantially similar" standard as under the "substantially identical" standard to construe his plea as an admission that he was guilty of the offense of driving with a blood alcohol level of .10 percent or more. The municipality attempts to distinguish this case from Garroutte, Lee, and Walsh, all of which involve prior convictions for theft. The municipality argues that, unlike Alaska's felony theft statutes, the Anchorage DWI ordinance contains no "value element." The municipality's position appears to be that a .10 percent blood alcohol content is not an element of the offense of DWI under the Anchorage statute because it is possible to be convicted of DWI under the statute with a blood alcohol reading of less than .10 percent. We are not persuaded by this argument. The .10 percent blood alcohol level specified in AMC § 09.-28.020(b)(2) is an element of the offense of DWI under that ordinance. The fact that it is one of several alternative elements does not mean that it is not an element of the offense. The same is true of the .08 percent blood alcohol level specified in ORS 813.010(l)(a). All the State of Oregon would have had to prove to obtain a DWI conviction under its statute was that Burnette drove with a blood alcohol content of .08 percent or greater. From the record in this case, it appears that it was in anticipation of the State of Oregon's ability to prove this fact that Burnette entered his plea of guilty to DWI. The result we reach might be different if the municipality had established before the district court that Burnette's Oregon DWI conviction was based on an "under the influence" theory rather than on his blood alcohol content. However, in this case the record indicates only that Burnette had a chemical test result of .09 percent blood alcohol content and pled guilty to DWI. There is no indication that the State of Oregon presented or would have been able to present any evidence that Burnette was "under the influence" of intoxicating liquor or a controlled substance. Under these circumstances, we cannot conclude that the .08 percent blood alcohol content specified in ORS 813.010(l)(a) was not an element of the DWI offense of which Burnette was convicted in Oregon. We hold that this element is not substantially similar to the corresponding element in AMC § 09.28.020B. Consequently, we REVERSE Burnette's sentence and remand this case to the district court for resentencing of Burnette as a first time DWI offender. . This section of the Municipal Code has since been amended, but there are no substantive changes to the ordinance's provision for the mandatory minimum sentence for second time DWI offenders. . The record indicates that the chemical test result underlying Burnette's plea of guilty to DWI charges in Oregon showed his blood alcohol level at the time of the offense to be .09 percent. Judge Anderson estimated that the likelihood of a DWI conviction in Alaska with a .09 blood alcohol test result was "slim indeed." However, Judge Anderson recognized that the factual basis for the Oregon conviction was not the proper focus of his inquiry. . Cf. AS 12.55.145(d) ("If the defendant introduces substantial evidence that . a conviction should not be considered a prior felony conviction under (a)(2) of this section, then the burden is on the state to prove the contrary beyond a reasonable doubt."). . Although Burnette's Oregon conviction does not make him a second-time DWI offender in Alaska, that conviction is relevant to his sentence in this case. Burnette's Oregon conviction may properly be considered by the court in resentencing Burnette. See e.g., Harlow v. State, 820 P.2d at 309 n. 2; Garroutte v. State, 683 P.2d at 269.

10370615

Sandra L. ZEILINGER, Appellant, v. SOHIO ALASKA PETROLEUM COMPANY, Appellee

Zeilinger v. Sohio Alaska Petroleum Co.

1992-01-03

No. S-3717

653

660

823 P.2d 653

823

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:54:33.217185+00:00

CAP

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

Sandra L. ZEILINGER, Appellant, v. SOHIO ALASKA PETROLEUM COMPANY, Appellee.

Sandra L. ZEILINGER, Appellant, v. SOHIO ALASKA PETROLEUM COMPANY, Appellee. No. S-3717. Supreme Court of Alaska. Jan. 3, 1992. Lee Holen, Law Offices of Lee Holen, Anchorage, for appellant. Terrance A. Turner, Scott J. Nordstrand, Owens & Turner, Anchorage, for appellee. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

3768

23869

OPINION BURKE, Justice. In this appeal, Sandra Zeilinger seeks to avoid summary disposition of her wrongful discharge case against SOHIO Alaska Petroleum Company, her former employer. We affirm in part and reverse in part. I Sandra Zeilinger was employed by the SOHIO Alaska Petroleum Company (SAPC) in a non-exempt clerical position from March 6,1978, to September 30, 1985. From November 1979 until the date of her termination, Zeilinger worked on the North Slope; she worked a one week on/one week off schedule, and during the weeks she was off duty she returned to Anchorage. SAPC notified Zeilinger on August 29, 1985, that a reduction in force (RIF) necessitated her termination as of September 30, 1985. Apparently as part of this notification, SAPC offered her an "Involuntary Separation Program." This program consisted of various benefits, worth approximately $10,000; the recipient of those benefits was required to sign a separation agreement which, in part, released SAPC from any legal liability in connection with the recipient's discharge. The benefits offered Zeilinger included severance pay and three months' life and medical insurance coverage. According to Zeilinger, the RIF came as a complete surprise. Although she was aware that SAPC and its parent, SOHIO Petroleum Company (SPC), were in the process of reorganizing, she was under the impression from "town meetings" with SAPC management that this reorganization would not affect her. Zeilinger, along with two other non-exempt workers who had received RIF notices, met with SAPC management officials in Anchorage shortly after her RIF notification. At that meeting, SAPC denied Zeil-inger's request for additional time within which to consider whether to sign the agreement, and refused to allow her to make any alterations to the agreement. According to Zeilinger, when she asked one of the management officials "if this was really a reduction in force, . Mr. Loekard told [her] that's a question for the judge to decide or a question for the jury to decide." When she asked if her position was being eliminated, "he answered that it was for the jury to decide." Following the meeting, Zeilinger consulted counsel, who told her that if she signed the agreement she was giving up her right to challenge it. After hearing about Zeil-inger's finances, however, counsel opined that her economic situation might allow her to challenge the agreement on grounds of economic duress. Several days later, Zeil-inger contacted counsel again, after learning that SAPC was inviting other employees to apply for her position. Counsel then told her that such action might also provide a ground for challenging the document, should she decide to sign it. On September 16, 1985, Zeilinger signed the separation agreement and accepted the severance benefits offered by SAPC. According to Zeilinger, she did so because she felt her economic situation left her no choice. Even before the termination, her obligations exceeded her income by about $2,000 per month. Family medical problems made her feel that she could not forgo the medical insurance which would only be available if she signed the agreement. Moreover, there is evidence in the record from which a jury could reasonably conclude that SAPC was aware of her financial situation. When Zeilinger endorsed the check that she received as part of the separation package, she wrote on it "partial payment accepted under protest." It is apparently undisputed that a RIF was undertaken by SAPC at the direction of its parent company. After having drawn up a list of exempt employees to be terminated, SAPC was directed on or about August 22, 1985, to further cut its North Slope staff. SAPC then decided to terminate some non-exempt personnel, including Zeilinger. SAPC decided which non-exempt employees to terminate by examining their performance ratings; Zeilinger .was selected because she was considered "a marginal or poor employee within the criteria that [had been] set." SAPC concedes, however, that absent a bona fide RIF, it did not have cause to terminate Zeilinger based on performance alone. Both parties agree that from the time of the RIF on September 30, 1985, to the end of 1986, the number of non-exempt employees on the North Slope first decreased, then increased. SAPC attributes the ultimate increase, "at least in part," to the integration of non-exempt employees from a sister corporation that had been closed; these employees brought with them some new job functions. Although the integration did not take place until after the beginning of 1986, a jury could reasonably conclude that, at the time they terminated Zeilinger, SAPC management was aware that the integration would take place. A jury also could reasonably conclude that SAPC received more new employees as a result of the integration than it received new job functions. Three months after she was terminated, Zeilinger filed suit against SAPC to rescind the separation agreement and to recover damages for wrongful discharge. Over the next four years, the superior court granted various motions for partial summary judgment, which are discussed below. The remaining issues came on for trial by jury in October 1989.- At the conclusion of the plaintiffs case, the superior court directed verdict in favor of SAPC. Zeilinger appeals. II Zeilinger's case depends first upon avoiding summary judgment or directed verdict on her attempt to rescind the separation agreement, which contains a release clause. She seeks to rescind the separation agreement on any of three theories: that SAPC obtained the agreement by misrepresenting the reason for Zeilinger's discharge; that SAPC's actions in obtaining the separation agreement breached the covenant of good faith and fair dealing implied in Zeilinger's employment agreement; and that Zeilinger involuntarily assented to the separation agreement while under economic duress. A To avoid enforcement of a contract on the ground of misrepresentation, a party must show four things: First, there must have been a misrepresentation. Second, the misrepresentation must have been either fraudulent or material. Third, the misrepresentation must have induced the recipient to make the contract. Fourth, the recipient's reliance on the misrepresentation must have been justified. Johnson v. Curran, 633 P.2d 994, 997 (Alaska 1981) (quoting Restatement (Second) of Contracts § 301-15, Introductory Note (Tent. Draft No. 11, 1976)). Zeilinger's claim, of course, is that SAPC misrepresented the real reason for her dismissal. On this issue, the superior court granted summary judgment in favor of SAPC. The court pointed out that Zeilinger herself explicitly denied that she relied on any misrepresentation by insisting that she signed involuntarily due to her economic distress. Before this court, Zeilinger continues to insist that she signed the agreement involuntarily: "Zeilinger had no choice at the time the termination benefits were offered to her but to accept them; she feared bankruptcy, loss of her home and assets, and loss of health insurance and other benefits." Appellant's Brief at 5 (citing Zeilinger's trial testimony). Without citation or explanation, she asserts that "[i]t was error for the trial court to preclude Zeilinger's misrepresentation defense, simply because she asserted an economic duress defense, as well." Even assuming that there are factual issues concerning the other three elements of Zeilinger's misrepresentation, she cannot avoid summary judgment unless there is also a factual issue concerning reliance. There is simply no way a jury could conclude that Zeilinger relied on SAPC's representations that a RIF was the reason for her dismissal. In addition to her explicit and continuing insistence to the contrary, there are also the facts that she signed the severance check as accepted under protest and that she filed suit against SAPC within three months of her release. Furthermore, she notes that she explicitly questioned whether the RIF was real before she signed the separation agreement, without receiving a satisfactory response. Far from presenting evidence which reasonably tends to dispute SAPC's proffered facts, the essence of her evidence compels the conclusion that SAPC is entitled to judgment as a matter of law on the issue of whether Zeilinger relied on any misrepresentation concerning the real reason for her dismissal. B Subsequent to the grant of summary judgment concerning the issue of misrepresentation, Zeilinger amended her complaint to add a claim for breach of the covenant of good faith and fair dealing as another defense to the separation agreement. The theory behind this claim is that SAPC's alleged misrepresentations concerning the true reason for releasing Zeil-inger constitute a breach of the covenant of good faith and fair dealing implied in every employment contract in Alaska, Mitford v. De Lósala, 666 P.2d 1000, 1007 (Alaska 1983), and that "a breach of the covenant during her employment relationship should work to let her out of that release agreement." The superior court granted summary judgment in SAPC's favor on this issue. Zeilinger, in her brief, makes no legal or logical argument as to how a breach of the employment agreement should act to set aside the separation agreement that released SAPC from liability for any breach of the employment agreement. She merely asserts that "[bjreach of the covenant in obtaining the release should allow the employee to avoid the separation agreement." As SAPC points out, this argument is circular: Zeilinger seeks to avoid her release of claims on the ground that she had a claim. The argument suffers from an additional flaw in that it is founded upon SAPC's alleged misrepresentation as to the real reason for her dismissal. While the misrepresentation by itself might support a breach of contract action on the employment agreement, it has no demonstrable relation to the separation agreement, unless the misrepresentation somehow played a part in inducing Zeilinger to give up rights under the employment agreement. This, however, is merely a restatement of the misrepresentation theory that has already failed. C Zeilinger's final ground for setting aside the separation agreement is that she signed it while under economic duress. The superior court directed a verdict on this issue, in SAPC's favor, at the conclusion of Zeilinger's case. When reviewing directed verdicts, this court determines whether the evidence, when viewed in the light most favorable to the nonmoving party, is such that reasonable persons could not differ in their judgment. Bendix Corp. v. Adams, 610 P.2d 24, 27 (Alaska 1980). This court first addressed the claim of economic duress in Totem Marine Tug & Barge, Inc. v. Alyeska Pipeline Serv. Co., 584 P.2d 15 (Alaska 1978). While noting the difficulty in outlining a single formula for what constitutes economic duress, id. at 21 (quoting Dawson, Economic Duress — An Essay in Perspective, 45 Mich. L.Rev. 253, 289 (1947)), the court referred approvingly to the following approach: "[Djuress exists where: (1) one party involuntarily accepted the terms of another, (2) circumstances permitted no other alternative, and (3) such circumstances were the result of coercive acts of the other party." Id.; see also Helstrom v. North Slope Borough, 797 P.2d 1192, 1197 (Alaska 1990) (applying this test). In this case, Zeilinger claims she acted involuntarily, and SAPC concedes the point inasmuch as the test is subjective. Hel-strom, 797 P.2d at 1197. As to the second requirement, Zeilinger points to apparently dire consequences should she find herself without an income, without insurance, and without the severance pay that was offered: "[S]he was in danger of losing her home and assets, she believed she might be forced into bankruptcy, and she desperately needed the medical insurance." Appellant's Brief at 43. SAPC asserts that Zeil-inger had a reasonable alternative, in that "she had ample time to seek a judicial remedy barring her termination." Appel-lee's Brief at 27. In determining whether a reasonable alternative was available, we employ an objective test, and the outcome depends on the circumstances of each case. Totem Marine, 584 P.2d at 22; Helstrom, 797 P.2d at 1197. A legal remedy may constitute a reasonable alternative. Totem Marine, 584 P.2d at 22. It would not be adequate, however, if delay in obtaining it "would cause immediate and irreparable loss to one's economic or business interest." Id. SAPC refers to no evidence in the record that would compel a jury to conclude that legal action offered Zeilinger a reasonable alternative to signing the separation agreement, nor can we find any. SAPC may be able to present such evidence in its case-in-chief, but until such a showing is made, a directed verdict is inappropriate with regard to this requirement. Zeilinger, however, has to demonstrate a factual issue concerning each of the three prongs. See Wassink v. Hawkins, 763 P.2d 971, 974 (Alaska 1988) (failure to show factual dispute on third prong fatal to appeal from summary dismissal of economic duress argument). The third prong embodies two requirements: (a) coercive acts on the part of the other party and (b) a causal link between the coercive acts and the circumstances of economic duress. The court in Helstrom noted with approval that the " 'coercive acts' prong has been liberally construed, requiring that the strained circumstances be the result of acts which are criminal, tortious, or even merely 'wrongful in the moral sense.' " Helstrom, 797 P.2d at 1198. Even thus construed, however, no "coercive act" is present in Zeilinger's ease. Zeilinger's theory seems to be that the wrongfulness of her discharge, if proved, would provide the necessary coercive act. We disagree. Assuming for the sake of argument that Zeilinger's discharge was not pursuant to a valid RIF, there is still no evidence that the discharge was intended to, or that it did in fact, "coerce" Zeilinger into signing the release. SAPC notified her she was being terminated; there were no conditions, and she was given no opportunity to avoid termination. SAPC then offered her the chance to compromise any claims she might have arising out of the termination in exchange for valuable consideration. In connection with the offered release, SAPC neither made any threats nor undertook any action which could be considered coercive. See Restatement (Second) of Contracts § 175 (1981) ("If a party's manifestation of assent is induced by an improper threat by the other party that leaves the victim no reasonable alternative, the contract is voidable by the victim."); see also Totem Marine, 584 P.2d at 22 ("In many cases, a threat to breach a contract or to withhold payment of an admitted debt has constituted a wrongful act.") (emphasis added). Put another way, SAPC did not improperly induce Zeilinger to release her claims through threats or coercion. What did induce Zeilinger to release her claims was her burdensome financial circumstances. These circumstances were of her own making, and thus cannot be blamed on SAPC. See EEOC v. American Express Publishing Corp., 681 F.Supp. 216, 219 (S.D.N.Y.1988) (employer cannot be held responsible for pressure employee felt from being sole supporter of family of six and being one month behind on home and auto payments); LaBeach v. Beatrice Foods Co., 461 F.Supp. 152, 158 (S.D.N.Y.1978) (employer cannot be held responsible that bank was pressuring employee to repay $100,000 personal loan). Quite simply, economic necessity — very often the primary motivation for compromise — is not enough, by itself, to void an otherwise valid release. Horgan v. Industrial Design Corp., 657 P.2d 751, 753-54 (Utah 1982). Ill Zeilinger also appeals the superior court's award of $80,470 to SAPC for its attorney's fees. See Alaska R.Civ.P. 82(a)(1). This award represents approximately 40 percent of SAPC's claimed actual fees of $201,175. "We will reverse an award of attorney's fees . if the court abused its discretion by compensating excessive attorney hours_" O.K. Lumber v. Providence Washington Insurance Co., 759 P.2d 528, 528 (Alaska 1988). On its face, the claimed actual fees of $200,000 appear clearly excessive. The facts in the case were not particularly complex or unique, nor even subject to much dispute. The case did not involve questions of technical expertise, the legal issues weren't especially novel or original, and the trial was relatively brief. The question whether too much time was spent by SAPC's attorneys is for the superior court. Integrated Resources Equity Corp. v. Fairbanks North Star Borough, 799 P.2d 295, 304 (Alaska 1990). The superior court, however, gave no explanation of its award. In light of our doubts as to the reasonableness of SAPC's claimed fees, we elect not to approve the superior court's award of a substantial portion of those fees absent some indication that the court carefully scrutinized the submissions and awarded Rule 82 compensation only on a percentage of reasonable expenditures. Thus, we remand for a new determination of Rule 82 attorney's fees. The superior court's grants of summary judgment and directed verdict against Zeil-inger are AFFIRMED. Its award of attorney's fees to SAPC is REVERSED and this case REMANDED for further proceedings consistent with this opinion. . Non-exempt employees were generally the clerical and secretarial support staffs. They were compensated on an hourly basis and received overtime if they worked more than their scheduled hours. By contrast, exempt employees were generally salaried professionals. . SAPC officials testified, however, that they opposed the integration. . SAPC's president testified: A . One thing about the jobs that came from SCC [the sister company], they were coming with them, they were not replacing specifically SAPC. They brought with them the job, because part of the thing we absorbed was part of the work from SCC. Q So you['re] testifying that these were brand new jobs that were coming over from SCC and they were not taking away from existing SAPC jobs? A Some of them. . The separation agreement provided: In exchange for the benefits described in paragraph 2, I release and discharge SAPC and its officers, directors, stockholders, employees, agents, subsidiaries, parents, and affiliates from any and all claims, demands, or liabilities whatsoever, which I ever had or may now have against any of them, including but not limited to, any claims, demands, or liabilities in connection with my employment. I understand and expressly agree that this termination agreement extends to all claims of every nature and kind whatsoever, known or unknown, suspected or unsuspected, past or present, which existed at the time of the execution of this Separation Agreement. . We note our long-held view that "the preservation of agreements entered into in good faith and the encouragement of settlement of disputes constitute strong arguments for enforcing releases." Witt v. Watkins, 579 P.2d 1065, 1068 (Alaska 1978). Insofar as Zeilinger does not deny that she gave the release "with an understanding of the nature of the instrument," the burden was on her "to show by clear and convincing evidence that the release should be set aside." Id. at 1069-70. Her contention that this burden does not apply in the employer-employee context, citing id. at 1070 n. 16, misreads Witt. Footnote 16 merely suggested the possibility that a lighter burden might apply where an employee executed a personal injury release with her employer. See id. (citing Ricketts v. Pennsylvania R.R. Co., 153 F.2d 757, 760 (2d Cir.1946) (Frank, J., concurring)). The special pressure inherent in negotiating a personal injury release with the party for whom one continues to work should be obvious. .This court reviews grants of summary judgment to determine whether there are any genuine issues of material fact and, if not, whether the moving party is entitled to judgment on the established facts. Zeman v. Lufthansa German Airlines, 699 P.2d 1274, 1280 (Alaska 1985). All inferences are drawn in favor of the nonmoving party, in this case Zeilinger. Id.

10381115

Sidney R. HERTZ, Individually and on Behalf of all others similarly situated, Appellant, v. Charles MOSES, Individually and in his capacity as Regional Director; Richard C. Shoeffel, Individually and in his capacity as Superintendent; Michael O'Shea, Individually and in his capacity as Chairperson, Disciplinary Committee, Spring Creek Correctional Center, Department of Corrections for the State of Alaska, Appellees

Hertz v. Moses

1992-01-17

No. S-4250

1247

1248

823 P.2d 1247

823

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T17:54:33.217185+00:00

CAP

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

Sidney R. HERTZ, Individually and on Behalf of all others similarly situated, Appellant, v. Charles MOSES, Individually and in his capacity as Regional Director; Richard C. Shoeffel, Individually and in his capacity as Superintendent; Michael O’Shea, Individually and in his capacity as Chairperson, Disciplinary Committee, Spring Creek Correctional Center, Department of Corrections for the State of Alaska, Appellees.

Sidney R. HERTZ, Individually and on Behalf of all others similarly situated, Appellant, v. Charles MOSES, Individually and in his capacity as Regional Director; Richard C. Shoeffel, Individually and in his capacity as Superintendent; Michael O’Shea, Individually and in his capacity as Chairperson, Disciplinary Committee, Spring Creek Correctional Center, Department of Corrections for the State of Alaska, Appellees. No. S-4250. Supreme Court of Alaska. Jan. 17, 1992. Sidney R. Hertz, pro se. John K. Bodick, Asst. Atty. Gen., Anchorage, Charles E. Cole, Atty. Gen., Juneau, for appellees. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

224

1460

OPINION PER CURIAM. The failure to denote the incident report as either disciplinary or informational did not violate appellant's due process rights as he had adequate notice of the disciplinary hearing. Similarly, the failure to call Mr. Easter to testify as to why the incident report was not so denoted was not a due process violation because Easter's testimony on this point was irrelevant to any substantive issue. The failure of the appellees to record the deliberations of the prisoner disciplinary committee is not a violation of due process. The other points raised by Hertz are unreviewable as they do not allege an abridgement of fundamental constitutional rights. Department of Corrections v. Kraus, 759 P.2d 539, 540 (Alaska 1988). For the foregoing reasons the judgment is affirmed.

10375425

Nicholas A. HOWELL, Appellant, v. STATE of Alaska, Appellee

Howell v. State

1992-07-24

No. A-3815

1254

1256

834 P.2d 1254

834

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T18:00:54.631596+00:00

CAP

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

Nicholas A. HOWELL, Appellant, v. STATE of Alaska, Appellee.

Nicholas A. HOWELL, Appellant, v. STATE of Alaska, Appellee. No. A-3815. Court of Appeals of Alaska. July 24, 1992. Rehearing Denied Aug. 27, 1992. Michael Jungreis, Anchorage, for appellant. John J. Novak, Asst. Dist. Atty., Edward E. McNally, Dist. Atty., Anchorage, and Charles E. Cole, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and MANNHEIMER, JJ.

1139

7055

OPINION BRYNER, Chief Judge. Nicholas A. Howell was convicted by a jury of driving while his license was suspended (DWLS), in violation of AS 28.15.-291(a). District Court Judge John D. Mason sentenced Howell to 30 days with 20 days suspended, and revoked his driver's license for one year, the mandatory minimum period specified at that time under AS 28.15.181(d) and AS 28.15.291(c). We affirmed Howell's conviction. Howell v. State, Memorandum Opinion and Judgment No. 2050 (Alaska App., August 1, 1990). Shortly after this court issued its decision, Howell filed a motion pursuant to Alaska R.Crim.P. 35(a) requesting the district court to reduce his sentence by issuing him a limited license. Howell relied on the newly amended language of AS 28.15.201, which became effective January 1, 1991. Judge Mason, relying on AS 01.10.-100(a), concluded, however, that the amended provision did not apply retroactively to Howell's original sentence because Howell had been sentenced prior to January 1, 1991. The judge further concluded that even if the provision was enforceable as to sentences imposed prior to January 1, it applied only to revocations for driving while intoxicated (DWI) and refusal to submit to a breath test. On appeal, Howell challenges this decision. The rule is well settled that statutory amendments to sentencing provisions generally do not apply retroactively to offenses committed prior to the amendment's enactment. See, e.g., P.H. v. State, 504 P.2d 837, 841 (Alaska 1972) (punishment for an offense is governed by the law in effect at the time the offense is committed); Galbraith v. State, 693 P.2d 880, 882 (Alaska App.1985) (defendants are sentenced under law existing at time of commission of offense absent an expression of intent by legislature to make new law applicable to previously committed crimes); AS 01.05.021. However, in moving for the issuance of a limited license, Howell did not seek retroactive application of the recent amendment to the sentencing scheme promulgated under AS 28.15.181(d) and AS 28.15.291(c). Instead, his request relied on the court's authority to issue a limited license, as set forth under AS 28.15.201(a). This statute affirmatively vests the courts with ongoing power to issue a limited license, provided that issuance of such license is not prohibited under a provision of law in effect when the limited license is requested: A court of competent jurisdiction, or a hearing officer under AS 28.15.165, may, for good cause, impose limitations upon the driver's license of a person that will enable the person to earn a livelihood without excessive risk or danger to the public. However, no limitation may be placed upon a driver's license until after a review has been made of the person's driving record and other relevant information, nor may a limitation be imposed when a statute specifically prohibits the limitation of a license for a violation of its provisions (Emphasis added). Under the language of the provision, the pertinent inquiry is whether the driver's ability to obtain a limited license is restricted under any provision of current law. The state has cited to no such provision and our review of the statutes reveals none. We therefore conclude that the trial court erred in ruling that AS 01.10.100 precluded the issuance of a limited license. In holding that the district court erred in declining to consider issuing Howell a limited license, we do not suggest that all drivers whose licenses have been revoked under former mandatory minimum sentencing provisions may now seek to obtain a limited license. Here, Howell was entitled to apply for a limited license because he moved to reduce his sentence within the time limitations set forth under Alaska R.Crim.P. 35(a). We express no view as to whether individuals may apply for limited licenses under other circumstances. The district court's order denying the limited license is VACATED, and this case is REMANDED for reconsideration of Howell's motion in light of the views expressed herein. . Howell's suspension resulted from his involvement in an automobile accident occurring while Howell was uninsured. . Howell filed his request for a limited license on January 3, 1991. . AS 01.10.100(a) reads: Effect of repeals or amendments, (a) The repeal or amendment of a law does not release or extinguish any penalty, forfeiture, or liability incurred or right accruing or accrued under that law unless the repealing or amending act so provides expressly. The law shall be treated as remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of the right, penalty, forfeiture, or liability. (Emphasis added). . AS 01.05.021 reads: Effect of repeal on prior offenses and punishments. (a) No fine, forfeiture, or penalty incurred under laws existing before the time the Alaska Statutes take effect is affected by repeal of the existing law, but the recovery of the fines and forfeitures and the enforcement of the penalties are effected as if the law repealed had still remained in effect. (b) In the case of an offense committed before the time the Alaska Statutes take effect, the offender is punished under the law in effect when the offense was committed. (Emphasis added). .The trial court's determination that AS 28.15.-201 applies only to revocations for DWI or refusal to submit to a breath test is likewise erroneous. Although AS 28.15.201(d) and (e) specifically authorize the issuance of limited licenses to drivers whose licenses are revoked for DWI/refusal convictions, nothing in AS 28.15.-201(a) purports to restrict the issuance of limited licenses to such drivers. . Criminal Rule 35 Reads: Reduction, Correction or Suspension of Sentence. (a) Correction or Reduction of Sentence. The court may correct an illegal sentence at any time. The court may reduce a sentence within 120 days of the day it is imposed. If the defendant takes an appeal, and the judgment is affirmed or the appeal is dismissed, the court also may reduce a sentence within 120 days of the day on which jurisdiction over the case is returned to the trial court under Appliance [sic Appellate] Rule 507(b), unless the defendant petitions the United States Supreme Court for certiorari, in which case the 120 days commences on the day that the Supreme Court denies relief. (b) Modification or Reduction of Sentence — Changed Conditions or Circumstances. The court may modify or reduce a sentence at any time during a term of imprisonment if it finds that conditions or circumstances have changed since the original sentencing hearing such that the purposes of the original sentence are not being fulfilled.

10374814

Harold A. HOFFMAN, Appellant, v. STATE of Alaska, DEPARTMENT OF COMMERCE AND ECONOMIC DEVELOPMENT, Appellee

Hoffman v. State, Department of Commerce & Economic Development

1992-05-29

No. S-4621

1218

1220

834 P.2d 1218

834

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:00:54.631596+00:00

CAP

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

Harold A. HOFFMAN, Appellant, v. STATE of Alaska, DEPARTMENT OF COMMERCE AND ECONOMIC DEVELOPMENT, Appellee.

Harold A. HOFFMAN, Appellant, v. STATE of Alaska, DEPARTMENT OF COMMERCE AND ECONOMIC DEVELOPMENT, Appellee. No. S-4621. Supreme Court of Alaska. May 29, 1992. Phillip Paul Weidner, Weidner and Associates, Anchorage, for appellant. Gary I. Amendola, Sarah J. Felix, Asst. Attys. Gen., Juneau, Charles E. Cole, Atty. Gen., Juneau, for appellee. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

1332

8236

OPINION MATTHEWS, Justice. I. INTRODUCTION AND FACTS The present case has its genesis in the State's 1988 takeover and closure of the Alaska Continental Bank (ACB). Appellant Harold Hoffman was a stockholder, a director, and president of ACB. After the State seized ACB on July 7, 1988, Hoffman applied to the State's Banking and Securities Division of the Department of Commerce and Economic Development (Division) for an order vacating possession pursuant to AS 06.05.470(d). Pursuant to AS 06.05.470(z), the State transferred possession of ACB to the FDIC on August 3, 1988, without notice to Hoffman. On the same day, in an ex parte proceeding, the superior court authorized the sale of ACB's assets by the FDIC to First Interstate Bank of Alaska. After the FDIC sold ACB's assets, the State moved to dismiss Hoffman's application. The Division granted the motion. The Division's hearing officer reasoned that the only remedy available under AS 06.05.470(d) was the return of possession of ACB. Since that remedy was unavailable, the hearing officer dismissed Hoffman's application as moot. Hoffman appealed the Division's decision to the superior court arguing that it deprived him of due process of law and that his application was not moot. The superior court affirmed the Division's dismissal. Hoffman appeals. We affirm. II. DISCUSSION Hoffman argues that he was denied due process of law because he was denied a hearing on whether the State lawfully seized ACB. The State argues that due process does not require a hearing and that, in any case, Hoffman waived his right to a hearing by postponing scheduled hearing dates. Alaska's constitution provides: "No person shall be deprived of life, liberty, or property, without due process of law. The right of all persons to fair and just treatment in the course of legislative and executive investigations shall not be infringed." Alaska Const, art. I, § 7. We have consistently held that, except in emergencies, due process requires the State to afford a person an opportunity for a hearing before the State deprives that person of a protected property interest. Graham v. State, 633 P.2d 211, 216 (Alaska 1981). Even when emergencies allow the State to seize property before a hearing, due process requires the State to provide an opportunity for a post-seizure hearing at a meaningful time to minimize possible injury. F/V American Eagle v. State, 620 P.2d 657, 666-67 (Alaska 1980). While the drastic consequences of a bank failure may often place them among the emergencies in which the State may postpone a hearing until after a seizure, in the present case, the State seized the assets and three weeks later transferred them without notice and while a hearing was pending. The failure to give notice of the transfer makes it difficult for the State to argue that it afforded Hoffman an opportunity for a post-seizure hearing at a time when it was still possible to minimize the potential injury which may have resulted from the seizure. On the record before us the State has not presented any justification for its precipitate transfer of the assets to the FDIC. At this point we would normally remand to the Division for a hearing on Hoffman's substantive claim. However, in the present case, there is no need for a hearing because Hoffman's substantive claim is barred by collateral estoppel. Hoffman's substantive claim is that the State's seizure of ACB was unauthorized. Alaska Statute 06.05.470(a)(2) empowers the State to take possession of a bank if, among other things, "the bank's business is being conducted in an unlawful or unsound manner." In a related action between Hoffman and the FDIC, the United States Court of Appeals for the Ninth Circuit held that Hoffman's self-dealing with ACB constituted "an unsafe or unsound practice." Hoffman v. FDIC, 912 F.2d 1172, 1174 (9th Cir.1990). Thus, Hoffman has already litigated the issue of whether ACB's business was being conducted in an unsound manner and received an adverse judgment. His underlying claim in the present case (that the State's seizure was unauthorized) is therefore barred by collateral estoppel. When the State seized ACB on July 7, 1988, it specifically noted that it had the power to seize a bank when, among other things, "the bank's business is being conducted in an unlawful or unsound manner." State of Alaska, Banking Order 89-1, at 10 (July 7, 1988). The State seized ACB partly for the following reasons: A transfer of ACB property is evident to the benefit of certain directors of the bank in apparent anticipation of closure of ACB on the finding of insolvency. [The] FDIC has initiated action . in finding of unsafe and unsound banking practices. Id. at 1, 3. The State further noted that one of ACB's improper property transfers was a "May 20, 1988 cashier's cheek . in the amount of $61,796.48, payable to H. A. Hoffman, President, as a prepaid expense item for contract payment for the period June 1, 1988 through December 1, 1988." Id. at 4. Thus, the State seized ACB because, among other reasons, ACB's purchase of Hoffman's employment contract amounted to an unsound practice. As mentioned above, AS 06.05.470(a)(2) authorizes the State to seize a bank for that reason. Since Hoffman has litigated this issue in federal court and lost, he is collaterally estopped from claiming that ACB's business was being conducted in a sound manner. It follows that Hoffman is collaterally estopped from claiming that the State's seizure was unauthorized. We need not decide whether Hoffman's claim is moot. As previously discussed, Hoffman's claim is barred by collateral es-toppel. Thus, the hearing officer correctly dismissed Hoffman's administrative challenge to the State's authority to make the seizure regardless of whether it was moot. AFFIRMED. . AS 06.05.470(d) provides in relevant part: If . an emergency exists which will result in serious losses to the depositors, [the department] may take possession of a bank without prior hearing.... [A]ny interested party may file with [the department] an application for an order vacating the possession. The department shall grant the application if it finds that its action was unauthorized under this chapter. . For example, the federal due process clause does not require a pre-seizure hearing when a state seizes a bank. Fahey v. Mallonee, 332 U.S. 245, 253-54, 67 S.Ct. 1552, 1556, 91 L.Ed. 2030 (1947). As the First Circuit explained: The drastic consequences of bank failure or mismanagement and "the impossibility of preserving credit during an investigation" call for prompt and decisive action and place this proceeding among the "extraordinary situations" in which notice and hearing may be postponed until after seizure. Roslindale Co-op. Bank v. Greenwald, 638 F.2d 258, 260 (1st Cir.1981) (quoting Fahey, 332 U.S. at 253, 67 S.Ct. at 1556). . See supra note 1. . On the eve of ACB's closure, ACB purchased the balance of Hoffman's employment contract for approximately $61,000. Hoffman v. FDIC, 912 F.2d at 1173. The FDIC ordered Hoffman to repay the $61,000 because ACB's purchase of his employment contract constituted "an unsafe or unsound banking practice." Id. at 1174. The Ninth Circuit confirmed the FDIC's authority to take such action. Id. at 1176. . We have held that use of non-mutual collateral estoppel is appropriate "so long as there were no 'unusual or exceptional factors in the prior adjudication which would warrant the application of the mutuality requirement.' " Murray v. Feight, 741 P.2d 1148, 1153 (Alaska 1987) (quoting Pennington v. Snow, 471 P.2d 370, 377 (Alaska 1970)). In the present case Hoffman did not argue, and the record does hot indicate, that there were any factors in the federal litigation which would warrant the application of the mutuality requirement.

10425006

Mattfi ABRUSKA, Appellant, v. STATE of Alaska, Appellee

Abruska v. State

1985-08-30

No. 7672

1261

1274

705 P.2d 1261

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.

Mattfi ABRUSKA, Appellant, v. STATE of Alaska, Appellee.

Mattfi ABRUSKA, Appellant, v. STATE of Alaska, Appellee. No. 7672. Court of Appeals of Alaska. Aug. 30, 1985. Galen S. Paine, Asst. Public Defender, Bethel, and Dana Fabe, Public Defender, Anchorage, for appellant. Charles M. Merriner, Asst. Atty. Gen., Anchorage, and Norman C. Gorsuch, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

7742

47711

OPINION SINGLETON, Judge. Mattfi Abruska was convicted of second-degree murder. AS 11.41.110(a)(1). He received a ninety-nine year sentence. He appeals his conviction and sentence. We affirm. Abruska shot and killed Joseph Nook. Abruska, Nook, Zaukar Littlefish, and two other men were drinking at Abruska's house the day Nook was killed. Abruska and Nook got into an argument, but Littlefish restrained Nook before either man struck a blow. Nook and Littlefish sat back down and began discussing their trapping plans. Within a minute afterwards Littlefish heard two shots and saw Nook double over. Littlefish looked up and saw Abruska about seven feet from Nook pointing a .22 caliber rifle at Nook. Littlefish got up, took the rifle away from Abruska, and went into the bedroom to hide the rifle. When he came out, Nook was outside. One of the other two men present was asleep and heard no shots. The other man heard a shot while he was looking out the window. He turned and saw Littlefish holding Abruska but not the rifle. The man then left the house immediately. The village safety officer passed by shortly thereafter and saw Nook on the ground outside. Littlefish signaled for the officer to come over. Nook was transported to the hospital where he spoke with troopers and medical personnel before he died. Two bullets from the rifle had entered Nook's abdomen, one probably passing through Nook's wrist first. Abruska's rifle holds fourteen bullets. Twelve live rounds remained in the rifle. Abruska told Littlefish while Littlefish was still in the house that he had shot Nook in the gut. When troopers came to arrest Abruska, he stated, "Fuck you, I'll shoot you too." Abruska later told troopers that he asked Nook twice to leave and when Nook did not do so, Abruska got his rifle and began shooting. Abruska raises three points on appeal. First, he contends the trial court erred in excluding evidence of Abruska's intoxication offered to show diminished capacity. Second, he contends that the indictment should have been dismissed because: (1) the grand jury was erroneously instructed; (2) the prosecution failed to present exculpatory evidence; and (3) the prosecution utilized inadmissible evidence. Finally, Abruska contends his sentence is excessive. We will discuss each of Abruska's contentions in turn. I. Abruska was convicted of violating AS 11.41.110(a)(1), which provides: (a) A person commits the crime of murder in the second degree if (1) with intent to cause serious physical injury to another person or knowing that the conduct is substantially certain to cause death or serious physical injury to another person, the person causes the death of any person. A. Abruska was tried on the theory that he engaged in conduct knowing that it was substantially certain to cause death or serious physical injury to another person. He argues that he was unconstitutionally deprived of an "intoxication defense." Two other statutes are relevant to an understanding of Abruska's arguments. AS 11.-81.900(a)(2) defines the term "knowingly" as follows: (2) a person acts "knowingly" with respect to conduct or to a circumstance described by a provision of law defining an offense when the person is aware that the conduct is of that nature or that the circumstance exists; when knowledge of the existence of a particular fact is an element of an offense, that knowledge is established if a person is aware of a substantial probability of its existence, unless the person actually believes it does not exist; a person who is unaware of conduct or a circumstance of which the person would have been aware had that person not been intoxicated acts knowingly with respect to that conduct or circumstance. AS 11.81.630 provides: Voluntary intoxication is not a defense to a prosecution for an offense, but evidence that the defendant was intoxicated may be offered whenever it is relevant to negate an element of the offense that requires the defendant intentionally cause a result. We had occasion to consider these statutes in Neitzel v. State, 655 P.2d 325 (Alaska App. 1982). In Neitzel we concluded that the legislature had foreclosed evidence of intoxication to show diminished capacity as to all offenses except those which required intent to cause a result as the mens rea. Abruska notes the existence of Neit-zel but seems uncertain as to its holding. He therefore makes two lines of attack. First, he contends that as a matter of statutory construction the legislature intended to permit evidence of a person's past experience when intoxicated to the extent that it would be relevant to show his appreciation of the risks he presented to others when he was intoxicated. See, e.g., Shane v. Rhines, 672 P.2d 895, 899 n. 3 (Alaska 1983). We generally agree with Abruska that the statutory limitations on the use of evidence of intoxication to show diminished capacity are aimed at precluding a showing that on a particular occasion a person was so impaired by alcohol that he could not appreciate the risks that his conduct presented to others. The statutory limitations would not prevent evidence by either the prosecution or the defense that the person's past experiences while drunk would or would not have alerted him to the risks that he presented to others when intoxicated. Our review of the record establishes, however, that Abruska did not make this argument in the trial court. His argument to the trial court was limited to offering evidence as to his intoxication on the night he shot Nook to show that he was unaware of the risk that his conduct posed to Nook at that time. This is the precise use of the evidence foreclosed by the statutes. The trial court did not err in rejecting Abruska's offer of proof. Abruska's second line of attack challenges the constitutionality of both the limitation on the defense of intoxication in AS 11.81.900(a)(2) and, by extension, the absolute prohibition of that defense in AS 11.81.630. Abruska contends that the statutes in effect establish a conclusive presumption of sobriety which operates as a directed verdict of guilty on a necessary element of the offense of second-degree murder, namely, the necessary mens rea to constitute the offense. Abruska contends that this conclusive presumption violates the rule of Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). He also relies on the due process and equal protection clauses of the state and federal constitutions. He reasons that there is no rational basis for preventing him from showing as a matter of fact that he was unable to appreciate the risk his conduct posed to Nook. We reject Abrus-ka's arguments. First, there is no presumption conclusive or otherwise contained in the statutes under consideration. The legislature requires that the jury find beyond reasonable doubt that the defendant knew that his conduct was substantially certain to cause serious physical injury or death to a person and in fact caused a person's death. Thus, a jury could very well find that a specific person, without regard to that person's state of intoxication at a particular time, did not appreciate a given risk that his conduct would cause death or serious injury to another and a fortiori could find that he did not know that the conduct would cause death. In reaching this conclusion the jury could consider such things as the actor's intelligence, physical abilities, and experience. A jury might well find that a mentally retarded person whether or not he was intoxicated would not have appreciated the risk or risks that led to the victim's death even if the jury was convinced that a person of greater intelligence would have appreciated the risk. By the same token a person of poor eye sight or poor hearing might have been unaware of risks that a more fortunate person would have perceived. Finally, a person of limited experience regarding firearms or the operation of motor vehicles might not have appreciated the risks in the circumstances in which the person found himself at the time his conduct resulted in another's death, even though a reasonably prudent person possessing more typical experience would have appreciated those risks. In summary, whether the actor was sober or intoxicated at the time his conduct caused another's death, the jury, in order to convict him, must find that he would have appreciated the risks flowing from his con duct had he been sober. Thus, Abruska is simply wrong when he contends that the jury was instructed that it could find him guilty regardless of his subjective knowledge if it found that he was too intoxicated to know one way or the other. We also reject Abruska's due process, equal protection, and by extension cruel and unusual punishment arguments, all of which turn on the contention that no legislature could rationally conclude as a matter of policy that intoxication should not be considered on the issue of knowledge. The Alaska Supreme Court has considered and rejected similar arguments on a number of occasions. The leading case is Vick v. State, 453 P.2d 342, 344-45 (Alaska 1969), where the court rejected constitutional challenges and affirmed a sentence imposed on a chronic alcoholic for being drunk in public despite evidence that he could not control his need to drink. See also Powell v. Texas, 392 U.S. 514, 88 S.Ct. 2145, 20 L.Ed.2d 1254 (1968). In Evans v. State, 645 P.2d 155, 160 (Alaska 1982), the court adopted a rule rendering an accused's intoxicated state irrelevant to the issue of his sanity. The court said: In our view, the rule which should govern in Alaska is that voluntary intoxication will not support an insanity defense, and that all intoxication is to be regarded as voluntary unless it is unknowingly or externally compelled. This rule has been accepted in many jurisdictions. It is consistent with the traditional common law view of individual responsibility, as well as with the statute which governs this case, former AS 11.70.030, and with the statute now in effect, AS 11.81.630. [Footnotes omitted.] See also O'Leary v. State, 604 P.2d 1099 (Alaska 1979); McKinney v. State, 566 P.2d 653, 664-66 (Alaska 1977); McIntyre v. State, 379 P.2d 615, 615-17 (Alaska 1963). These cases are ultimately premised on the uncertainty among those who have studied alcoholism and the use of alcohol as to its precise effects on people's ability to appreciate the consequences of their acts. We noted this uncertainty in Neitzel in our discussion of the Model Penal Code drafters' decision to preclude consideration of intoxication in determining the issue of recklessness. The line between a person's knowing that his conduct is substantially certain to cause death or serious physical injury and knowing that there is a substantial risk that his conduct will cause death or serious physical injury (a paraphrase of the recklessness standard) is sufficiently close that our decision in Neitzel that there is no constitutional violation in the legislature's decision to eliminate consideration of intoxication in determining recklessness, is equally applicable here: We mention first the weight of the prevailing law which here, more clearly than in England, has tended towards a special rule for drunkenness. Beyond this, there is the fundamental point that awareness of the potential consequences of excessive drinking on the capacity of human beings to gauge the risks incident to their conduct is by now so dispersed in our culture that we believe it fair to postulate a general equivalence between the risks created by the conduct of the drunken actor and the risks created by his conduct in becoming drunk. Becoming so drunk as to destroy temporarily the actor's powers of perception and of judgment is conduct which plainly has no affirmative social value to counterbalance the potential danger. The actor's moral culpability lies in engaging in such conduct. Added to this are the impressive difficulties posed in litigating the foresight of any particular actor at the time when he imbibes and the relative rarity of cases where intoxication really does engender unawareness as distinguished from imprudence. Those considerations lead us to propose, on balance, that the Code declare that unawareness of a risk of which the actor would have been aware had he been sober be declared immaterial. Neitzel v. State, 655 P.2d at 335, quoting A.L.I. Model Penal Code, Tentative Draft No. 9 § 2.08, at 8-9 (1959). Since the dis tinction between knowledge of a fact and knowledge of a risk that the fact will result is a matter of degree, we conclude that the decision not to allow evidence of intoxication on the issue of knowledge is a decision within the legislative prerogative. Therefore, the Alaska legislature's factual determination that recklessness and knowledge should be treated the same is not irrational. See State v. Ramos, 133 Ariz. 4, 648 P.2d 119 (1982). B. The foregoing discussion disposes of those constitutional arguments which Abruska clearly presented to the trial court and repeated in this court. Those arguments are based on Abruska's interpretation of AS 11.41.110(a)(1). His interpretation is based in part on the interpretations that we have previously given the Revised Criminal Code. It divides the elements of offenses into three categories: conduct, surrounding circumstances, and results; and four corresponding mental states: intentionally, knowingly, recklessly, and with criminal negligence. Neitzel v. State, 655 P.2d at 328-30. In his brief Abruska sets out the following interpretation of the statute as the basis for his arguments: In the second degree murder prosecution at issue in this case, the three critical elements are (1) conduct — shooting with a firearm; (2) circumstances surrounding the conduct — conditions under which it was substantially certain that death or serious injury would result from shooting; and (3) result — death of Joseph Nook. [Citation omitted.] The corresponding mental states are (1) "knowingly" for the conduct; (2) "knowingly" for the circumstances; and (3) "recklessly" for the result. That is, the substantive statute on murder specifies that the culpable mental state for the circumstances is "knowingly;" the other two culpable mental states are inferred from the general statute controlling construction of statutes with respect to culpability. [Citations omitted.] Abruska qualifies his construction of the statute in the following language: The statute is not a model of clarity as to which element the term "knowing" applies. The construction proposed in the text above is the only sensible possibility. To find that "knowing" applies to the conduct would mean that the defendant's culpability regarding the circumstances would have to be only "recklessly." AS 11.81.610(b)(2). This would be manslaughter, under AS 11.41.120(a)(1). Further, in light of AS 11.81.610(b)(1), the term "knowing" would be surplusage as applied to conduct. "Knowing" cannot apply to the result, because the statute clearly does not require the defendant to know that a death will result. It is the defendant's knowledge that he acts under circumstances such that his act is substantially certain to cause death or serious injury which makes his conduct so blameworthy as to constitute murder. Therefore, "knowing" must apply to the circumstances. We have accepted Abruska's construction of the statute for purposes of resolving his constitutional claims. This is also the construction he placed on the statute in his arguments to the court below. There is, however, another construction of the statute that would in effect render second-degree murder under AS 11.41.-110(a)(1) an intentional offense for which voluntary intoxication might be a permissible defense, see AS ll.8l.630. Alaska Statute 11.41.110(a)(1) states that "[a] person commits the crime of murder in the second degree if . knowing that the conduct is substantially certain to cause death or serious physical injury to another person, the person causes the death of any person." The meaning of this statute turns on the interpretation of the phrase, "knowing that the conduct is substantially certain to cause death or serious physical injury." The definition of "knowingly" in AS 11.81.900(a)(2), set out in the first paragraph of part 1 A supra, incorporates most of Model Penal Code § 2.02(2)(b) and 2.02(7). The Model Penal Code § 2.02(2)(b) provides: A person acts knowingly with respect to a material element of an offense when: (i) if the element involves the nature of his conduct or the attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exist; and (ii) if the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result. Model Penal Code § 2.02(2)(b) (Proposed Official Draft 1962) (emphasis supplied). Section 2.02(7) provides that: When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its existence, unless he actually believes that it does not exist. Id. at § 2.02(7). Significantly, however, AS 11.81.900(a)(2) omits the provision that a person achieves a given result "knowingly" when he "is practically certain" that his conduct will cause that result. The Alaska statute is based upon New York Penal Code § 15.05(2) which likewise limits "knowingly" to circumstances and conduct. The New York legislature's reason for omitting knowledge as to results is explained as follows: "Intentionally" (subd. 1) and "knowingly" (subd. 2; cf. former Penal Law § 3[4]) are familiar concepts, and the revised definitions thereof are largely self-explanatory. It is to be noted, however, that the term "knowingly" is restricted to awareness of the nature of one's conduct or of the existence of specified facts or circumstances (e.g., that property is stolen, that one has no right to enter a building, etc.). Under the formulations of the Model Penal Code (§ 2.02[2bii]) and the Illinois Criminal Code (§ 4 — 5[b]), "knowingly" is, in one phase, almost synonymous with "intentionally" in that a person achieves a given result "knowingly" when he "is practically certain" that his conduct will cause that result. The distinction between "knowingly" and "intentionally" in that context appears highly technical or semantic, and the Revised Penal Law does not employ the word "knowingly" in defining result offenses. Murder of the common law variety, for example, is committed intentionally or not at all (§ 125.-25[1]; cf. Ill.Crim.Code § 9-l[a]). N.Y. Penal Law § 15.05, Practice Commentaries at 29-30 (McKinney 1975) (emphasis in original). Illinois follows the Model Penal Code in permitting the term "knowingly" to govern result. Illinois Criminal Code 38 § 4-5(b) provides that "[a] person knows or acts knowingly or with knowledge of . [t]he result of his conduct, described by the statute defining the offense, when he is consciously aware that such a result is practically certain to be caused by his conduct." Ill.Ann.Stat. ch. 38, § 4-5(b) (Smith-Hurd 1979). Illinois Criminal Code 38 § 9-l(a) provides: A person who kills an individual without lawful justification commits murder if, in performing the acts which cause the death: (1) He either intends to kill or do great bodily harm to that individual or another, or knows that such acts will cause death to that individual or another, or (2) He knows that such acts create a strong probability of death or great bodily harm to that individual or another; or (3) He is attempting or committing a forcible felony other than voluntary manslaughter. Ill.Ann.Stat. Ch. 38, § 9-l(a) (Smith-Hurd 1979). The commentary to the Illinois statute discusses the relevant provision of this statute as follows: Subsection (a)(1) is intended to define the two most culpable types of conduct, which are within the older definition of "express malice" — acting either with actual intent to kill or do great bodily harm, or with knowledge that death or great bodily harm will (or is practically certain to) result. "Intends" is used as defined in section 4-4: "his conscious objective or purpose is to accomplish that result," death or great bodily harm. This is the actual intent, resulting from a rational choice of action, which many statutes have described as deliberation or premeditation — terms which, as noted above, require further definition, yet have been defined in terms which mean no more than actual intent. " Knows" is used as defined in section 4-5(b): "he is consciously aware that . such result is certain to be caused by his conduct." Absolute certainty of result would be an impractical standard; but a standard of practical certainty describes that conduct which, in its culpability, is substantially equal to the culpability of the act done with actual intent, but which is logically distinguishable in culpability from the probability of result described in subsection (a)(2) (See Moreland, "The Law of Homicide," 17 to 19). The practical view of such a distinction lies in the differentiation of penalties, discussed below. Subsection (a)(2) is intended to define the conduct which, lacking actual intent to kill or do great bodily harm or knowledge that such a result will occur, involves knowledge of the probability that the offender's acts will cause death or great bodily harm. "Knows" is used again as defined in Section 4-5(b), but the degree of danger of death or great bodily harm is lesser than that described in the preceding subsection. Several methods of describing this probability appear in the statutes and cases [discussing various approaches to depraved heart murder similar to AS 11.41.110(a)(2), which is interpreted in Neitzel v. State, 655 P.2d 325 (Alaska App.1982) ]. Clearly, no sharp dividing lines can be drawn, but the Committee chose "strong probability" as the plainest description of the situation which lies between the "practical certainty" of the preceding subsection, and the "likely cause" and "substantial and unjustifiable risk" of the involuntary manslaughter provision (§ 9-3, using "recklessly" as defined in § 4-6). This phrase would seem to require a minimum of further definition in jury instructions, and to permit ready comparison with the other two situations mentioned, when the evidence requires instructions thereon. Committee Comments, id. at 17-19. From a comparison of these various statutes, it appears clear that the Alaska legislature chose language in AS 11.41.110(a)(1) —"knowing that the conduct is substantially certain to cause death or serious physical injury to another person" — that parallels the Model Penal Code and Illinois definitions of "knowing" when used to govern a result, i.e., the actor is aware that such a result is "practically certain" to be caused by his conduct. AS 11.41.110(a)(1) was also modeled on Arkansas Statute 41-1503(l)(c) which punishes conduct as second-degree murder if the actor knows that that conduct is substantially certain to cause serious physical injury to another. Arkansas, like Illinois, permits the word "knowingly" to modify a result. If the Alaska legislature intended the term "knowing" as used in AS 11.41.-110(a)(1) to modify a result rather than conduct or surrounding circumstances, the definition of "knowingly" in AS 11.81.-900(a)(2) would be inapplicable to AS 11.41.-110(a)(1) since, AS 11.81.900(a)(2) applies only to conduct or surrounding circumstances. Thus, AS 11.81.900(a)(2)'s restrictive phrase "a person who is unaware of conduct or circumstance of which the person would have been aware had that person not been intoxicated acts knowingly with respect to that conduct or circumstance," would not apply to AS 11.41.-110(a)(1) and voluntary intoxication would be a permissible defense if "knowing" can be equated with "intending." Alaska Statute 11.81.630 permits evidence of intoxication to "negate an element of the offense that requires the defendant intentionally cause a result." The commentary to New York's "knowingly" provision establishes that the line between "knowing" that one's conduct will cause death and "intending" death is imperceptibly thin. More significantly, the Alaska Supreme Court treated the terms as virtually synonymous when it addressed similar issues in Mill v. State, 585 P.2d 546, 548-50 (Alaska 1978), cert. denied, 444 U.S. 827, 100 S.Ct. 51, 62 L.Ed.2d 34 (1979). There the court discussed Model Penal Code § 211.1(2)(b) which defines aggravated assault to punish one who "attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon." Model Penal Code § 211.1(2)(b) (Proposed Official Draft 1962). The issue in Mill turned on whether aggravated assault under then existing Alaska law should be interpreted as a specific intent or general intent statute. The distinction was relevant because Mill wished to offer evidence of diminished capacity due to intoxication and the Alaska Supreme Court was prepared to hold that diminished capacity due to intoxication cannot be invoked to negate general criminal intent. 585 P.2d at 551. The defendant argued that aggravated assault should be interpreted as a specific intent crime and in support relied on the Model Penal Code. The state countered that the Model Penal Code described a general intent offense at least in part. The state pointed out that under the Model Penal Code "purposely or knowingly causing bodily injury" would suffice for the offense. Although the term "purposely" implies the requirement of a specific intent to cause injury, the state reasoned the term "knowingly" requires general intent. The supreme court quoted the definitions in the Model Penal Code as follows: "Knowingly. A person acts knowingly with respect to a material element of an offense when: (ii) if the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result." The court then said: In his treatise on criminal law, Perkins notes that both "purpose" and "knowledge" as used in the revision of the Model Penal Code can constitute intent. "Intent includes those consequences which (a) represent the very purpose for which an act is done (regardless of likelihood of occurrence), or (b) are known to be substantially certain to result (regardless of desire)." R. Perkins, Criminal Law at p. 747 (1969). Thus it appears clear that the Model Penal Code provision dealing with assault with a deadly weapon does require the specific intent to do bodily injury- 585 P.2d at 549. In summary, in Mill, a case decided prior to the revision of our criminal code, the supreme court interpreted the phrase, "knowing that his conduct is substantially certain to cause a result" as the equivalent of "intending that result." This interpretation is consistent with the current Model Penal Code which seems to treat knowledge and intent as the conceptual equivalent of common law specific intent, and recklessness and criminal negligence as the common law equivalent of general intent for purposes of the intoxication defense. See, e.g., Model Penal Code, § 2.08 commentary at 2-9 (Tent.Draft No. 9, 1959). But see United States v. Bailey, 444 U.S. 394, 403-06, 100 S.Ct. 624, 631-32, 62 L.Ed.2d 575, 586-88 (1980) (knowledge (knowingly) corresponds loosely with general intent); Bidwell v. State, 656 P.2d 592, 594 (Alaska App.1983). This interpretation of the statute renders second-degree murder by knowingly killing redundant of first-degree murder by intentionally killing. See AS 11.41.100(a)(1). The alternative would be to view knowing murder in AS 11.41.110(a)(1) as redundant of what we have called reckless murder. AS 11.41.110(a)(2). See Neitzel, 655 P.2d at 331-32. In People v. Marcy, 628 P.2d 69, 78-79 (Colo.1981), the Supreme Court of Colorado concluded that engaging in conduct "under circumstances manifesting an extreme indifference to the value of human life" is virtually indistinguishable from "knowing that his conduct is substantially certain to cause death or serious physical injury to another person." See Neitzel, 655 P.2d at 338 n. 3. This court noted in Neitzel, however, that the Alaska legislature clearly considered the two provisions distinct. Id., citing Supp. No. 47 at 9-10 in 2 Senate J. (1978), following p. 1414 (legislative commentary on AS 11.41.110(a)(2)). It is possible that viewed as the legislature apparently viewed the relationship between the two provisions, reckless murder might be a lesser-included offense of knowing murder. See Nicholson v. State, 656 P.2d 1209, 1212 (Alaska App.1982) (lesser included offense need not have a lesser penalty). However, it is not necessary to pursue the proper interpretation of the statute further. Abruska has never argued that he was in effect convicted of intentional murder. Nor has he specifically relied on the terms of AS 11.81.630 to support his offer of evidence of diminished capacity through intoxication. Given the ambiguities and complexities in the statute, I am not prepared to say that the trial court committed plain error in not interpreting AS 11.41.-110(a)(1) as an offense requiring that the defendant "intentionally cause a result" making evidence of intoxication relevant. In fact the legislature may have drafted AS 11.81.630 to limit an intoxication defense to statutes which require an intent to cause a result in order to eliminate the problems discussed in this section of the opinion. Therefore, the trial court's decision to deny Abruska the right to rely on a diminished capacity defense based on intoxication is affirmed. II. Abruska makes three challenges to his indictment. The state argues that Abruska forfeited these claims because his motions were untimely. See Alaska R.Crim.P. 12(e), 16(f)(3) (challenges to evidence or indictment are forfeited unless raised pretrial, for example at the omnibus hearing). While this is true, it appears that Superior Court Judge Christopher R. Cooke ruled on the merits of each claim. We have held that where the trial court permits an untimely pretrial challenge to the indictment pursuant to Criminal Rule 12(e) and rules on the merits of that challenge, we should not ignore the claim on forfeiture grounds. Morgan v. State, 661 P.2d 1102, 1103 & n. 1 (Alaska App.1983). We therefore address the merits of Abruska's claims. First, Abruska contends that the grand jury was erroneously instructed. He notes that a two-count indictment was presented to the grand jury. Both counts derived from AS 11.41.110(a)(1). The first count charged that Abruska shot Nook with a firearm with the intent to cause serious physical injury resulting in death. The second count charged that Abruska shot Nook with a firearm knowing that his conduct was substantially certain to cause death or serious physical injury and did cause death. The first count was dismissed prior to trial. Abruska argues that the prosecutor gave two erroneous instructions which tainted the deliberations of the grand jury. Abruska contends that on three occasions during the grand jury instruction by the prosecutor, the prosecutor referred to the possible outcome at trial. He interprets the prosecutor's statements as threatening the grand jury that if it did not return a true bill on Count II and if an intoxication defense were successful as to Count I, there would be no conviction by a trial jury. Further, Abruska contends that error occurred when the prosecutor told the grand jury that "the grand jury can make a decision on either or both [counts]_ It's not an either/or alternative, both questions or both counts should go to the jury for their decision, if the grand jury returns a true bill on both." Abruska interprets this language as requiring the grand jury to return a true bill on one or both counts. As the state points out, a review of the entire record establishes that the prosecutor did not act improperly. The grand jury foreman and another juror were curious about the two counts of the indictment when it was first read and persisted in asking questions about the elements of each and why both were needed. After the evidence had been presented, the foreman again asked similar questions. The prosecutor's responses were for the most part technically correct, and probably the best ones that could have been made under the circumstances. Abruska is not challenging the fact that the indictment was in two counts, or that one count was dismissed before trial. Second, Abruska argues that the indictment should have been dismissed for failure to present exculpatory evidence to the grand jury. Frink v. State, 597 P.2d 154, 165 (Alaska 1979). A trooper talked with Joseph Nook at the hospital before he died, and Nook told the trooper that Abruska had shot him. Abruska argues that Frink was violated by allowing the trooper to testify to this statement before the grand jury "without the ample qualifying and contradictory statements made by three other people" who talked to Nook at the hospital. The evidence Abruska refers to was of a "qualifying" nature in the sense that it qualified statements of Nook which were harmful to Abruska. In essence, Abruska would have had the grand jury told that three other people talked to Nook and that their testimony supported an inference that Nook denied that Abruska had shot him. Abruska misunderstands the rule of Frink. The prosecutor has a duty to produce evidence which will substantially tend to negate guilt, but not to develop evidence for the defendant or to present evidence "possibly favorable" to the defendant. Dyer v. State, 666 P.2d 438, 444 (Alaska App.1983); Tookak v. State, 648 P.2d 1018, 1021 (Alaska App.1982). Moreover, "[t]he mere fact of inconsistency [between inculpatory and other evidence] does not automatically convert all [inconsistent] evidence into exculpatory evidence." Preston v. State, 615 P.2d 594, 602 (Alaska 1980). The alleged exculpatory evidence consists of the testimony of (1) a nurse attending Nook who thought she heard Nook say that "Nick shot me"; (2) a doctor who allegedly also heard Nook say he was shot through a door; and (3) a district attorney, present while the trooper questioned Nook, who stated that Nook told the trooper that he did not see Abruska shoot him. In context, it is clear that the district attorney understood Nook to have believed that Abruska shot him and that the nurse's and doctor's statements, in context, would have been of little exculpatory value. The remaining evidence consists mainly of a series of statements about the circumstances of the shooting which conflict somewhat with each other and with the other evidence presented to the grand jury. It is difficult to see how conflicting statements by Nook can be said to substantially negate Abrus-ka's guilt. See Tookak v. State, 648 P.2d at 1021 (in light of all the evidence implicating Tookak, the failure of other witnesses to identify him did not meet the test of negating guilt). Finally, Abruska complains that the indictment should have been dismissed because of inadmissible evidence presented to the grand jury, in the form of hearsay, speculation, and testimony about the results of an improper experimentation by the trooper investigating the shooting. We have carefully reviewed Abruska's arguments in light of the record and find no error. The testimony of "experimentation" was minimal and if error occurred it was harmless. III. Abruska received a maximum ninety-nine year sentence. In arguing that this sentence is excessive, Abruska relies upon Page v. State, 657 P.2d 850, 855 (Alaska App.1983), where we said: It would appear appropriate . that one convicted of [second-degree murder] should receive a sentence of from twenty to thirty years. We went on to say, however, that aggravating circumstances would permit enhancing the sentence up to ninety-nine years, and Page himself was properly found to be a worst offender under State v. Wortham, 537 P.2d 1117, 1120 (Alaska 1975), justifying his maximum ninety-nine year sentence. A lengthy presentence report in this ease documented the very high number of incidents of physically abusive behavior by Abruska during his adult life, and the extreme lack of insight Abruska has into the cause of that behavior. Abruska filed a "denial of presentence report allegations" denying "each and every allegation of felonious conduct unsupported by information or indictment" as well as some specific instances. At sentencing, many of those interviewed by the probation officer who prepared the presentence report testified about Abruska's extreme and violent conduct. Based upon this evidence, Judge Cooke found that Abruska was a worst offender. Judge Cooke found that the murder was without provocation. He noted that while there was a severe pattern of alcohol abuse, many of Abruska's past acts of violence were committed while Abruska was not intoxicated which indicated that even were Abruska rehabilitated in terms of his alcohol abuse, the overall prospects for his rehabilitation would be minimal. Judge Cooke concluded that the nature and circumstances of the murder, the pattern of cruel and violent behavior to others, and the minimal prospect for rehabilitation of Abruska all justified a "worst offender" characterization. See State v. Wortham, 537 P.2d at 1120. Having reviewed the record, we cannot say that Judge Cooke was incorrect in finding that Abruska was a worst offender or that the sentence imposed was clearly mistaken. See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974). The judgment and sentence of the superi- or court are AFFIRMED. . Under Shane, a person's history of driving while intoxicated is arguably admissible on the issue of culpability, an essential element in the jury's determination of the plaintiff's right to punitive damages. Such evidence is admissible on the issue of culpability because plaintiff must prove that defendant's conduct was "outrageous, such as acts done with malice or bad motives or a reckless indifference to the interests of another" in order to receive punitive damages. We believe that, by extension, the evidence from which it could be inferred that defendant would be dangerous if intoxicated also would be admissible. . The New York statute provides: 1. "Intentionally." A person acts intentionally with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct. 2. "Knowingly." A person acts knowingly with respect to conduct or to a circumstance described by a statute defining an offense when he is aware that his conduct is of such nature or that such circumstance exists. N.Y.Penal Law § 15.05 (McKinney 1975). . The Alaska Law Revision Commission apparently agreed: "Knowingly" may not serve as a culpable mental state for an element of an offense which is a result; a person "intends" a result. Although one can "know" that a result is practically certain to occur, "intentionally" more properly connotes the active purposeful state of mind with which a result is achieved. Alaska Criminal Code Revision Part II, at 17 (Tent.Draft 1977) (Commentary to proposed AS 11.15.140(a)(1) and (a)(2) respectively defining "intentionally" and "knowingly." Intentionally and Knowingly). .The tentative draft of AS 11.41.110(a)(1), which established one degree of murder, treated knowingly causing death and intentionally causing death as synonomous. See Alaska Criminal Code Revision Part I, at 18 (Tent.Draft 1977). It was derived from the Illinois statute. Id., Part I, Commentary at 97. . Arkansas Statute 41-1503 provides in relevant part: (1) A person commits murder in the second degree if: (c) with the purpose of causing serious physical injury to another person, he causes the death of any person. Ark.Stat.Ann. 41-1503(l)(c) (1977). . Arkansas Statute 41-203(2) provides: (2) "Knowingly." A person acts knowingly with respect to his conduct or the attendant circumstances when he is aware that his conduct is of that nature or that such circumstances exist. A person acts knowingly with respect to a result of his conduct when he is aware that it is practically certain that his conduct will cause such a result. Ark.Stat.Ann. 41-203(2) (1977). . Contrary to the statement in the Mill opinion, Perkins is discussing the Restatement (Second) of Torts § 8A (1965), rather than the Model Penal Code. R. Perkins, Criminal Law 746-47 nn. 41-43. Perkins continues: This is in substance the position taken by the Institute [American Law Institute, drafters of the Restatement (Second) of Torts]. What is meant by "substantially certain to result" is what the layman would speak of as something "bound to happen," and a lawyer would refer to as an "inevitable concomitant." The cautious wording copied from the Institute, resulted from philosophical doubt whether anything can properly be said to be "bound to happen." [Citation omitted.] Id. at 747 n. 43. Perkins is referring to the Restatement (Second) of Torts § 8(a), which provides: Intent. The word "intent" is used throughout the Restatement of this Subject to denote that the actor desires to cause consequences of his act, or that he believes that the consequences are substantially certain to result from it. The comment to this section is particularly significant: Comment, (a) "Intent," as it is used throughout the Restatement of Torts, has reference to the consequences of an act rather than the act itself. When an actor fires a gun in the midst of the Mohave Desert, he intends to pull the trigger; but when the bullet hits a person who is present in the desert without the actor's knowledge, he does not intend that result. "Intent" is limited, wherever it is used, to the consequences of the act. (b) All consequences which the actor desires to bring about are intended, as the word is used in this Restatement. Intent is not, however, limited to consequences which are desired. If the actor knows that the consequences are certain, or substantially certain, to result from his act, and still goes ahead, he is treated by the law as if he had in fact desired to produce the result. As the probability that the consequences will follow decreases, and becomes less than substantial certainty, the actor's conduct loses the character of intent, and becomes mere recklessness, as defined in § 500. As the probability decreases further, and amounts only to a risk that the result will follow, it becomes ordinary negligence, as defined in § 282. All three have their important place in the law of torts, but the liability attached to them will differ. Restatement (Second) of Torts § 8(a) commentary at 15. The Restatement's treatment of intent to include both "intent" and "knowledge" closely parallels the treatment these terms received in the Model Penal Code. The Restatement's treatment of recklessness in § 500 combines "recklessness" and "culpable negligence" as they are defined in the Model Penal Code and utilizes an objective theory in part which does not require subjective knowledge of the risk. It is therefore consistent with the definition of recklessness, i.e., culpable negligence, adopted in O'Leary v. State, 604 P.2d 1099, 1104-05 (Alaska 1979). It is not completely consistent, however, with the definition of "recklessly" in AS 11.81.900(a)(3), which requires subjective appreciation of the risk. Compare Restatement (Second) of Torts § 500 with AS 11.81.900(a)(3) (defining "recklessly") and AS 11.81.900(a)(4) (defining criminal negligence). See Alaska Criminal Code Revision Part II, at 17-19. (Tent.Draft 1977) (Commentary to proposed AS 11.15.140(3) and (4) Recklessness and Criminal Negligence). . This was, in part, the Alaska Law Revision Commission proposal. See Alaska Criminal Code Revision Part I, at 18 (Tent.Draft 1971), proposed AS 11.41.110(a)(1). See abo Stern, The Proposed Alaska Revbed Criminal Code, 7 U.C.L.A. — Alaska L.Rev. I, 40-42 (1977). . Alaska Statute 11.41.110(a)(1) and (2) provide: (a) A person commits the crime of murder in the second degree if (1) with intent to cause serious physical injury to another person or knowing that the conduct is substantially certain to cause death or serious physical injury to another person, the person causes the death of any person; [or] (2) the person intentionally performs an act that results in the death of another person under circumstances manifesting an extreme indifference to the value of human life. Alaska Statute 11.41.100(a)(1) provides: (a) A person commits the crime of murder in the first degree if, with intent to cause the death of another person, the person (1) causes the death of any person. .It is equally unclear that the "substantial prejudice" prong of the plain error rule has been met here. Even if such a construction of the statute were adopted, Abruska might not be benefited. If reckless murder is a lesser-included offense of knowing murder and both have the same penalty, but "intoxication" is no defense to reckless murder, then a reversal would leave open the possibility that on remand the trial court could simply enter judgment on reckless murder. See Nix v. State, 690 P.2d 745 (Alaska App. 1984). . As noted in part IB of this decision, the line between "intending a result" and "knowing that the result is substantially certain to follow from the actor's conduct" is very thin. Some grand jurors recognized this and wondered why the prosecutor sought an indictment containing both counts. In other words, the grand jurors wanted to know the difference between the two counts. The prosecutor's answer, which focused on the intoxication defense, explained what may be the only difference. . Second-degree murder is an unclassified offense, AS 11.41.110(b). There are no presumptive terms. The minimum and maximum penalties are respectively five and ninety-nine years. AS 12.55.125(b). . While Abruska has only one prior felony conviction verified, information at sentencing established that he has a long history of violent behavior which serves to distinguish his case from Pears v. State, 698 P.2d 1198 (Alaska 1985) (youthful first offender convicted of second-degree murder for motor vehicle homicide while intoxicated should receive a sentence of less than twenty years). . Generally, a trial court should not impose a maximum sentence without the benefit of a psychological evaluation of the defendant. See Salud v. State, 630 P.2d 1008, 1013-14 (Alaska App.1981). Failure to obtain such a report sua sponte may be plain error. Where, however, the defendant does not request an evaluation and the court has extensive information establishing a continuous course of violent behavior, it may impose a maximum sentence without requiring such an evaluation. In this case, the trial court had a pretrial psychiatric report and the defense does not argue that an updated report would have benefited Abruska at sentencing. We therefore find no plain error.

10418898

Cleofe M. FREEMAN, Appellant, v. STATE of Alaska, Appellee

Freeman v. State

1985-08-30

No. S-458

918

920

705 P.2d 918

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.

Cleofe M. FREEMAN, Appellant, v. STATE of Alaska, Appellee.

Cleofe M. FREEMAN, Appellant, v. STATE of Alaska, Appellee. No. S-458. Supreme Court of Alaska. Aug. 30, 1985. William J. Donohue, Kennelly, Azar & Donohue, P.C., Anchorage, for appellant. Gary Foster, Asst. Atty. Gen., Fairbanks, Norman C. Gorsuch, Atty. Gen., Juneau, for appellee. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

1236

7933

OPINION COMPTON, Justice. This is an appeal from a summary judgment dismissing a negligence claim against the state. Freeman alleged the state is liable for negligent failure to institute dust control procedures on the Dalton Highway. The trial court concluded the state is immune from tort liability under the discretionary function immunity exception to the Tort Claims Act. We affirm. I. FACTUAL AND PROCEDURAL BACKGROUND The Dalton Highway is a 374 mile dirt and gravel road running from the Yukon River bridge to Prudhoe Bay, built and maintained at one time by Alyeska Pipeline Service Company (Alyeska). While Alyes-ka had the duty to maintain the highway, it ran water trucks to minimize the dust hazard. Responsibility for maintaining the highway shifted from Alyeska to the State Department of Transportation and Public Facilities (State) in October 1978. State did not institute dust control procedures, although it considered calcium chloriding and other alternatives to minimize the dust hazard. State decided against instituting its own dust control procedures because of the expense and the existence of other maintenance priorities. Following State's assumption of the duty to maintain the highway, two truckers familiar with it testified that it was often very difficult or impossible to see other traffic due to the great amount of dust thrown up by tractor-trailers. In August 1979, Cleofe Freeman was asleep in a GMC Blazer driven by Howie Hilliker. Both were Alyeska employees using a company truck to check the pipeline for corrosion. Freeman and Hilliker were traveling behind Joshua Stetson, who was driving a flatbed tractor-trailer carrying a load of steel pipe to Prudhoe Bay. Stetson ran out of fuel and stopped his rig in the northbound lane. Thirty to sixty seconds after he came to a halt, the GMC rear-ended Stetson's rig. Hilliker testified that heavy dust obscured his vision; he could not see Stetson's truck until it was too late to stop. Freeman was severely injured in the accident. Freeman sued State, claiming it negligently failed to institute dust control procedures. State moved for summary judgment, arguing that its failure to follow dust abatement procedures is immune from tort liability under the discretionary function exception to the Tort Claims Act. Judge Douglas J. Serdahely granted the motion, dismissing Freeman's claim with prejudice. Freeman appeals. II. DISCRETIONARY FUNCTION IMMUNITY State has a duty to maintain the Dalton Highway in a safe condition. Kuhn v. State, 692 P.2d 261, 265 (Alaska 1984); AS 19.40.100. Freeman alleges State breached this duty by negligently failing to control dust on the highway. Assuming that State's failure was negligent and that its negligence was a proximate cause of Freeman's injuries, State is liable to Freeman unless dust control is a discretionary function. AS 09.50.250. State argues that the decision to forego dust abatement procedures is a discretionary function born of budgetary necessity. Freeman contends that once the legislature enacted AS 19.40.100, accepting responsi bility for maintaining the highway, subsequent executive decisions were necessarily operational and therefore not immune. State liability is the rule; immunity is the exception. Johnson v. State, 636 P.2d 47, 64 (Alaska 1981); Japan Air Lines v. State, 628 P.2d 934, 937 (Alaska 1981); Jennings v. State, 566 P.2d 1304, 1311 (Alaska 1977). We have adopted a planning-operational test to determine whether a particular act is immune from liability. State v. Abbott, 498 P.2d 712, 721 (Alaska 1972). [U]nder the planning-operational test, decisions that rise to the level of planning or policy formulation will be considered discretionary acts immune from tort liability, whereas decisions that are operational in nature, thereby implementing policy decisions, will not be considered discretionary and therefore will not be shielded from liability. Johnson, 636 P.2d at 64. The primary policy is to maintain separation of powers, avoid judicial invasion of legislative and executive spheres of authority and expertise, and prevent enormous and unpredictable public liability. Abbott, 498 P.2d at 721-22. Decisions concerning the allocation of available funding are often immune from suit under the discretionary function exception. Industrial Indemnity v. State, 669 P.2d 561, 566 (Alaska 1983); Wainscott v. State, 642 P.2d 1355, 1357 (Alaska 1982). "The thread common to the many cases on the issue is that the basic policy decision to undertake an activity is immune, but the execution is not." Adams v. State, 555 P.2d 235, 243-44 (Alaska 1976). We conclude that the discretionary function exception applies and State is therefore immune from suit. The legislature's acceptance of the duty to maintain the Dalton Highway by enacting AS 19.40.-100 is clearly an immune policy decision. Executive implementation of this policy is immune if the decisionmaker is authorized to consider basic political, social or economic policy factors and in fact considers them. The affidavit of John Horn, Director of Maintenance and Operations for the Department of Transportation, Interior Region, indicates that a considered cost benefit decision concerning dust control on the Dalton Highway was made at a high level in the Department. The decision appears to be one involving such basic policy factors as the cost of such a program, alternative uses for the money that would be needed for such a program, and the physical and environmental detriments which would be inherent in the several dust control alternatives under consideration. The decision seems to have been clearly on the planning side of the sometimes vague and wavering line which separates planning from operational functions in our state government. Therefore, State is immune from suit under the discretionary function exception. The decision in Kuhn v. State is distinguishable. The judgment of the superior court is AFFIRMED. . Freeman also sued Stetson and his employer, Frontier Transportation Company. . AS 19.40.100 provides in relevant part: (a) The department shall maintain the highway and keep it open to industrial or commercial traffic throughout the year. . AS 09.50.250 provides in relevant part: A person . having a . tort claim against the state may bring an action against the state in the superior court. . However, no action may be brought under this section if the claim (1) . is an action for tort, and based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a state agency or an employee of the state, whether or not the discretion involved is abused.... . Freeman essentially argues for a "semantic application of the planning-operational distinction," criticized in Note, Sovereign Immunity and the Discretionary Function Exception of the Alaska Tort Claims Act, 2 Alaska L.Rev. 99, 113-17 (June 1985). We expressly rejected the semantic approach in State v. Abbott, 498 P.2d 712, 720 (Alaska 1972). But see Japan Air Lines v. State, 628 P.2d 934 (Alaska 1981). . This analysis is suggested in Note, Sovereign Immunity and the Discretionary Function Exception of. the Alaska Tort Claims Act, 2 Alaska L.Rev. 99, 112 (June 1985). .In Kuhn we held that the indemnity provision in permits issued to Dalton Highway users was unenforceable under the public duty exception to the general rule of enforceability. The state did not argue that its alleged negligent acts were not within the scope of its duty to maintain the highway. 692 P.2d 261.

10375294

STATE of Alaska, Petitioner, v. Elizabeth WASKEY, Respondent

State v. Waskey

1992-07-17

No. A-4125

1251

1254

834 P.2d 1251

834

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T18:00:54.631596+00:00

CAP

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

STATE of Alaska, Petitioner, v. Elizabeth WASKEY, Respondent.

STATE of Alaska, Petitioner, v. Elizabeth WASKEY, Respondent. No. A-4125. Court of Appeals of Alaska. July 17, 1992. Nancy R. Simel, Asst. Atty. Gen., Office of Special Prosecutions and Appeals, Anchorage, and Charles E. Cole, Atty. Gen., Juneau, for petitioner. Kevin F. McCoy, Asst. Public Defender, and John B. Salemi, Public Defender, Anchorage, for respondent. Before BRYNER, C.J., and COATS and MANNHEIMER, JJ.

1488

9354

OPINION MANNHEIMER, Judge. An Anchorage grand jury indicted Elizabeth Waskey for third-degree assault, AS 11.41.220(a)(l)-(2). Superior Court Judge Milton Souter dismissed the indictment because the prosecutor who presented the case to the grand jury did not give the grand jury the special instruction on the definition of "dangerous instrument" this court required in Konrad v. State, 763 P.2d 1369, 1374-75 (Alaska App.1988). The State has petitioned for review of the dis missal of the indictment. We reverse the decision of the superior court and reinstate the indictment. The evidence presented to the grand jury showed that, on the afternoon of May 5, 1991, Waskey drove through a stop sign at the intersection of North Price and Richmond Avenue, turned into the wrong lane of North Price, and struck an eleven-year-old bicyclist. The handlebar of the bicycle hooked the front bumper of Waskey's car; Waskey dragged the bicyclist 140 feet before stopping. Waskey was apparently intoxicated; when she submitted to a breath test afterwards, the result was .306 percent blood alcohol, over three times the legal limit. Through good fortune, the child was not seriously injured. Waskey was indicted for third-degree assault under both clauses of AS 11.41.220(a): (a) A person commits the crime of assault in the third degree if that person recklessly (1) places another person in fear of imminent serious physical injury by means of a dangerous instrument; or (2) causes physical injury to another person by means of a dangerous instrument. At the grand jury proceedings, the prosecuting attorney argued that Waskey's automobile had been the "dangerous instrument" required by the statute. The prosecutor read the grand jurors the statutory definition of "dangerous instrument" under AS 11.81.900(b)(ll): "dangerous instrument" means any deadly weapon [as defined in AS 11.81.-900(b)(13)] or anything that, under the circumstances in which it is used, attempted to be used, or threatened to be used, is capable of causing death or serious physical injury[.] Waskey asked the superior court to dismiss this indictment, arguing that the prosecutor had failed to adequately instruct the grand jury on the meaning of "dangerous instrument". Citing this court's decision in Konrad, Waskey argued that the statutory definition of dangerous instrument is insufficient guidance to the grand jury in a case like hers, where "the defendant is alleged to have used a dangerous instrument that was not a 'deadly weapon' and that did not actually inflict death or serious physical injury". Konrad, 763 P.2d at 1374-75. The superior court agreed with Waskey that Konrad required dismissal of the indictment. We believe that Waskey's reading of Konrad is too broad. In Konrad, the defendant had beaten his wife with his hands, striking her once in the head and once in the ribs; the blow to Ms. Konrad's ribs ruptured her spleen, causing her severe abdominal pain, but the injury healed itself without medical intervention. Konrad, 763 P.2d at 1372. Konrad was charged with third-degree assault under AS 11.41.-220(a)(2) for "recklessly . causpng] physical injury to another person by means of a dangerous instrument." The prosecutor gave the grand jury the statutory definition of dangerous instrument and, additionally, told the grand jury that "in the State of Alaska, hands or feet can be considered a 'dangerous instrument' under the definition that I have given you". Id. at 1372. This court invalidated Konrad's indictment on two grounds. First, there was a troubling ambiguity in the prosecutor's ancillary instruction that hands or feet "can be considered" dangerous instruments under Alaska law; the grand jurors might have taken the prosecutor's statement to mean that, under Alaska law, striking another person with one's hands or feet constitutes the use of a dangerous instrument. Konrad, 763 P.2d at 1374. Second, this court found that, "even without the ambiguous instruction, . the circumstances of the present case [were] sufficiently unique to require a specific admonition to the grand jury concerning [how] to determine whether a dangerous instrument had been used." Id. The problem was that the grand jury might have voted to indict Konrad based upon their evaluation of a human hand's potential for inflicting serious physical injury "as an abstract or hypothetical matter" rather than based upon evidence establishing how Konrad had used his hand in the particular circumstances of his case. Id. at 1375. Speaking of the evidence presented at Konrad's trial, this court noted: [T]here is nothing in the record to establish that the manner in which Konrad used his hands was inordinately violent or particularly calculated to inflict serious physical injury. No evidence was offered to suggest that Konrad had received martial arts training or that he was otherwise skilled in using his hands to inflict physical injury.... [TJhere was no evidence to suggest that [Ms. Konrad] was especially susceptible to incurring a serious physical injury . [or] that she was vulnerable to suffering [an] injury more serious than [the injury] actually inflicted[.] Konrad, 763 P.2d at 1375. This court concluded that, in such cases, an instruction should be given to "alert the grand jury to the need . to find, based upon the evidence in the case before it, that the defendant used an instrument in a manner that actually created a substantial risk of death or serious physical injury" as opposed to an instrument that might theoretically have created such a risk under some imaginable circumstances not supported by the evidence. Id. Waskey interprets Konrad as establishing a "bright-line rule" that a special instruction on the meaning of dangerous instrument must be given whenever "the defendant is alleged to have used a dangerous instrument that is not a 'deadly weapon' and that did not actually inflict death or serious physical injury". Konrad, 763 P.2d at 1374-75. However, this language from the Konrad decision must be interpreted in the context of the unique circumstances of Konrad's case. Konrad struck- another person once in the head and once in the ribs. These blows were apparently of ordinary force and delivered in an ordinary manner. This type of assault can conceivably inflict serious physical injury, but many such assaults would not reasonably be expected to leave lasting injury. Thus, when an assault is committed by hands or fists only, and when no serious physical injury has been inflicted, it is important to apprise the grand jury that such an assault will be considered a felony only when the evidence in the particular case shows that the defendant used his or her hands in a manner that actually created a substantial risk of death or serious physical injury to the victim. By contrast, Waskey's assault involved a collision between an automobile and a bicyclist. Because of an automobile's solidity and mass, an automobile is normally easily capable of inflicting death or serious physical injury in such circumstances. While it is possible to imagine collisions between an automobile and a pedestrian or a cyclist that one might not expect to result in serious physical injury (for instance, when the driver's failure to set the parking brake leads to a collision at 2 miles per hour), these are clearly exceptional cases. Under any reasonable construction of the facts of Waskey's case, her automobile constituted a "dangerous instrument" within the statutory definition. The circumstances of Waskey's collision with the bicyclist show that her car was easily capable of inflicting serious physical injury or death; indeed, the bicyclist's escape with only minor injuries was completely fortuitous. This is the key distinction between Was-key's case and Konrad. In Konrad, the defendant used only his fists, and he used them in a manner that left open a significant factual question: whether the defendant's particular mode of assault created a substantial risk of serious physical injury or death. As Waskey conceded at oral argument, her case does not present this issue, and there is no reasonable possibility that the grand jurors' decision to indict Waskey for third-degree assault would have changed if they had received the type of ancillary instruction specified in Konrad. Waskey suggests that, even though giving a clarifying instruction would not alter the result in her case, this court should nevertheless require the State to give such an instruction in all cases, out of caution. However, it appears to us that Konrad represents the unusual case, while Was-key's case is more representative of third- degree assaults. We see no advantage in creating a rule that will make a difference only in exceptional cases and whose violation will normally be harmless error. The judgement of the superior court is REVERSED. The third-degree assault charge against Waskey is reinstated.

9477443

Caleb ALDERMAN; Barbara Alderman; and Alaska Guestours, Inc., dba Fourth Avenue Theater Trolley Tours, Appellants, v. IDITAROD PROPERTIES, INC., dba Fourth Avenue Theatre, and Robert Gottstein, Appellees

Alderman v. Iditarod Properties, Inc.

2001-10-12

No. S-9285

373

398

32 P.3d 373

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.

Caleb ALDERMAN; Barbara Alderman; and Alaska Guestours, Inc., dba Fourth Avenue Theater Trolley Tours, Appellants, v. IDITAROD PROPERTIES, INC., dba Fourth Avenue Theatre, and Robert Gottstein, Appellees.

Caleb ALDERMAN; Barbara Alderman; and Alaska Guestours, Inc., dba Fourth Avenue Theater Trolley Tours, Appellants, v. IDITAROD PROPERTIES, INC., dba Fourth Avenue Theatre, and Robert Gottstein, Appellees. No. S-9285. Supreme Court of Alaska. Oct. 12, 2001. Robert C. Erwin and Roberta C. Erwin, Erwin & Erwin, LLC., Anchorage, for Appellants. Herman G. Walker, Jr., Koval & Featherly, P.C., Anchorage, for Appellees. Before FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.

13609

84672

OPINION CARPENETI, Justice. I, INTRODUCTION During the 1998 Anchorage tourist season, both Robert Gottstein's Iditarod Properties and Caleb and Barbara Alderman's Alaska Guestours operated separate trolley tours named "Fourth Avenue Theater Trolley Tours" from the front of the historic Fourth Avenue Theatre owned by Iditarod. Iditar-od sued the Aldermans for trade name infringement. A jury found that the Alder-mans had infringed Iditarod's trade name "Fourth Avenue Theatre" and had breached a lease agreement for the use of the theater's ticket booth. The Aldermans appeal numerous issues including the application of trade name law, the jury verdict, the interpretation of the business name registration statute, the amendment of the pleadings, and the award of attorney's fees. We affirm on all issues except the superior court's decision to allow amendment of the pleadings after the close of evidence. II. FACTS AND PROCEEDINGS Caleb and Barbara Alderman are the owners of Alaska Guestours, Inc. In 1994 the Aldermans started a trolley tour business in Anchorage. In 1996 they adopted the name "Anchorage Trolley Tours." Robert Gottstein is the sole shareholder of Iditarod Properties In 1991 Iditarod acquired the Fourth Avenue Theatre, a historic building in downtown Anchorage. Iditarod spent approximately three and one half million dollars restoring the Fourth Avenue Theatre. Newspapers and historical preservation societies applauded the renovation of the theater. The newly renovated theater re-opened in 1992. The theater contains a gift shop, cafe, television studio, movie and video theater, banquet room, and catering company. "Fourth Avenue Theatre" was used as the name for the gift shop and cafe. Iditarod advertised the theater on the radio and in tourist publications. The Fourth Avenue Theatre was listed among the largest banquet facilities in the state. At times, Iditarod received letters from customers addressed to the "Fourth Avenue Theatre," instead of to its corporate name. In 1995 the Aldermans obtained a parking permit for their trolley in front of the Fourth Avenue Theatre. The Aldermans approached Gottstein to inquire about selling tickets for their trolley tour from the theater. Gottstein and the Aldermans made an oral agreement to rent the theater ticket booth as a location for the Aldermans to sell trolley tickets, to rent office space in the theater basement, and to have Iditarod employees sell trolley tour tickets in the theater gift shop. The Aldermans claim the parties agreed that the rent was fifteen percent of ticket sales from the ticket booth and gift shop only. Iditarod claims the rent agreement was for fifteen percent of the gross revenues from the Aldermans' entire trolley tour business. Despite the apparent misunderstanding, this arrangement survived until about October 1997. Other conflicts between Iditarod and the Aldermans culminated in a final confrontation, resulting in the Aldermans moving out of the theater and into an office next door. The Aldermans performed no accounting for 1997 rents owed to Iditarod. Several months after the final disagreement, the Aldermans registered the business name "Fourth Avenue Theater Trolley Tours." They had previously registered the name "Fourth Avenue Trolley." Gottstein investigated the possibility of Id-itarod operating a trolley tour business. Idi-tarod requested a parking permit in front of the theater that required moving the Alder-mans' trolley parking space. The city allowed the Aldermans to choose a different space farther down the street, but they selected a location that was still partially in front of the theater. By May 1998 Iditarod and the Aldermans were operating competing trolley tours in front of the Fourth Avenue Theatre. Both operated under the name "Fourth Avenue Theater Trolley Tours." Customers were confused over which trolley tour business they had bought tickets for. In May 1998 Iditarod's counsel sent the Aldermans a cease and desist letter demanding that the Aldermans stop using the name "Fourth Avenue Theater." The Aldermans rejected Iditarod's demand, and Iditarod filed this lawsuit. Iditarod alleged trade name infringement and requested an injunction and damages. The Aldermans' answer denied using the name "Fourth Avenue Theater Trolley Tours." They counterclaimed against Iditar-od for unfair competition, trade dress infringement, intentional interference with contractual relations, breach of the covenant of good faith and fair dealing, and punitive damages. Both sides moved for partial summary judgment on various issues. Superior Court Judge Brian C. Shortell granted summary judgment, holding that the Aldermans did not have an exclusive right to use the name "Fourth Avenue Theater Trolley Tours" by virtue of its registration under AS 10.35.040; that evidence did not support the Aldermans' claim of intentional interference with contractual relations; and that Iditarod had the right to use the name "Fourth Avenue The-atre Trolley Tours." The superior court denied summary judgment on the Aldermans' claims that Iditarod engaged in unfair competition; that the Aldermans had an exclusive right to use the "Fourth Avenue Theater Trolley Tours" business name under AS 10.35.040; and that Iditarod did not infringe the Aldermans' trade dress. Trial commenced in May 1999. The Alder-mans testified that they used the trade name "Fourth Avenue Theater Trolley Tours" in the fall of 1997. At the close of evidence, the trial court granted Iditarod's motion to amend its pleading to add a cause of action for breach of contract. By special verdict, the jury found that: (1) "Fourth Avenue Theatre" was a trade name; (2) Iditarod owned the trade name; (8) the Aldermans used Iditarod's trade name in a way likely to cause confusion; (4) Iditarod did not engage in unfair competition; (5) Iditarod did not use trade dress belonging to the Aldermans; (6) the Aldermans violated the rent agreement by failing to pay fifteen percent of gross revenues from trolley tour tickets sold at the theater; and (7) the amount of the breach was $13,924.05. Based on the verdict, the trial judge entered a judgment on July 26, 1999. On August 5 Iditarod moved for an award of attorney's fees. On August 19 the Alder-mans filed a notice of appeal. On August 27 the trial judge denied Iditarod's motion for attorney's fees without prejudice for failure to provide sufficient specificity of actual fees incurred. On November 4 Iditarod filed a corrected motion for attorney's fees. The trial court granted Iditarod an enhanced award of $46,795, based on forty percent of actual fees under Alaska Civil Rule 82(b)(8). The Aldermans appeal the jury findings of Iditarod's trade name and Aldermans' infringement of it, the summary judgment ruling that the Aldermans did not have exclusive right to the name "Fourth Avenue Theater Trolley Tours" under AS 10.85.040, the amendment of the pleadings at the close of evidence, and the award of attorney's fees. III. STANDARDS OF REVIEW Denial of summary judgment is reviewed de mnovo Issues of statutory interpretation are questions of law that we review in our independent judgment. On questions of law, our duty is to adopt the rule of law that is most persuasive in light of precedent, reason, and policy. We review a trial court's decision to permit amendment of the pleadings for an abuse of discretion.' Jury instructions that involve rules of law are reviewed de novo." "The jury's factual findings, if supported by the evidence presented at trial, will not be disturbed where there is room for diversity of opinion among reasonable people." We review the trial court's award of attorney's fees for an abuse of discretion. We will find that a trial court abused its discretion when, after reviewing the whole record, we are left with a definite and firm conviction that the trial court erred in its ruling. If the award of attorney's fees requires interpretation of Alaska Civil Rule 82, we perform an independent review. IV. DISCUSSION Trade name infringement is an issue of first impression for this court. Alaska Statute 45.50.471(a) states that "[uJnfair methods of competition and unfair or deceptive acts or practices in the conduct of trade or commerce are declared to be unlawful." AS 45.50.471(b) defines "unfair methods of competition" and "unfair or deceptive acts or practices" to include acts: (3) causing a likelihood of confusion or misunderstanding as to the source, sponsorship, or approval, or another person's affiliation, connection, or association with or certification of goods or services. Because the language of Alaska's unfair trade practices law echoes that of federal trademark law found in the Lanham Act and because interpretation and application of the Lanham Act is well developed by existing case law in other jurisdictions, we look to decisions of other courts interpreting the Lanham Act and other states' trademark law where the text is similar to that of Alaska's unfair trade practices law. We begin with a brief overview of trade name and trademark law. A. Trademark and Trade Name Low in General 1. Terminology: trade name v. trademark In the modern legal vernacular, "trade name" means a symbol used to distinguish companies, partnerships, and businesses. By contrast, "trademark" refers to symbols used to distinguish goods and services. This distinction blurs somewhat when talking about a service company-does "Fourth Avenue Theatre" distinguish the business or the services provided? Because "Fourth Avenue Theatre" is more typical of a business name and the dispute here is over its use as a business name, we treat this as a case involving a trade name rather than a trademark. The distinction between trade name and trademark, however, is generally not a critical distinction, and we conclude that it is not in this case. The United States Supreme Court noted the identity of protection for trademarks and trade names: Whether the name of a corporation is to be regarded as a trade-mark, a trade-name, or both, is not entirely clear under the decisions. To some extent the two terms overlap, but there is a difference, more or less definitely recognized, which is that, generally speaking, the former is applicable to the vendible commodity to which it is affixed, the latter to a business and its good will. A corporate name seems to fall more appropriately into the latter class. But the precise difference is not often material, since the law affords protection against its appropriation in either view, upon the same fundamental principles. Protection of trade names and trademarks is the same because trade names and trademarks serve the same basic purposes. "Although trade names [and] trademarks are used differently, they [both] serve the same basic purposes, that is, to identify a business and its products or services, to create a consumer demand therefor, and to protect any goodwill which one may create as to his goods or services." The same basic rules apply equally to trade names and trademarks. Trademarks and trade names are classified in the same four categories. Analysis of infringement for both trademarks and trade names is done under a likelihood-of-confusion test. Trade names, like trademarks and other types of trade symbols, are protected against use that is likely to cause confusion even if the related infringing use is noncompetitive. The term "trademark infringement" covers the use of one party's trade name as a trademark on another's goods or services as well as the use of one party's trademark as part of another's corporate name. Because the same basic rules and rationales apply equally to trade names and trademarks, we rely on trademark infringement case law in a trade name case such as this. 2. General concepts of trade name and trademark law "Iwo elements must be proved to establish a prima facie case of unfair or deceptive acts or practices under the Alaska Act: (1) that the defendant is engaged in trade or commerce; and (2) that in the conduct of trade or commerce, an unfair act or practice has occurred." Neither party contests that the Aldermans are engaged in trade or commerce. Thus, the focus is on establishing an unfair act or practice. According to AS 45.50.471(a2)8), it is an unfair act or practice to "caus[e] a likelihood of confusion or misunderstanding as to the source, sponsorship, or approval, or another person's affiliation, connection, or association with or certification of goods or services" -in other words, trademark or trade name infringement. In general, to establish an unfair act or practice like trade name infringement, "the law has traditionally required proof of two basic elements: (1) Validity-that the public recognizes plaintiffs symbol as identifying his [business] and distinguishing [it] from those of others, and (2) Infringement-that defendant's actions cause a likelihood of confusion among the relevant buyer class." Validity could be shown in either of two ways: (a) that the symbol was inherently distinctive, or (b) that even if not inherently distinctive, the symbol has become distinctive through the acquisition of "see-ondary meaning," the mental association in buyers' minds between the trade name and a single business. Infringement is shown by analysis under a multi-factor likelihood-of-confusion test. B. "Fourth Avenue Theatre" Is a Valid Trade Name. 1. General types of trade names There are four types of trade names: (1) arbitrary or fanciful, (2) suggestive, (8) descriptive (including geographic or personal name), and (4) generic. They differ in level of distinctiveness. Arbitrary, fanciful, and suggestive trade names are the most distinctive and qualify for protection under the Lanham Act or common law. Generic names are entirely non-distinetive and cannot receive such protection. In the middle are descriptive trade names, which may or may not receive protection depending on whether they have achieved a secondary meaning. Arbitrary, fanciful, and suggestive trade names are inherently distinctive. An arbitrary trade name is a common word or symbol that is applied in a manner not suggestive or descriptive of the business. Examples of arbitrary trade names and trademarks are Sun Microsystems, Stork Club (as a night club), and Nova (as a television series). A fanciful trade name is a word coined expressly for use as a trade name or an obscure or archaic term not inherently familiar to buyers. Examples of fanciful trade names and trademarks include Exxon, Polaroid, and Clorox. Arbitrary and fanciful trade names are broadly protected as strong trade names because their novelty identifies them uniquely to consumers; the recognition of an arbitrary or fanciful name is almost entirely a reflection of the reputation developed by the single user. Suggestive terms "connote, rather than describe," some particular product or service; they require "use of the consumer's ingenuity to envisage the nature of the product or service." Some examples of trade names and trademarks held to be suggestive rather than descriptive are Citibank, Orange Crush, and Tie Rak. The concept of suggestive trademarks developed to avoid the draconian result of the 1905 Trademark Act's lack of protection for descriptive marks. Courts could uphold the registration of trademarks that were only subtly "descriptive" by placing them in the inherently distinctive category of suggestive trademarks. Generic names lie at the other end of the distinctiveness spectrum and are not protected. Generic names are the actual names of the goods or services and, thus, cannot be distinctive of a unique source. Some examples of terms held to be generic are Discount Mufflers, Convenient Store, and Lite Beer. Generic names are not pro-tectable as trade names because doing so would effectively remove words of common usage from the commercial vernacular. To permit exclusive trade name rights in a generic name would grant the owner of the generic name a monopoly because a competitor could not describe his business by its common generic term. Descriptive terms fall between generic names and suggestive trade names in distinctiveness. A term is descriptive if it describes the intended purpose, function, or use of the goods, the size of the goods, the class of the users of the goods, a desirable characteristic of the goods, the nature of goods, or the end effect upon the user. Some examples of trade names and trademarks found to be descriptive are Beer Nuts, Fashionknit, and Raisin-Bran." Descriptive terms are categorized as inherently non-distinetive and, as such, entitled to protection only upon a showing of "secondary meaning" or a mental connection between the trade name and a single business. The United States Supreme Court has stated two reasons for this extra requirement for protection. First, because de-sceriptive terms can be truthfully applied to a whole range of goods and services, a descriptive term cannot, per se, function to identify and distinguish the goods or services of only one seller in the marketplace. A descriptive term merely informs the buyer of an alleged quality of the product but does not help the consumer to distinguish between products of different sellers. Second, descriptive terms are regarded as words in the "public domain" in the sense that all sellers should be free to truthfully use these terms to describe their merchandise. "[Olne competitor will not be permitted to impoverish the language of commerce by preventing his fellows from fairly describing their own goods. A subcategory of descriptive terms is the geographically descriptive term. Examples include ALASKA, Bank of America, and Boston. Proof of secondary meaning is required for protection of geographically descriptive names for the same reasons that secondary meaning is required for descriptive names. -Personal names are another subcategory of descriptive names. Examples include Gueci and Waterman. They too are considered inherently non-distinetive for reasons similar to those for descriptive terms and gain protection only by secondary mean-mg. 2. Compostle trade names Terms that are a combination of two or more types are called composite names. The proper analysis of a composite is to look at the name as a whole, not to dissect it into its component parts. Thus, a composite generic-descriptive name may result in a protectable trade name. The United States Supreme Court has stated the reason for this anti-dissection rule: "The commercial impression of a trade mark is derived from it as a whole, not from its elements separated and considered in detail. For this reason it should be considered in its entirety...." The anti-dissection rule is not violated, however, by separately analyzing the component parts as a step in making the ultimate determination of probable customer reaction to the composite as a whole. In Self-Realization Fellowship Church v. Ananda Church of Self-Realization, the Ninth Cireuit applied the anti-dissection rule. The court held that "Self-Realization" was generic for "a class of organization dedicated to spiritual attainment in the manner taught by Yoga," and descriptive (without secondary meaning) of books and tapes sold by such an organization. In addition, the court noted that "Church" and "Fellowship" were generic in connection with a spiritual organization's name. Thus, "Self-Realization," "Fellowship," and "Church" were not protectable individually as trade names or trademarks. However, the composites of "Self-Realization Fellowship" and "Self-Realization Fellowship Church" were potentially protectable as composites. The Ninth Circuit ruled that the district court erred in concluding that the composites were unpro-tectable based upon the analysis of the component parts and remanded for consideration as composite names. 3. "Fourth Avenue Theatre" is a composite descriptive name. The Aldermans argue that "Fourth Avenue Theatre" is not a distinctive name entitled to protection. They suggest that "Fourth Avenue Theatre" is a geographically descriptive name, and, without more, is not distinctive enough to warrant trade name protection. Iditarod does not dispute that "Fourth Avenue Theatre" is a descriptive name, arguing instead that the name has gained secondary meaning and is thus pro-tectable. "Fourth Avenue Theatre" is a composite name. "Fourth Avenue" is geographically descriptive. "Theater" is generic of a type of business. Looking at the whole, "Fourth Avenue Theatre" is still a descriptive name. As a composite descriptive trade name, "Fourth Avenue Theatre" must have acquired a secondary meaning in the minds of consuming public to be entitled to protection against infringement. 4. Secondary meaning generally Marks which are merely descriptive of a product are not inherently distinctive. When used to describe a product, they do not inherently identify a particular source, and hence cannot be protected. However, descriptive marks may acquire the distinctiveness which will allow them to be protected under the Act. Section 2 of the Lanham Act provides that a descriptive mark that otherwise could not be registered under the Act may be registered if it "has become distinctive of the applicant's goods in commerce." This acquired distinctiveness is generally called "secondary meaning." The North Carolina Supreme Court elaborated on the acquired distinctiveness called "secondary meaning": When a particular business has used words publict juris for so long or so exclusively or when it has promoted its product to such an extent that the words do not register their literal meaning on the public mind but are instantly associated with one enterprise, such words have attained a see-ondary meaning. This is to say, a secondary meaning exists when, in addition to their literal, or dictionary, meaning, words connote to the public a product from a unique source. Thus, secondary meaning mainly concerns the mental association in buyers' minds between the trade name and a particular business. Secondary meaning refers to the meaning developed second in time. The primary or original meaning of a name is the general understanding of the words before the trade name gained distinction. In this case, the original meaning of the words "Fourth Avenue Theatre" is a movie house located on Fourth Avenue in some city. Over time, the name "Fourth Avenue Theatre" may attain secondary meaning when consumers identify the name with the one specific, historic land mark theater on Fourth Avenue in Anchorage. The more descriptive the term, the closer it is to a generic name, and the greater the evidentiary burden on the party attempting to prove secondary meaning. Like all trade names, descriptive trade names fall on a spectrum of distinctiveness. Some terms are only slightly descriptive and need only a minimum quantum of evidence to prove see-ondary meaning. Other terms are highly descriptive and may need a substantial quantity of significant secondary-meaning evidence to be protectable as a trade name. In this case, "Fourth Avenue Theatre" is highly descriptive because the words alone describe a business and its location in common terms. The words could refer to any theater on Fourth Avenue. Accordingly, a substantial amount of evidence would be needed to prove secondary meaning. Factors that support finding secondary meaning include both direct and circumstantial evidence. Direct evidence factors are consumer testimony and consumer surveys. Cireumstantial evidence factors include (1) exclusivity, length, and manner of use; (2) amount and manner of advertising; (3) amount of sales and number of customers; (4) established place in the market; and (5) proof of intentional copying. Some courts add a sixth factor: unsolicited media coverage. "[Nlo single factor is determinative, and every element need not be proved. The party seeking to establish the trade name is not required to prove that the term is recognized as a trade name by all prospective purchasers in the relevant market nor even by a majority of them. Instead, secondary meaning exists if a "significant number of prospective purchasers" connect the term with a particular entity. Many courts require only that a "substantial part" of the buying class makes such an association. 5. The jury finding that "Fourth Avenue Theatre" had acquired a secondary meaning was supported by the evidence. The Aldermans contend that the superior court erred as a matter of law in determining that "Fourth Avenue Theatre" was a trade name. Whether or not a symbol has acquired secondary meaning is a question of fact. In this case, Iditarod has provided sufficient evidence-both direct and cireumstantial-to support the jury finding of secondary meaning. Iditarod presented direct evidence of its trade name "Fourth Avenue Theatre" by the letters from its customers using that name. Evidence that buyers sent letters to a company with the trade name, rather than the corporate name, as the addressee tends to prove consumer association between the trade name and the corporate source. In the instant case, Iditarod has presented three letters addressed to the "Fourth Avenue Theatre." This partially supports the jury's determination that "Fourth Avenue Theatre" has secondary meaning. Three of the cireumstantial evidence factors (exclusivity, length, and manner of use; established place in the market; and amount and manner of advertising) also support the finding of secondary meaning. The factor of exclusivity, length, and manner of use strongly favors Iditarod. The Fourth Avenue Theatre first opened around 1947. Even the Aldermans considered it to be a historic landmark in Anchorage. When Iditarod purchased the Fourth Avenue Theatre in 1991, it restored the theater to its original appearance and continued to use its original name. The Fourth Avenue Theatre's established place in the market is shown by its appearance in newspapers and trade journals. Dictionaries, trade journals, magazines, and newspapers using a trade name to identify a business show that the business is commonly associated with that trade name. If the business is recognized by its trade name in professional circles, the buyer class is also likely to recognize the business by the trade name. Here, Iditarod has presented substantial evidence showing the use of the trade name "Fourth Avenue Theatre" in newspapers and trade journals. Advertising also helps support a finding of secondary meaning. Iditarod has provided substantial evidence of its advertising for the Fourth Avenue Theatre. In sum, Iditarod presented ample direct and circumstantial evidence of secondary meaning. We conclude that the jury verdict finding that the name "Fourth Avenue Theatre" had acquired secondary meaning was supported by the evidence. 6. Iditarod's trade name gained its secondary meaning prior to use by the Aldernans. The general rule of priority for inherently distinctive trade names is that the first or senior user is entitled to legal protection." Priority for inherently non-distinctive trade names like "Fourth Avenue Theatre" is more complex. Because rights by secondary meanings are gained solely by public recognition and association, the issue of priority and ownership is not which party first used the name, but which party first achieved secondary meaning in the trade name. This would logically require a rule awarding priority to the party who was the first in a race to acquire secondary meaning. Instead, the rule has evolved to "an easier-to-apply, but stricter, surrogate test: the senior user must prove the existence of secondary meaning in its mark at the time and place that the junior user first began use of that mark." Almost all of Iditarod's evidence of secondary meaning existed prior to the Al-dermans' alleged first use. The Aldermans claim that they used the name "Fourth Avenue Theater Trolley Tours" in the fall of 1997. Only Iditarod's marginally relevant supplier invoices post-date the fall of 1997; the remainder of Iditarod's evidence of see-ondary meaning pre-dates the Aldermans' first use. Thus, the same evidence that strongly supports the finding of secondary meaning also supports a finding that the secondary meaning had developed before the Aldermans' first alleged use. We conclude that the jury verdict finding that the trade name "Fourth Avenue Theatre" belonged to Iditarod was supported by the evidence. C. The Aldermans' Use of the Name "Fourth Avenue Theater Trolley Tours" Infringed Iditarod's Trade Name. 1. Trade name infringement does not require direct competition. The Aldermans argue that there can be rio likelihood of confusion unless there is competition. They correctly state that the trade name "Fourth Avenue Theatre" does not automatically protect all conceivable goods or services emanating from that business. The Aldermans then suggest that the seope of protection for the trade name is limited to goods or services already in existence. This is wrong. Despite the terminology "unfair competition," the vast majority of modern decisions have adopted the rule that competition is not necessary between the parties for there to be a likelinood of confusion. "Confusion, or the likelihood of confusion, not competition, is the real test of trademark infringement." There are four reasons for this broad protection of a trade name. First, protection from trade name use by non-competing businesses prevents placing the trade name holder's reputation in another's hands. Second, it protects consumers from confusion. Third, it allows a zone of natural expansion. Fourth, it prevents unjust enrichment of the junior user-"reaping where one has not sown" and "riding the coat-tails" of the senior user. The related goods doctrine is the modern rule. This doctrine extends trade name protection beyond businesses in direct competition to businesses that are related." The [Junior's] use need not be the same as, nor one in competition with, the original use in order to infringe." Instead, the junior's use will infringe if it is likely to cause consumer confusion. 2. Likelihood of confusion generally "Likelihood of confusion" is the basic test of both common-law trademark infringe ment and federal statutory trademark infringement. State statutes modeled after the Lanham Act also use the same likelihood-of-confusion test. The test has been stated in these terms: An appreciable number of reasonable buyers must be likely to be confused by the names for trade name infringement or unfair trade practice liability. "Appreciable number" escapes a numerical value, but most courts find that a majority of confused customers is not needed. Some courts have found survey evidence of even low percentages of actual confusion to be strong evidence of a likelihood of confusion. "Likely" has been interpreted as synonymous with probable, but not merely possible, confusion. "Confusion" is a broad concept. Many courts have recognized not only point-of-sale confusion, but also post-sale confusion, pre-sale confusion, and even reverse confusion (where the junior user's advertising swamps the market and consumers are likely to think that the senior user's goods or services are those of the junior). Also, "confusion" is not limited to confusion as to the source of goods or services; "confusion" includes confusion as to "affiliation, connection, or association," The relevant class of people is purchasers and potential customers. Both the senior and junior users' customers should be considered. "Brand indifferent" customers are not relevant to the likelihood-of-confusion determination. In determining infringement of a trade name, the court must take into account the goods and services of the contesting companies. Goods-related factors are important to consider in determining infringement of a trade name by another's use of a trade name. "The trade name interests that [the senior user] seeks to protect relate to the quality and reputation of the goods it produces [or the services it provides]. There are at least three ways to prove a likelihood of confusion: (1) survey evidence; (2) evidence of actual confusion; or (3) argument based on a clear inference arising from a comparison of the conflicting marks and the context of their use. While not required, actual confusion is a powerful indicator of a likelihood of confusion. "There can be no more positive or substantial proof of the likelihood of confusion than proof of actual confusion." The factors used to determine the likelihood of confusion vary from court to court, but most courts appear to have derived their tests from the factors listed in the Restatement of Torts. The factors considered by the Ninth Circuit are: 1. strength of the mark; proximity of the goods; po similarity of the marks; & evidence of actual confusion; s marketing channels used; or g type of goods and the degree of care likely to be exercised by the purchaser; 7. defendant's intent in selecting the mark; and 8. » likelihood of expansion of the product lines In the instant case, the trial court used a six-factor test in its instructions to the jury: Likelihood of confusion is also determined by evaluating the following factors: (1) the degree of similarity of the names; (2) the manner and method in which the plaintiff and defendant used the names; (3) the strength of the name, "Ath Avenue Theatre"; (4) the length of time the parties used the names without evidence of actual confusion; (5) the intent of a party in adopting the name, "Fourth Avenue Theater," that is, whether there was an intent to confuse; | (6) other factors about the name, "Fourth Avenue Theater" that would tend to reduce any tendency to confuse the purchaser about the source or origin of the trolley service This formulation is not erroneous. While the tests are similar, the Ninth Cireuit test is preferable because it is more comprehensive and well developed by case law. 3. The jury finding of a likelihood of confusion was supported by the evidence. "The jury's finding on the likelihood of confusion issue is factual and must be affirmed if it was based on substantial evidence...." The jury found that "Fourth Avenue Theatre" would likely be confused with "Fourth Avenue Theater Trolley Tours." Substantial evidence supports this finding.) Regarding the strength of the trade name, Iditarod presented substantial evidence of secondary meaning. The stronger the evidence of secondary meaning, the stronger the mark, and the greater the scope of protection because confusion is more likely. This evidence of secondary meaning supports the jury's finding. Other evidence shows that both Iditarod and the Aldermans provided tourist attractions that operated side-by-side. The similarities between their businesses indicate the danger that consumers will mistakenly assume an association between related businesses. The evidence also shows that the disputed trade names are similar in sight, sound, and meaning. Here, "Fourth Avenue Theatre" is exactly the same as the first part of the name "Fourth Avenue Theater Trolley Tours." The addition of the descriptive "Trolley Tours" does not avoid a likelihood of confusion. Evidence of actual confusion also strongly supports a finding of likely confusion. Both sides acknowledge that once Iditarod started its trolley service, there was actual consumer confusion. Iditarod also presented evidence that the Aldermans intentionally infringed the trade name. The evidence shows that the Alder-mans registered the name "Fourth Avenue Theater Trolley Tours" soon after the falling out with Iditarod and selected a trolley parking spot partially in front of the theater. Because this evidence raises the inference that the Aldermans intentionally infringed Iditarod's trade name, it also supports the jury finding. Finally, Iditarod proved a likelihood of expansion when it presented evidence that it launched its own trolley tour business in the spring of 1998. We conclude that the jury's finding of likely confusion was amply supported by the evidence. D. The Trial Court Correctly Interpreted AS 10.85.040 to Require Prior Use for Valid Registration of a Business Name and Property Denied Summary Judgment That the Aldermans Had Made Prior Use of the Name "Fourth Avenue Theater Trolley Tours." The Aldermans argue that the trial court erred by denying their motion for summary judgment that registration of the business name "Fourth Avenue Theater Trolley Tours" gave them exclusive right to use that name. The trial court concluded that AS 10.35.040 required prior use of the name for valid registration and found that the Alder-mans had admitted in their answer that they had made no prior use of the name at the time it was registered. First, the Aldermans contend that the trial court erred by denying summary judgment both legally by misinterpreting AS 10.85.040 and factually by finding on summary judgment that they had not used the name prior to registration. Second, they argue that the court erred when instructing the jury. Alaska Statutes 10.35.010-500 provide procedures for reserving and registering business names. At the time relevant in this case, former AS 10.35.040 covered the registration of a business name, while former AS 10.35.020 covered the reservation of a business name. The Aldermans first note that trademark law protects a prior user of a trade name. They then contend that if prior use of a business name were required for registration, the exclusive right to use the name conveyed by statute would be redundant with common law trademark rights. Because requiring prior use makes the statute redundant, the Aldermans argue that such an interpretation must be incorrect. We first note that the text of former seetion .040 stated that "[a] person conducting a business may register its name." In contrast, former section .020 applied to reserving a business name "by a person intending to start a business." The plain meaning of these two statutes is as follows: former seetion .020 applied to reserving a name for a new business, and former section .040 applied to registering a name for an existing business-in other words, a business name with prior use. We do not stop at the plain meaning of the statute, however; we also consider legislative history in our sliding scale approach to statutory interpretation. In order to interpret a statute contrary to its plain meaning, "the plainer the language, the more convincing contrary legislative history must be." In this case, the Aldermans have not presented, nor have we found, any legislative history indicating that section .040 was intended to allow registration of new business names. The Department of Community and Eeo-nomic Development, which administers business name registration, agreed. The department's publicly available instructions interpreted business name registration under former AS 10.85.040: Unlike a name reservation, in order to register a business name, a person must be "transacting business" under the name being registered. Transacting business means that the name is used in advertis, ing, on accounts of record, on licenses and permits, stationery, or similar means of publicly identifying the name of a company. In other words, according to the interpretation of the agency administering the statute, registering a business name under former AS 10.35.040 required the applicant to be transacting business under the name, while reserving a business name under former AS 10.35.020 did not require such prior use. Because AS 10.85.040 plainly required prior use and no legislative history exists to the contrary, we hold that the trial court correctly interpreted AS 10.35.040 to require prior use for valid registration of a business name. We note that granting "exclusive use" of a business name to a junior user, but first registrant, allows the junior user to usurp the business name of a senior, but unregistered, user. The majority rule is that administrative acceptance of a corporate name by a state agency will be given no judicial weight in litigation over rights to the name, reasoning that "a state [does not intend] to license the commission of what would otherwise be a tortious act" simply by allowing registration under its laws. However, AS 10.35.040 is different from most states' registration statutes because it expressly grants a right to "exclusive use" of a business name and lists remedies of injunetion and damages. In any event, we need not resolve today this conflict between the exclusive right to a business name by registration or reservation under AS 10.35.010-500 and the right to protect a trade name against unfair competition under AS 45,50.471, because the Aldermans were not entitled to summary judgment that they made prior use of the trade name "Fourth Avenue Theater Trolley Tours" as required for valid registration. The Aldermans argue that the trial court erred in finding on summary judgment that they had not used the business name prior to registration. They claim that they were using the name prior to registration and that they presented substantial testimony of prior use at trial. The Aldermans' testimony, however, was presented only after summary judgment was denied. At summary judgment, the only evidence concerning prior use was the Aldermans' denial of prior use made in their answer to the complaint. Based on the evidence before the trial court at summary judgment, the trial court did not err in denying the Aldermans' motion. The Aldermans also argue that the trial court's instruction to the jury on AS 10.35.040 was erroneous. After the Alder-mans testified at trial to prior use of the trade name, the trial court recognized that the Aldermans' prior use was a question of fact for the jury. The trial court instructed the jury on AS 10.35.040 with the same interpretation it had applied at summary judgment-valid registration required prior use. Because the trial court's interpretation on summary judgment was correct, the trial court's jury instruction was likewise correct. E. It Was an Abuse of Discretion to Allow Iditarod To Amend the Pleadings To Include a Cause of Action for Breach of Contract after the Close of Evidence. After the close of evidence, the trial court allowed Iditarod to amend its complaint to add a cause of action for breach of contract. The court reasoned that amendment was proper because evidence of the contract's existence and terms had been presented by both parties. We review a trial court's decision to permit amendment of the pleadings for an abuse of discretion. The Aldermans contend that whether the judge allowed amendment under Alaska Civil Rule 15(a) or 15(b), amendment of the pleadings is improper when prejudicial to the party opposing amendment, citing Betz v. Chena Hot Springs Group and Federal Practice and Procedure § 1498. They argue that they were prejudiced by the amendment of the pleadings and that the trial court therefore abused its discretion. Iditarod contends that Betz does not apply because the judge allowed amendment according to Rule 15(b), not 15(a). In addition, Iditarod argues that the Aldermans impliedly consented to the new issue by counterclaiming for breach of the covenant of good faith and fair dealing, failing to object when evidence on the new issue was presented, and presenting evidence relevant to the new breach of contract claim. The trial court did not specify whether it granted the amendment of the pleadings under Civil Rule 15(a) or 15(b). Either could apply. Rules 15(a) and 15(b) substantially overlap, and there is no strong textual basis for concluding that only Rule 15(b) applies to amendments made during or after trial. Prejudice to the opposing party is an important consideration under either section of the rule. We conclude that the Aldermans were prejudiced by the inability to present evidence as to the amount of rent due (fifteen percent of the tickets sold at the Fourth Avenue Theatre) because the trial court allowed amendment of the pleadings after the close of evidence. Accordingly, under either Civil Rule 15(a) or (b), the trial court abused its discretion. 1. Amendment of the pleadings under Civil Rule 15(a) was improper because the prejudice to the Alder-mans outweighed the hardship to Iditarod. For amendment under Civil Rule 15(a), we have instructed that the trial court "must apply a balancing test to decide whether the amendment should be granted, weighing the degree of prejudice to the opposing party against the hardship to the movant if the amendment is denied." A trial court may also deny amendment when it is unduly delayed, offered in bad faith, or futile. Iditarod's attempt to amend the pleadings to include the breach of contract claim was unduly delayed. In October 1997 Iditarod knew that the Aldermans had failed to pay rent according to the lease agreement, well before it filed its complaint against them in June 1998. While we have stated that delay alone is an insufficient basis upon which to deny a motion to amend, this weighs against allowing the amendment. The Aldermans argue that they were prej-udieced by the amendment at the close of evidence because at that point it was too late to present evidence that their rent agreement provided that they would pay fifteen percent of trolley tour ticket sales from the Fourth Avenue Theatre, not fifteen percent of their gross revenues. But the Aldermans admit that they both testified at trial that the rent agreement was for fifteen percent of sales from the theater ticket booth. The trial judge correctly found that both sides had actively litigated the issue. And in fact, the way the special verdict was worded, there was apparent agreement that the con tract was for fifteen percent of the revenues from trolley tour tickets sold at the Fourth Avenue Theatre in 1997. Because the jury apparently adopted the Aldermans' version of the contract, they were not prejudiced by their inability to present additional evidence on the terms of the contract. But the Aldermans also argue that they were prejudiced because the jury had no way to determine appropriate damages from the evidence actually presented. They note that the only evidence of their revenues presented to the jury was gross revenues, which did not separate out the revenues generated at the Fourth Avenue Theatre from those revenues generated elsewhere. Thus, although the jury found that the contract terms were for fifteen percent of revenues generated by ticket sales at the theater, the jury could only, and did, make an award based on the Aldermans' gross revenues from all sales. Our review of the record supports the Alder-mans' claim that the evidence contained no breakdown of the gross revenues between ticket sales at the Fourth Avenue Theatre and all other sales. The inability to present this evidence substantially prejudiced the Al-dermans. The hardship to Iditarod did not outweigh the prejudice to the Aldermans. If the amendment had not been permitted, Iditarod may still have been able to collect its unpaid rents. In any event, Iditarod's hardship is caused by its own lack of diligence. Thus, the trial court erred by allowing amendment of the pleadings after the close of evidence under Civil Rule 15(a). 2. Amendment of the pleadings under Civil Rule 15(b) was improper because the Aldermans did not impliedly consent to litigation of the breach of contract issue. Analysis of Rule 15(b) amendment of the pleading is slightly different. Application of this rule is appropriate in two general situations: when evidence supporting the amendment was offered at trial (1) with the opposing party's express or implied consent, or (2) over the opposing party's objection that the evidence is not within the issues raised by the pleadings. In determining implied consent, prejudice to the party opposing amendment is relevant. The Aldermans neither expressly consented to the amendment nor did they object to Iditarod's presentation of the evidence. Thus, the only way amendment of the pleadings would have been appropriate under Rule 15(b) is if the Aldermans had impliedly consented to litigating the breach of contract issue. Professors Wright, Miller, and Kane explain Rule 15(b)'s concept of implied consent: "Implied consent . is . difficult to establish and seems to depend on whether the parties recognized that an issue not presented by the pleadings entered the case at trial. If they do not, there is no consent and the amendment cannot be allowed. The Aldermans apparently failed to recognize that breach of contract was at issue in the trial. They did not offer any evidence of appropriate damages according to their interpretation of the contract-revenues of ticket sales from the Fourth Avenue Theatre. While the Aldermans did offer evidence of their interpretation of the contract terms and of their total revenues from all sources, introduction of evidence does not indicate implied consent where the evidence offered is relevant to issues already in the case. Because the evidence was relevant to the Alder-mans' counterclaims and Iditarod's claim for trade name infringement damages, the Al-dermans' introduction of evidence did not show implied consent. In sum, neither Rule 15(a) nor Rule 15(b) provides appropriate grounds for granting amendment of the pleadings after the close of evidence in this case. Accordingly, we vacate the award for breach of contract. F. The Trial Court Did Not Abuse Its Discretion in Awarding Attorney's Fees to Iditarod. The Aldermans contend that the trial court erred in applying Rule 82(b)(2) as a matter of law. They further argue that the trial judge abused his discretion in granting attorney's fees because Iditarod waived its right to seek fees. 1. The trial court did mot abuse its discretion by allowing Iditarod seventy days to file a corrected motion for attorney's fees. The Aldermans argue that Iditarod's failure to timely file its corrected motion for Rule 82 attorney's fees waived its claim. Idi-tarod contends that its original defective motion was timely and the trial judge allowed it unspecified additional time to correct; thus, its second motion was also timely. Rule 82(c) establishes the time limits for filing a motion for attorney's fees: Failure to move for attorney's fees within 10 days, or such additional time as the court may allow, shall be construed as a waiver of the party's right to recover attorney's fees The trial court distributed its judgment on July 26, 1999; Iditarod timely filed its original motion for attorney's fees on August 5. The question is whether the trial court abused its discretion by allowing Iditarod seventy additional days to file its second motion. We have not yet interpreted the phrase "or such additional time as the court may allow." Rule 82(c) gives the court discretion to allow additional time for filing a motion for attorney's fees. Prior to the adoption of the current version of Rule 82, we held that the trial court had discretion to allow motions for attorney's fees within a reasonable amount of time In T & G Aviation v. Footh, we held that a motion filed seventy days after final judgment was within a reasonable amount of time. Here, Iditarod filed its corrected motion seventy days after the first motion was denied without prejudice. The delay was not as serious as in T & @ Aviation because Iditarod timely filed its initial motion. The Aldermans urge us to adopt the T & G Aviation dissent's view. But even if we did, it would be to no avail. The dissent argued that, without persuasive explanation of further delay, thirty days should be the outside limit of reasonableness. A losing party has thirty days to decide to appeal; a delay of more than thirty days in filing for attorney's fees may be prejudicial to the losing party if the losing party bases its decision to appeal on the size of an adverse award of attorney's fees This rationale, however, does not directly apply if the losing party decides to appeal without considering the possible adverse award of attorney's fees. Here, the Aldermans filed their appeal on August 18. They did not wait for the trial court's decision regarding attorney's fees. Thus, the allegedly tardy motion for attorney's fees did not prejudice the Aldermans' decision to appeal. Because a seventy-day delay is not unreasonable after the filing of a timely motion and because the Aldermans were not prejudiced by the delay, we conclude that it was within the trial court's discretion to allow the delay. 2. The trial court did not err as a matter of law by applying Rule 82(b)(@). The Aldermans contend that award of attorney's fees under Rule 82(b)(2) was improper because Iditarod obtained a money judgment-$13,924.05 for the Aldermans' breach of contract. According to the Alder-mans, Iditarod is entitled to attorney's fees based upon a percentage of the amount of the judgment under Rule 82(b)(1), not the actual amount of attorney's fees. Iditarod responds that the main issue in the litigation was the trade name infringe ment and that there was no money judgment on that issue. Iditarod extrapolates from the rule that the prevailing party is determined by success on the main issue to a proposed interpretation of Rule 82(b) that the determination of whether a money judgment was recovered is based only on the award, or lack, of a money judgment on the main issue. We need not reach the issue. Because we vacated the monetary judgment for breach of contract in light of the erroneous amendment of the pleading after the close of evidence, the Aldermans' argument is rendered moot. After we vacate the breach of contract award, only the trade name issues remain. Iditarod is the prevailing party on the trade name issues and, by this decision, recovers no money judgment. Whether the trial court properly applied Civil Rule 82(b)(2) is moot; undoubtedly Rule 82(b)(2) applies now. 8. Iditarod did not waive its claim to an enhanced attorney's fee award because it did not request an enhanced award in its original motion. The Aldermans argue that because Iditarod did not ask for an enhanced attorney's fees award in its original defective motion for attorney's fees, it waived any claim to an enhanced fees award under Rule 82(b)(8). Iditarod argues that the trial judge did not place any restrictions upon the amount of fees Iditarod could request in a revised motion. The trial judge denied Iditarod's initial motion for attorney's fees stating, "This denial is without prejudice to its right to re-apply and make the appropriate showing." Black's Law Dictionary defines "without prejudice" as follows: "Where . a motion is denied . 'without prejudice,' it is meant as a declaration that no rights or privileges of the party concerned are to be considered as thereby waived or lost, except in so far as may be expressly conceded or decided. The trial judge made no express limitations on Iditarod's ability to re-apply. The trial court's denial without prejudice effectively declared that none of Iditarod's rights to attorney's fees were considered waived or lost. Thus, Iditarod did not waive its right to move for an enhanced award in its subsequent motion for attorney's fees, and the trial court did not abuse its discretion in considering and granting an enhanced attorney's fees award. v. CONCLUSION Because the trial court correctly applied trade name law and the jury verdict was supported by the evidence, we AFFIRM the judgment that the Aldermans infringed Idi-tarod's trade name "Fourth Avenue The-atre." We also AFFIRM the trial court's interpretation of AS 10.35.040. Because the Aldermans were substantially prejudiced by the amendment of the pleading after the close of evidence, we REVERSE the trial court's grant of the motion to amend the pleadings and VACATE the award for the added breach of contract claim. Finally, we AFFIRM the trial court's award of attorney's fees. . The theater is variously referred to in the pleadings on file as the "Fourth Avenue Theater" and the "Fourth Avenue Theatre." This opinion uses the latter spelling, which appears to be both the oldest and most consistently used. . The jury was asked, "Are the names, '4th Avenue Theatre,' '4th Avenue Theater," Fourth Avenue Theatre," and Fourth Avenue Theater," trade names?" It answered in the affirmative. . See Western Pioneer, Inc. v. Harbor Enter., Inc., 818 P.2d 654, 656 n. 3 (Alaska 1991). . See Sauve v. Winfree, 907 P.2d 7, 9 (Alaska 1995). . See Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979). . See Betz v. Chena Hot Springs Group, 742 P.2d 1346, 1348 (Alaska 1987). . See Aviation Assocs. Ltd. v. TEMSCO Helicopters, Inc., 881 P.2d 1127, 1130 n. 4 (Alaska 1994). . See Municipality of Anchorage v. Baugh Constr. & Eng'g Co., 722 P.2d 919, 927 (Alaska 1986). . See Stosh's v. Fairbanks North Star Borough, 12 P.3d 1180, 1183 (Alaska 2000). . See id.; see also Buster v. Gale, 866 P.2d 837, 841 n. 9 (Alaska 1994) (quoting Peter Pan Seafoods, Inc. v. Stepanoff, 650 P.2d 375, 378-79 (Alaska 1982)). . See City of Kodiak v. Parish, 986 P.2d 201, 202 (Alaska 1999). . AS 45.50.471(b)(3). . The Lanham Act states the federal rule in substantially similar terms: (1) Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, . which- (8) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person.... 15 U.S.C. § 1125(a). . "Common law liability for unfair competition (which includes trademark infringement) is gov erned by local law. Federal law, however, serves as persuasive authority because, for many years, it governed these areas almost exclusively and spawned a large body of federal decisions. As with federal law, the common law of trademarks is a portion of the broader law of unfair competition." Pennsylvania State Univ. v. University Orthopedics, Ltd., 706 A.2d 863, 870 (Pa.Super.1998) (quoting Goebel Brewing Co. v. Esslingers, Inc., 373 Pa. 334, 95 A.2d 523, 525-26 (1953)). We note that, unlike federal trademark infringement that provides national protection, the legal rights protected by common law infringement and unfair competition actions are limited to the territory in which the use is established. See Powder River Oil Co. v. Powder River Petroleum Corp., 830 P.2d 403, 407-08 (Wyo.1992). . See 1 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition § 9:1 (4th ed.2000). . See id. . 'The major legal distinction between trademarks and trade names is that trade names cannot be [federally] registered...." Accuride Int'l, Inc. v. Accuride Corp., 871 F.2d 1531, 1534 (9th Cir.1989). Federal registration is not an issue in this case. . American Steel Foundries v. Robertson, 269 U.S. 372, 380, 46 S.Ct. 160, 70 L.Ed. 317 (1926) (citation omitted). . Younker v. Nationwide Mut. Ins. Co., 175 Ohio St. 1, 191 N.E.2d 145, 149 (1963). . See 1 McCarthy, supra note 15, § 9:1. . See Accuride, 871 F.2d at 1535 (rejecting argument that trade name infringement must be determined differently from trademark infringement). . See Standard Oil Co. v. Standard Oil Co., 56 F.2d 973, 978 (10th Cir.1932) ("[It is now well settled that the law of unfair competition is not confined to cases of actual market competition."). . See John Roberts Mfg. Co. v. University of Notre Dame Du Lac, 258 F.2d 256, 262 (7th Cir.1958) (affirming ruling that use of "University of Notre Dame" on class rings is infringement); Cornell Univ. v. Messing Bakeries, Inc., 285 A.D. 490, 138 N.Y.S.2d 280, 282-83 (1955), aff'd, 309 N.Y. 722, 128 N.E.2d 421 (1955) (enjoining certain uses of "Cornell" as trademark for bread). . See Safeway Stores, Inc. v. Safeway Properties, Inc., 307 F.2d 495, 497-98 (2d Cir.1962) (affirming preliminary injunction against use of trademark "Safeway" as part of defendant's corporate name, Safeway Properties); National Customer Eng'g, Inc. v. Lockheed Martin Corp., 43 U.S.P.Q.2d 1036, 1040 (C.D.Cal.1997) (finding a likelihood of confusion between trademark "Mountain" and trade name "MountainGate" of manufacturer with similar products). . State v. O'Neill Investigations, Inc., 609 P.2d 520, 534 (Alaska 1980). . AS 45.50.471(a)(3). . 2 McCarthy, supra note 15, § 15:1. . See Railroad Salvage, Inc. v. Railroad Salvage, Inc., 561 F.Supp. 1014, 1019 (D.R.1.1983). . See Metro Brokers, Inc. v. Tann, 815 F.Supp. 377, 381 (D.Colo.1993). . Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 768, 112 S.Ct 2753, 120 L.Ed.2d 615 (1992). . See 2 McCarthy, supra note 15, § 11:11. . See Sun Microsystems, Inc. v. SunRiver Corp., 36 U.S.P.Q.2d 1266, 1268-69 (N.D.Cal.1995). . See Stork Restaurant, Inc. v. Sahati, 166 F.2d 348, 355 (9th Cir.1948). . See WGBH Educ. Found., Inc. v. Penthouse Int'l, Ltd., 453 F.Supp. 1347, 1350 (S.D.N.Y.1978), aff'd, 598 F.2d 610 (2d Cir.1979). . See 2 McCarthy, supra note 15, § 11:5. . See Exxon Corp. v. Xoil Energy Resources, Inc., 552 F.Supp. 1008, 1014 (S.D.N.Y.1981). . See Polaroid Corp. v. Polaraid, Inc., 319 F.2d 830, 837 (7th Cir.1963). . See Clorox Chemical Co. v. Chlorit Mfg. Corp., 25 F.Supp. 702, 705 (E.D.N.Y.1938). . See Stork Restaurant, 166 F.2d at 355 (noting greater degree of protection given to fanciful marks than to names in common use); 2 McCarthy, supra note 15, § 11:6. . Railroad Salvage, 561 F.Supp. at 1020. . See Citibank, N.A. v. Citibanc Group, Inc., 724 F.2d 1540, 1545 (11th Cir.1984) (noting that "Citibank" is suggestive of an urban bank}. . See Orange Crush Co. v. California Crushed Fruit Co., 297 F. 892, 893 (D.C.Cir.1924) (finding "Orange Crush" was suggestive and not descriptive because a "person of average intelligence would not understand, when buying an orange crush drink, that he was getting a crushed orange"). . See Capitol Tie Rak, Inc. v. Tie Rack Stores, Inc., 150 U.S.P.Q. 357, 359 (N.D.Ill.1966) (noting "Tie Rak" was descriptive if selling tie racks but suggestive if selling ties). . See 2 McCarthy, supra note 15, § 11:63. . See id. . Seerid.§ 12:1. . See id. . See Discount Muffler Shop, Inc. v. Meineke Realty Corp., 535 F.Supp. 439, 446 (N.D.Ohio 1982). . See Convenient Food Mart, Inc. v. 6-Twelve Convenient Mart, Inc., 690 F.Supp. 1457, 1464 (D.Md.1988), aff'd, 870 F.2d 654, 1989 WL 21392 (4th Cir.1989). . See Miller Brewing Co. v. G. Heileman Brewing Co., 561 F.2d 75, 80-81 (7th Cir.1977). . See CES Publ'g Corp. v. St. Regis Publications, Inc., 531 F.2d 11, 13 (2d Cir.1975) (noting that to permit exclusive trademark rights in a generic mark "would grant the owner of the mark a monopoly, since a competitor could not describe his goods as what they are"). . See 2 McCarthy, supra note 15, § 11:64. . Seeid. § 11:16. . See Beer Nuts, Inc. v. Clover Club Foods Co., 711 F.2d 934, 942 (10th Cir.1983) (affirming that "Beer Nuts" was descriptive of salted nuts). . See Franklin Knitting Mills, Inc. v. Fashionit Sweater Mills, Inc., 297 F. 247, 248 (S.D.N.Y.1923), aff'd, 4 F.2d 1018 (2d Cir.1925) (concluding that "Fashionknit" was descriptive of fash-fonable sweaters). . See Skinner Mfg. Co. v. Kellogg Sales Co., 143 F.2d 895, 898 (8th Cir.1944) (concluding that '"'Raisin Bran" was descriptive of raisin and bran breakfast cereal). . See Two Pesos, 505 U.S. at 769, 112 S.Ct. 2753. . See Estate of P.D. Beckwith, Inc. v. Commissioner of Patents, 252 U.S. 538, 543-44, 40 S.Ct. 414, 64 L.Ed. 705 (1920) ("[The law would not secure to any person the exclusive use of a trademark consisting merely of words descriptive of the qualities, ingredients, or characteristics of an article of trade; this for the reason that the function of a trade-mark is to point distinctively, either by its own meaning or by association, to the origin or ownership of the wares to which it is applied, and words merely descriptive of qualities, ingredients, or characteristics, when used alone, do not do this. Other like goods, equal to them in all respects, may be manufactured or dealt in by others, who, with equal truth, may use, and must be left free to use, the same language of description in placing their goods before the public."). . See 2 McCarthy, supra note 15, § 11:18. . Bada Co. v. Montgomery Ward & Co., 426 F.2d 8, 11 (9th Cir.1970). . See 2 McCarthy, supra note 15, § 14:1. . See Alaska Northwest Publ'g Co. v. A.T. Publ'g Co., 319 F.Supp. 963, 965 (D.Alaska 1970), rev'd on other grounds, 458 F.2d 387 (9th Cir.1972) (finding "Alaska" as title of sporting magazine about Alaska is geographically descriptive with no secondary meaning: "Geographical names are non-exclusive when they are descriptive of a locality or the origin of a product. Thus, the magazine title 'ALASKA,' named after the State of Alaska, is not capable of exclusive appropriation by the plaintiff."). . See In re BankAmerica Corp., 231 U.S.P.Q. 873, 875 (T.T.A.B.1986) (deciding that "Bank of America" is geographically descriptive and not inherently distinctive). . See Boston Beer Co. v. Slesar Bros. Brewing Co., 9 F.3d 175, 181-83 (1st Cir.1993) (concluding that "Boston" as name of beer manufacturer with headquarters in Boston is geographically descriptive with no secondary meaning). . See Delaware & Hudson Canal Co. v. Clark, 80 U.S. (13 Wall.) 311, 324, 20 L.Ed. 581 (1871) ("And it is obvious that the same reasons which forbid the exclusive appropriation of generic names or of those merely descriptive of the article manufactured and which can be employed with truth by other manufacturers, apply with equal force to the appropriation of geographical names, designating districts of country. Their nature is such that they cannot point to the origin (personal origin) or ownership of the articles of trade to which they may be applied. They point only at the place of production, not to the producer, and could they be appropriated exclusively, the appropriation would result in mischievous monopolies."). . See Gucci v. Gucci Shops, Inc., 688 F.Supp. 916, 928 (S.D.N.Y.1988) (resolving trademark dispute over use of Gucci family name}. . See L.E. Waterman Co. v. Modern Pen Co., 235 U.S. 88, 94, 35 S.Ct 91, 59 L.Ed. 142 (1914) (affirming protection of the personal name trademark 'Waterman'" for pens). . "The known multiplicity of similar personal names may make consumers hesitant to assume a common source for products bearing a particular name. The name will therefore not function as a trademark or trade name unless, through use, it has become accepted by prospective purchasers as an indication of source or association with a particular person." Restatement (Third) of Unfair Competition § 14, cmt. e (1995); see also 2 McCarthy, supra note 15, § 13: 1-3. . See id. § 11:27. . See Association of Coop. Members, Inc. v. Farmland Indus., Inc., 684 F.2d 1134, 1140 (5th Cir.1982) (''The whole, in trademark law, is often greater than the sum of its parts. Common words in which no one may acquire a trademark because they are descriptive or generic may, when used in combination, become a valid trademark."). . See Estate of P.D. Beckwith, 252 U.S. at 545-46, 40 S.Ct. 414. . "It is perfectly acceptable to separate a compound mark and discuss the implications of each part thereof with respect to the question of descriptiveness provided that the ultimate determination is made on the basis of the mark in its entirety." In re Hester Indus., Inc., 230 U.S.P.Q. 797, 798 n. 5 (T.T.A.B.1986). . 59 F.3d 902, 912-13 (9th Cir.1995). . Id. at 909-12. . See id. at 912. . See id. at 912-13. . See id. at 913; see also California Cooler, Inc. v. Loretto Winery, Ltd., 774 F.2d 1451, 1455 (9th Cir.1985) ("California Cooler . is a composite term, and its validity is not judged by an examination of its parts. Rather, the validity of a trademark is to be determined by viewing the trademark as a whole.... Thus, the composite may become a distinguishing mark even though its components individually cannot." (Citations omitted.)). . See Bank of Texas v. Commerce Southwest, Inc., 741 F.2d 785, 787 (5th Cir.1984) (finding that name "Bank of Texas," which combined the generic term "bank" with the geographical term 'Texas," was not inherently distinctive but could be protected as a trade name if it had acquired secondary meaning). . See Two Pesos, 505 U.S. at 769, 112 S.Ct. 2753 (citations omitted). . Charcoal Steak House, Inc. v. Staley, 263 N.C. 199, 139 S.E.2d 185, 187 (1964) (emphasis in original). . See 2 McCarthy, supra note 15, § 15:5. . See Levi Strauss & Co. v. Blue Bell, Inc., 632 F.2d 817, 821 (9th Cir.1980); Coca-Cola Co. v. Seven-Up Co., 497 F.2d 1351, 1354-55 (C.C.P.A.1974) (secondary meaning is created second in time but becomes of "primary" importance in identifying source). . There is a territorial aspect of trade name protection that can be factored into a secondary meaning analysis. See Lerner Stores Corp. v. Lerner, 162 F.2d 160, 162-63 (9th Cir.1947) (discussing whether appellant established a "substantial nucleus of business" in the city where appellant sought to enjoin appellees use of trade name); First Nat'l Bank v. First Wyo. Savs. & Loan Assoc., 592 P.2d 697, 702-04 (Wyo.1979) (affirming injunctive relief granted within county, but not statewide, based on area in which plaintiff had established secondary meaning); Junior Food Stores, Inc. v. Jr. Food Stores, Inc., 226 So.2d 393, 396-97 (Fla.1969). For example, a theater in Juneau may be able to use "Fourth Avenue Theatre" without infringing Iditarod's trade name, if Iditarod could not establish that its secondary meaning-and thus any likelihood of confusion-extends to the Juneau area. Because the parties occupy neighboring businesses on the same street and in the same city, there is no need to determine the territorial extent of secondary meaning or trade name protection in this case. . See American Heritage Life Ins. Co. v. Heritage Life Ins. Co., 494 F.2d 3, 12 (5th Cir.1974). . See 2 McCarthy, supra note 15, § 11:26. . See Echo Travel, Inc. v. Travel Assocs., Inc., 870 F.2d 1264, 1267 (7th Cir.1989). . See id. . See Thompson Medical Co. v. Pfizer Inc., 753 F.2d 208, 217 (2d Cir.1985). . Id. (internal quotations and citation omitted). . See 2 McCarthy, supra note 15, § 15:45; Restatement (Third) of Unfair Competition § 13, cmt. e (1995). . See, eg., Coach Leatherware Co. v. AnnTaylor, Inc., 933 F.2d 162, 168 (2d Cir.1991) (finding "substantial segment" sufficient for secondary meaning); Levi Strauss, 778 F.2d at 1358. . See First Brands Corp. v. Fred Meyer, Inc., 809 F.2d 1378, 1383 (9th Cir.1987) ("Whether a particular trade dress has acquired secondary meaning is a question of fact subject to the clearly erroneous standard of review."). . See Norsan Prods., Inc. v. R.F. Schuele Corp., 286 F.Supp. 12, 14 (E.D.Wis.1968). . See Food Fair Stores, Inc. v. Lakeland Grocery Corp., 301 F.2d 156, 161 (4th Cir.1962) (noting secondary meaning proven in part by food wholesalers and stock investors knowing of the association between trade name and company); Fund of Funds, Ltd. v. First Am. Fund of Funds Inc., 274 F.Supp. 517, 524 (S.D.N.Y.1967) (finding secondary meaning proven in part by mention of trade name in association with company in governmental publication read by professional investors). . Iditarod also provided supplier invoices as evidence of secondary meaning. In most cases, the relevant buyer class consists of actual or potential consumers, see 2 McCarthy, supra note 15, § 15:46, and the state of mind of persons who are not in this buyer class-like a business's suppliers-is often deemed irrelevant. See Irvisible, Inc. v. National Broad. Co., 212 U.S.P.Q. 576, 577-78 (C.D.Cal.1980); Astatic Corp. v. American Electronics, Inc., 201 U.S.P.Q. 411, 421 (N.D.Ohio 1978). A supplier's use of a business's trade name rather than a corporate name may be due to nothing more than the business's stated preference. Thus, Iditarod's evidence of supplier invoices using the "Fourth Avenue Theatre" trade name adds little, if any, support to the jury finding. . See 2 McCarthy, supra note 15, § 16:4. . Seeid. § 16:34. . Id.; see also PaperCutter, Inc. v. Fay's Drug Co., 900 F.2d 558, 564 (2d Cir.1990); Restatement (Third) of Unfair Competition, § 19, Reporters' Note, cmt. b (1995) (''The party seeking relief ordinarily is required to establish the existence of secondary meaning at the time of commencement of use by the other party."). . See 4 McCarthy, supra note 15, § 24:13. . Continental Motors Corp. v. Continental Aviation Corp., 375 F.2d 857, 861 (5th Cir.1967). . See Sweetarts v. Sunline, Inc., 380 F.2d 923, 927 (8th Cir.1967) ("Plaintiff has the right to make and keep its own reputation without entrusting it to others over whom it cannot exercise any control. Some may treat it tenderly, nurture and enhance it, while others during the course of time may tarnish or degrade it; and the public is confused and suffers along with the infringed."); James Burrough, Ltd. v. Ferrara, 8 Misc.2d 819, 169 N.Y.S.2d 93, 96 (Sup.1957) ("It is not to be disputed that plaintiff is not required to put its reputation in defendant's hands, no matter how capable those hands may be."). . See James Burrough, Ltd. v. Sign of Beefeater, Inc., 540 F.2d 266, 274 (7th Cir.1976) ("What is infringed is the right of the public to be free of confusion and the synonymous right of a trademark owner to control his product's reputation."). . This reason is not decisive because it is offset by the desire to prevent giving the senior user a monopoly over the name. See S.C. Johnson & Son, Inc. v. Johnson, 175 F.2d 176, 180 (2d Cir.1949) (stating that the court would not allow plaintiff to "reach a choking hand into a market not its own," unless there was a very strong showing of probable expansion or the plaintiff's mark was very strong). . Stork Restaurant v. Sahati, 166 F.2d 348, 357 (9th Cir.1948). . See 4 McCarthy, supra note 15, § 24:154:6. . Compare Yale Electric Corp. v. Robertson, 26 F.2d 972, 974 (2d Cir.1928) (finding likely confusion between Yale locks and Yale flashlights), Aunt Jemima Mills Co. v. Rigney & Co., 247 F. 407, 409-10 (2d Cir.1917) (finding likely confusion between Aunt Jemima pancake syrup and Aunt Jemima pancake flour), and Time, Inc. v. Life Television Corp., 123 F.Supp. 470, 475 (D.Minn.1954) (finding likely confusion between Life magazine and Life television sets because Life magazine endorsed various products), with Time, Inc. v. T.I.M.E., Inc., 123 F.Supp. 446, 456-57 (S.D.Cal.1954) (finding no likely confusion between Time magazine and T.LM.E. trucking service). . Fleischmann Distilling Corp. v. Maier Brewing Co., 314 F.2d 149, 159 (9th Cir.1963); accord AMF Inc. v. Sleekceraft Boats, 599 F.2d 341, 348 (9th Cir.1979). . See McLean v. Fleming, 96 U.S. 245, 255, 24 L.Ed. 828 (1877) ("Where the similarity is sufficient to convey a false impression to the public mind, and is of a character to mislead and deceive the ordinary purchaser in the exercise of ordinary care and caution in such matters, it is sufficient to give the injured party a right to redress...."). . See Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 769, 112 S.Ct. 2753, 120 L.Ed.2d 615 (1992) ("It is, of course, also undisputed that liability under [the Lanhain Act] requires proof of the likelihood of confusion."). . See 3 McCarthy, supra note 15, § 23:1, n. 1, &n. 7. . See id. § 23:2. . See, eg., Exxon Corp. v. Texas Motor Exch., Inc., 628 F.2d 500, 507 (5th Cir.1980) (finding fifteen percent level of confusion is "strong evidence" of likely confusion); Grotrian, Helfferich, Schulz, Th. Steinweg Nachf. v. Steinway & Sons, 365 F.Supp. 707, 716 (S.D.N.Y.1973) (stating that survey evidence, including a survey showing eight and one-half percent confusion, was "strong evidence" of a likelihood of confusion}. . See American Steel Foundries v. Robertson, 269 U.S. 372, 384, 46 S.Ct. 160, 70 L.Ed. 317 (1926); Elvis Presley Enters. Inc. v. Capece, 141 F.3d 188, 193 (5th Cir.1998) (''Likelihood of confusion is synonymous with a probability of confusion, which is more than a mere possibility of confusion."). . See 3 McCarthy, supra note 15, § 23:5. . AS 45.50.471(b)(3); 15 U.S.C. § 1125(a); see Champions Golf Club, Inc. v. Champions Golf Club, Inc., 78 F.3d 1111, 1121 (6th Cir.1996) ('The relevant question is whether a golfer, albeit sophisticated, would likely be confused about affiliation between the two clubs [both named 'Champions']."). . See Electronic Design & Sales, Inc. v. Electronic Data Sys. Corp., 954 F.2d 713, 716 (Fed.Cir.1992) ("[T}he inquiry generally will turn on whether actual or potential 'purchasers' are confused."). . See Yarmuth-Dion, Inc. v. D'ion Furs, Inc., 835 F.2d 990, 995 (2d Cir.1987) (concluding that the district court erred by considering likelihood of confusion among only the junior user's customers). . 3 McCarthy, supra note 15, § 23:5; see also Sleekcraft, 599 F.2d at 353. . Accuride Int'l, Inc. v. Accuride Corp., 871 F.2d 1531, 1536 (9th Cir.1989). . See 3 McCarthy, supra note 15, § 23:2.1; see also Tisch Hotels, Inc. v. Americana Inn, Inc., 350 F.2d 609, 612 (7th Cir.1965) (noting importance of evidence of actual confusion); Calvin Klein Cosmetics Corp. v. Lenox Labs., Inc., 815 F.2d 500, 504 (8th Cir.1987) ("Visual inspections by the court are permissible as an aid in determining likely confusion. However, caution should be exercised to avoid putting too much stock in a subjective inspection done in-chambers that is devoid of market characteristics." (Citation omitted.)). . See Tisch Hotels, 350 F.2d at 612. . World Carpets, Inc. v. Dick Littrell's New World Carpets, 438 F.2d 482, 489 (5th Cir.1971). ." Restatement of Torts § 729 & 731 (1938). . Sleekcraft, 599 F.2d at 348-49. . John H. Harland Co. v. Clarke Checks, Inc., 711 F.2d 966, 973 (11th Cir.1983) (citations omitted); accord Transgo, Inc. v. Ajac Transmission Parts Corp., 768 F.2d 1001, 1013-14 (9th Cir.1985). . We note that the trade name "Fourth Avenue Trolley Tours" would have a different analysis and may have resulted in a finding of no likelihood of confusion because that name lacked reference to the theater. However, this name was not contested by Iditarod and was not decided at trial. . See supra Part IV.B.5. . See Levi Strauss, 632 F.2d at 821; Sleekcraft, 599 F.2d at 349 n. 12. . See Sleekcraft, 599 F.2d at 350. . See id. at 351. . See, eg., Bellbrook Dairies, Inc. v. Hawthorn Mellody Farms Dairy, Inc., 45 C.C.P.A. 842, 253 F.2d 431, 432 (1958) ("[OJne may not appropriate the entire mark of another and avoid a likelihood of confusion by the addition thereto of descriptive or otherwise subordinate matter."); American Express Co. v. American Express Limousine Serv. Ltd., 772 F.Supp. 729, 733 (E.D.N.Y.1991) (finding that the addition of "Limousine Service" to the American Express mark actually increased a likelihood of confusion). . The state legislature has recently amended AS 10.35.020 and .040. See ch. 50, § 17-19, SLA 1999; ch. 115, § 5, SLA 2000. Former AS 10.35.040 stated the rule for registering a business name: A person conducting a business may register its name if the name is not the same as, or deceptively similar to, the name of a domestic corporation or a foreign corporation authorized to transact business in the state, or a name reserved or registered under this title. Registration of the name gives the exclusive right to the use of the name and the person who has registered the name may enjoin the use of the same name or a deceptively similar name and has a cause of action for damages against anyone who uses the same name or a deceptively similar name. . Former AS 10.35.020 stated the rule for reserving a name for a new business: Reservation of a business name is made by filing an application with the commissioner. Upon finding that the name is available for business use, the commissioner shall reserve it for the exclusive use of the applicant for a period of 120 days. A name is not available which is the same as, or deceptively similar to, the name of a domestic corporation or a foreign corporation authorized to transact business in the state, or a name reserved or registered under this title or gives the impression that the business is incorporated. . Former AS 10.35.040 (emphasis added). . The Aldermans did not attempt to reserve the name under AS 10.35.020. On their registration form, the Aldermans checked the box to register a business name; they did not check the box to reserve a name. . See Romann v. State, Dep't of Transp. & Pub. Facilities, 991 P.2d 186, 190 (Alaska 1999). . State v. Alex, 646 P.2d 203, 208-09 n. 4 (Alaska 1982) (quoting United States v. United States Steel Corp., 482 F.2d 439, 444 (7th Cir.1973)). . See 1 McCarthy, supra note 15, § 9:8; see, eg., MacPhail v. Stevens, 41 Colo.App. 99, 586 P.2d 1339, 1341 (1978) (holding that compliance with registration statute did not abrogate common law and statutory trademark law). . Powder River Oil Co. v. Powder River Petroleum Corp., 830 P.2d 403, 407 (Wyo.1992). . See Betz v. Chena Hot Springs Group, 742 P.2d 1346, 1348 (Alaska 1987). . Alaska R. Civ. P. 15 provides: (a) Amendments. A party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, the party may so amend it at any time within 20 days after it is served. Otherwise a party may amend the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.... (b) Amendments to Conform to the Evidence. When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice the party in maintaining the party's action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence. . 742 P.2d 1346, 1349-50 (Alaska 1987). . 6A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1493 (2d ed.1990). . Seeid., § 1488. . See Betz, 742 P.2d at 1348-50; 6A Wright, Miller & Kane, supra note 143, § 1493. . Betz, 742 P.2d at 1348 (quoting Shooshanian v. Wagner, 672 P.2d 455, 458 (Alaska 1983)). . See id. (citing Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962)). . See id. . Under certain circumstances, a party denied the opportunity to amend the pleadings to conform to the evidence may bring a separate action to seek relief. See Hake v. Gunter, 824 F.2d 610, 616-17 (8th Cir.1987). . See supra note 141. . See 6A Wright, Miller & Kane, supra note 143, § 1491. . See id. § 1493. . Id. (footnote omitted). . See id. . Iditarod incorrectly counts forty-three days between August 26, the date of the trial court's denial of Iditarod's first motion for fees, and November 4, the date Iditarod's corrected motion was signed. The actual number of days is seventy. . Alaska R. Civ. P. 82(c). . Id. This version of Rule 82(c) was adopted in 1995. . See T & G Aviation, Inc. v. Footh, 792 P.2d 671, 672 (Alaska 1990). . See id. . See id. (Matthews, C.J., dissenting). . Black's Law Dictionary 1179 (6th ed.1990).

10571409

Ernest J. DANIELS, Appellant, v. STATE of Alaska, Appellee; Ira Clifford ELLISON, Appellant, v. STATE of Alaska, Appellee

Daniels v. State

1963-06-24

Nos. 297, 298

323

325

383 P.2d 323

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.

Ernest J. DANIELS, Appellant, v. STATE of Alaska, Appellee. Ira Clifford ELLISON, Appellant, v. STATE of Alaska, Appellee.

Ernest J. DANIELS, Appellant, v. STATE of Alaska, Appellee. Ira Clifford ELLISON, Appellant, v. STATE of Alaska, Appellee. Nos. 297, 298. Supreme Court of Alaska. June 24, 1963. Francis J. Nosek, Jr., Anchorage, for appellants. James C. Merbs, Dist. Atty., and Dorothy Awes Haaland, Asst. Dist. Atty., Anchorage, for appellee. Before NESBETT, C. J., and DIMOND and AREND, JJ.

1276

7166

AREND, Justice. The defendants Ellison and Daniels were convicted of the crimes of burglary and larceny. The only testimony linking them to the crimes charged was that of an admitted accomplice, David Swanagan, as corroborated by the testimony of Sharon Magnuson Swanagan. David was living with Sharon at the time the crimes were alleged to have been committed but did not marry her until two months later. The defendants contend that Sharon was also an accomplice in the crimes charged and that, therefore, her testimony could not be accepted without corroboration or used to corroborate the testimony of David. The trial court ruled that Sharon was not an accomplice and that her testimony could be used to corroborate the testimony of her husband. From that ruling and the subsequent judgment and sentence entered against them below the defendants have appealed. The facts giving rise to the issue of complicity are as follows: On the evening of January 4, 1962, according to David's testimony, the defendants came to the house where David and Sharon were living. They informed David that they knew of a place where they used lo pick up Christmas money and, without saying "where it was or what it was," as David expressed it, they asked him if he cared to look at it. The three then left the house together and proceeded in Sharon's car to the Woodland Park School which they burglarized and from the safe of which they stole a bag of money. After that the defendants returned with David to his home and there they divided the money in the bag among themselves, except for the pennies and nickels which they gave to Sharon. Sharon testified that she was in the house when the defendants first arrived there on the evening of January 4. She gave as the reason for their being there that "they and David had some jobs to pull." She said that she was in bed when David and the defendants returned to the house later that night. They awakened her and "dumped" some money from several small bank money bags onto her bed. She assisted David and one of the defendants in counting out the money and "got to keep the pennies" for herself. When asked whether the source of the money was discussed on the night in question, Sharon answered, "I believe they said it was from the school." She denied that she heard any conversation by the three men when they were at the house the first time as to what they were planning to do, at least she could not remember that the matter was discussed. Sharon also testified that the defendant Daniels took the money bags to the garage to burn them but threw them away when he found that they would not burn. There is no evidence in the record that Sharon consented to the use of her car by David and the defendants on the night of January 4, or that she even knew at the time that they were using it. Such was the uncontradicted testimony of David and Sharon. In our opinion their testimony established, as a matter of law, that Sharon was not an accomplice in this case. In Mahle v. State we adopted the general definition of an accomplice as a person who in some manner, knowingly and with criminal intent aids, abets, assists, or participates in a criminal act. In that case one Ahem was present in a house where the defendant Mahle and two others finalized their criminal plans to enter and steal from a Sears, Roebuck Store in Anchorage. Although Ahern refused to participate in the criminal act when it was planned, he was still at the house when the three conspirators returned with an unopened safe, which they had stolen from the Sears store as planned. He assisted them in prying open the safe and disposing of it and its contents, and he received several dollars from the safe for himself, We held that in voluntarily participating in the completion of the crime by assisting in forcing open the stolen safe and extracting the contents therefrom and then disposing of the safe and its contents, Ahern made himself an accomplice in the larceny. The instant case is distinguishable, for here the crimes of burglary and larceny were completed and the asportation of the money was at an end when David and the defendants broke into the school building, took the money bag or bags out of the safe and walked away with them. There is nothing in the record to indicate that up to this point Sharon had in any way knowingly and with criminal intent aided, abetted, assisted or participated in the criminal acts charged. She did not know what "jobs" the three men were going to "pull" when they left the house. Not until she saw them "dump" the money out of the bags did they tell her or did she surmise that they had burglarized and stolen from a schoolhouse. There is no proof that she assisted by lending .her car for the criminal venture or had any knowledge that the car was going to be used for such a purpose. Assuming that Sharon had foreknowledge of the criminal plans of the defendants, that fact alone would not have made her an accomplice under the law. Neither the knowledge that a crime is being committed, nor the concealment of that knowledge makes a person an accomplice, unless he aided or participated in the offense or conspired to commit it. If Sharon committed any crime under the facts of this case it was that of receiving stolen property knowing it to have been stolen. But that is a separate offense and would not make her an accomplice of the thieves, unless it could have been shown, which it was not, that she conspired in a pre-arranged plan with David and the defendants for them to steal the money and to deliver it, or a part thereof, to her. We conclude that the trial court ruled correctly that Sharon was not an accomplice in this case and that her evidence could be used to corroborate the testimony of the defendants' accomplice, David Swanagan. The judgment is affirmed. . It is not clear in the record whether David and the defendants obtained the money on one or two trips to the school on the night in question. David mentions but a single trip. However, at one time in her testimony Sharon stated that the men brought money into the house on two separate occasions that night. . Opinion No. 84, 371 P.2d 21 (Alaska 1962). . Supra n. 2, 371 P.2d at 25. . People v. Yates, 71 Cal.App. 788, 236 P. 185, 187-188 (1025); Wallis v. State, 49 Okl.Cr. 58, 292 P. 1056 (1930). . State v. Moxley, 54 Or. 409, 103 P. 655 (1909); State v. Duggan, 215 Or. 151, 333 P.2d 907, 914 (1958). . People v. Haven, 44 Cal.2d 523, 282 P.2d 866, 868 (1955); People v. Malone, 167 Cal.App.2d 400, 334 P.2d 217 (1959); Annot, 53 A.L.R.2d 817, 820-824 § 2-4 (1957). See also Stephenson v. United States, 211 F.2d 702, 14 Alaska 603, 53 A.L.R.2d 812 (9th Cir., 1954), a ease which went up from the District Court of the Territory of Alaska.

10576866

Kermit CESAR, Appellant, v. The ALASKA WORKMEN'S COMPENSATION BOARD, consisting of B. G. Johnson, Louis H. Shaffer, and A. D. Wallace, Carson Lawrence d/b/a Carson's Bakery, and Employer's Liability Assurance Corporation, Appellees

Cesar v. Alaska Workmen's Compensation Board

1963-07-12

No. 281

805

807

383 P.2d 805

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.

Kermit CESAR, Appellant, v. The ALASKA WORKMEN’S COMPENSATION BOARD, consisting of B. G. Johnson, Louis H. Shaffer, and A. D. Wallace, Carson Lawrence d/b/a Carson’s Bakery, and Employer’s Liability Assurance Corporation, Appellees.

Kermit CESAR, Appellant, v. The ALASKA WORKMEN’S COMPENSATION BOARD, consisting of B. G. Johnson, Louis H. Shaffer, and A. D. Wallace, Carson Lawrence d/b/a Carson’s Bakery, and Employer’s Liability Assurance Corporation, Appellees. No. 281. Supreme Court of Alaska. July 12, 1963. R. J. Annis, of Robertson, Monagle, Eastaugh & Annis, Juneau, for appellant. F. M. Doogan, of Faulkner, Banfield, Boochever & Doogan, Juneau, for appel-lees. Before NESBETT, C. J., and DIMOND and AREND, JJ.

1448

8755

AREND, Justice. This action was instituted in the superior court by the appellant, Kermit Cesar, to set aside as not in accordance with law an order of the Alaska Workmen's Compensation Board awarding him compensation in the sum of $900 for the loss of one-half of his left thumb. He claimed that under the applicable provisions of the Alaska Workmen's Compensation Act he was entitled to an award of $1800. The superior court affirmed the award of the Board and Cesar has appealed to this court. The parties seem to agree that the following provisions of the Alaska Workmen's Compensation Act (hereinafter referred to as the act) are applicable in determining the amount of compensation which the appellant is entitled to receive in this case: "Sec. 7. Compensation for Disability. Compensation for disability shall be paid to the employee as follows: ⅜ * ⅜ ⅛ * ⅜ " (3) Permanent partial disability: In case of disability partial in character but permanent in quality the compensation shall be 65 per centum of the average weekly wages which shall be in addition to compensation for temporary total disability or temporary partial disability paid in accordance with subdivision (2) or subdivision (4) of this section respectively and shall be paid to the employee as follows: "(f) Thumb lost, fifty-one weeks' compensation, not to exceed $1,800.00. "(m) Phalanges: Compensation for loss of more than one phalange of a digit shall be the same as for loss of the entire digit. Compensation for loss of the first phalange shall be one-half of the compensation for loss of the entire digit." The appellant contends that the foregoing provisions of the act frame benefits thereunder in terms of weekly compensation and not in terms of a fixed dollar amount for a specific scheduled loss. By way of contrast he calls attention to the previous Alaska Workmen's Compensation Act, which made no reference to weeks of compensation when providing for scheduled benefits in cases of permanent partial disabilities but spoke only of benefits for the loss of members, or parts thereof, in terms of fixed monetary sums. Under his interpretation of the provisions of the present act, quoted above, the appellant contends that the formula for determining compensation in his case should be 65 per cent of his average weekly wage multiplied by one-half of 51 weeks, but not to exceed $1800. The Board found the appellant's average weekly wage to be "at least $120.00 a week" and the appellant concedes that his actual average weekly wage was $115. Applying the formula thus: 65% of $115 x ½ of 51, the appellant arrives at a compensation figure of $1906.25, which sum he is agreeable to have reduced to what he considers the statutory maximum of $1800. The Board and the insurer of Cesar's employer, as appellees, disagree with the appellant and insist that the act requires compensation for rated disabilities scheduled in section 7(3) partial in character but permanent in quality, to be computed in proportion to maximum compensation recoverable for permanent total loss or permanent total loss of use. To sustain their position they rely upon subsections (q) and (r) of section 7(3) of the act [AS 23.30.190(18) and (19) respectively], which read: "(q) Total loss of use: Compensation for permanent total loss of use of a member shall be the same as for loss of the member. "(r) Partial loss or partial loss of use: Compensation for permanent partial loss or loss of use of a member may be for proportionate loss or loss of use of the member." After hearing testimony and argument of counsel, in which the appellant stated his position in much the same form that he followed later in the superior court and before us, the Board concluded that "the more reasonable interpretation of Sec. 7(3) (f) and (m) is that applicant's [appellant's] compensation should be one-half of fifty-one weeks not to exceed one-half of $1,800.00." Continued the Board: "[T]here is no convincing reason to assume that the adjective 'one-half' does not modify the entire clause including the set maximum. Accordingly, applicant is entitled to one-half of the maximum for the loss of the entire thumb: $900.00." We hold that the Board was correct in its decision in this case and that the trial court committed no error in affirming the $900 award. In providing scheduled benefits for permanent partial disabilities under the present Alaska act, our -legislature adopted almost verbatim comparable provisions in the federal Longshoremen's and Harbor Workers' Compensation Act, which ground benefits on weeks of compensation. There is a significant distinction, however. The Alaska act limits not only the period of weeks compensable as in the federal act but it superimposes an additional limitation in terms of a maximum monetary amount compensable for each type of loss. Thus 33 U.S.C.A. § 908(c) (6) states, "Thumb lost, seventy-five weeks' compensation"; whereas section 7(3) (f) of the Alaska act reads, "Thumb lost, fifty-one weeks' compensation, not to exceed $1,-800.00." [Emphasis added.] We have been unable to find a workmen's compensation statute of any other American jurisdiction which contains a fixed maximum monetary limit for each particular scheduled loss of a member resulting in permanent partial disability. That being so, the cases from other jurisdictions cited by the parties in this case to support their respective views on how we should interpret the provisions of section 7(3) of our act while informative have not been particularly helpful in deciding the issue here involved. Since our act is modeled after the Longshoremen's and Harbor Workers' Compensation Act, we would have considered the federal act persuasive in construing comparable sections of our act. But the legislature in section 7(3) (f) of our act went beyond the scope of 33 U.S.C.A. § 908(c) (6) by adding a fixed limit payable for the loss of a thumb and thus indicating a difference in legislative intent. Hence no federal court decision would be in point on the issue raised in the instant case. Reading subdivisions (f) and (m) of section 7(3) in conjunction with subdivision (r) of that section, we are of the opinion that the legislature intended that the express top monetary limit placed on the loss of a whole thumb should be proportionately applied in the case of loss of less than the whole. Initially, where there has been a partial loss of a rated member, the statutory formula based on weeks of compensation must be used. If the amount of compensation arrived at by fitting the figures of a particular case into the formula exceeds the amount of compensation obtained by multiplying the statutory monetary maximum by the percentage of loss, then the award must be for the latter amount. If the result obtained by the formula is less than the proportionate monetary limit, then the formula result is the compensation payable. The judgment is affirmed. . SA.A.1959, eli. 193, § 7(3) (f) ana 7 (3) (m) [AS 23.30.190(6), (13)]. . In support of his claim that it was the intent of the legislature to cast benefits in terms of weekly compensation rather than in terms of a fixed sum, the appellant points to § 7 (3) (t) of the act [AS 23.30.190(20)] which provides that "in all other cases" of permanent partial disability, not provided for under scheduled benefits of § 7(3), "the compensation shall be 65 per centum of the difference between his [the injured workman's] average weeky wages and his wage-earning capacity thereafter in the same employment or otherwise." He also points out that in case of temporary partial disability resulting in decrease of earning capacity § 7(5) [AS 23.30.200] similarly provides that "compensation shall be 65 per centum of the difference between the injured empoyee's average weekly wages before the injury and his wage earning capacity after the injury in the same or another employment." . Section 43-3-1 A.C.L.A.1949, as amended by S.L.A.1953, eh. 60. . See 33 U.S.C.A. § 901, 908(c) (1957). . Chicago Corp. v. Munds, 20 Del.Ch. 142, 172 A. 452, 454 (1934). .See Martin v. American Potash & Chem. Corp., 33 Del.Ch. 234, 92 A.2d 295, 300, 35 A.L.R.2d 1140 (1952); and cf. Bursey's Case, 325 Mass. 702, 92 N.E.2d 583, 586 (1950).

9019953

Vannaphone SOUNDARA, Appellant, v. STATE of Alaska, Appellee

Soundara v. State

2005-02-11

No. A-8329

290

302

107 P.3d 290

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.

Vannaphone SOUNDARA, Appellant, v. STATE of Alaska, Appellee.

Vannaphone SOUNDARA, Appellant, v. STATE of Alaska, Appellee. No. A-8329. Court of Appeals of Alaska. Feb. 11, 2005. Paul E. Malin, Assistant Public Defender, and Barbara K. Brink, Public Defender, Anchorage, for the Appellant. Timothy W. Terrell, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for the Appellee. Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.

7086

43415

OPINION MANNHEIMER, Judge. Vannaphone Soundara assaulted his common-law wife over the course of six or seven hours. Based on this conduct, Soundara was convicted of mitigated kidnapping (ie., a kidnapping in which the defendant voluntarily releases the victim without sexually assaulting or inflicting serious physical injury on the victim) and two counts third-degree assault. Soundara appeals his convictions, contending that the trial judge improperly rejected his efforts to remove a juror after the juror disclosed, in the middle of trial, that his mother had been the victim of domestic violence. In a separate argument, Soundara also contends that the evidence presented at his trial supports only one conviction for third-degree assault, not two. In addition, Soundara appeals his kidnapping sentence. He argues that the sentencing judge applied the wrong presumptive term when calculating his sentence, and he further argues that the evidence does not support the judge's finding of aggravating factor AS 12.55.155(e)(2) — that Soundara acted with deliberate cruelty. For the reasons explained here, we remand Soundara's case to the superior court for reconsideration of the juror issue. We can not say that the trial judge abused his discretion when, following full disclosure of the facts, the judge concluded that the juror could be fair. Nevertheless, Alaska law is clear that if the juror knowingly withheld relevant information during voir dire, Soun-dara would be entitled to removal of the juror regardless of whether the juror could be fair. The trial judge never made a finding as to whether the juror knowingly withheld relevant information during voir dire; accordingly, we must remand Soundara's case to the superior court. In addition, we conclude that Soundara's two convictions for third-degree assault must merge into one consolidated conviction. It is true, as the State argues, that the evidence presented at Soundara's trial is sufficient to support the conclusion that Soundara assaulted the victim twice, with the two assaults separated by a significant interval. But the jury was never asked to decide this issue — and this question of fact is for the jury, not for the trial judge or for an appellate court. Finally, we conclude that Soundara's sentencing judge employed the correct presumptive term, and that the evidence supports the sentencing judge's finding of deliberate cruelty. The facts of the kidnapping and assault On May 4, 2000, Soundara's common-law wife, T.K., told Soundara that she was leaving him and moving to California. During the next two days, Soundara and T.K. argued repeatedly about T.K's decision. Then, on the night of May 6th, Soundara bound T.K.'s hands and feet with speaker wire. For the next six or seven hours, Soundara beat T.K. intermittently while the couple's two small children cried in a nearby bedroom. According to the State's evidence, Soun-dara whipped T.K. with speaker wire, hitting her more than 30 times and leaving cuts and bruises over half of her body. During the course of the hours-long assault, Soundara strangled T.K. (again, with the speaker wire), he struck her with a knife handle and with the dull edge of the knife blade, and he struck her with the butt of a gun. At one point, Soundara pointed the gun between T.K.'s eyes and threatened to shoot her. He also threatened to slice T.K.'s thigh with the knife and to rub salt into the wound. And Soundara told T.K. that if she left him after this, he would shoot their children, set fire to them, and then kill himself. Finally, around five o'clock in the morning on May 7th, Soun-dara released T.K. Based on these events, Soundara was charged with kidnapping and several counts of first-, second-, and third-degree assault. The challenge to Juror Stahn As jury selection was beginning, the trial judge, Superior Court Judge Larry D. Card, required all of the prospective jurors to swear to tell the truth during the jury selec tion process. Judge Card then read the indictment against Soundara. This indictment informed the prospective jurors that Soundara was charged with restraining T.K. with the intent to inflict injury on her, and that he was additionally charged with causing injury to T.K. by means of wire or cord, and with threatening T.K. with both a gun and a knife. Before the attorneys commenced their voir dire questioning, Judge Card asked the members of the jury pool if there was any reason why they felt they could not be fair in a case like Soundara's. Prospective juror Keith Stahn did not respond to Judge Card's question. The prosecutor then told the prospective jurors that Soundara's case concerned "domestic violence", that it was a case involving "[an] assault on a woman" by means of a knife and speaker wire. The prosecutor asked the prospective jurors whether "anyone would have a problem sitting here and listening to the facts of this case". Stahn did not respond. The prosecutor told the jurors that, if Soundara's case was to be decided impartially, it was important that the jurors not have "anything in [their] background . to interfere with [their] listening to the facts of this case and coming to a [fair] conclusion at the end of the trial". The prosecutor then asked the prospective jurors, "Has anyone been charged with, [or been] the victim of, or [been] a witness in [an] assault or [an act of] domestic violence?" Several potential jurors responded to the prosecutor's question, but Stahn did not. While Stahn was present in court, several prospective jurors revealed that family members, or other people whom they were close to, had been victims of domestic violence. All of these prospective jurors were released from jury service. In addition, several other jurors responded to questions concerning the difficulty of remaining impartial in cases like Soundara's, if a friend or family member of theirs had been subjected to domestic violence. When it was Stahn's turn for individual voir dire, the prosecutor asked him, "So you're comfortable with everything that you've heard, and [you have] no questions about . the issues that have been raised?" Stahn replied, "No problems." The prosecutor then asked Stahn if there was "any reason" why Stahn could not sit as a juror in Soundara's case. Stahn responded, "No, I don't think that there's any reason" — but then he added that he probably should talk about "one thing . that came up yesterday". Stahn thereupon revealed that he was a member of the Ruffed Grouse Society, an organization that supports the preservation of woodlands for grouse and other game birds. When it was Soundara's attorney's turn to question Stahn, the defense attorney asked if Stahn had "ever had [an] experience with . a family member or . friend where domestic violence [was] an issue". Stahn replied, "No." Based upon Stahn's answers to these voir dire questions, Soundara's attorney passed Stahn for cause. But later in the selection process, after two other prospective jurors had been questioned about their experience with domestic violence, Stahn asked Judge Card for a "sidebar" (i.e., a private conference with the judge and the attorneys). When the sidebar conference was convened, Stahn told the judge: Stahn: It just occurred to me that maybe I should let you know that I'm separated from my wife, and [that] we live in separate households. I have possession of my son; she has possession of my daughter. I don't think that that would affect my decision . or [my] judgement [in this case]. The Court: Well, divorce happens in a lot of families. But is there domestic violence being alleged . by either party? Stahn: No. The Court: So, do you feel that [this] would affect your ability to be fair [in this case]? Stahn: [No,] I can be fair. Neither attorney had any questions based on this exchange, so Stahn resumed his place among the prospective jurors. Neither side exercised a peremptory challenge against Stahn, so he ultimately became a member of the jury. During jury selection, Soundara's attorney exercised eight of his eleven allotted peremptory challenges. That is, the defense attorney had three peremptory challenges remaining when the attorney decided to leave Stahn on the jury. On the first day of trial (December 5, 2001), Judge Card asked all of the selected jurors to stand and take a second oath — their oath as jurors to decide Soundara's ease fairly and honestly. Judge Card told the jurors that the criminal justice system "depends on . the honesty and integrity of . individual jurors". The judge also told the jurors, "[By taking this second oath,] you affirm that your answers to the questions that were [earlier] put to you concerning your qualifications to sit on this jury were complete and correct . and that there [is] nothing that I or the parties should know about you that we did not know from asking [those] questions as to your ability to sit as a juror." The judge then asked the jurors, "Now, . do any of you believe that there is something that we should know that we do not know now?" Stahn remained silent. Soundara's trial commenced. Both parties gave their opening statements, and then the State presented its first witness. At the conclusion of this first witness's testimony, Judge Card announced that he had other business that required him to call a recess. Stahn then spoke up, 'Tour Honor, . is it possible to get a sidebar?" At this second sidebar conference, Juror Stahn revealed that his mother had been the victim of domestic violence: Stahn: Your Honor, it occurred to me when [the attorneys] were doing their opening remarks that — although I was a small child, I was only nine months [or] a year or two old, whatever — my mother was involved in domestic violence, I guess you could call it, with my [biological] father . I've heard stories from her [and] one that sticks out in my mind is about . some conflict between the two [of them], and throwing a knife or something behind the stove, and — although I don't [personally] remember any of that. The Court: All right; I see. It's just what you were told [by your mother]? Stahn: Yes, sir. The Court: All right. Does that affect your ability to still be a fair juror in this case? Stahn: No, sir. The Court: All right. You just wanted to bring [this] to the attention of the parties? Stahn: Yes, please. Judge Card then asked the attorneys if, because of Stahn's revelation, they wished to ask any further questions. Neither attorney wished to ask any other questions of Stahn. However, Soundara's attorney declared that she would have exercised a peremptory challenge against Stahn if she had known of this. Judge Card refused to allow the defense attorney to exercise a peremptory challenge at that stage of the proceedings (i.e., with the jury already sworn and the trial already begun). The judge told the defense attorney: The Court: It sounds . to me that we've had to dig up some old, old, old injury to [Stahn's] family.... I've observed Mr. Stahn. He's actually brought out everything he can think of that would keep him from being involved in this case. He told us that this happened when he was very young. He has no recollection of any abuse himself, but it is [the] stories he has been told. And it seems . to me, when a person is told a story — and [I acknowledge that] a mother is very important [, but] on the other hand, he doesn't sound like he's formed any opinions nor is he going to be unfair to either party. And had he been challenged for cause, I would not have accepted such a challenge. And it seems . to me now, after all the questions that were asked, [that] to accept [a peremptory] challenge [at this point] would defeat the [selection] process [that] we've already gone through. We can't pick other jurors. You know, we're in flu season. I don't know if we're going to be able to keep all fourteen [jurors that we currently have]. We have a high number of flu cases in the community. [This trial will] hopefully not [be] long ., but [we will] recess over the weekend.... If I give [the defense] a peremptory [challenge], I'd have to give the State one, and we'd have to start jury selection again — and I've already sworn this jury, jeopardy has attached, and so we'd be in mistrial mode, and . I haven't heard you asking for a mistrial.... Right now, we have fourteen jurors, and so I don't want to let [Mr. Stahn] go at this time. But I'll reconsider the issue at the close of the evidence if you wish to . raise it again. I don't have any problem with [your] raising it again before we finish [this] case. So the application [to exercise a peremptory challenge] will be denied. Upon hearing Judge Card's ruling, Soun-dara's attorney immediately asked for a mistrial: Defense Attorney: Your Honor, I'm asking at this point for a mistinal.... I have to agree with the Court that, given the information we have from [Mr. Stahn], I don't have a strong argument for a challenge for cause. But this was information that he should have given to us. And if I had known [about] it, I would have used [a] peremptory [challenge]. [And] I think [that] if the Court is going to [stick with] its decision, [then we] should use [Mr. Stahn] as [an] alternate — that when we get to [the] point [in the trial] where we're choosing alternates, . he should be one of them. Judge Card did not address the defense attorney's request to designate Stahn as an alternate juror. However, the judge reiterated that he found no basis for excusing Stahn for cause, and he again denied the defense attorney's request to exercise a late peremptory challenge. In addition, Judge Card denied the defense attorney's motion for a mistrial. This issue arose one final time, at the end of Soundara's trial. Judge Card was getting ready to trim the jury to twelve by placing the names of all fourteen jurors in a box and then randomly selecting two of the jurors to be alternates. At this point, the defense attorney reminded Judge Card that he had promised to revisit the issue of Juror Stahn: Defense Attorney: Your Honor, Juror [Stahn] told us, after he was chosen as a juror, that he forgot to talk to us about the fact that his mother had been beaten by his father . when he was very young. And I informed the Court that, if I had known this, I would have used a peremptory challenge [against] him. And the Court denied [my] request to bump him off [the jury], but [the Court stated] that we would have another conversation about it [at the close of the trial]. And I'm asking that [Stahn] be used as one of the alternates . The Court: My recollection is that he told us that [the domestic violence] happened when he was, like, six months old, and he had no [personal] recollection [of it], and it was stories told . to him by his mother,.... And he said [that] it would not affect his ability to be a fair and impartial juror. So your objection is overruled. Soundara's argument that, because of Juror Stahn's late disclosure of a family history of domestic violence, Soundara should have been allowed to exercise a late peremptory challenge against Stahn Under Alaska law, a party wishing to exercise a peremptory challenge against a prospective juror must do so before the jury panel is sworn. Soundara acknowledges this rule, but he argues that the rule should be relaxed when a prospective juror fails to disclose information pertinent to the questions posed during voir dire, if that information would have provided a reasonable ground for the party to exercise a peremptory challenge against the juror. We do not doubt that Soundara's attorney might reasonably have wished to peremptorily challenge Juror Stahn after Stahn revealed that his mother had been the victim of domestic violence. It appears that Stahn might not have witnessed this violence himself, or might have witnessed it at such a young age that he had no personal recollection of it. Nevertheless, Soundara's attorney could reasonably surmise that Stahn had an emotional attachment to his mother and that, based on that emotional attachment, Stahn's knowledge of reports that his mother had been subjected to domestic violence would affect Stahn's assessment of criminal cases like Soundara's — ie., criminal cases involving allegations of domestic violence. Nevertheless, we must be mindful of the policies that underlie our rule that peremptory challenges must be exercised before the jury is sworn. In a jury trial, jeopardy attaches when the jury is sworn. Thus, any ensuing changes to the composition of the jury may require a mistrial, or (at the least) will enhance the possibility that a mistrial will be required later, even if replacement jurors are currently available. Moreover, if we allowed parties to resurrect their unused peremptory challenges in the middle of trial, we would hand attorneys a potent weapon for forcing a mistrial in cases that were going badly for them. A peremptory challenge need not be based on a valid, objective reason to distrust the juror's ability to be fair. Instead, an attorney can exercise a peremptory challenge for any non-diseriminatory reason. Thus, almost any new information concerning a juror might provide an attorney with grounds for arguing — with complete honesty — that the attorney would have peremptorily challenged the juror if they had known about this new information. For these reasons, our law requires attorneys to assiduously employ the voir dire process to elicit any and all facts that the attorney might care about when evaluating the suitability of the prospective jurors. An attorney must ask sufficient questions, and sufficiently precise questions, to elicit all desired information from prospective jurors. If the attorney fails to do this, the attorney will not be heard to complain later that newly revealed information, had it been disclosed earlier, would have prompted the attorney to exercise one or more additional peremptory challenges. We therefore reject Soundara's argument that he should have been given the opportunity to exercise a late peremptory challenge against Stahn after Stahn revealed that his mother had been the victim of domestic violence. The issue of whether Juror Stahn should have been dismissed from the jury for cause The rule that a party must exercise their peremptory challenges before the jury is sworn is premised on the assumption that the prospective jurors have honored their oath to fully and truthfully answer the questions put to them during the jury selection process. It is not equitable to bind the parties to the results of the jury selection process unless the parties are assured that prospective jurors are honestly cooperating in that process — that prospective jurors are not consciously thwarting the parties' jury selection efforts. For this reason, if a juror lies or consciously withholds information during voir dire (knowing that the questions being asked on voir dire call for this information), and if the true facts would have supported a challenge for cause, our law considers this an obstruction of justice and a ground for requiring a new trial. For instance, in Swain v. State, 817 P.2d 927 (Alaska App.1991), a juror concealed her friendship with a woman who had been robbed by the defendant, and also potentially concealed her second-hand knowledge of this crime, knowledge obtained in conversations with her friend. Relying on the Alaska Supreme Court's decision in Fiches v. Petro-lane-Alaska Gas Service, lnc., we held that it was an obstruction of justice for the juror to fail to reveal her friendship with the victim or the fact that she had spoken with the victim about the crime. We further held that the juror's misconduct might require a new trial, depending on exactly what secondhand knowledge the juror had concealed. In Swain, we remanded the case to the superior court with directions to assess the need for a new trial by applying the three-part test established by the supreme court in Fiches v. Petrolane-Alaska: (1) Would the appellant have challenged the juror if the juror had not concealed or misrepresented the information? (2) Was the improperly withheld information directly relevant to the decision of the case, or was it instead merely collateral to the issues being litigated? and (3) Is there a reasonable possibility that the improperly withheld information affected this juror's (or any other juror's) decision? Returning to Soundara's case, the facts of the jury selection process (construed in the light most favorable to Soundara) support the conclusion that Stahn consciously withheld information concerning the history of domestic violence in his family. As detailed above, Judge Card repeatedly told the prospective jurors that it was important for them to reveal any information that might raise doubts concerning their ability to be fair. The prosecutor echoed this theme, telling the prospective jurors that they must not have "anything in [their] background [that would] interfere with [their] . coming to a [fair] conclusion at the end of the trial". Both the prosecutor and the defense attorney repeatedly asked prospective jurors if they, their family members, or their close friends had experienced domestic violence. Several prospective jurors were dismissed on this basis. After sitting through all of this, Stahn repeatedly affirmed' — either expressly or by his silence in the face of inquiry — that none of these questions and admonitions applied to him. Stahn then slowly began to reveal more information. First, he volunteered that he was a member of a game-bird habitat conservation society (the Ruffed Grouse Society). Later, he asked for a sidebar in which he revealed that he had been divorced. During the ensuing discussion, Stahn was reminded that the real issue was domestic violence: he was expressly questioned as to whether his divorce involved allegations of domestic violence. Stahn said no — but by confining his answer to the divorce proceeding, Stahn failed to give the parties any indication that his mother had experienced domestic violence. Later, Stahn was sworn as a juror. At that time, Judge Card told all of the jurors that, by taking this second oath, all of them affirmed that their answers to the questions put to them during voir dire "were complete and correct". Judge Card then asked all of the jurors, "Do any of you believe that there is something that we should know about that we do not know [now]?" Stahn (by his silence) declared that there was nothing. Then, a little later, after the parties had given their opening statements and the first witness had testified, Stahn asked for another sidebar. Only then did Stahn reveal that his mother had been the victim of domestic violence. Stahn's explanation for his late disclosure is ambiguous: "Your Honor, it occurred to me when [the attorneys] were doing their opening remarks.... " This could be an assertion that Stahn remembered this information for the first time while he was listening to the attorneys deliver their opening state ments. On the other hand, Stahn might have been asserting that he perceived the significance of this information for the first time while he listened to the attorneys' opening statements. But in either case, the record provides grounds for questioning Stahn's assertion. If, in fact, Stahn understood the relevance of this information during the jury selection process, and if he consciously withheld this information in the face of questions and admonitions that reasonably called for this information, then Judge Card should have evaluated Soundara's motion for a mistrial using a test analogous to the one we employed in Swain. In particular, Judge Card should have considered whether Stahn consciously withheld the information concerning his family history of domestic violence and, if so, whether Soundara would have challenged Stahn if the improperly withheld information had been disclosed. In this regard, we emphasize that if Stahn did indeed consciously withhold this information, it does not matter whether he did so with the intent to deprive Soundara (or the State) of a fair trial, or whether he did so out of reticence to reveal a sensitive facet of his family history, or for any other reason. A prospective juror's conscious misrepresentation or withholding of information during voir dire constitutes an obstruction of justice, not because of any provable unfairness in the jury's verdict, but because the juror's conduct deprives the parties of their rights during the jury selection process. As we explained in State v. Titus, 933 P.2d 1165 (Alaska App.1997), "[wjhile the collateral consequences of voir dire fraud might often be invalidation of the verdict, the [supreme court's opinion in] Fickes . clearly focused on the defect in voir dire." Although Judge Card ruled that Stahn's late-disclosed information did not provide a basis for a challenge for cause, the record shows that the judge was considering only the question of whether this new information proved that Stahn could not be a fair juror. Judge Card never made a finding on the issue of whether Stahn consciously withheld pertinent information during the jury selection process, and whether this information would have prompted Soundara to challenge Stahn. If so, then this would have been an independent reason to grant Soundara's motion for a mistrial. Accordingly, we must remand Soundara's case to the superior court. Judge Card must determine whether, during the jury selection process (ie., before the jury was sworn), Stahn understood the relevance of the reports of domestic violence perpetrated on his mother, and Stahn consciously withheld this information in the face of questions and admonitions that reasonably called for this information. If Judge Card finds these things to be true, then Judge Card must decide whether Soundara is entitled to a new trial by conducting the three-part analysis we adopted in Swain. That is, Judge Card must decide: (1) Would Soundara have challenged Stahn if Stahn had not concealed this information? (2) Was the improperly withheld information directly relevant to the decision of Soun-dara's case, or was it instead merely collateral to the issues being litigated? and (3) Is there a reasonable possibility that Stahn's knowledge of domestic violence perpetrated against his mother affected Stahn's vote as a juror? (In this appeal, Soundara and the State argue whether, at the close of Soundara's trial, Judge Card had the discretion to designate Stahn as an alternate juror — a procedural device that might have avoided the issues of whether Soundara should have been allowed to exercise a late peremptory challenge, or whether Stahn should have been excused for cause. We view this "alternate juror" controversy as moot. As we have explained, a peremptory challenge to a juror must be exercised before the trial commences, but a juror's willful misrepresentation or withholding of pertinent information during voir dire can be an independent ground for declaring a mistrial or granting a new trial. In Soundara's case, his entitlement to relief hinges on resolution of this latter issue.) Soundara's tivo convictions for third-degree assault must merge into one consolidated conviction Soundara was found guilty of third-degree assault under two separate clauses of AS 11.41.220(a). He was convicted under section 220(a)(1)(A) for recklessly placing T.K. in fear of imminent serious physical injury by means of a dangerous instrument, and he was convicted under section 220(a)(1)(B) for recklessly causing physical injury to T.K. by means of a dangerous instrument. Soundara, relying on this Court's decision in Attain v. State, argues that these two convictions were based on the same underlying conduct — an assault with speaker wire— and therefore the two convictions must merge into a single consolidated conviction. The State responds that two separate convictions are proper because the evidence at Soundara's trial showed that the two assault charges were premised on separate acts, with "a significant break in time and circumstance between each act". Even though the evidence at Soundara's trial might be interpreted in the way the State suggests, the problem remains that Soundara's jury was never asked to resolve whether the two convictions were based on one continuing assault or separate assaults. We addressed this same problem in Simmons v. State, 899 P.2d 931 (Alaska App.1995). The issue in Simmons was whether the defendant could properly be convicted of two separate counts of being a felon in possession of a handgun, or only one consolidated count. On appeal, the State contended that the evidence presented at Simmons's trial was sufficient to establish that Simmons had given the gun away at one point, and then had regained possession of it, so that he committed two separate acts of possession. We held that this issue had to be decided by the jury — that it could not be decided by an appellate court in the first instance: [The fundamental problem with the State's argument is that], although the evidence presented at trial might theoretically have supported a finding of interrupted possession, the jury was never required to consider or decide the issue. Because the instructions did not apprise the jury of the need to find that Simmons' possession of the .44 magnum pistol had been interrupted at some point between the first alleged offense and the second, the jury's verdicts left the issue unresolved. At this juncture, "[a]ny ambiguity must be resolved in favor of the accused." Accordingly, we conclude that Simmons' two convictions must merge. Simmons, 899 P.2d at 937 (citations omitted). We reach the same conclusion in Soun-dara's case. The jury made no finding as to whether the two assault convictions were based on a single underlying act or two separate acts. Therefore, the convictions must merge. Soundara's sentencing for his kidnapping conviction was governed by a 7^year presumptive term rather than a 5^year presumptive term Soundara was convicted of mitigated kidnapping as defined in AS 11.41.300(d). This offense is a class A felony. Soundara was a first felony offender, so his sentencing for this class A felony was governed by AS 12.55.125(c)(1) and (c)(2). Section 125(c)(1) states that a first felony offender convicted of a class A felony is subject to a 5-year presumptive term unless the offense involves the circumstances described in section 125(c)(2). The pertinent portion of section 125(c)(2) prescribes a 7- year presumptive term for a first felony offender convicted of a class A felony if "the defendant possessed a firearm [or] used a dangerous instrument . during the commission of the offense". At sentencing, Judge Card ruled that Soundara's ease fit under both of these clauses: that is, he found that Soundara both possessed a firearm and used dangerous instruments (a knife and speaker wire) during his kidnapping of T.K. (Recall that the jury convicted Soundara of third-degree assault under AS 11.41.220(a)(1)(A) and (1)(B), thus necessarily finding that he used a dangerous instrument.) Nevertheless, Judge Card and the parties engaged in a lengthy debate (over the course of two separate hearings) as to whether Soundara was subject to a 5-year or 7-year presumptive term. Soundara argued that the 5-year presumptive term should apply to his case because, if it did not, he would be subjected to a more severe penalty for mitigated kidnapping than he would have faced if he had been convicted of normal kidnapping. Judge Card rejected Soundara's position (for reasons that are not pertinent here), and Soundara renews his contention on appeal. Here, in a nutshell, is Soundara's argument: Normal (unmitigated) kidnapping is an unclassified felony that has a penalty range of 5 to 99 years. Mitigated kidnapping, on the other hand, is a class A felony (i.e., a lesser degree of felony) with a penalty range of 0 to 20 years, but the offense carries various presumptive terms: for first felony offenders, either 5 years or 7 years; for second felony offenders, 10 year-s,• and for third felony offenders, 15 years. Soundara contends that it is fundamentally unfair, and logically inconsistent, for the law to impose a 7-year presumptive term on him and other first felony offenders convicted of mitigated kidnapping involving a weapon, when he would have faced only a 5-year presumptive term if he had been convicted of normal kidnapping, even if he possessed a firearm or used a dangerous instrument. The flaw in this argument is that normal kidnapping does not carry a 5-year presumptive term. Rather, it carries a 5-year mandatory minimum term. A mandatory minimum term is the least possible sentence that can be imposed for a particular crime. A mandatory minimum represents the legislature's assessment of how much prison time should be imposed on an offender even when the offender's background is extremely favorable and the offender has engaged in the most mitigated conduct within the definition of the offense. A presumptive term, on the other hand, is intended for a typical offender. The presumptive term "represents the legislature's judgement as to the appropriate sentence for a typical felony offender (ie., an offender with the specified number of prior felony convictions, and with a typical background) who commits a typical act within the definition of the offense." If Soundara had been convicted of normal kidnapping, he could not have received anything less than 5 years to serve, and he might have received as much as 99 years to serve. Moreover, because mandatory minimum sentences are intended for the least serious offenses within the statutory definition, Soundara would have received a more severe sentence than the 5-year mandatory minimum unless he affirmatively convinced the sentencing judge that his background was uncommonly favorable and that his conduct was uncommonly mitigated. But because Soundara was convicted of mitigated kidnapping, he faced significantly lesser penalties. Instead of a 99-year maximum sentence, he faced a 20-year maximum sentence. Instead of a 5-year mandatory minimum sentence, he faced no mandatory minimum sentence. Rather, Soundara faced a 7-year presumptive term — a term of imprisonment that could be adjusted up or down. If Soundara proved any of the statutory mitigating factors listed in AS 12.55.155(d), Judge Card had the authority to reduce Soundara's sentence to 3½ years' imprisonment. And if Judge Card was convinced that even this much imprisonment would be manifestly unjust, he could refer Soundara's case to the statewide three-judge sentencing panel. If the three-judge panel agreed with Judge Card's assessment, they could theoretically reduce Soundara's sentence to the statutory minimum' — 0 years' imprisonment. In other words, if Soundara had proved that both his background and his offense were uncommonly mitigated, the superior court could have given him a sentence far less than the applicable 7-year presumptive term. On the other hand, if Soundara had been convicted of normal kidnapping, then even if he proved that his background was extremely favorable and his offense was extremely mitigated, the superior court would have been legally bound to give Soundara at least the mandatory minimum sentence of 5 years' imprisonment. And if the superior court found that Soundara's background and offense were typical rather than uncommonly mitigated, Soundara could have received a sentence far greater than the 5-year mandatory minimum — since the sentencing range for normal kidnapping is 5 to 99 years. (For example, second-degree murder is another unclassified felony; its sentencing range is 10 to 99 years. In 1983, when the mandatory minimum sentence for this crime was only 5 years (rather than the current 10), this Court held that first felony offenders convicted of second-degree murder should typically receive between 20 and 30 years to serve. See Page v. State, 657 P.2d 850, 855 (Alaska App.1983).) For these reasons, there is no reason to doubt the legitimacy of the 7-year presumptive term specified in AS 12.55.125(c)(2) for Soundara's offense. Judge Card's finding that Soundara acted with deliberate cruelty As explained at the beginning of this opinion, Soundara tied T.K. up and held her captive for six or seven hours. During that time, Soundara whipped T.K. intermittently with speaker wire. In addition, Soundara beat T.K. with a knife handle and the butt of a handgun. At one point, Soundara pointed the gun between T.K's eyes and threatened to shoot her. He also threatened to slice T.K.'s thigh with the knife and to rub salt into the wound. Moreover, Soundara told T.K. that if she left him, he would shoot their children, set fire to them, and then kill himself. Based on this evidence, Judge Card found aggravating factor AS 12.55.155(c)(2) — that Soundara manifested deliberate cruelty during the kidnapping. Soundara challenges this finding on appeal. (Judge Card also found aggravator AS 12.55.155(c)(18)(C) — that Soundara committed a crime of domestic violence in the presence or hearing of children under the age of 16 living in the same residence. Soundara does not challenge this second aggravator.) Soundara argues that his conduct in this case, "while loathsome, did not rise to the level of deliberate cruelty". But in Jones v. State, 765 P.2d 107 (Alaska App.1988), this Court upheld a finding of deliberate cruelty under facts similar to those of Soundara's case. The defendant in Jones was convicted of felony assault. The assault charge arose from an episode where Jones terrorized his wife and stepson for a period of approximately five hours. We summarized that assault in our opinion: Jones assaulted his wife over a period of approximately five hours. During this period, he shoved his wife's face in a bowl of spaghetti, beat her with his fists, held a knife to her throat and told her he was going to cut her up into pieces, held a knife to her ear and cut her ear, threatened and beat her eleven-year-old son, S.C., and urinated on his wife and forced S.C. to lie in the urine. Jones, 765 P.2d at 109. Based on this evidence, the superior court found that Jones manifested deliberate cruelty during this as-saultive episode. We upheld the superior court's finding. The facts of Soundara's case are substantially similar, and we therefore reach the same conclusion: the record supports the sentencing judge's finding that Soundara's conduct manifested deliberate cruelty. Conclusion The judgement against Soundara must be amended to reflect one consolidated conviction for third-degree assault (and one sentence for this offense), rather than the two convictions and two sentences reflected in the present judgement. With regard to the issue of Juror Stahn, we remand Soundara's case to the superior court. The superior court must determine whether Stahn purposely withheld information concerning his family's history of domestic violence during the jury selection process. If so, then Juror Stahn should have been dismissed for cause — and Soundara must receive a new trial. We affirm the other two rulings challenged in this appeal: the ruling that Soundara's sentencing was governed by a 7-year presumptive term, and the ruling that Soun-dara's offense was aggravated because Soun-dara manifested deliberate cruelty. We retain jurisdiction of this case pending the completion of the proceedings on remand. Within 60 days, the superior court shall renew its consideration of the issue of Juror Stahn, and shall issue written findings on that issue. The superior court is authorized, in its discretion, to take additional testimony and/or allow the parties to present additional argument. After the superior court issues its findings, the parties shall have 30 days to file memo-randa addressing those findings. When we have received the superior court's findings and any memoranda filed by the parties, we shall renew our consideration of whether Juror Stahn should have been dismissed for cause. . AS 11.41.300(a) & (d), and AS 11.41.220(a), respectively. . See Alaska Criminal Rule 24(d) (both the State and the defendant have ten peremptory challenges in felony cases), and Criminal Rule 24(b)(1)(B) (giving each side one additional peremptory challenge when, as here, one or two alternative jurors are impaneled). . Grimes v. Haslett, 641 P.2d 813, 816 (Alaska 1982); Pearce v. State, 951 P.2d 445, 447 (Alaska App.1998). . See March v. State, 859 P.2d 714, 717 (Alaska App.1993). . See Purkett v. Elem, 514 U.S. 765, 768, 115 S.Ct. 1769, 1771, 131 L.Ed.2d 834 (1995) (per curiam); Gottschalk v. State, 36 P.3d 49, 53-54 (Alaska App.2001). . See State v. Titus, 933 P.2d 1165, 1174-75 (Alaska App.1997), reversed on other grounds in Titus v. State, 963 P.2d 258 (Alaska 1998). See also United States v. Henley, 238 F.3d 1111, 1121-22 (9th Cir.2001); United States v. Colombo, 869 F.2d 149, 151-52 (2nd Cir.1989); Hard v. Burlington Northern Railroad, 812 F.2d 482, 485 (9th Cir.1987); Rios v. Danuser Machine Co., Inc., 110 N.M. 87, 792 P.2d 419, 423 (N.M.App.1990); State v. Martinez, 90 N.M. 595, 566 P.2d 843, 845 (N.M.App.1977). . Swain, 817 P.2d at 929. . 628 P.2d 908, 910-11 (Alaska 1981). . Swain, 817 P.2d at 935. . Id. . Swain, 817 P.2d at 935, citing Fickes, 628 P.2d at 911. . Id. at 1175. . 810 P.2d 1019, 1021 (Alaska App.1991). . Quoting Williams v. State, 928 P.2d 600, 604 (Alaska App.1996). . Simmons, 899 P.2d at 936. . AS 11.41.300(d) states: "In a prosecution for kidnapping, it is an affirmative defense which reduces the crime to a class A felony that the defendant voluntarily caused the release of the victim alive in a safe place before arrest, or within 24 hours after arrest, without having caused serious physical injury to the victim and without having engaged in conduct described in AS 11.41.410(a), 11.41.420, 11.41.434, or 11.41.436." . See AS 12.55.125(b), which reads (in pertinent part): "A defendant convicted of . kidnapping . shall be sentenced to a definite term of imprisonment of at least five years but not more than 99 years." . See AS 12.55.125(c). . See Clark v. State, 8 P.3d 1149, 1150 (Alaska App.2000); Middleton v. Anchorage, 673 P.2d 283, 284 (Alaska App.1983). . Clark, 8 P.3d at 1150; Mullin v. State, 886 P.2d 1323, 1328 (Alaska App.1994). See also Juneby v. State, 641 P.2d 823, 833 (Alaska App.1982), modified and superseded on other grounds, 665 P.2d 30 (Alaska App.1983). . Compare State v. Brueggeman, 24 P.3d 583, 589 (Alaska App.2001) (when a defendant is convicted of a class B felony, the defendant should not receive a sentence of less than 90 days unless both the offender and the offense are significantly mitigated). . AS 12.55.155(a)(2). . AS 12.55.165-175. . AS 12.55.125(b). . Jones, 765 P.2d at 108. . Id. at 108. . Id. at 109.

10426101

Henry G. STORRS, M.D., Appellant, v. STATE MEDICAL BOARD and Alaska State Division of Occupational Licensing, Appellees

Storrs v. State Medical Board

1983-04-29

No. 6882

547

557

664 P.2d 547

664

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

Henry G. STORRS, M.D., Appellant, v. STATE MEDICAL BOARD and Alaska State Division of Occupational Licensing, Appellees.

Henry G. STORRS, M.D., Appellant, v. STATE MEDICAL BOARD and Alaska State Division of Occupational Licensing, Appellees. No. 6882. Supreme Court of Alaska. April 29, 1983. See also, Alaska, 661 P.2d 632. A. Lee Peterson, A. Lee Peterson, Inc., Anchorage, for appellant. Richard D. Monkman, Asst. Atty. Gen., Anchorage and Wilson L. Condon, Atty. Gen., Juneau, for appellees. Before BURKE, C.J., RABINOWITZ, MATTHEWS, and COMPTON, JJ., and JOHNSTONE, Superior Court Judge. Johnstone, Superior Court Judge, sitting by assignment made pursuant to article IV, section 16 of the Constitution of Alaska.

5455

34628

PER CURIAM. This is an appeal from a superior court order affirming a decision by. the- State Medical Board to revoke the license of Dr. Henry G. Storrs to practice medicine in Alaska on the grounds that Dr. Storrs was professionally incompetent. The substantive issues raised by Dr. Storrs are as follows: (1) the combination of statutory and regulatory standards under which his license was- revoked were unconstitutionally vague; (2) the procedures followed by the State Medical Board were improper under AS 44.62.500, the provision in the Administrative Procedure Act which delineates the procedure to be followed in the resolution of contested cases; (3) the Board's decision was not supported by substantial evidence. Upon consideration, we reject Dr. Storrs' claims. Because we are in agreement with the reasoning of the superior court on each of the above questions, we adopt the court's' opinion as the basis for our disposition of this appeal. Dr. Storrs' principal claim is that the standard of "professional incompetence" under which his license was revoked was unconstitutionally vague. In addition to the reasoning set forth by the superior court, we note that the recent United States Supreme Court decision of Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982), has clarified the operation of the vagueness doctrine under the due process clause where the constitutionality of a civil statute or regulation is in question. Flipside establishes that civil laws must satisfy a minimum requirement of meaningfulness under the federal constitution, but that vagueness scrutiny is a flexible test to be adapted to fit the nature of the challenged regulation. The degree of vagueness that the Constitution tolerates — as well as the relative importance of fair notice and fair enforcement — depend in part on the nature of the enactment.... The Court has . expressed greater tolerance of enactments with civil rather than criminal penalties because the consequences of imprecision are qualitatively less severe. 455 U.S. at 498-99, 102 S.Ct. at 1193, 71 L.Ed.2d at 371-72 (footnote omitted). We think that the reasoning of the superior court falls clearly within the dictates of Flipside. Secondly, we note the recent decision by the Supreme Judicial Court of Maine in Board of Dental Examiners v. Brown, D.D.S., 448 A.2d 881 (Me.1982). In that case, a dentist's license was revoked under a statute that provided for such action in the case of proven "incompetence or unskillfulness." Id. at 882. Dr. Brown challenged the revocation on a theory quite similar to that relied upon by Dr. Storrs today: He contends that the phrase "incompetence or unskillfulness" is so vague that no dentist can predict accurately whether his conduct falls within the purview of the disciplinary statute and that such vagueness permits ad hoc determinations uncontrolled by any regulatory standards. Id. at 883. The court rejected this contention, finding that the words "competence" and "skillfulness" were replete with meaning. The expression "incompetence or un-skillfulness" is not so uncertain in its meaning that further definitive rulemak-ing by the Board is required before a dentist may be disciplined.... It is sufficient to place a dentist on notice that if his professional performance does not remain at a minimally acceptable level of competence in the current state of the art, his license to practice may be revoked. Understood in its ordinary meaning, the expression "incompetence or unskill-fulness" provides an adequate guide for, and limitation on, the Board's exercise of authority and its range of discretion.... The plain intent of the statute is to permit the revocation or suspension of the licenses of incompetent dentists in the interest of public health and safety. Further legislative elaboration is not needed to ensure that the Administrative Court exercises its regulatory authority under this statute in accordance with a determination of policy made by the legislature or that it does not exercise unbridled discretion in carrying out the legislative mandate. Id. at 884 (citations omitted). The persuasive reasoning of the Maine Supreme Court provides additional support for the result reached below in this case. Attorney's Fees We need not address Dr. Storrs' claim that he is entitled to an award of full attorney's fees as a public interest litigant. Dr. Storrs plainly cannot be considered the prevailing party in this case, and he does not suggest that a losing party is entitled to a fee award under the public interest rule. No fees were assessed against Dr. Storrs by the superior court, and there is therefore no occasion to consider whether such an award was inappropriate. Even if the posture of this case were such as to present Storrs' claim that he is a public interest litigant, we would hold that Storrs' case was not a public interest lawsuit. We think that Dr. Storrs had a sufficiently strong private interest in challenging the Board's determination that he would have filed suit "even if [the action] involved only narrow issues lacking general importance." Kenai Lumber Co. v. LeResche, 646 P.2d 215, 223 (Alaska 1982). See Newman v. Piggie Park Enterprises, 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263, 1265-66 (1968) (per curiam); F/V American Eagle v. State, 620 P.2d 657, 673-74 (Alaska 1980), appeal dismissed, 454 U.S. 1130, 102 S.Ct. 985, 71 L.Ed.2d 284 (1982); Anchorage v. McCabe, 568 P.2d 986, 990 (Alaska 1977). The superior court's order affirming the State Medical Board's revocation of Dr. Henry G. Storrs' license to practice medicine is AFFIRMED. CONNOR, J., not participating. APPENDIX OPINION OF THE SUPERIOR COURT FOR THE STATE OF ALASKA, THIRD JUDICIAL DISTRICT (May 12, 1982) (Edited.) BRIAN SHORTELL, Superior Court Judge. This is an appeal from a decision and order of the State Medical Board dated February 6, 1981, revoking the license of Dr. Henry Storrs. FACTUAL BACKGROUND Dr. Henry G. Storrs is a physician licensed by the State of Alaska to practice medicine. On September 26, 1979, the State Division of Occupational Licensing filed an Accusation seeking to limit, suspend or revoke his medical license. The Division alleged that Dr. Storrs was professionally incompetent pursuant to AS 08.64.-330(b)(2), and 12 AAC 40.970. The Division later filed amendments and supplemental accusations. Dr. Storrs filed his notice of defense on October 3, 1979. The appointed hearing officer, Rebecca Snow, conducted an eight-day hearing in August 1980. Ms. Snow heard the testimony of twenty-four witnesses, seventeen of whom were physicians, and three of whom were nurses. In addition to oral testimony, 600 pages of hospital records were submitted as exhibits. On December 19, 1980, the hearing officer filed a proposed decision with the State Medical Board, recommending revocation of Dr. Storrs' license to practice medicine. When the Medical Board met in a two-day session in February 1981, counsel for the State, Dr. Storrs, the hearing officer and Dr. Storrs' counsel were present. Before making its decision, the Board met for two hours in a closed session with the hearing officer present, accepted the proposed decision with some deletions, and entered a decision and order revoking Dr. Storrs' license. ISSUES ON APPEAL The appellant has raised the following five issues on appeal: I. AS 08.64.330(b)(2) and 12 AAC 40.970 are unconstitutionally vague and allow selective enforcement. II. The Board violated applicable statutory procedures. III. The Board's Decision is arbitrary and capricious and therefore lacks a reasonable basis. IV. The Board's findings are an abuse of discretion because they are not supported by substantial evidence. I. AMBIGUITY OF THE TERM "PROFESSIONAL INCOMPETENCE" The appellant contends that the term "professional incompetence," as it is defined in 12 AAC 40.970, is so ambiguous that it fails to give adequate notice of the conduct prohibited and therefore encourages arbitrary enforcement by the Medical Board. While our Court has not yet addressed the constitutionality of the term "professional incompetence," a Colorado court has upheld an entire statutory provision that included this term. See State Board of Dental Examiners v. Savelle [90 Colo. 177], 8 P.2d 693 (Colo.1932). Most courts considering due process as it relates to licensing statutes and regulations have followed the reasoning of Connally v. General Construction Co., 269 U.S. 385 [46 S.Ct. 126], 70 L.Ed. 322 (1926), requiring that the statutory language be understandable to men of ordinary or common intelligence. In testing the vagueness of a broadly drawn licensing statute, the court in Kansas State Board of Healing Arts v. Acker [228 Kan. 145], 612 P.2d 610, 616 (Kan.1980), applied a standard of "common understanding and practice." There the terms "immoral conduct" and "dishonorable conduct" were upheld against a due process attack. The New York Court of Appeals has said, in considering a dentist's challenge to the statutory term "unprofessional conduct," that licensing regulations do not have to be so narrowly drawn that they actually "define with particularity acts which would constitute unprofessional conduct." Bell v. Board of Regents [295 N.Y. 101], 65 N.E.2d 184, 187 (N.Y.1946). The court was of the opinion that the professional conduct demanded of practitioners was not only embodied in their code of ethics but discernible to a "qualified person." Compare Pennsylvania State Board of Pharmacy v. Cohen [448 Pa. 189], 292 A.2d 277 (Pa.1972). An Oregon court recently ruled that the term "unprofessional conduct" in a licensing statute was "constitutionally adequate as a directive giving the board authority to prescribe standards under which its licensees will be subject to professional discipline." Megdal v. Oregon State Board of Dental Examiners [288 Or. 293], 605 P.2d 273, 275 (Or.1980). An issue in Cohen, supra, and Medgal, supra, was whether statutory language, similar to that challenged by Dr. Storrs here, gave the licensee, rather than the administrative agency, constitutionally adequate notice of proscribed conduct absent administrative regulations further specifying the prohibited acts. However, the statutory term "professional incompetence" (AS 08.64.330(b)(2)) at issue here has been further defined in the regulations governing the State Medical Board (12 AAC 40.-970). Thus, the question posed is whether the term "professional incompetence," as it is defined by the regulation, violates the constitutional due process guarantee. The dictionary definition of the term "professional incompetence" is reasonably straightforward. And, as further defined, the challenged term gives a physician adequate notice of the degrees of skill, knowledge, and competence which will be required of him. Twelve AAC 40.970 (amended 1980, 1981) provided: "[Professional incompetence" means lacking in sufficient knowledge or skills or both, in that field of practice in which the physician concerned engages, to a degree likely to endanger the health of his patients. While "professional incompetence" is a broad term, it is not so vague that the administrative agency responsible for implementing the statute cannot formulate standards for professionals subject to its dictates. Read together, the statute and administrative regulation are not so ambiguously drawn that a qualified practitioner with ordinary intelligence and knowledge of professional ethics would be deprived of fair notice of the minimum standard of competence required. When administrative regulations interpreting licensing statutes follow the general policy of the statutes, courts tend to uphold those regulations. See Megdal v. Oregon State Board of Dental Examiners, supra. Further, statutory construction adopted by those responsible for administering a statute should not be overruled in the absence of "weighty reasons." Kelly v. Zamarello, 486 P.2d 906 (Alaska 1971). See also, Whaley v. State, 438 P.2d 718 (Alaska 1968). While the appellant contends that the allegedly vague language of the statute and regulation encourages selective and arbitrary enforcement by the Board, the evidence presented has not shown a history or pattern of arbitrary enforcement by the Board. See Summers v. Anchorage, 589 P.2d 863 (Alaska 1979). The Board in fact seems to have a minimal history of enforcement; the Storrs case is, apparently, the first time the Board has considered the revocation of a physician's license. In any event, the statute and regulation do not by reason of their language alone, show a danger of arbitrary enforcement; and, the fact that Storrs is the first physician whose license has been revoked does not, without reliable evidence showing arbitrary or selective enforcement, establish a constitutional violation not demonstrated by the statutory language. That language is not unconstitutionally vague and it has not been shown to have resulted in selective and arbitrary action by the Board. Therefore, Dr. Storrs' contentions cannot prevail. II. VIOLATIONS OF APPLICABLE STATUTORY PROCEDURES Dr. Storrs contends the Medical Board violated AS 44.62.500(b), by meeting with the hearing officer for two hours in a closed session while the Board considered the pro posed decision. He bases his argument on the silence of section 500(b) regarding the presence of the hearing officer, and on alleged significant changes in the decision made during the closed session. AS 44.62.500(a), concerning contested cases heard before an agency, requires the hearing officer to be present when the agency considers its decision: (a) If a contested case is heard before an agency (1) the hearing officer who presided at the hearing shall be present during the consideration of the case and, if requested, shall assist and advise the agency; and (2) a member of the agency who has not heard the evidence may not vote on the decision. AS 44.62.500(b), involving contested cases heard by the hearing officer alone, does not make the presence of the hearing officer mandatory, nor does it prohibit the hearing officer from being present: (b) If a contested case is heard by a hearing officer alone, he shall prepare a proposed decision in a form which may be adopted as the decision in the case. A copy of the proposed decision shall be filed by the agency as a public record with the lieutenant governor and a copy of the proposed decision shall be served by the agency on each party in the case and his attorney. The agency itself may adopt the proposed decision in its entirety, or may reduce the proposed penalty and adopt the balance of the proposed decision. Dr. Storrs interprets section 500(b)'s failure to require the presence of the hearing officer as equivalent to a command that the hearing officer shall not be present during consideration of the case when she alone has presided over the hearings. The presence of the hearing officer at section 500(a) deliberations "to assist and advise" has been determined by the legislature to be mandatory to avoid possible procedural and substantive errors. However, the formalized procedures of section 500(b) are not controlled by the previous section. In section 500(b) proceedings, the Board, which has not heard the evidence directly, has the advantage of a formal, written proposed decision for its consideration, one which has been at the Board members' and the parties' disposal prior to deliberations. The Storrs case is an example of a complex, formalized proceeding governed by section 500(b). After extensive evidentiary proceedings presided over by the hearing officer, the thirty-page proposed decision in Dr. Storrs' case was filed December 19, 1980; the Board's decision was made on February 6, 1981. The parties and the Board had the proposed decision before the February 6 meeting. Dr. Storrs' counsel filed a ten-page memorandum dated one date prior to the meeting setting out his objections to the proposed decision, some of which were accepted by the Board. In a less complex proceeding, the presence of a hearing officer to assist and advise an administrative agency should not always be required. Cases under consideration might be simpler; or the proposed decision might not refer to a voluminous evi-dentiary record. In Dr. Storrs' case, however, the proposed decision was long, technical, and complex; it had been submitted after extensive evidentiary proceedings which did not take place before the Board; and there were objections from Dr. Storrs that the hearing officer's presence could have been a substantial factor in helping the Board to resolve. In such circumstances, the Board clearly felt the hearing officer should be present. The absence of a mandatory phrase requiring the hearing officer's presence in section 500(b) deliberations cannot reasonably be interpreted to deprive the Board of the discretion to receive valuable assistance in a case such as this which so clearly required the hearing officer's assistance. The Board was not required to exclude her from its consideration of the proposed decision. Dr. Storrs also contends the Board erred by refusing to allow him additional argument after it indicated what its decision would be. This argument is based on two assumptions: (1) The proposed decision was not "adopted" as that word is used in AS 44.62.500(c); and, therefore, (2) section 500(c) required the Board to provide "at a minimum . either oral or written argument." Appellant's contentions have no merit. The Board's February 6 decision "adopted with amendments" the proposed decision. The amendments made were minor, the most significant deletion being passages concerning the use and administration of the drug Mepergan. These changes favored Dr. Storrs and they appear to have been made at the urging of his counsel; they cannot reasonably be construed as a failure of the Board to adopt the proposed decision. Thus, they did not bring section 500(c) into operation, and additional oral or written argument was not required. Additionally, the Board did give Dr. Storrs' counsel the opportunity to argue "on the amendments," which counsel declined to do, presumably because he wished instead to argue other matters. Additional argument under these circumstances was neither warranted nor required. III. STANDARD OF REVIEW Initially, as to this portion of his attack on the Board's decision, Dr. Storrs contends that the Medical Board, composed of five physicians and two lay persons, lacks the expertise to decide thoroughly and fairly the issue of revocation of a doctor's license to practice medicine and asks the court to substitute its independent judgment for that of the Board. Storrs further alleges that a lawyer is not capable of rendering a competent decision in the field of medicine. The hearing officer, a lawyer, heard the testimony of twenty-four witnesses, seventeen of whom were doctors, many of whom practiced in Fairbanks, knew Dr. Storrs personally, and some of whom had worked with him on one or more of the cases in question. Medicine is a complex subject and the State Medical Board is charged with the statutory authority and responsibility of regulating the practice of medicine. The Board is a competent body equipped with the necessary medical knowledge to determine whether a doctor's license to practice should be revoked. See AS 08.64.010; AS 44.62.340; AS 44.62.350; Kansas State Board of Healing Arts v. Foote [200 Kan. 447], 436 P.2d 828, 834 (Kan.1968). I see no justification for substitution of my independent judgment for that of the hearing officer, whose diligence and capability are demonstrated in this record, or the Board, a majority of whom are professionally trained in the field of medicine. Secondarily, appellant argues for review under the "substantial evidence" test. See AS 44.62.570. Under this standard, the reviewing court does not reweigh the evidence or choose between competing inferences; it only determines whether such evidence exists. Interior Paint Co. v. Rodgers, 522 P.2d 164, 170 (Alaska 1974). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Keiner v. City of Anchorage, 378 P.2d 406, 411 (Alaska 1963). The Board disagrees with Dr. Storrs as to the appropriate standard of review. It argues for application of the "reasonable basis" test. This test is used for the most part in cases concerning administrative expertise as to either complex subject matter or fundamental policy considerations; it is used to review agency action which is "essentially executive in nature." See Kelly v. Zamarello, supra. The reasonable basis test requires deference to be given to an administrative determination if it has a reasonable basis in law and fact. Alaska Public Utilities Commission v. Chugach Electric Association, 580 P.2d 687, 694 (Alaska 1978), overruled on other grounds, City and Borough of Juneau v. Thibodeau, 595 P.2d 626, 629 (Alaska 1979). The reasonable basis test permits the reviewing court to consider factors of agency expertise, policy, and efficiency in reviewing discretionary decisions; it is similar to the standard of "unreasonable, arbitrary, and capricious action" under which actions committed to agency discretion are traditionally reviewed. Jager v. State, 537 P.2d 1100, 1107 (Alaska 1975). It is not surprising that the parties cannot agree on the appropriate review standard. There would appear to be a similar dispute among members of the Alaska Supreme Court. See State, Department of Labor v. Boucher, 581 P.2d 660 (Alaska 1978), in which the court split 3-2 on the question whether the Labor Department's conclusion that unemployment benefit applicants were "not available for suitable work" should be reviewed under the substantial evidence or reasonable basis test (final score: substantial evidence: 3, reasonable basis: 2). Resolution of this question should depend on the nature of the administrative process under review. Dr. Storrs' revocation hearing was more like a judicial than an executive proceeding. It began with an accusatory pleading and continued along lines substantially similar to those in a contested court case. The ultimate decision depended primarily on findings of fact, which are traditionally reviewed by application of the substantial evidence test. Jager v. State, 537 P.2d at 1107. Although revocation proceedings of the Medical Board do involve "agency expertise" in the sense that the majority of the Board members are doctors who are appointed, presumably, for their expertise in the field, this expertise and the presence of complex medical subject matter does not automatically transform what is primarily a quasi-judicial proceeding into one in which considerations of "agency expertise, policy, and efficiency in reviewing discretionary decisions" are fundamental. See Jager v. State, 537 P.2d at 1107. I have concluded Storrs is correct in recommending the "substantial evidence" test. I have used this test in deciding this part of his appeal. A short summary of the evidence will be given in the next section of this opinion. This summary by no means approaches the detail with which the hearing officer listed the evidence in her findings; it is intended merely to describe major areas of the record which tend to support my conclusion that the record is adequate as a basis for the Board's conclusion that clear and convincing evidence was presented proving Dr. Storrs' professional incompetence. IV. SUBSTANTIAL EVIDENCE Dr. Storrs' performance as a physician was evaluated according to the regulatory standard of 12 AAC 40.970. Under that standard, the evidence presented must show that as a medical practitioner, Dr. Storrs lacks "sufficient knowledge or skills or both, in that field of practice" in which he engaged "to a degree likely to endanger the health of his . patients." The hearing officer applied a "clear and convincing" standard of proof in evaluating the evidence. Based on the nature of the proceedings and the reasoning of the supreme court in In Re Hanson, 532 P.2d 303 (Alaska 1975), the hearing officer decided that a high standard of proof was appropriate. Hearing Officer Snow heard eight days of oral testimony from physicians familiar with Dr. Storrs. In addition, she read all the depositions published before and during the hearing and reviewed over 600 pages of hospital records. She specifically stated her reasons for not giving the testimony of certain expert witnesses the same weight as other doctors who showed a detailed knowledge of the facts and challenged medical procedures. Based on the cumulative evidence presented, Hearing Officer Snow concluded that Dr. Storrs demonstrated a pattern of inadequacy which "greatly increased the exposure of his patients to risks of injury, pain and death." "The patterns of inadequacy and failure suggested by these cases include the inability to foresee and recognize common complications, the inability to recognize a need for a consultation regarding a developing complication, and the ina bility to identify and apply the most direct and appropriate diagnostic and corrective measures once a complication has developed." Five of Dr. Storrs' cases were the primary focus of the evidentiary inquiry. These cases took place in the years 1972 to 1977. In 1972, in a case in which a pregnant woman had a prolapsed umbilical cord which extended outside the vagina, Dr. Storrs attempted manual dilation of the patient's cervix, testified to by one witness as an "operation [which] has no place in modern obstetrics," "a deviation from accepted obstetrics procedure" and not really manual dilatation, but "manual laceration of the cervix." Testimony was presented that the procedure created a risk to the woman of an "incompetent cervix," not a risk to the baby being delivered, but a risk to the patient's next baby, were she to become pregnant again. In the next case, a 1975 case involving a woman in childbirth who had a retained placenta, Dr. Storrs did not take steps to remove those portions of the placenta which had not been expelled or removed after the birth. Inordinate delay in removing a retained placenta, according to one physician practicing obstetrics and gynecology, involves a risk of infection and bleeding. In addition, Dr. Storrs did not call in a consultant. Although no serious consequences ensued, his actions in this case were deemed a "significant deviation from accepted practice." Again in 1975, Dr. Storrs treated a young woman for lacerations, abrasions, and a possible concussion received in a mini-bike accident. A Fairbanks plastic surgeon testified Storrs' work left dirt and foreign material in the patient's facial wounds which caused a "tattooing" effect which later required plastic surgery. This "tattooing," according to the witness, was caused by inadequate cleaning of the wounds. Again, according to the witness, there was no possible justification for the amount of foreign material left in the patient's wounds. The witness also testified to a personal experience in which Dr. Storrs had not accepted his offer to teach Storrs updated methods of burn care. Once again in 1975, Dr. Storrs performed an intestinal bypass operation on a patient suffering from morbid obesity. His initial work-up on the case was described by an expert witness for the State as follows: "[I]n all my years of practice I've never seen a more inadequate history or one that's shorter." According to this witness, Dr. Storrs' mistakes in this case were "so all-embracing and so serious as to not constitute the ordinary run-of-the mill mistakes that every physician can and often does make." Also, this witness testified to Storrs' apparent reluctance to consult others. His testimony on this point was corroborated by other witnesses, who had personal knowledge of the procedures used in the bypass case, and of Storrs' reluctance to consult others. The bypass patient ultimately died. The final case considered in depth was a liver biopsy performed in 1977. The hearing officer's conclusions can be summarized as stating that Dr. Storrs' procedures in this operation and its post-operative stages showed a lack of knowledge and skill about the procedure, failure to be aware of and deal with common post-operative complications, and inadequate response to the emer gency situation which ultimately developed before the patient died. These conclusions are amply supported in the record. The hearing officer filed almost thirty pages of detailed, accurate factual findings and balanced, thoughtful conclusions which are more than adequate to survive the substantial evidence test. As to the Board's ultimate decision to revoke Dr. Storrs' license, and the expertise of the Board members, on the basis of which Dr. Storrs apparently would have me either (1) substitute my judgment because of an inability to detect "the earmarks of thoroughness and fairness," or (2) reverse for failure of the record to establish a reasonable basis for the decision, or (3) reverse for lack of substantial evidence, I can only say that the record shows the procedures below were thorough, comprehensive and fair. The findings and conclusions are supported by substantial evidence, and the decision clearly has a reasonable basis. Dr. Storrs' appellate presentation is somewhat confusing in its melding of concepts of arbitrary and capricious action, reasonable basis, and substantial evidence. If he is arguing for reasonable basis review, it is clear the record meets this test as well as the substantial evidence standard, since the Board's procedures, findings, conclusions and ultimate decision have a reasonable basis in law and fact, and fall far short of being unreasonable, arbitrary and capricious. See Alaska Public Utilities Commission v. Chugach Electric Association, 580 P.2d 687, 694 (Alaska 1978); Jager v. State, 537 P.2d 1100, 1107 (Alaska 1975). If, on the other hand, Storrs' argument as to the reasonable basis of the Board's decision is merely an extension of his constitutional argument, that argument has been rejected in section I of this opinion. CONCLUSION After a review of the record and the briefs, and after oral argument in this case, I affirm the decision of the State Medical Board to revoke Dr. Storrs' license to practice medicine. . The standards employed by the State Medical Board were those found in AS 08.64.330(b) and 12 AAC 40.970. AS 08.64.330(b) provides that: After a hearing, a license may be suspended, limited, revoked or annulled, or the licensee may be reprimanded, censured or disciplined by the board for (1) unprofessional or dishonorable conduct as defined in AS 08.64.380(3), (2) professional incompetence, or (3) a violation of this chapter or a regulation adopted under it. 12 AAC 40.970 (amended 1980, 1981) defined "professional incompetence" as follows: As used in AS 08.64 and these regulations, "professional incompetence" means lacking sufficient knowledge or skills or both, in that field of practice in which the physician concerned engages, to a degree likely to endanger the health of his patients. Dr. Storrs contends that all doctors would be found incompetent under these standards, because all doctors have gaps in their knowledge, and this endangers their patients. In order to satisfy the requirements of due process, Storrs, a Fairbanks practitioner, claims that the level of his performance should have been measured against the standard of medical ability prevalent in Fairbanks and similar communities. . Relevant portions of AS 44.62.500 are set out in the superior court decision which is attached, in slightly edited form, as an appendix to this decision. See infra, pp. 552-554, for provisions of AS 44.62.500 pertinent to this discussion. . Dr. Storrs' claim notwithstanding, we note that there is no rule in Alaska law that a public interest litigant must be awarded full attorney's fees. We have held that private attorneys general should be awarded fees in conformity with the federal policy first articulated in Newman v. Piggie Park Enterprises, 390 U.S. 400, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968) (per curiam). Anchorage v. McCabe, 568 P.2d 986, 990 (Alaska 1977). We have held that under McCabe, the trial court has "discretion to award full or only partial fees to public interest plaintiffs." Hutcherson v. State, 612 P.2d 1017, 1018 (Alaska 1980) (per curiam) (footnote omitted). . We have held on past occasions that it is an abuse of the trial court's discretion to assess attorney's fees against a litigant who in good faith has litigated issues of substantial public importance. Whitson v. Anchorage, 632 P.2d 232, 233-34 (Alaska 1981); Douglas v. Glacier State Telephone Co., 615 P.2d 580, 594 (Alaska 1980); Gilbert v. State, 526 P.2d 1131, 1136 (Alaska 1974). . Incompetent: "Without adequate ability, knowledge, fitness, etc.; failing to meet requirements; incapable; unskillful." Webster's New World Dictionary (2d College Edition). . An indication of the hearing officer's objectivity and balanced approach to the evidence should be noted here. The passage quoted is very strong and might have been the basis for a finding that unequivocally condemned Storrs' work-up procedures in the bypass case. However, the finding does not concentrate solely on the quoted phrase. Instead, it reads as follows: The record reflects limited testing work-up and no psychological examination in preparation for the operation. There is no indication that Respondent explained the extensive possible complications of the operation to the patient. However, at the time of this operation, ileojejunal bypasses were widely performed throughout the country without much more in the way of a work-up of the patient. This type of careful comparison of evidence both favorable and unfavorable to Storrs is the rule, rather than the exception, in the hearing officer's decision.

10426276

Dianne WANBERG, Appellant, v. John WANBERG, Appellee

Wanberg v. Wanberg

1983-05-13

No. 6219

568

575

664 P.2d 568

664

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

Dianne WANBERG, Appellant, v. John WANBERG, Appellee.

Dianne WANBERG, Appellant, v. John WANBERG, Appellee. No. 6219. Supreme Court of Alaska. May 13, 1983. William T. Ford, Anchorage, for appellant. John S. Hellenthal, Anchorage, for appel-lee. Before BURKE, C.J., and RABINOWITZ, MATTHEWS and COMPTON, JJ.

3939

24034

OPINION RABINOWITZ, Justice. This is an appeal of a property division entered by the superior court. The court awarded Dianne Wanberg property and rehabilitative alimony in the approximate total amount of $52,500, in the context of a marital estate valued at approximately $704,450. Dianne challenges the division as an abuse of the superior court's discretion. The Wanbergs were married for five and one-half years. John Wanberg entered the marriage with substantial assets, consisting chiefly of various real property holdings. Dianne calculates John's net worth as $366,-000 at the time of their marriage, while John claims that the correct figure is $600,-000. It is undisputed that Dianne's net worth was $38,000 at the time of the parties' marriage, consisting of clothing, jewelry, and other personal property. Statutory criteria governing the disposition of property in divorce actions are found in AS 09.55.210(6), which provides: In a judgment in an action for divorce or action declaring a marriage void or at any time after judgment, the court may provide (6) for the division between the parties of their property, whether joint or separate, acquired only during coverture, in the manner as may be just, and without regard to which of the parties is in fault; however, the court, in making the division, may invade the property of either spouse acquired before marriage when the balancing of the equities between the parties requires it . In this appeal, Dianne Wanberg challenges the failure of the superior court to include certain items of property in the base of properties it concluded were subject to distribution. Dianne contends that the superi- or court erroneously excluded property acquired after the marriage from the property base. She also claims that the bulk of John's pre-marital holdings should have been made subject to equitable division, because during the marriage these assets were treated by them as joint holdings. A. Standard of Review The standard of review applied by this court in property division cases is to determine whether the trial court's division was within the broad discretion granted by AS 09.55.210(6). We have held that a distribution made within the perimeters of AS 09.55.210(6) will not be disturbed unless it is clearly unjust. There is a separate question to be asked by this court on review, however, and that is whether the trial court applied the correct legal standard in the exercise of its broad discretion. With respect to legal analysis employed at the trial court level, review is based upon our independent judgment. Walsh v. Emerick, 611 P.2d 28, 30 (Alaska 1980); Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979) ("[o]ur duty is to adopt the rule of law that is most persuasive in light of precedent, reason, and policy"). Equitable division of marital assets by the superior court involves a three-step procedure. First, the trial court must determine what specific property is available for distribution. Second, the court must find the value of this property. Third, it must decide how an allocation can be made most equitably. The first stage of the process is in large part a legal determination, involving the interpretation of AS 09.55.210(6), and applying legal principles to the facts of the case. AS 09.55.210(6) places all property acquired during the marriage, "whether joint or separate," before the court for purposes of division. Furthermore, the statute authorizes invasion of pre-marital holdings of either spouse "when the balancing of the equities between the parties requires it." We have held that the trial court has broad discretion with respect to invasion of pre-marital assets, and that decisions to invade will not be overturned absent a clear abuse of discretion. In limited circumstances invasion of one spouse's property acquired before cov-erture may be required as a matter of law. One such circumstance is where the parties, by their actions during marriage, demonstrate their intention to treat specific items of property as joint holdings, even though the properties were separately held by one or another spouse prior to coverture. Such intention is manifest when both spouses can be shown to have taken an active interest in the ongoing maintenance, management, and control of specific assets. Where such circumstances exist, basic fairness requires that property treated by the spouses as jointly held be available for equitable division under AS 09.55.210(6). B. Property Subject to Division We must first decide whether the superior court correctly determined which properties would be subject to equitable division, and which would not. We hold that the court erred in concluding that AS 09.55.210(6) authorized exclusion of four of the items of property from the base of marital property subject to distribution, because we conclude that the property was either a post-coverture acquisition within the meaning of AS 09.55.210(6), or was treated as a joint holding by the Wanbergs during their marriage. 1. Grandview Heights five-plex John Wanberg owned the Grandview Heights property before marrying Dianne. In 1976, the Wanbergs negotiated a loan to build a five-plex on this property. John and Dianne collaborated in making design decisions on the five-plex, and together they made alterations in the rental units and the owner units. Construction was complete by November 1976, and the Wan-bergs made the building their personal residence. In December 1976, the Wanbergs negotiated a permanent loan on the five-plex. Both spouses' names were on the deed of trust note. During the time that the Wanbergs owned the five-plex, Dianne did janitorial work in the units and common areas, advertised vacancies, showed units, entertained prospective tenants and collected overdue rents. The trial court treated the Grandview property primarily as a pre-coverture asset not subject to equitable division, with the exception of appreciation attributable to the combined efforts of the parties. According to the court's findings, the Grand-view lot had a net increase in value of $31,100 during the years of the Wanbergs' marriage, but that only $11,000 of this was a consequence of the erection of the five-plex on the property. Apparently in recognition of the fact that the five-plex was a joint project of the Wanbergs, the court awarded Dianne $5,500 based upon her share of the "marital asset equity" in the Grandview property. We hold that the entire equitable value of the Grandview property and five-plex should have been considered by the court in determining this portion of the division. The Wanbergs consistently combined their efforts in improving and managing the property, and used the building as their joint personal residence for nearly two years. Although Dianne's name never appeared on the title to the Grandview lot, she signed jointly with John when a permanent $120,000 loan was taken against the property. Under these circumstances, we hold that it was an abuse of discretion for the trial court to shield the property from equitable distribution merely by affixing to the property the label of "pre-marital asset." There may well be reason for granting less than an even share in this property to Dianne, but we hold that such a determination must be made through the exercise of the trial court's equitable discretion, to be guided by the factors relevant to such determinations, and to be articulated in terms of those factors. 2. Gambell Street properties John Wanberg owned two commercial buildings on Gambell Street, which the parties have designated Gambell 1 and Gambell 2. Gambell 1 had two commercial tenants, and also served as the Wanbergs' residence in the early months of their marriage, until November 1976. Gambell 2 also had two commercial tenants. During the years of 1975 and 1976, Dianne contributed to the general management of the two Gambell properties. She worked on the remodeling and redecorating of Gambell 1, entertained tenants, helped with general maintenance, collected rents, accounts payable, paid bills, kept records for the business, and prepared information for the Wanbergs' accountants. Through 1978, while the Wanbergs were not living in Gambell 1, Dianne continued to help with the management of the Gambell properties, collecting rents, and doing bookkeeping for the rental space. Late in 1977, the Gambell properties were placed on the market, and Dianne cleaned the properties in order to put them in saleable condition. In 1978, when other properties owned by the Wanbergs had been sold, Dianne persuaded John not to sell the Gambell properties. In the same year, the Wanbergs moved back into Gambell 1, after making substantial improvements in the owner unit. The trial court did not make findings regarding the value of Gambell 1, at the time of the Wanbergs' marriage, or at the time of their divorce, and did not calculate the property's overall increase in value during the marriage. Instead, the court found the property gained $25,000 in value "as a result of the parties [sic] efforts during marriage." Any appreciation in excess of this figure the court ascribed to inflation. Similarly, the superior court did not make findings with respect to the value of Gam-bell 2 before or after the Wanbergs' marriage, but concluded that the indeterminate increase in the property's worth was "attributable predominantly and almost solely to the phenomenon [of] inflation." We conclude that, at least with respect to the trial court's treatment of Gambell 1, we must remand for redetermination. As with the Grandview Heights property, Dianne played an important role in the ongoing business affairs associated with Gambell 1, and devoted her energies toward maintaining and improving the property. There is every indication that both parties' assumed joint responsibility for the affairs of Gam-bell 1 as a business enterprise. In addition, Gambell 1 served as the Wanbergs' residence for the greater part of their marriage. We conclude that fairness demands that Gambell 1 not be shielded from the trial court's equitable power of distribution merely because it was a pre-marital asset. The Gambell 2 property, however, presents a different situation. In its resolution of this case the superior court stated in part that, "I do not credit [Dianne] with having made any significant contribution" to the Gambell 2 property. While Dianne in her brief attempts to show that her degree of involvement with Gambell 2 was on a level with Gambell 1, her testimony at trial undermines this claim. On this record we cannot say that it was an abuse of the trial court's discretion to exclude Gam-bell 2 from the property division as a premarital asset. 3. Arizona townhouse In May 1979, the Wanbergs traveled to Arizona and purchased a townhouse in Scottsdale for investment purposes. Dianne and John searched together for a suitable property. Dianne helped select the townhouse that the couple purchased and signed the earnest money agreement. In August of 1979, the Wanbergs returned to Arizona for the closing. John and Dianne stayed in Scottsdale and worked to get the townhouse in shape for rental use. They rented it out for the season. Dianne purchased the furnishings for the building. Once the townhouse was in operation, the Wanbergs scheduled trips to Arizona twice a year for four to six weeks, during which they stayed in their townhouse. The superior court found that the townhouse was worth $70,000 at the time of trial by splitting "down the middle" the estimates offered by the parties. The purchase price had been $56,500. The superior court found that the townhouse had appreciated in value by $13,500 since its purchase, and divided this sum equally between the parties. We think that the trial court's action with respect to the townhouse was in error for the following reasons. First, both spouses were sufficiently involved in the purchase and management of the property to require a finding that they considered it a joint holding. Second, it is clear that the townhouse was a post-marital acquisition within the meaning of AS 09.55.210(6), and thus the superior court was not free to exclude any portion of it from the property base subject to equitable disposition. AS 09.55.210(6) mandates that all property ac quired during coverture, "whether joint or separate," be included among the assets subject to division. Therefore, even absent a finding that the Wanbergs treated the townhouse as a joint possession, we are compelled to remand under the statute for a division of the full equity value of the property. 4. Cessna. 206 airplane In September 1976, the Wanbergs purchased a Cessna 206 airplane for $31,950 in cash. The trial court found that the Cessna 206 had neither increased nor decreased in value since its purchase. The court made no award to Dianne based upon the value of the airplane because it concluded that the Cessna 206 "was purchased primarily with proceeds of another premarital asset to-wit, another airplane, a Cessna 182 [owned by John prior to the marriage]." It is true that John Wanberg owned a Cessna 182 before his marriage to Dianne, which he eventually sold for $11,500. The sale of this airplane, however, occurred nine months after the acquisition of the Cessna 206. Under these circumstances, it was error on the trial court's part to find that proceeds from the Cessna 182 had gone into the purchase of the Cessna 206. We conclude that the Cessna 206 was an item of property "acquired . . . during cov-erture" within the meaning of AS 09.55.-210(6), and that it should not have been excluded on this basis from the property division made by the trial court. On remand, the superior court is to exercise its discretion in making a fair apportionment between the parties of the full value of the airplane. C. Remand Earlier we noted that the procedure for a property division in the superior court is comprised of three stages: (1) determining what property is eligible for distribution, (2) determining the value of that property, and (3) making an equitable division. Our analysis in this case has been concerned with part (1) of the above process. With respect to the five-plex, the Arizona townhouse, and the airplane, stage (2) has already been carried out. No valuation has yet been made of the Gambell 1 property, however, and that must be accomplished on remand. Following that, the superior court is directed to make an equitable division based upon the full equity value of each item of property. The "principal factors" to be weighed by the superior court in reaching a division of property are: (a) the ages of the parties; (b) their earning capacity; (c) the duration of the marriage; (d) the conduct of the parties during marriage; (e) their "station in life"; (f) the circumstances and necessities of each; (g) their health; (h) their financial condition; (i) the time and manner of acquisition of the property in question; (j) the value of the property at the time of division; (k) the income-producing capacity of the property. Merrill v. Merrill, 368 P.2d 546, 647-48 n. 4 (Alaska 1962). These Merrill factors have been consistently reiterated by this court in subsequent opinions. The Merrill criteria will be of increased usefulness to a trial court in its determination of an equitable division of property, if the court begins its consideration of the Merrill factors with the presumption that the most equitable divi sion of the property is an equal division. This starting point is intended to provide a grounding point by which the relevance of the Merrill factors may be determined. In the past we have held that there is no requirement that the ultimate division made by the trial court must be an equal one. Rostel v. Rostel, 622 P.2d 429, 432 (Alaska 1981); Hurn v. Hurn, 541 P.2d 360 (Alaska 1975). In no sense do we intend to modify these decisions. The trial courts will still retain broad discretion in assigning weight to the various factual elements highlighted in Merrill. D. Conclusion With respect to the four items of property discussed in Part B of this opinion, we reverse and remand this case to the superior court for a redetermination of the division of property in conformity with this opinion. AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings not inconsistent with this opinion. . The factual questions of the valuation of John Wanberg's estate at the time of marriage, and of the full marital estate at the time of the property division, were hotly contested at trial, and were never resolved by the trial court. In its Findings of Fact and Conclusions of Law, the superior court made specific findings with respect to the values of only some of the properties held by Dianne and John Wanberg. . John owned thirteen separate real estate parcels, a Ford van, and a Cessna 182 airplane in May 1975. . Dianne presents alternate calculations that John's net worth in May 1975, was $274,450, and $376,033. . John's alternate calculation is set forth in his brief without any supporting documentation from the record. John brought to trial a list of pre-marital assets and assigned valuations to-talling $366,000. Although the list was marked as "Defendant's Exhibit B," and John's counsel stated his intention to introduce the exhibit during the trial, it was never made part of the record. . Dianne asserts that, "all the parties' assets were treated as marital assets throughout the marriage; no effort was ever made to separate John's pre-marital properties and through Dianne's efforts in managing and preserving his other assets, she enabled John to keep his pre-marital properties intact." . Rosson v. Rosson, 635 P.2d 469, 471 (Alaska 1981); Hinchey v. Hinchey, 625 P.2d 297, 304 (Alaska 1981); Malone v. Malone, 587 P.2d 1167 (Alaska 1978); Bailey v. Bailey, 567 P.2d 315, 316 n. 1 (Alaska 1977); Hager v. Hager, 553 P.2d 919, 924 (Alaska 1976); Courtney v. Courtney, 542 P.2d 164, 169 (Alaska 1975); Burrell v. Burrell, 537 P.2d 1, 4 (Alaska 1975); Vanover v. Vanover, 496 P.2d 644, 645 (Alaska 1972); Crume v. Crume, 378 P.2d 183, 186 (Alaska 1963). . Compare the New Jersey Supreme Court's decision in Rothman v. Rothman, 65 N.J. 219, 320 A.2d 496, 503 (N.J.1974). . Prior to amendment in 1968, AS 09.55.210(6) provided for the equitable division of all property owned by both spouses, whether jointly or separately held, and whether acquired before or after coverture. In Vanover, we examined the amendments to AS 09.55.210(6) against the backdrop of its earlier form. We concluded that the 1968 amendments should not be read "as circumscribing in any significant manner the broad discretion which we have heretofore found vested in the trial court in regard to property division matters." 496 P.2d at 648. . Vanover v. Vanover, 496 P.2d 644, 647, 648 (Alaska 1972); Ross v. Ross, 496 P.2d 662, 664-65 (Alaska 1972). In Burrell v. Burrell, 537 P.2d 1, 6 (Alaska 1975), we ordered inva sion of pre-marital assets where the superior court had declined to invade. There are no cases currently in Alaska law where a trial court's ruling was overturned for improper invasion of pre-coverture property. In Vanover, we stated that the standards regarding the trial court's discretion in determining whether to invade precoverture property are the same as those applied to the actual property division. .It might be said that under certain conditions the trial court has no discretion to refuse to invade or, alternatively, that some fact situations are sufficiently compelling that a refusal to invade is clearly unjust. See Burrell v. Burrell, 537 P.2d 1, 6 (Alaska 1975). In Burrell, the husband inherited a potentially valuable interest in a large California estate while still married. 537 P.2d at 2-3. The trial court treated this estate as premarital property, and declined to invade it in making the property division. Id. at 3. On review, we did not question the trial court's theory that the inheritance was to be classified as a pre-coverture asset, id. at 6 n. 15, but held that "a just division of the property of the parties required invasion of Homer's separate property, i.e., his California property, and the award of some portion of Homer's interest in this property to Teresa." Id at 6 (footnotes omitted). . In Rosson v. Rosson, 635 P.2d 469 (Alaska 1981), we upheld a nearly equal division of marital assets made by the trial court based upon its finding that "it was the intent of the parties to treat all property, whether initially separate or joint, as joint property . " Id. at 470. In approving the trial court's analysis, we noted that there was unimpeached testimony to the effect that the spouses "agreed that they would 'just put everything in one pot and go to work,' not worry[ing] about what went where.' " Id. at 471. In our opinion we alluded. to the fact that there was evidence "indicating that the parties considered themselves one economic unit." Id. . Dianne testified that, "We made constructual changes on our unit, and John and I basically did everything together . So we — on the units below, we approved what, or disapproved what [the builder] had picked in cabinets, flooring, lighting, the whole thing — bathroom—the whole concept." . Dianne testified that, "I was on the mortgage for the five-plex; I had to sign for the $120,000 debt.... Whenever John had to borrow money, I went down and signed my name for him." . Dianne testified that she, rather than John, would make personal contact with renters who were overdue with their payments because "maybe I have a softer way of doing it." . Relying upon the superior court's findings, we have calculated the net gain in the value of the lot as follows: Sale price of lot and five-plex $208,000 Out-of-pocket cost of five-plex - 158,900 Value of lot at marriage - 18,000 Net gain $31,100 . The trial court found that the sales price of the five-plex was $208,000. To the extent that this represents equity value in the property at the time of sale, the full proceeds should be subject to allocation by the court under AS 09.55.210(6). . Dianne claims that she intervened to stop the sale of the Gambell properties to avoid excessive capital gains liability. . The court did recognize that Dianne had made a contribution to the management of Gambell 2, but expressed its belief that this contribution was amply recompensed in other portions of the property award. . Dianne's testimony on this point was as follows: Q. And what did you have to do with that building, if anything, during the marriage, and the rentals thereof? A. The only thing I had to do with that, basically, was the remodeling of the Cosmetic Company, and . [collecting [rents] — I think we had rental problems with Diver's World after we moved into our five-plex, because I called their accountant all the time and thumbed them for the rent. . Given adequate factual findings, and a demonstration that the trial court weighed those facts in reaching its conclusion, we will not overturn a property division unless it is clearly unjust. See supra note 6, and Merrill v. Merrill, 368 P.2d 546, 548 (Alaska 1962). . Hinchey v. Hinchey, 625 P.2d 297, 304-05 (Alaska 1981); Burrell v. Burrell, 537 P.2d 1, 4 (Alaska 1975); Vanover v. Vanover, 496 P.2d 644, 645 (Alaska 1972); Stroecker v. Stroecker, 428 P.2d 384, 386 (Alaska 1967); Groff v. Groff, 408 P.2d 998, 1001 (Alaska 1965). . The criteria in Merrill are not exhaustive, and thus the trial court is free to consider additional factors which may be relevant in a particular case. . Because we remand on these substantive issues, we do not reach Dianne Wanberg's claim that the attorney's fee awarded was an abuse of the superior court's discretion.

10422312

Wesley LADD, Appellant, v. STATE of Alaska, Appellee

Ladd v. State

1983-06-10

No. 6969

178

182

664 P.2d 178

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.

Wesley LADD, Appellant, v. STATE of Alaska, Appellee.

Wesley LADD, Appellant, v. STATE of Alaska, Appellee. No. 6969. Court of Appeals of Alaska. June 10, 1983. Grant Callow, Asst. Public Defender, and Dana Fabe, Public Defender, Anchorage, for appellant. W.H. Hawley, Asst. Atty. Gen., Office of Sp. Prosecutions and Appeals, Anchorage, and Norman C. Gorsuch, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

2188

13600

OPINION SINGLETON, Judge. Wesley Ladd kidnapped and murdered John F. Rich. He was convicted of kidnapping, former AS 11.15.260, and first degree murder, former AS 11.15.010. His convictions were affirmed on appeal. Ladd v. State, 568 P.2d 960 (Alaska 1977), cert. denied, 435 U.S. 928, 98 S.Ct. 1498, 55 L.Ed.2d 524 (1978). In its decision, the Alaska Supreme Court rejected Ladd's contention that while he was in custody he was interrogated in violation of his rights guaranteed by the United States Supreme Court in Miranda v. Arizona, 384 U.S. 436, 475, 86 S.Ct. 1602, 1628, 16 L.Ed.2d 694 (1966). The court concluded that Ladd had waived his Miranda rights. In reaching its conclusion, the supreme court recognized that Ladd had invoked his right to counsel and that the police had continued to interrogate him. Nevertheless, the supreme court concluded that, in light of the totality of the circumstances, it was satisfied that the state had met its heavy burden of establishing a knowing, intelligent and voluntary waiver by Ladd of his Miranda rights. In reaching this conclusion, the supreme court conceded: We recognize that courts are not in agreement as to whether a defendant validly waives his Miranda rights where he asks to see an attorney but when faced with incriminating evidence or renewed interrogation by the police makes a confession. California takes the position that a confession elicited in any manner by the police, no matter how gentle the inquiry, is inadmissible under Miranda after a request has been made to see an attorney. Such a view facilitates the determination of whether police conduct has violated an accused's constitutional rights since only statements obtained from defendants who on their own initiative volunteer to talk to police would be admissible. However, we feel that this position circumscribes too narrowly the permissible scope of interrogation. Therefore we decline to adopt such a broad rule, and will instead carefully scrutinize the particular facts before us. See Lewis v. State, 565 P.2d 846 (Alaska 1977). 568 P.2d at 966 n. 8 (citations omitted). Ladd contends that in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), the United States Supreme Court adopted the "California Rule" holding that, once a person in custody invokes his right to counsel, he may not be interrogated further and that any statements obtained from him unless he.initiates contact with the custodial authorities must be suppressed. See Giacomazzi v. State, 633 P.2d 218, 221 n. 3 (Alaska 1981). Ladd argues that Edwards clearly repudiates the holding in Ladd and that it should be given retroactive effect to invalidate his convic tion. He therefore instituted proceedings for post-conviction relief in reliance on Criminal Rules 35(c)(1) and (7). The cited rules provide: Any person who has been convicted of, or sentenced for, a crime and who claims: (1) that the conviction or the sentence was in violation of the constitution of the United States or the constitution or laws of Alaska; (7) that there has been a significant change in law, whether substantive or procedural, applied in the process leading to applicant's conviction or sentence, when sufficient reasons exist to allow retroactive application of the changed legal standards; may institute a proceeding under this rule to secure relief. The trial court denied relief on the sole ground that Edwards would not be applied retroactively to convictions that became final prior to its publication. The parties are in agreement that a decision by this court that Edwards is retroactive would require remand to the superior court for a hearing to determine whether Ladd was entitled to relief under Edwards, a question not reached in. the trial court. Having reviewed the record and the authorities cited by the parties, we have concluded that Edwards should not be applied to judgments that were already final at the time it was decided. We reserve decision on the applicability of Edwards to cases which were not "final" as we use the term, i.e., those that were pending in the trial court or on direct appeal at the time Edwards was decided. Cf. Giacomazzi v. State, 633 P.2d at 220-21 (Giacomazzi was convicted in January 1979, Edwards was decided May 19, 1981; the Alaska Supreme Court applied the Edwards decision to Gia-comazzi on direct appeal without discussing retroactivity). We therefore affirm the decision of the trial court. We begin our discussion with a consideration of the recent United States Supreme Court decision in United States v. Johnson, - U.S. -, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982). There, a majority of the court determined that a prior decision in Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), which precluded war-rantless arrests of suspects in their own home, would be given limited retroactive application to all cases pending either in the trial courts or on direct review at the time Payton was decided. Justices Blackmun, Marshall, Powell and Stevens joined in an opinion expressly reserving the question whether Payton should be applied retroactively to cases that had become final prior to its announcement. Justice Brennan concurred indicating that in his view, the court's decision left undisturbed the retro-activity precedents as applied to convictions final at the time of decision. See Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). Justices White, Burger, Rehnquist and O'Connor dissented expressing the view that any retroactive application of a new constitutional decision is only appropriate where the doctrine's major purpose is to overcome an aspect of the criminal trial that substantially impairs its truthfinding function and so raises serious questions about the accuracy of guilty verdicts in past trials. In Stovall v. Denno, a proceeding of post-conviction relief from a final judgment, the supreme court declined to retroactively apply United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), prior decisions requiring exclusion of identification evidence which was obtained by exhibiting the accused to identifying witnesses in the absence of the accused's counsel. While the court obviously felt that the presence of counsel at lineups was valuable, it concluded that the absence of counsel did not necessarily taint the identification evidence or render jury verdicts based in part upon that evidence necessarily suspect. In reaching its conclusion, the court relied on a three-prong test derived from prior cases: The criteria guiding resolution of the question implicate (a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards. 388 U.S. at 297, 87 S.Ct. at 1970, 18 L.Ed.2d at 1203. We are satisfied that the purposes justifying the Edwards rule are sufficiently similar to the purposes supporting the rule requiring attorneys at lineups that application of the three-prong Stovall test leads to a comparable result. First, we note that the Edwards rule, like Miranda, its predecessor, is a prophylactic rule primarily intended to safeguard a defendant's constitutional rights and not to enhance the accuracy of jury verdicts. Certainly, the Edwards rule does to some extent ensure that a defendant's out of court statements will be accurately reported at trial just as the rule discussed in Stovall helps to ensure that a witness's out of court identification will be accurately made and accurately reported; however, the Miranda and Edwards rules, like the Wade/Gilbert rule, may require suppression of accurate as well as inaccurate information. See Johnson v. New Jersey, 384 U.S. 719, 729-30, 86 S.Ct. 1772, 1778-79, 16 L.Ed.2d 882, 889-91 (1966) (denying retroactivity to Miranda). There is nothing in the record in this case to support an argument that the statements which Ladd seeks to suppress were inaccurate. The Alaska Supreme Court rejected the claim that they were involuntary. See Ladd v. State, 568 P.2d at 967. The Alaska rule was not an anomaly but, in fact, reflected the prevailing view among state and federal courts considering the issue at that time. The cases are collected in White v. Finkbeiner, 611 F.2d 186, 192 (7th Cir.1979), vacated and remanded for reconsideration in light of Edwards, 451 U.S. 1013, 101 S.Ct. 3000, 69 L.Ed.2d 385 (1981), on remand White v. Finkbeiner, 687 F.2d 885 (7th Cir.1982). The White court did not discuss retroactivity in the decision it reached after remand. Finally, application of the Edwards rule to final judgments would have an adverse effect on the administration of justice because it would call into question all prior decisions by the police and by our trial courts reached in reliance on our supreme court's decision in Ladd. In reaching our conclusion that Edwards should not be applied retroactively to judgments final before it was decided, we are aware that a number of courts have applied Edwards retroactively. Illustrative is United States ex rel. Kimes v. Greer, 527 F.Supp. 307 (N.D.Ill.1981), aff'd on reconsideration, 541 F.Supp. 632 (N.D.Ill.1982). Essentially, Judge Bua determined that Edwards was simply the application of Miranda to a slightly variant fact situation and consequently under settled United States Supreme Court law was entitled to full retroactive application. Greer was coincidentally published on June 22,1982, one day after the United States Supreme Court reached its conclusion in United States v. Johnson. Understandably, Judge Bua did not have the benefit of the Johnson opinion in reaching his decision. In Johnson, the Supreme Court recognized the principle Judge Bua relied upon: First, when a decision of this Court merely has applied settled precedents to new and different factual situations, no real question has arisen as to whether the later decision should apply retrospectively. In such cases, it has been a foregone conclusion that the rule of the later case applies in earlier cases, because the later decision has not in fact altered that rule in any material way. - U.S. at -, 102 S.Ct. at 2587, 73 L.Ed.2d at 213 (citations omitted). In Johnson, the court noted that Payton did not simply apply a past precedent and, in fact, dealt with a situation expressly left open on prior occasions. We believe the instant situation to be comparable. While Miranda did indicate that once a right to counsel was exercised by the accused "the interrogation must cease until an attorney is present," 384 U.S. at 474, 86 S.Ct. at 1627, 16 L.Ed.2d at 723, the Court went on to recognize that this Miranda right could be waived under appropriate circumstances. The significant distinction between Edwards and Miranda lies in the Court's treatment of waiver. Thus, while the substantive right not to be interrogated after a request for counsel remained the same from Miranda to Edwards, the circumstances under which a court could validly find a waiver of that substantive right was substantially changed by the Edwards decision. In this regard we note that Justice Black-mun's opinion in Johnson recognized a middle ground between those cases involving the application of settled principles to slightly variant fact situations on the one hand (which would be fully retroactive to pending and final litigation) and those cases which presented a "clear break with the past" on the other (which would not be applied retroactively at all). This places the Payton rule in a third category in which the rule in question would be applied retroactively to pending litigation but arguably not to a final judgment. We believe that third category properly includes this case. In conclusion, we consider the treatment of waiver to be the significant factor differentiating Edwards from Miranda. We do not find the United States Supreme Court's treatment of waiver in Edwards clearly foreshadowed by Miranda or any other intervening case. Consequently, we conclude that the per se rule adopted in Edwards should be applied at the very most only to those cases pending in the trial courts or on direct appeal at the time Edwards was decided. United States v. Johnson, - U.S. -, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982). The judgment of the superior court dismissing Ladd's petition for post-conviction relief is AFFIRMED. . We recognize that there is dicta in Justice White's concurring opinion in Michigan v. Mosley, 423 U.S. 96, 109-10, 96 S.Ct. 321, 329, 46 L.Ed.2d 313, 325 (1975), recognizing a per se waiver rule. Mosley is cited in the Ladd opinion, however, and neither the majority opinion nor Justice Rabinowitz' dissenting opinion suggests that Mosley requires a per se rule. We express no opinion regarding whether Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980), or Fare v. Michael C., 442 U.S. 707, 724-25, 99 S.Ct. 2560, 2571-72, 61 L.Ed.2d 197, 211-13 (1979), foreshadowed Edwards because, like Edwards, they were decided after Ladd's conviction became final.

9019835

Richard HARRIS, Appellant, v. AHTNA, INC., Ahtna Government Services Corporation, Ken Johns, Paul Tony, and Neil Anderson, Appellees

Harris v. Ahtna, Inc.

2005-02-11

No. S-10960

271

279

107 P.3d 271

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.

Richard HARRIS, Appellant, v. AHTNA, INC., Ahtna Government Services Corporation, Ken Johns, Paul Tony, and Neil Anderson, Appellees.

Richard HARRIS, Appellant, v. AHTNA, INC., Ahtna Government Services Corporation, Ken Johns, Paul Tony, and Neil Anderson, Appellees. No. S-10960. Supreme Court of Alaska. Feb. 11, 2005. William G. Royce, Anchorage, for Appellant. Christopher J. Slottee, Atkinson, Conway & Gagnon, Anchorage, for Appellee Ahtna, Inc. Before: BRYNER, Chief Justice, MATTHEWS, EASTAUGH, FABE, and CARPENETI, Justices.

4828

29752

OPINION MATTHEWS, Justice. The main question in this case is whether the superior court properly ordered specific enforcement of a buy-or-sell agreement between shareholders. We conclude that the court erred because the offer that triggered the buy-or-sell process did not set out a price that was equal regardless of which party bought or sold, and contained unpermitted conditions. FACTS AND PROCEEDINGS In May of 1999 Richard Harris and Ahtna, Inc., formed Ahtna Government Services Corporation (AGSC). AGSC's primary business was to perform work for the federal government that is reserved for minority-owned enterprises. AGSC would qualify for this work because Ahtna is an Alaska Native regional corporation. Ahtna owned 5,100 shares, fifty-one percent, while Harris owned 4,900 shares, forty-nine percent. Harris was to manage the company and to contribute staff and office space from his company, Pacific Native Development Corporation, while Ahtna agreed to provide AGSC with working-capital and bond guarantees. Harris and Ahtna executed a shareholders agreement that contained a buy-or-sell provision described as a "put-and-call option." Under this provision either shareholder could, under certain conditions, declare an "impasse" by issuing a declaration that contains an offer to sell the offeror's shares to the other shareholder. Upon receipt of the declaration, the offeree must either buy the offeror's shares or sell its own shares to the offeror at the set price. The AGSC venture started slowly. In 1999 and 2000 it incurred losses. In May of 2001 the AGSC board of directors terminated Harris from his position as president of the company. In 2001 there were net earnings of approximately $160,000 on gross revenues of about $9,000,000. At the end of 2001 AGSC's balance sheet showed negative retained earnings of slightly over $1,000,000. At that point Ahtna had made loans to AGSC in excess of $1,500,000. The year 2002 was more profitable for AGSC. As of July 31, 2002, the company had made profits of about $700,000 on predicted annual gross revenues in excess of $12,000,000. AGSC filed a complaint against Harris on October 19, 2001, claiming that he had breached his fiduciary duty to AGSC and that he had not paid for his stock. Harris answered, denying the major allegations of the complaint, counterclaimed against AGSC, and filed a third-party complaint against Aht-na. In the latter he alleged that an "impasse" between shareholders had arisen. After the third-party complaint was filed, Ahtna sent a letter to Harris declaring an impasse under the put-and-call option of the shareholders agreement. Ahtna's declaration set the price for the purchase of shares as follows: A. 6.87 per share; B. the Continuing Shareholder shall assume any Company indebtedness or liability guaranteed by the selling shareholder, and shall obtain a written release of the selling shareholder from such guarantees and liabilities; and C. the Continuing Shareholder will cause to be paid in full the valid indebtedness of the Company to the selling shareholder. In the ease of the Company's indebtedness to Ahtna, the portion of the indebtedness represented by management fees will be waived and relinquished by Ahtna. Harris responded to the offer contained in the declaration by agreeing to buy Ahtna's shares for $6.87 per share while rejecting parts B and C of the offer as invalid under the shareholders agreement. Ahtna took Harris's response to be a rejection of Ahtna's offer to sell its shares and thereafter claimed that Harris was obligated to sell his shares to Ahtna in accordance with the terms of the declaration. Both Ahtna and Harris moved for specific performance of the put-and-call option. The superior court granted Ahtna's motion, denied Harris's, and ordered Harris to deliver all of his shares to counsel for Ahtna in exchange for the consideration specified in Ahtna's declaration. When Harris did not tender his stock, Ahtna filed a motion for an order holding Harris in contempt. The court issued an order to show cause. In response, Harris filed a supplemental brief arguing that the court had erred in granting Ahtna's motion for specific performance because Aht-na's declaration contained terms that made its offer invalid. Harris supported his supplemental brief with an affidavit of George L. Johnson, CPA, who stated that he had extensive experience working with put-and-call options, that it was critical that an offer be "symmetrical," and that Ahtna's declaration lacked symmetry because Ahtna demanded that Mr. Harris personally repay a corporate obligation of AGSC and assume a bonding guarantee of Ahtna.... Ahtna's Put Call offer is equivalent to Mr. Harris offering to sell his shares to Ahtna if Aht-na also repaid debt that Mr. Harris owed to a third party. (Emphasis in original.) The superior court conducted an evidentia-ry hearing with respect to the order to show cause. At the conclusion of the hearing the superior court reaffirmed its prior ruling requiring Harris to deliver his stock to Ahtna's counsel. The court stated, in part: If somebody wants to sell something, they can say I'll take this or I'll take that and that's what Ahtna said. What they wanted was off the hook and it wanted so many dollars a share on top of that. They were extended financially in several ways on behalf of the company and that was part of the deal. It certainly makes no sense to remain extended for the company if they're not an owner. It does make sense for the other shareholder, Mr. Harris, to cover the extension that . they've made. That's not an impossible thing. These are people in companies involved in business and business is, to an extent, a poker game. You have to have enough stakes to play. Harris could assume the debt, he could pay the debt, Harris could find alternate bonding. Harris could do those things if Harris had a deep enough pocket to do it and he could pay for the shares as well. All of that together, of course, was the total price for the shares. The superior court subsequently issued a partial final judgment pursuant to Alaska Civil Rule 54(b) requiring Harris to deliver his shares to Ahtna in exchange for $6.87 a share, totaling $33,663 for his 4,900 shares. Harris appeals. STANDARD OF REVIEW The question in this case is the meaning of the put-and-call option in the parties' agreement. The goal in interpreting the meaning of contracts is to give effect to the reasonable expectation of the parties. Reasonable expectations may be ascertained through the language of the contract, the behavior of the parties, case law, and any relevant extrinsic evidence. Ordinarily the meaning of a contract presents a question of law for the trial court, reviewable on appeal under the independent judgment standard unless there is conflicting extrinsic evidence. Where there is conflicting extrinsic evidence, findings and inferences of fact made by the trial court will be reviewed deferentially under the clearly erroneous standard. In the present case there is no evidence as to the parties' intent concerning the put-and-call option at the time of contract formation or thereafter until this litigation arose, nor was there conflicting extrinsic evidence. We therefore review the trial court's interpretation of the put-and-call option under the independent judgment standard. ISSUES ON APPEAL The issues in this case turn on the meaning of the put-and-call option in the shareholders agreement. The subparagraphs of the agreement that are most relevant to this case provide: 5.1 Put and Call Options. Each Shareholder shall have the right and option upon the written declaration (a "Declaration") by such Shareholder to the other Shareholders and the Company of the occurrence of an "impasse" (as defined below) to sell to the Continuing Shareholders all of his Shares, and the Continuing Shareholders shall have the obli gation to either (i) purchase all of such Shares owned by the offering Shareholder in such proportion as the Continuing Shareholders may agree upon, and if they cannot so agree, pro rata in proportion to their then ownership of Shares of the Company (excluding the Offering Shareholder's Share) or (ii) if the Continuing Shareholders are unable or unwilling to purchase all of the Shares owned by the Offering Shareholder, sell all of their Shares to the Offering Shareholder, and the Offering Shareholder shall have the obligation to buy such Shares. 5.3 Exercise of Option. The Continuing Shareholders shall exercise any option provided for in this Paragraph 5 within thirty (30) days after receipt of a declaration. Any closing of the sale of Shares pursuant to such exercise shall occur within ninety (90) days after receipt of a Declaration. 5.4 Purchase Price. Any purchase or sale of Shares sold pursuant to this Paragraph 5 shall be at the price as set forth in the Declaration delivered by the Shareholder exercising his right to sell his shares and shall be paid for at the closing of the sale of the Shares. The purchase price may be amortized, at the option of the Buyer, for a period of up to 3 years. Harris argues that the put-and-call option (1) requires that the price be stated in monetary terms and precludes nonmonetary conditions, and (2) requires that the price be the same whether it is exercised by the offeror or the offeree. He argues that neither of these requirements was met by Aht-na's declaration. The price was not stated in monetary terms because the declaration required the buyer to assume unstated fixed and contingent liabilities and to obtain written releases of the seller from sureties of AGSC. The price Harris would be required to pay Ahtna was not equal to the price that Ahtna would have had to pay Harris; Harris would have been required to assume liabilities already incurred by Ahtna, whereas Aht-na had no similar obligation because Harris had not guaranteed AGSC's bonds or made loans to AGSC. Harris also contends that since terms B and C of the declaration were invalid, the court should have ignored them and enforced his offer to buy Ahtna's shares for the stated cash price per share. Ahtna responds to these points as follows. Regarding Harris's argument that the price under the agreement had to be expressed in monetary terms, Ahtna argues that the agreement does not so state. It also argues that nonmonetary terms were necessary to allow Ahtna to divest itself of AGSC because of the substantial loans and guarantees it had made to AGSC or for its benefit. Concerning price equality, Ahtna argues that "Aht-na's offer did not establish a different price per share." But it continues by stating: "If Harris had matched Ahtna and put his own money at risk by loaning money to AGSC and guaranteeing AGSC's obligations, then his price per share would be the same." Concerning Harris's argument that his acceptance of only the cash price term created a binding contract, Ahtna argues that Harris's response accepting only part of the offer was a rejection of the offer and created no contract. We conclude for the reasons that follow that Harris has the better argument on his points that the price must be expressed in money and must be equal regardless of who sells and who buys. But we conclude that Harris's argument that his acceptance of only the cash term of Ahtna's offer created an enforceable contract lacks merit. Equal Price We address first Harris's point that the price under the put-and-call option must be equal regardless of which party buys. Shareholders enter into buy-or-sell contracts in order to provide a deadlock-breaking mechanism that is fair to both participants. The underlying premise of such agreements is that the price proposed by the offeror will be the same whether the offeror sells its shares or buys the shares of the other shareholder. The fact that the offeree is free to buy or sell at the same price per share is the offeree's guarantee of fairness. Even where there is price equality, the contract may prove not to be fair if one party lacks the financial resources of the other party. But the important point is that price equality is the basic assumption of agreements of this sort. Price equality is lacking in Ahtna's declaration. If Harris decided to buy Ahtna's shares the price that he would have to pay would be calculated by adding to the $6.87 per share price his assumption of AGSC's liabilities to Ahtna, his assumption of Ahtna's guarantees, and whatever cost he would have to incur to obtain written releases from sureties of Ahtna's continuing liability. Ahtna has acknowledged that items B and C of its offer "involve sums substantially exceeding $1,000,000." Thus Harris might well have had to pay, as buyer of Ahtna's shares, $35,037 ($6.87 per share times 5,100), plus an amount substantially in excess of $1,000,000. By contrast, Ahtna, as buyer of Harris's shares would have to pay only $33,633, $6.87 per share. Ahtna's argument that the price would have been equal if Harris had matched Ahtna in making loans to AGSC and had been a co-guarantor of AGSC's bonding seems irrelevant. Those conditions did not exist, nor, apparently, was Harris obligated to lend funds to AGSC or act as a guarantor of its bonding. We thus agree with Harris that the put-and-call option required that the price to each party be equal and that the Ahtna declaration did not meet this requirement. Nonmonetary Terms and Conditions We also agree with Harris's related point that the price in the declaration must be stated in money and must not contain non-monetary conditions. We reach this conclusion for a number of reasons. Since the price must be equal regardless of who pays it, a medium of exchange available to both parties is required. Nonmonetary conditions often will not burden the parties equally. Relatedly, if nonmonetary conditions were permitted each party would have an incentive to declare an impasse before the other party in order to craft favorable conditions. This would lead to premature and possibly unnecessary deadlocks. Further, the option available to the buyer to amortize the purchase price over three years, set forth in paragraph 5.4, implies that the price must be a money price. At oral argument before the superior court, counsel for Ahtna indicated uncertainty as to how to quantify the price reflected in part C of the declaration, acknowledging that he was not certain that this could be done. An unquan- tillable price, or a price consisting of contingent liabilities that have been assumed but not realized, cannot be amortized. The same is true as to a nonmonetary condition. Moreover, the language of various other provisions of the shareholders agreement suggests that the parties intended the "price" term to be limited to a monetary price. In paragraph 3.3.3, the agreement states, concerning a shareholder's transfer of shares to the company, that "a Shareholder may give, sell, transfer or otherwise dispose of all or any of its Shares to the Company at such price and on such terms and conditions as such Shareholder and the Board of Directors of the Company may agree." (Emphasis added.) In another section of the agreement, paragraphs 3.3.4-6, the company and other shareholders are granted a first right of purchase when a shareholder proposes to sell to a third party. Paragraph 3.3.7 states that when the company or a continuing shareholder elects to purchase the shares from the selling shareholder under these provisions, the "Buyer must elect to purchase all Shares which the Offering Shareholder proposes to sell for the price and upon the same terms for payment of the price as are set forth in the Offer." (Emphasis added.) Finally, in paragraph 4.1 of the agreement, shareholders are given the right of first refusal to purchase common stock and options issued by the company, and the agreement requires the company to offer "such securities . at a price and on such other terms as shall have been specified by the Company in writing delivered to such Shareholder." (Emphasis added.) In contrast to these sections, the put-and-call option does not contain language referring to terms and conditions, stating instead that "[a]ny purchase or sale of Shares sold pursuant to this Paragraph 5 shall be at the price as set forth in the Declaration delivered by the Shareholder." The coupling of "price" with "terms" or "conditions" in other portions of the agreement but not in the put-and-call option suggests that the parties did not contemplate that the price in the put-and-call option would include terms and conditions in addition to a monetary price. Ahtna's argument that nonmonetary conditions were necessary in order to relieve it of continuing liability to AGSC and to sureties is understandable, but unpersuasive. While the argument is relevant to Ahtna's perceived needs, it has little or no bearing on the meaning of the put-and-call option. The fact that Ahtna is a creditor of AGSC does not give it special status as a shareholder. Ahtna's remedies as a creditor of AGSC and as a guarantor of AGSC's obligations are separate from its rights as a shareholder. If Ahtna were to sell all of its shares, its remedies as a creditor and guarantor would still be available. If it believes that it needs more protection from the risk of nonpayment, this might logically be a factor when it decides what price to set under the put-and-call option. Just as buy-or-sell contracts may provide only illusory fairness when one shareholder cannot afford to buy out the shares of the other shareholder, such agreements also may not function well when one shareholder does not believe that it can afford to let the other shareholder buy it out. But these shortcomings are, if anything, an argument against the use of such agreements rather than an indication of how they should be interpreted. The parties have directed our attention to cases from other jurisdictions involving buy- or-sell agreements in which the offeror attempted to impose conditions in addition to a monetary price. In one case, McTeague v. Treibits, the court held that the conditions were invalid and that the offeree could accept the cash offer without the conditions. In another case, Wyatt v. Phillips, the court held that the imposition of the conditions prevented the triggering of the action-forcing aspect of the agreement, and that the offers as made should be treated under the common law rules of contract formation. In a third case, Wilcox v. Stiles, the court held that a nonmonetary condition was valid and the agreement was triggered despite its inclusion. Our holding in this case concerning the invalidity of nonmonetary conditions is consistent with McTeague and Wyatt. We disagree with the rationale of the third case, Wilcox, insofar as it approves of an offer that imposed unequal conditions depending on which party became the buyer. Harris Is Not Entitled to Specific Performance For the above reasons we have concluded that terms B and C of Ahtna's offer are inconsistent with the put-and-call option. Harris argues that since these terms are inconsistent with the put-and-call option, he should be able to purchase Ahtna's shares under the only valid term of the offer for $6.87 per share. He cites McTeague v. Trei-bits in support of his argument. McTeague involved a shareholders agreement with a buy-or-sell agreement similar to the put-and-call option in the present case. Under the McTeague agreement, when one shareholder (the initiating shareholder) notified the other shareholder (the responding shareholder) that the initiating shareholder wished to sell his shares, the responding shareholder would set the price and terms under which the initiating shareholder could either buy the responding shareholder's shares or sell his shares to the responding shareholder. Treibits initiated the process. McTeague responded by stating a cash price and conditions, including payment of an amount claimed to be owing to a construction company owned by McTeague. Treibits purported to accept the offer with respect to the monetary price only, rejecting the additional conditions. The trial court ruled that the conditions other than the cash price were not in accordance with the phrase "price and terms" in the shareholders agreement and held that Treibits had the right to accept the monetary term and ignore the other conditions. The court of appeals agreed, noting that the construction company's claim against the corporation was currently in litigation and if the construction company prevailed the objective of the condition imposed by McTeague would be satisfied. McTeague is arguably distinguishable on the grounds that the main condition imposed would be independently satisfied if it was legitimate and, in any event, the condition was arguably less important than the invalid conditions set by Ahtna in the present case. Nonetheless, McTeague is fair support for Harris's position. But Wyatt v. Phillips and Roy Herider Feed Co. v. Modem Feeds of Nacogdoches, Inc., reach different and, in our view, more defensible results. In Wyatt the court noted that where a buy-or-sell clause (referred to there as a "shotgun" provision) similar to that in the present ease "contained a number of contingencies, or conditions precedent, other than price and payment terms neither contained nor contemplated by the drafters of the Shotgun Provision," this would render the offer subject to "ordinary contract principles of offer and acceptance." In Roy Herider Feed the trial court concluded on summary judgment that the "buy or sell" agreement was validly invoked despite the presence of conditions precedent. On appeal the court reversed, holding that the conditional nature of the offer prevented the action-forcing aspect of the agreement from being triggered. Instead, the court invoked customary contract provisions: [A]cceptance of a proposal to sell, in order to bind the maker of the proposition and conclude the contract, must be unconditional and unqualified. The exact terms of the proposition, without addition or variation, must be acceded to before the proposition is withdrawn; otherwise the maker of the proposition is not bound by the acceptance.[ ] We believe that the offer contained in Aht-na's declaration should be construed as were the conditional offers in Wyatt and Roy Her-ider Feed. Since the offer did not comply with the put-and-call provisions of the shareholders agreement it was an offer governed by the common law. Under common law rules acceptance of an offer must be "unequivocal and in exact compliance with the requirements of the offer." Where a purported acceptance qualifies the terms of the original offer, the result is a counter-offer which may be accepted or rejected by the party who made the initial offer. Here, since Ahtna's offer failed to trigger the put- and-call option, Harris's partial acceptance was a counter-offer that Ahtna did not accept. Thus no contract was formed and Harris's request for specific performance was properly denied. For the above reasons, we REVERSE the partial final judgment and REMAND this case to the superior court for further proceedings consistent with this opinion. . See Keffer v. Keffer, 852 P.2d 394, 397 (Alaska 1993) ("The goal in interpreting a contract is to give effect to the reasonable expectations of the parties."); Mitford v. de Lasala, 666 P.2d 1000, 1005 (Alaska 1983) ("In interpreting a contract, we seek to give effect to the reasonable expectations of the parties."); Peterson v. Wirum, 625 P.2d 866, 872 n. 10 (Alaska 1981) ("In interpreting a contract, the object is to give effect to the reasonable expectations of the parties."). . Jensen v. Ramras, 792 P.2d 668, 670 (Alaska 1990) ("The parties' reasonable expectations can be assessed by reviewing the language of the disputed provision, the language of other provisions of the contract, relevant extrinsic evidence, and case law interpreting similar provisions.") (quotation marks omitted); Smalley v. Juneau Clinic Bldg. Corp., 493 P.2d 1296, 1305 (Alaska 1972) ("[W]here 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.") (quotation marks omitted). . Klosterman v. Hickel Inv. Co., 821 P.2d 118, 122 (Alaska 1991) ("although we will apply our independent judgment to a trial court's interpretation of a written contract based exclusively on documentary evidence, we will apply the clearly erroneous standard when the trial court has relied on extrinsic testimonial evidence"). . Rockstad v. Global Fin. & Inv. Co., Inc., 41 P.3d 583, 586 (Alaska 2002) ("when the trial court relies on extrinsic testimonial evidence to provide a factual basis for its interpretation of a contract, we apply the clearly erroneous standard in reviewing the court's background findings of fact"). . When reviewing the interpretation of contracts under the independent judgment standard, we "adopt[] the rule of law most persuasive in light of precedent, reason, and policy." Casey v. Semco Energy, Inc., 92 P.3d 379, 382 (Alaska 2004). . See Wyatt v. Phillips, 2002 WL 31053832, *3 (Pa. Com. PL Aug 27, 2002), where the court stated concerning a similar agreement: the purpose of the Provision was to attempt to control these contentious parties so that one could not take advantage of the other. An offeror could not make the price inordinately low for fear the other would counter-offer and purchase [the company] at the low price. On the other hand, if the price were too high, the offeror would become obligated to purchase in excess of the company's true value. . See Fredric D. Tannenbaum, What Every Business Lawyer and Business Owner Should Know About Buy-Sell Agreements, 1089 PLI/Corp. 441, 485 (Dec. 1998) ("Theoretically, the offeree's right to buy out the offeror at the same price offered by the offeror will incite the offeror to quote a fair price, for fear that if the price is too low, the offeror will be bought out at that price. In reality, however, the offeror and offeree do not always have the same financial resources, and the offeree's rights to match a low offer by the offeror may be illusory."). . This statement was made in Ahtna's reply memorandum in support of its motion for an order holding Harris in contempt. The full statement was: Contrary to Harris's repeated assertions, Aht-na's offer was not a one-part, $33,000 offer. It was instead a three-part offer which included the requirement that the selling [sic buying] shareholder assume all indebtedness guaranteed by the selling shareholder, obtain a release for the selling shareholder, and that all valid indebtedness to the selling shareholder be paid in full. The latter two elements of Ahtna's offer involve sums substantially exceeding $ 1 million. . The colloquy between court and counsel was: THE COURT: Okay. Let's stop right there. Mr. O'Donnell, how can they quantify C? MR. O'DONNELL (Ahtna's counsel): Well, I'm not certain whether they can. The arbitration is scheduled to.(Emphasis supplied.) THE COURT: Well, let's find out. How can he accept? What would he have to do to properly accept if there is some vagueness in the outcome or what it means? MR. O'DONNELL: What he would have had to do was clearly set out in the offer. One, he would have to pay the amount; two, he would have to agree to have obtained financing or take other steps to have removed Ahtna as a lender to the corporation and as a guarantor on its bonds and if there was indebtedness owing to Ahtna from Ahtna Government Services, make arrangements to get that paid. He was unwilling to do that. . See supra note 7. . 388 So.2d 309 (Fla.App.1980). . 2002 WL 31053832, *4 (Pa.Com.Pl. Aug.27, 2002). . 127 Or.App. 671, 873 P.2d 1102 (1994). . We note however that Wilcox is arguably distinguishable because both the offeror and the offeree were personally liable for all the debts of the corporation. Thus the main condition, release of liability of the seller, was, at least theoretically, equal regardless of which party became the buyer. But one shareholder had substantial personal collateral at risk, while the other did not. Thus the practical risk of loss was asymmetrical even though the theoretical risk may have been equal. . 388 So.2d 309 (Fla.App.1980). . Id. at 311. . 2002 WL 31053832 (Pa.Com.Pl. Aug. 27, 2002). . 468 S.W.2d 554 (Tex.App. 1971). . 2002 WL 31053832, at *4. . 468 S.W.2d at 560 (quoting Patton v. Rucker, 29 Tex. 402, 409 (1867)). . Thrift Shop, Inc. v. Alaska Mut. Sav. Bank, 398 P.2d 657, 659 (Alaska 1965). . See Southwest Marine, Inc. v. State, Dep't of Transp. & Pub. Facilities, Div. of Alaska Marine Highway Sys., 941 P.2d 166, 173 (Alaska 1997); Hall v. Add-Ventures, Ltd., 695 P.2d 1081, 1088-1089 (Alaska 1985) ("If the terms suggested by Large constitute a conditional acceptance, it would be a counter-offer and thus a rejection of the original offer."); Restatement (Second) of Contracts § 59 (1981) ("A reply to an offer which purports to accept it but is conditional on the offeror's assent to terms additional to or different from those offered is not an acceptance but is a counter-offer.").

10341893

Barry K. McQUADE, Appellant, v. Patricia A. McQUADE, Appellee

McQuade v. McQuade

1995-08-18

No. S-6608

421

426

901 P.2d 421

901

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:58:36.966977+00:00

CAP

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

Barry K. McQUADE, Appellant, v. Patricia A. McQUADE, Appellee.

Barry K. McQUADE, Appellant, v. Patricia A. McQUADE, Appellee. No. S-6608. Supreme Court of Alaska. Aug. 18, 1995. William T. Ford, Anchorage, for appellant. Gary R. Eschbacher, Anchorage, for appel-lee. Before MOORE, C.J., and RABINOWITZ, MATTHEWS, COMPTON and EASTAUGH, JJ.

3450

21345

OPINION RABINOWITZ, Justice. I. INTRODUCTION Barry McQuade appeals the superior court's order awarding custody of his minor son, Jeffrey, to his ex-wife, Patricia, who chose to move to Texas following the parties' separation but prior to the entry of the court's custody decree. Barry asks us to adopt the standard articulated in D'Onofrio v. D'Onofrio, 144 N.J.Super. 200, 365 A.2d 27, aff'd, 144 N.J.Super. 352, 365 A.2d 716 (1976), for determining the custody of a minor child where one parent chooses to move out of state, and to hold that the superior court abused its discretion in making its final custody determination. II. FACTS AND PROCEEDINGS Barry and Patricia McQuade were married in 1989 in Anchorage. There was one minor child of the marriage, Jeffrey Alan McQuade, bom in 1989. Barry filed for divorce in 1993, and both parties sought sole custody of Jeffrey. The superior court entered an order for a custody investigation. Thereafter, Barry and Patricia agreed to share interim custody of Jeffrey on a "fifty/fifty" basis pending trial. Sometime following separation, Patricia decided to move to Texas for financial reasons, as well as to be closer to her family and "start life over again." At the time of trial, Patricia was forty-one years old. She has been married four times, with her three previous marriages also ending in divorce. She has three older children, Lori, age twenty-two at trial, Blanton, age fourteen, and Sean, age ten, all of whom live in the same household as Patricia. Patricia works as a medical laboratory technician. At the time of trial, Barry was forty-six years old. He has been married twice, with the previous marriage also ending in divorce. He has two adult children, Bryan, age twenty-four, and Bruce, age twenty-one, both of whom live in the Anchorage area. Barry is employed as an orthopedic technician. The custody investigator conducted an investigation and issued a report recommending that the parties be granted joint legal custody of Jeffrey, with primary physical custody being awarded to Patricia. The custody investigator noted that both parties may have difficulty in providing for Jeffrey's emotional development; that both parties have abused alcohol during the marriage; and that both parties may have trouble fostering a nurturing and loving relationship with the other parent; but also that Jeffrey loves and cares equally about both parents and appears to be bonded to both; and that both parties appear able to provide a stable home environment. The custody investigator further noted that "[t]he sibling relationship in this family is very strong, especially between Jeffrey and his older sister, Lori. It is of utmost importance that this relationship be maintained." The custody investigator testified that the ideal situation would be one in which Patricia stayed in Alaska so that the parties could continue the shared custody arrangement. The custody investigator further testified that the deciding factor in her custody recommendation was the bond between Jeffrey and his siblings. She testified that in her opinion it was in the best interest of Jeffrey to stay with his older siblings. In particular, the custody investigator testified as to the strong relationship between Jeffrey and Lori, stating that she was "a primary caretaker" for Jeffrey. At the conclusion of the trial, the superior court stated that it would have ordered joint legal and physical custody to the parties if Patricia were not planning to move out of the state. However, after considering the best interests of Jeffrey, the superior court awarded joint legal custody to the parties with primary physical custody being awarded to Patricia. Barry appeals. III. DISCUSSION A. The "Best Interests" of the Child is the Proper Standard to Apply in Making a Custody Determination where one Parent Chooses to Move out of State. Barry requests this court to adopt the standard set out in D'Onofrio, 365 A.2d at 27, for custody determinations where one parent chooses to move out of state. This standard is based in part on New Jersey's anti-removal statute which forbids the removal of children of divorced parents from the state without the consent of the noncustodial parent "unless the court, upon cause shown, shall otherwise order." Id. at 28. In D'Onofrio, the New Jersey Superior Court considered four factors in determining custody where a custodial parent chose to move out of state: (1) the prospective advantages of the move for the child and custodial parent; (2) the motives of the parent seeking the move, including consideration of the parent's likely compliance with future visitation; (3) the motives of the parent opposing the move; and (4) the degree to which visitation can be restructured in order to preserve and foster the relationship between the child and noncustodial parent. 1 Jeff Atkinson, Modern Child Custody Practice § 7.07, at 399 (1986). Under D'Onofrio, Patricia would have to demonstrate that the move would lead to a better lifestyle for herself and Jeffrey, and that the decision to move was not undertaken primarily to frustrate Barry's custodial and visitation rights. We have previously applied a different standard in reviewing similar custody determinations. In House v. House, 779 P.2d 1204, 1208 (Alaska 1989), we reviewed a trial court's custody determination where the custodial parent chose to move out of state so that his wife could pursue a doctorate degree at a university in California. First, we con sidered the best interests of the children in light of the criteria in AS 25.24.150(c) and concluded that the record supported the trial court's findings that remaining in the custody of the parent who was moving would be in the children's best interests. Id. at 1208. Second, we noted that "[m]ost states permit custodial parents to move out of state with their children if there is a legitimate reason for the move." Id. (citing 1 Atkinson, supra p. 5, § 7.01, at 390). We then concluded that the "decision of the family to move to [California] was based upon a valid reason, that is, a reason which was not primarily motivated by a desire to make visitation . more difficult." Id. Thus, in making a custody determination where the existing custodial parent chooses to move out of state, a court must consider the best interests of the children by applying the criteria in AS 25.24.150(c), and in so doing should consider whether there is a legitimate reason for the move. Barry seems to argue that where the parties enjoyed joint custody of a child, or where the court would have awarded joint custody if one of the parents was not planning to move, a more rigid standard, as reflected in D'Ono-frio, is appropriate. However, at least one authority states that if parents have joint physical custody and one parent seeks to move the child, "the appropriate standard would be similar to a de novo review that would be made at an initial custody determination. Custody would be determined according to the best interests of the child, using a broad range of factors." 1 Atkinson, supra p. 5, § 7.06, at 398. Essentially, this is the standard that we articulated in House, 779 P.2d at 1204. We have consistently avoided mandating rigid rules for making custody determinations. See, e.ff., Nichols v. Nichols, 516 P.2d 732, 736 (Alaska 1973) (stating that in custody matters, "there is no hard and fast rule"). And, unlike New Jersey, Alaska has not adopted an anti-removal policy. Rather, in the circumstance where the custodial parent desires to move out of Alaska, we consider the best interests of the child so that such determinations are based upon the facts and circumstances of each particular case. We therefore conclude that the standard set out in House is the proper standard to apply in the factual circumstance where one parent is planning to move out of Alaska. We thus decline to adopt the D'Onofrio standard. B. In Making its Custody Ruling the Superior Court Did Not Abuse its Discretion in Determining the Best Interests of the Child. Barry argues that the superior court erred in awarding primary physical custody of Jeffrey to Patricia. To this effect, Barry argues that the superior court gave too much weight to sibling bonds while not giving sufficient weight to parental bonds and the importance of maintaining continuity. 1. The superior court did not impermis-sibly favor sibling bonds over parental bonds. As to parental bonds, the superior court "carefully considered the love and af fection that both parents have" for Jeffrey. Moreover, the superior court considered the custody investigator's report which stated that "Jeffrey loves and cares equally about both parents and appears to be bonded to both." As to sibling bonds, the superior court "considered as an important factor in this case that Jeffrey is bonded to his half brothers and half sister," and found it "essential for Jeffrey to have contact with his half brothers and half sister for his own best interest." Moreover, the superior court considered the custody investigator's report which stated that the sibling relationships were very strong and should be maintained. The superior court also was able to take into account the custody investigator's testimony that the sibling bonds were the deciding factor in her recommendation. On appeal, Barry argues that the superior court gave too much weight to sibling bonds and not enough weight to parental bonds. Alaska Statute 25.24.150(c)(4) requires the superior court to consider "the love and affection existing between the child and each parent" in determining the best interests of the child. In addition, "[t]his court has often embraced the proposition that it is desirable to not separate siblings in the course of custody disputes." Craig v. McBride, 639 P.2d 303, 306 & n. 9 (Alaska 1982) (the fact that a case involves half siblings has no bearing on "the desirability of keeping the children of the family together") (citation omitted). However, we have declined to adopt a rigid standard for weighing the importance of maintaining sibling bonds in custody disputes, and have instead articulated a more flexible approach: [C]onsideration should be given to the desirability of not separating the children unless their welfare clearly requires such a course. As in other facets of the difficult problems confronting a trial judge in custody matters, there is no hard and fast rule. The question of whether or not it is necessary to separate children must depend upon the facts and circumstances of each particular case. Nichols, 516 P.2d at 736 (footnote omitted); see also Morel v. Morel, 647 P.2d 605, 607-08 (Alaska 1982); Craig, 639 P.2d at 306. The superior court essentially concluded that Jeffrey was equally bonded to each parent and that, all else being equal, sibling bonds were the deciding factor. Based on the record in this case and prior Alaska case law, we hold that this does not constitute an abuse of discretion on the superior court's part. 2. The superior court did not impermis-sibly favor sibling bonds over the maintenance of continuity. As to the factors of stability and continuity, the superior court stated that "[e]aeh parent provides to Jeffrey a different environment for Jeffrey to grow in, but both environments within the means of the respective parent are found by this Court to be acceptable and satisfactory environments." Moreover, the superior court considered the custody investigator's report which stated as follows: Both parents appear to provide stability insofar as maintaining an adequate home atmosphere. Mrs. McQuade's history of marriages indicates some instability that has certainly impacted the older children. It is unclear to Investigator if this could continue to be a problem and is an issue of concern to Investigator. If Jeffrey's relationship to both parents is maintained adequately and consistently, he would most likely be minimally affected by instability in this area unless Mrs. McQuade was involved in a relationship which consisted of domestic violence or alcohol/drug abuse, etc. In this appeal, Barry argues that the superior court gave too much weight to sibling bonds while not giving enough weight to the importance of maintaining continuity. To this effect, Barry argues as follows: Given the mother's history of frequent moves following divorce, along with the fact that she had lived in Alaska for a number of years, that Alaska was Jeffrey's home, and the home of all of her other children, that there was no testimony that she was in any financial difficulty, or that the proposed move to Texas and transfer of employment would be financially beneficial to her, the court should have deter mined that the statutory factors of promoting stability and continuity for the child was [sic] more important than any anticipated effect on sibling relationships and ordered a continuation of the joint custody arrangement. Alaska Statute 25.24.150(c)(5) requires the superior court to consider "the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity" in determining the best interests of the child. Thus, the superior court must consider each parent's respective ability to maintain stable and satisfactory relations between themselves and the child following separation. We note, however, "[stability is often a function of parental attitude and not of geography." Craig, 639 P.2d at 308 (Rabi-nowitz, C.J., concurring). We have previously addressed the role that the factors of stability and maintaining continuity should play in custody determinations. In Craig, we held that the trial court, in assessing the relative stability of the parties under AS 24.25.150(c), could properly consider the fact that the father had lived in the same town for many years, as well as "the fact that the mother had only recently attempted to create a stable home environment." Id. at 305. Moreover, in Evans v. Evans, 869 P.2d 478 (Alaska 1994), we held that the trial court could properly broaden its consideration of the issue of stability "to encompass the children's more general needs for stability in their overall living environment;" that is, the court could evaluate "the children's needs, not just in relation to each parent, but in relation to the totality of the circumstances they were likely to encounter in their respective parents' homes." Id. at 482. This court concluded by stating that the trial court's decision was "based on case-specific evidence demonstrating [the children's] actual need for physical and emotional continuity and stability in their overall living situation." Id. at 483 (footnote omitted). The superior court was aware of Patricia's propensity for moving and its possible effects on stability and continuity. In Evans, we suggested that the criteria of stability and continuity must be considered in light of the facts of each particular case. Id. In the case at bar, the superior court considered Jeffrey's relationship with his siblings as an essential component of maintaining the emotional continuity and stability of Jeffrey's home environment. Thus, the record shows that the superior court considered the factors of stability and continuity and, in light of the particular facts of this ease, chose to emphasize emotional continuity over geographic continuity. We hold that this does not constitute an abuse of discretion. IV. CONCLUSION The superior court's decree awarding primary physical custody of Jeffrey to Patricia is AFFIRMED. . The superior court granted Barry and Patricia a divorce on June 16, 1994, and left issues pertaining to child custody, child support, and property division for determination at trial. . The custody investigator testified as foEows: Q There weren't any strong factors, or were there strong factors, that made you decide one way or another? And what were the strong factors, if any? A The deciding factor in regards to the recommendation that I made in this case was the interview with the chüdren, in which I discovered that the older children, as weü as the little boy, had a reaEy strong relationship to each other. . Barry requests this court to adopt a new standard for determining the custody of a minor child where one parent chooses to move out of state. Such a determination raises a question of law to which this court applies its independent judgment "adopting the rule of law that is most persuasive in light of precedent, reason and policy." Cox v. Cox, 882 P.2d 909, 913 (Alaska 1994); see also Ayers v. Ayers, 508 N.W.2d 515, 518 (Minn. 1993) (determining the proper standard to be applied in making a custody determination presents a question of law). . Specifically, the D'Onofrio court stated: Where, however, the custodial parent can demonstrate that a real advantage to herself and the children will result from their removing their residence to a place so geographically distant as to render weekly visitation impossible, then the court must weigh a number of determinative factors in order to accommodate the compelling interests of all of the family members. It should consider the prospective advantages of the move in terms of its likely capacity for improving the general quality of life for both the custodial parent and the children. It must evaluate the integrity of the motives of the custodial parent in seeking the move in order to determine whether the removal is inspired primarily by the desire to defeat or frustrate visitation by the noncustodial parent, and whether the custodial parent is likely to comply with substitute visitation or- ders when she is no longer subject to the jurisdiction of the courts of this State. It must likewise take into account the integrity of the noncustodial parent's motives in resisting the removal and consider the extent to which, if at all, the opposition is intended to secure a financial advantage in respect of continuing support obligations. Finally, the court must be satisfied that there will be a realistic opportunity for visitation in lieu of the weekly pattern which can provide an adequate basis for preserving and fostering the parental relationship with the noncustodial parent if removal is allowed. D'Onofrio, 365 A.2d at 30. . 2 Homer H. Clark, Jr., The Law of Domestic Relations in the United States § 20.9, at 557 (2d ed.1987). . This determination was made in response to the noncustodial parent's motion to modify custody. We held that the custodial parent's decision to relocate the children from Alaska to California constitutes a substantial change in circumstances which entitles the noncustodial parent to a hearing on the children's best interests. House, 779 P.2d at 1207-08. This court then considered the superior court's determination of the children's best interests. Id. at 1208. Thus, while House involved a motion to modify custody, the same standard applies in reviewing the superior court's initial custody determination at issue in this case. . See also Lee v. Cox, 790 P.2d 1359, 1361 n. 5 (Alaska 1990) (citing authority from several other jurisdictions consistent with this standard). . See also In re Marriage of Bednar, 146 III. App.3d 704, 100 Ill.Dec. 84, 496 N.E.2d 1149 (1986) (holding that parent's request to remove child who was the subject of a joint custody order is governed by child's best interests); Ayers, 508 N.W.2d at 515 (court applied best interests standard in considering mother's request to relocate children who were subjects of a joint legal and physical custody order). . The superior court is vested with broad discretion in making child custody determinations. Gratrix v. Gratrix, 652 P.2d 76, 79 (Alaska 1982). This court wiE reverse the superior court's "resolution of custody issues only if this court is convinced that the record shows an abuse of discretion or if controHing factual findings are clearly erroneous." Id. at 79-80. "Abuse of discretion is established if the trial court considered improper factors or failed to consider statutorily-mandated factors, or improperly weighted certain factors in making its determination." Id. at 80. .Alaska Statute 25.24.150(c) provides: In determining the best interests of the child the court shall consider: (4) the love and affection existing between the chüd and each parent; (5) the length of time the chEd has lived in a stable, satisfactory environment and the desirability of maintaining continuity;.... . However, we cautioned trial courts "that it is a parent's present ability to provide for the needs of the child which is at issue, not a parent's past.'' Id. at 305 n. 7. . In Evans, we held that the superior court did not abuse its discretion in awarding primary physical custody of the children to their father based on the nonstatutoiy factors of the added stability the children might gain from continuing to live in their family residence, and the potential instability they might suffer from being uprooted immediately following a divorce and having to adjust to a new family setting.

11713663

J.T.S., a minor, Appellant, v. STATE of Alaska, Appellee

J.T.S. v. State

1992-01-31

No. A-3623

461

464

825 P.2d 461

825

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T18:59:07.157757+00:00

CAP

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

J.T.S., a minor, Appellant, v. STATE of Alaska, Appellee.

J.T.S., a minor, Appellant, v. STATE of Alaska, Appellee. No. A-3623. Court of Appeals of Alaska. Jan. 31, 1992. Margi Mock, Asst. Public Defender, and John B. Salemi, Public Defender, Anchorage, for appellant. Steven D. DeVries, Asst. Atty. Gen., Anchorage, and Charles E. Cole, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and MANNHEIMER, JJ.

1490

9403

OPINION MANNHEIMER, Judge. J.T.S., a minor who was adjudicated delinquent; appeals from an order of the superior court allowing the Department of Health and Social Services to institutionalize him for up to two years or until his 19th birthday. AS 47.10.080(b)(1). J.T.S. contends that the superior court's order violates Alaska Delinquency Rule 23(d) be-, cause institutionalization was not the "least restrictive alternative" available to the court. We remand. Born in March 1973, J.T.S. was adjudicated a delinquent minor at the age of 15 on June 22, 1988 for committing third-degree criminal mischief (joyriding), AS 11.-46.484(a)(2). After signing a conduct agreement, J.T.S. was released on probation to his father's custody. Five days later, J.T.S. committed another joyriding. On June 29, 1988 — just one week after his delinquency adjudication— the court found that J.T.S. had violated his conduct agreement and sentenced him to McLaughlin Youth Center for 10 days. J.T.S. was released from McLaughlin on July 8, 1988. Two days later, J.T.S. stole another car; again, he was adjudged in violation of his probation agreement. J.T.S. was returned to McLaughlin, this time for 30 days. J.T.S. was released from McLaughlin on August 10, 1988. Three weeks later, on September 2, J.T.S. again committed joyriding, this time taking his father's car. J.T.S. was ordered detained in McLaughlin until September 30, but he was soon referred to Alaska Children's Services with a request that he be considered for admission into the Jesse Lee Home. On September 22, the superior court approved J.T.S.'s admission into Jesse Lee. The conditions of J.T.S.'s probation were modified to include the requirement that he comply with all of the home's rules. One month later, on October 21, J.T.S.'s probation officer filed a petition to modify or revoke J.T.S.'s probation; J.T.S. had left the Jesse Lee Home without consent the day before. J.T.S. was arraigned on this revocation petition on October 24,1988, but the petition was held in abeyance for 30 days while J.T.S. was returned to the Jesse Lee Home to see if his behavior would improve. On December 29, 1988, J.T.S. again violated probation by remaining away from Jesse Lee without consent. A second petition to revoke his probation was again held in abeyance, and ultimately dismissed on March 10, 1989, because J.T.S. did not have any further infractions. Two weeks after this revocation petition was dismissed, J.T.S. again went AWOL from the Jesse Lee Home. J.T.S. was temporarily placed in McLaughlin, but after a few days, he was released back to Jesse Lee. Five days later, while still awaiting the disposition hearing on the latest revocation petition, J.T.S. ran away again from the Jesse Lee Home. On May 1, 1989, J.T.S. was sent back to McLaughlin until May 30. On May 1 and 10, 1989, the Department filed two new delinquency petitions against J.T.S.. These petitions alleged that, during the time J.T.S. was absent from the Jesse Lee Home without authorization, he stole another car and also committed first-degree burglary, AS 11.46.300(a)(1). Both petitions were found true. The Department told the superior court that only two placement possibilities remained for J.T.S.: McLaughlin Youth Center or the Intensive Treatment Unit operated by Alaska Children's Services. Despite J.T.S.'s history of running away, the Department favored the Intensive Treatment Unit even though that facility posed somewhat of a risk because it was not a closed institution like McLaughlin. At the same time, Alaska Children's Services filed its evaluation of J.T.S. upon his discharge from the Jesse Lee Home. In this evaluation, the staff at the Jesse Lee Home reported that J.T.S. had had problems with theft, lying, flight behavior, and anger. They did report, however, that J.T.S. had shown improved ability to control his aggressive behavior, due in part to his continued use of medication for Attention Deficit Disorder. At J.T.S.'s disposition hearing on May 30, 1989, Master William Hitchcock decided to place J.T.S. in McLaughlin. In making this decision, Master Hitchcock examined J.T.S.'s past violations and his history of ignoring authority. Master Hitchcock concluded that J.T.S. was a danger to the property rights of others. He also declared that, given the recent burglary and the most recent joyriding (which would have been a felony if J.T.S. had been an adult), J.T.S.'s pattern of violations was escalating in frequency and severity. For these reasons, Master Hitchcock concluded that J.T.S.'s stay in Jesse Lee had not helped and that, because of J.T.S.'s running away and continued violations of the law, no treatment alternatives short of institutionalization were consistent with both J.T.S.'s rehabilitation and the protection of the public. J.T.S. objected to the master's findings. At the disposition hearing before Superior Court Judge Victor D. Carlson, both J.T.S. and the Department concurred in a recommendation for placement in the Intensive Treatment Unit. Nevertheless, Judge Carlson approved Master Hitchcock's recommendation, finding that if J.T.S. could not handle the freedom of the Jesse Lee Home, J.T.S. would also walk away from the Intensive Treatment Unit. Eleven months later, on April 23, 1990, a McLaughlin review board found that J.T.S. had made significant progress in controlling his impulsive and destructive behavior; the board recommended that J.T.S. be released on probation to his adoptive father. Master Hitchcock released J.T.S. on May 11, 1990. Ten days later, on May 21, 1990, J.T.S. stole another vehicle. Master Hitchcock recommended that J.T.S. be returned to McLaughlin. This recommendation was approved by Superior Court Judge Peter A. Michalski on July 25, 1990. J.T.S. now appeals this most recent institutionalization order. He argues that the superior court should have sent him to the Intensive Treatment Unit or back to the Jesse Lee Home rather than returning him to McLaughlin. He points out that no live testimony was taken at the most recent disposition hearing, nor were any reports offered from the McLaughlin staff or from mental health professionals. Instead, the superior court made its determination solely from J.T.S.'s pre-existing record. The record in this case demonstrates good reason to believe that placement of J.T.S. in a setting such as the Jesse Lee Home or the Intensive Treatment Unit might be inadequate to achieve J.T.S.'s rehabilitation or to protect the public. Except for the time J.T.S. has spent in McLaughlin, his offenses have continued without significant interruption since June, 1988. Several times, J.T.S. has been released on probation; each time, J.T.S. has committed new offenses. During J.T.S.'s previous placement at the Jesse Lee Home, J.T.S. repeatedly ran away. During his last unauthorized absence from Jesse Lee, J.T.S. engaged in conduct that, were he an adult, would constitute two separate felonies. We conclude, nevertheless, that this case must be remanded to the superior court for reconsideration of J.T.S.'s placement at McLaughlin Youth Center. The law views institutionalization of a minor as the disposition of last resort. Before a minor is institutionalized in a closed facility, Delinquency Rules 11(e) and 23(d) require the superior court to consider the available placement options and affirmatively determine that less restrictive options will probably not accomplish the goals of rehabilitation and protection of the public. The master's remarks at J.T.S.'s disposition hearing do not contain such an analysis. While the master refers to an analysis purportedly done by the Department of Health and Social Services, the pre-disposition report filed by the Department contains no such analysis either. We have previously held that a minor's history of failed placements and continued violations of law can provide an adequate basis for the superior court's decision to institutionalize the minor. See P.R.J. v. State, 787 P.2d 123 (Alaska App.1990). However, this decision must still be made after careful consideration of the alternatives. Given the terseness of the master's remarks, the failure of the predisposition report to analyze placement alternatives, the fact that, just before J.T.S.'s most recent offenses, the McLaughlin staff felt that J.T.S. was ready to be released on probation, and the fact that the last psychological evaluation of J.T.S. found in the record is two years old, we agree with J.T.S. that more explicit consideration of placement alternatives was required before the court sent him back to McLaughlin. The placement order of the superior court is VACATED and this case is REMANDED for further proceedings. . The differences between the Intensive Treatment Unit and the Jesse Lee Home are nominal. The Intensive Treatment Unit has a higher staff-to-juvenile ratio, its rules are stricter, and the children's school is located on the campus. But, like the Jesse Lee Home, the Intensive Treatment Unit is not a closed facility.

10342253

Harry LEWIS, Appellant, v. STATE of Alaska, Appellee

Lewis v. State

1995-09-01

No. 1433

448

450

901 P.2d 448

901

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T18:58:36.966977+00:00

CAP

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

Harry LEWIS, Appellant, v. STATE of Alaska, Appellee.

Harry LEWIS, Appellant, v. STATE of Alaska, Appellee. No. 1433. Court of Appeals of Alaska. Sept. 1, 1995. Hearing Denied Oct. 27, 1995. Larry Cohn, Anchorage, for appellant. James L. Hanley, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for appellee. Before BRYNER, C.J., and COATS, J., and ANDREWS, Superior Court Judge. Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution.

1422

8885

OPINION BRYNER, Chief Judge. Harry Lewis was convicted of first-degree murder in 1984 and sentenced to ninety-nine years' imprisonment. In Lewis v. State, 731 P.2d 68 (Alaska App.1987), this court affirmed Lewis' conviction. In 1992, Lewis filed a pro se application for post-conviction relief claiming newly discovered evidence. The superior court appointed counsel to assist Lewis, and, through counsel, Lewis submitted an amended application the following year. After duly providing Lewis with notice of his intent to do so, Superior Court Judge Milton M. Souter dismissed the application. Lewis appeals. Lewis was convicted with two other persons, Ricky Eason and Tamara Lynn Riley, of participating in a scheme that resulted in the murder of Riley's husband, Leon. The evidence established that Riley enlisted Ea-son to commit the crime. Eason, in turn, enlisted Lewis. Eason and Lewis acted together in choking Leon Riley to death. At trial, Lewis acknowledged choking Leon but claimed that he repudiated the murder attempt while his victim was still alive. Lewis further claimed that he then instructed Ea-son to leave Leon alone but that, unbeknownst to Lewis, Eason proceeded with the murder. At the time of Lewis' trial, Eason and Tamara Riley were being separately prosecuted for the murder; Eason was therefore unavailable and did not testify at Lewis' trial. Eason and Riley were both eventually convicted. See Lewis, 731 P.2d at 69 (quoting Riley v. State, 720 P.2d 951, 952 (Alaska App.1986)). In his application for post-conviction relief, Lewis claimed that Eason was now prepared to testify in support of Lewis' version of events. To substantiate this assertion, Lewis attached to his application a sworn statement signed by Eason in February 1985 (several months after Lewis and Eason were convicted) in which Eason described the murder in a manner compatible with Lewis' version of events. Based on Eason's 1985 statement, Lewis argued in his motion that he was entitled to post-conviction relief under Alaska Criminal Rule 35.1(a)(4), which allows relief to be granted upon a showing that "there exists evidence of material facts, not previously presented and heard, that requires vacation of the conviction . in the interest of justice[.]" In dismissing Lewis' application, however, Judge Souter relied on Garroutte v. State, 683 P.2d 262 (Alaska App.1984), in which this court adopted the broadly accepted rule that "[w]hen a defendant who has chosen not to testify subsequently comes forward to offer testimony exculpating a co-defendant, [this] evidence is not 'newly discovered.'" Id. at 268 (quoting United States v. Diggs, 649 F.2d 731, 740 (9th Cir.1981)). Even though the claim of newly discovered evidence in Gar-routte was raised in a motion for a new trial filed under Alaska Criminal Rule 33, rather than in a post-conviction relief action filed under Rule 35.1(a)(4), Judge Souter reasoned that the rule adopted in Garroutte should govern all claims of newly discovered evidence, regardless of whether the claims are advanced under Rule 33 or 35.1(a)(4). On appeal, Lewis does not dispute the rule adopted in Garroutte, and he concedes that Eason's proposed testimony would not qualify as newly discovered evidence for purposes of a new-trial motion filed under Rule 33. Lewis nonetheless argues that the Garroutte rule should be limited to newly discovered evidence claims pursued under Rule 33. Lewis maintains that a more liberal standard should apply when new evidence is advanced as a basis for relief in a post-conviction relief proceeding under Rule 35.1(a)(4). Lewis points out that the language of the post-conviction relief rule does not explicitly require new evidence to be newly discovered; rather, it permits relief whenever "evidence of material facts, not previously presented and heard, . requires vacation of the conviction . in the interest of justice." Lewis submits that, under this broader language, evidence that was not previously presented need not be newly discovered to warrant relief; instead, the court must simply decide whether the new evidence requires vacation of the conviction in the interest of justice. According to Lewis, the superior court erred in dismissing his application as a matter of law, without evaluating the significance of his newly proposed evidence. However, Lewis cites no authority to support his interpretation of Rule 35.1(a)(4), and we are aware of none. The state, on the other hand, cogently argues that the legislative history of Alaska's post-conviction relief rule supports the conclusion that the rule was not meant to enlarge the scope of previously existing post-conviction remedies but was merely intended to provide a single, comprehensive procedural mechanism governing all existing forms of post-conviction relief. Indeed, this intent finds expression in the language of the rule itself: This remedy is not a substitute for nor does it affect any remedy incident to the proceedings in the trial court, or of direct review of the sentence or conviction. It is intended to provide a standard procedure for accomplishing the objectives of all of the constitutional, statutory or common law writs. Alaska R.Crim.P. 35.1(b). Moreover, although the language of Rule 35.1 makes no explicit mention of a newly discovered evidence requirement and speaks broadly of granting relief as necessary "in the interest of justice," we fail to see how the interest of justice would be served by allowing an award of post-conviction relief based on new evidence that would not result in the award of a new trial under the standard embodied in Criminal Rule 33. Construing Rule 35.1(a)(4) to allow new trials to be awarded on more permissive grounds than those provided for under Rule 33 — the rule specifically governing new-trial motions— would elevate form over substance, permitting identical claims of newly discovered evidence to be decided differently based solely on the procedure chosen to assert them. This would be anomalous: "[T]he state's burden on collateral attack should, if anything, be less than on direct attack . and thus a standard which makes the state do more under Rule [35.1] than it would have to do under Rule 33 is illogical." Hensel v. State, 604 P.2d 222, 235 n. 55 (Alaska 1979). The rule we elected to follow in Garroutte, which holds that a previously unavailable co-defendant's post-trial offer of exculpatory testimony is not newly discovered evidence for purposes of Rule 33, is founded on the fundamental unreliability of such testimony and on the corresponding need to discourage perjury and avoid manipulative tactics: It would encourage perjury to allow a new trial once eo-defendants have determined that testifying is no longer harmful to themselves. They may say whatever they think might help their co-defendant, even to the point of pinning all the guilt on themselves, knowing that they are safe from retrial. Such testimony would be untrustworthy and should not be encouraged. United, States v. Reyes-Alvarado, 963 F.2d 1184, 1188 (9th Cir.1992). To award a new trial based on the offer of such testimony "would enable [one co-defendant] to give to [another] who chooses to go to trial the gift of a second chance if the first jury should convict." United States v. Rocco, 587 F.2d 144, 148 n. 15 (3d Cir.1978) (quoting United States v. LaDuca, 447 F.Supp. 779, 785 (D.N.J.1978)). These concerns are as pertinent in the context of an application filed under Rule 35.1(a)(4) as they are in that of a motion filed under Rule 33. Thus, in our view, "the interest of justice" requirement of Criminal Rule 35.1(a)(4) must be construed to incorporate the criteria governing new-trial motions raised under Criminal Rule 33. An applicant for post-conviction relief who brings forth new evidence and seeks relief pursuant to Criminal Rule 35.1(a)(4) must meet the same burden as a defendant who files a timely motion under Criminal Rule 33 for a new trial based on newly discovered evidence. In either procedural setting, a new trial is warranted only upon a showing that the proposed new evidence is newly discovered and would probably produce an acquittal. Charles v. State, 780 P.2d 377, 383 (Alaska App.1989). The superior court correctly applied this standard in ordering Lewis' application dismissed. Accordingly, the order of dismissal is AFFIRMED.

10342084

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

Linton v. State

1995-08-11

No. A-48S4

439

442

901 P.2d 439

901

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T18:58:36.966977+00:00

CAP

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

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

Lance D. LINTON, Appellant, v. STATE of Alaska, Appellee. No. A-48S4. Court of Appeals of Alaska. Aug. 11, 1995. Hearing Denied Oct. 27, 1995. Dick L. Madson, Law Offices of Dick L. Madson, Fairbanks, for appellant. Erie A. Johnson, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for appellee. Before BRYNER, C.J., and COATS and MANNHEIMER, JJ.

1826

11532

OPINION ON REHEARING BRYNER, Chief Judge. In Linton v. State, 880 P.2d 123 (Alaska App.1994), we affirmed the first-degree murder conviction of Lance D. Linton. We held, in relevant part, that a hearsay statement made by Linton's father, John Linton, had properly been admitted at trial under Alaska Rule of Evidence 804(b)(3), the statement- against-penal-interest exception to the hearsay rule. Linton, 880 P.2d at 129. Shortly before our Linton opinion was published, the United States Supreme Court decided Williamson v. United States, — U.S.—, 114 S.Ct. 2431, 129 L.Ed.2d 476 (1994). In Williamson, the Court interpreted the word "statement" as used in Federal Rule of Evidence 804(b)(3), the federal counterpart to Alaska's statement-against-penal-interest exception. — U.S. at—, 114 S.Ct. at 2434-37. Linton petitioned this court for rehearing based on Williamson. We granted the petition, directing the parties to submit additional briefs discussing: 1) whether Alaska's exception should be interpreted consistently with Williamson's, interpretation of F.R.E. 804(b)(3); 2) which, if any, statements of John Linton's would have been excludable under the Williamson interpretation; 3) whether Linton properly raised the issue of severability below; and 4) whether he adequately briefed that issue on appeal. We now address the issues upon which we granted rehearing. In Williamson, the United States Supreme Court adopted a narrow definition of the word "statement," as used in F.R.E. 804(b)(3), concluding that, for purposes of the federal statement-against-penal-interest exception, a "statement" includes "only those declarations or remarks within [a] confession that are individually self-inculpatory." — U.S. at—, 114 S.Ct. at 2434-35. The Williamson Court stated that Rule 804(b)(3) "does not allow admission of non-self-ineulpatory statements, even if they are made within a broader narrative that is generally self-inculpatory. The [trial] court may not just assume for purposes of Rule 804(b)(3) that a statement is self-inculpatory because it is part of a fuller confession[.]" Id. at-, 114 S.Ct. at 2435. Rather, according to the Court, each declaration or remark in a hearsay narrative must be scrutinized to determine if it is self-inculpatory. Id. at-, 114 S.Ct. at 2437. The Court nevertheless emphasized that [a] statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless believing it to be trae. 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. whether a statement is self-inculpatory or not can only be determined by viewing it in context. Even statements that are on their face neutral may actually be against the declarant's interest.... The question under Rule 804(b)(3) is always whether the statement was sufficiently against the de-clarant's penal interest "that a reasonable person in the declarant's position would not have made the statement unless believing it to be true," and this question can only be answered in light of all the surrounding circumstances. Id. at-, 114 S.Ct. at 2436-37 (footnote omitted). The out-of-court statements at issue in the present case were made by John Linton to Stephen Pieroni, who in turn reported those statements to the troopers. In our original opinion, we described the statements as follows: Pieroni reported having a conversation with John Linton one morning in June of 1989, about two months before John's death. According to Pieroni, he and John had been drinking and celebrating Piero-ni's birthday the night before the conversation. In the morning, Pieroni noticed that John was upset: "Tears were coming down [John's] face." John said that he had something to tell Pieroni, but "it's going to be rough." John went on to say that "Lance killed Elfie and . I helped transport the body." Pieroni responded, "what are you telling me this for? I don't want to hear this." John answered, "to get it off my chest. I've got to tell you." Pieroni told John to "just calm down and tell me anything you want." John then told Pieroni that, in the summer of 1982, Linton had come over in the evening hours and asked to borrow John's van; John asked why, and Linton told him that he needed to transport ElMede. Linton said that he had poisoned ElMede by placing cyanide in either her milk or tea. He needed John's help because ElMede was a large woman. John helped Linton load ElMede into the van. According to Pieroni, John said that, "[j]ust as they were lifting her into the van her arm flopped out of the wrapper." John also told Pieroni that Linton had buried Elfr-iede on their property, somewhere behind the trailer. John warned that "if Lance learned [that John told Pieroni] he would kill both of us." Linton, 880 P.2d at 125. In his supplemental brief, Linton urges us to adopt Williamson's definition of "statement" for purposes of applying A.R.E. 804(b)(3). Linton maintains that only one portion of John Linton's hearsay statement could be deemed admissible as a statement against penal interest under Williamson's narrow interpretation of Rule 804(b)(3). According to Linton, " T helped carry Elfle to the van,' is the only portion of [John's] narrative that tended to subject him to criminal liability." Linton also argues that he adequately raised this issue below and preserved it on appeal. The state, in response, argues that Williamson's definition of "statement" is artificially constrictive and should not be adopted. The state argues, alternatively, that, even under Williamson, virtually all of John Linton's hearsay narrative would be self-inculpa-tory. Finally, the state insists that the sever-ability of John Linton's narrative was not raised below or raised in a timely manner on appeal. We need not decide whether Williamson's interpretation of F.R.E. 804(b)(3) should be adopted in applying Alaska's statement-against-penal-interest exception. In our view, the state correctly argues that Linton failed to raise' the issue below or preserve it on appeal. Below, Linton treated John Linton's entire confession to Pieroni as a single statement and objected to the confession as a whole. He argued that the entire confession should be excluded because Pieroni was not a credible witness and because John Linton was delusional when he made the statement and had no reason to expect that Pieroni would turn him in to the police. Linton also argued that the confession was not against John Linton's penal interest, since the statute of limitations for tampering with evidence had run. At no point did Linton suggest that portions of the narrative were severable or that the various discrete statements contained therein should be analyzed separately to determine their admissibility under AR.E. 804(b)(3). In his initial brief to this court, Linton renewed these arguments, again failing to suggest that the disputed hearsay be treated as containing multiple severable statements for purposes of the statement-against-penal-interest exception. Overruling "[a] general objection to evidence as a whole . is not reversible error if some part [of the evidence] is admissible." Brown v. J.C. Penney Co., 64 Or. App. 293, 667 P.2d 1047, 1050 (1983). Furthermore, appellate courts ordinarily will not consider on rehearing an argument that was not raised in the parties' briefs on appeal. Rosson v. Boyd, 727 P.2d 765, 767-68 n. 6 (Alaska 1986). Linton nevertheless maintains that an exception should be made here because the issue of severability is "critical to a proper and just" resolution of his case. See Vest v. First National Bank of Fairbanks, 659 P.2d 1233, 1234 n. 2 (Alaska 1983). We disagree for three reasons. First, as the state correctly points out, while the specific outcome Williamson reached in interpreting Federal Rule of Evidence 804(b)(3) may to a certain extent be novel, the issue of severability itself is not new and has long been recognized and discussed in the context of the statement-against-penal-interest exception. See, e.g., Garroutte v. State, 683 P.2d 262, 265-66 (Alaska App.1984); 2 John W. Strong, McCormick on Evidence § 319, at 344-45 (4th ed. 1992); 5 John H. Wigmore, Evidence § 1465 (Chadbourn rev. 1974). Second, as Linton openly acknowledges in his brief on rehearing, his failure to raise the issue of severability below may well have been tactical, and not the result of a failure to recognize the issue due to its subtlety or novelty. Third, and perhaps most significant, there appears to be a strong possibility that application of the Williamson test to Linton's case would yield no change in the result we reached in our original opinion. In arguing that Williamson would require exclusion of all but explicitly self-inculpatory remarks included in John Linton's hearsay confession, Linton makes the mistake of considering the various statements that comprise the narrative in isolation; he ignores Williamson's admonition that "whether a statement is self-inculpatory or not can only be determined by viewing it in context[,]" — U.S. at-, 114 S.Ct. at 2436, that is, "in light of all of the surrounding circumstances." Id. at-, 114 S.Ct. at 2437. In its brief on rehearing, the state argues forcefully and persuasively that each of the individual statements comprising John Linton's hearsay narrative is self-incul-patory when viewed in the context of the narrative as a whole, as required by Williamson. We think it highly likely that John Linton's entire narrative would be admissible under Williamson. For this reason, deciding whether Williamson's definition of "statement" should be adopted for purposes of interpreting Alaska's statement-against-penal-interest exception does not appear to us to be "critical to a proper and just decision" in this case. Vest, 659 P.2d at 1234 n. 2. Having considered the parties' arguments on rehearing, we conclude that the United States Supreme Court's decision in Williamson v. United States provides no occasion for modifying our original opinion on appeal. Accordingly, we REAFFIRM the decision in Linton v. State, 880 P.2d 123 (Alaska App. 1994). . Alaska Rule of Evidence 804(b)(3) creates an exception to the hearsay rule when an unavailable declarant makes . The language of Federal Rule of Evidence 804(b)(3) is identical to that of A.R.E. 804(b)(3). . Indeed, the potential severability of statements against penal interest is implicit in the treatment Rule 804(b)(3) prescribes for self-incriminatory statements that exculpate another person: "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."

10408942

Joseph L. OSWALD, Jr., Appellant, v. STATE of Alaska, Appellee; STATE of Alaska, Petitioner, v. Joseph L. OSWALD, Jr., Respondent

Oswald v. State

1986-03-14

Nos. A-387, A-427

276

281

715 P.2d 276

715

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

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

CAP

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

Joseph L. OSWALD, Jr., Appellant, v. STATE of Alaska, Appellee. STATE of Alaska, Petitioner, v. Joseph L. OSWALD, Jr., Respondent.

Joseph L. OSWALD, Jr., Appellant, v. STATE of Alaska, Appellee. STATE of Alaska, Petitioner, v. Joseph L. OSWALD, Jr., Respondent. Nos. A-387, A-427. Court of Appeals of Alaska. March 14, 1986. Thomas H. Dahl, Esq., Anchorage, for appellant and respondent Joseph L. Oswald, Jr. Cynthia M. Hora, Asst. Atty. Gen., Office of Special Prosecutions and Appeals, Anchorage, and Norman C. Gorsuch, Atty. Gen., Juneau, for appellee and petitioner State. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

2502

15113

OPINION SINGLETON, Judge. Joseph L. Oswald, Jr. was convicted after jury trial of three counts of sexual assault in the first degree. Former AS 11.41.410(a)(3). Oswald was subject to an eight-year presumptive term for each count. AS 12.55.125(i)(l). Judge Eben Lewis sentenced Oswald to two concurrent terms of eight years and a consecutive term of eight years with six years suspended. Oswald's composite sentence is therefore sixteen years with six years suspended. Oswald appeals his conviction, and we granted the state's petition for review challenging the legality of the sentence imposed by Judge Lewis. We affirm. We will discuss the facts as they pertain to each issue. Oswald first argues that the court committed reversible error when it allowed evidence of the virginity of the complaining witness, R.A., to be presented to the jury. He points out that consent was not an issue. In reply, the state argues that Oswald did not object when R.A. was asked on direct examination if she was a virgin prior to the alleged incidents with Oswald. Nor did Oswald object when D.L.Y., a friend of R.A. who accompanied her to the place of the alleged sexual activity, testified that R.A. told her shortly thereafter that she had "lost her virginity." The record bears out the state's argument. Properly construed, Oswald's objection was not to the testimony regarding virginity but to the fact that the trial court precluded Oswald from cross-examining R.A. regarding a prior incident in which she had allegedly been digitally penetrated by a school friend. We generally agree with those authorities that hold that where the state offers medical evidence that the prosecutrix has a ruptured hymen, probably due to sexual intercourse, it is permissible for the defendant to show that she had had sexual relations with others, thereby accounting for the condition of her hymen. See, e.g., State v. Nab, 245 Or. 454, 421 P.2d 388, 389-90 (1966); cf. State v. Cosden, 18 Wash.App. 213, 568 P.2d 802, 806-07 (1977) (evidence that adult rape victim has had recent intercourse with another person may be relevant to a disputed issue), cert. denied, 439 U.S. 823, 99 S.Ct. 90, 58 L.Ed.2d 115 (1978). Here, Dr. Carolyn Brown testified that she administered a rape exam to, R.A. at 9:30 p.m. on September 26, 1983. Dr. Brown testified that R.A.'s condition was essentially normal, that she examined the vaginal area and discovered that the hymen was not intact. She continued: At the level of the vulva and the forshett (ph), which are the organs which we use to describe those tissues immediately surrounding the birth canal area, I noted there were several drops of what I considered old blood. There were — there was no active tearing. There was no active bleeding, hemotomas, or blood blisters. That [sic] was no edema. No apparent evidence of severe immediate injury. Dr. Brown indicated that she took a pubic hair combing and samples of R.A.'s vaginal discharge in order to test for the presence of semen. The pubic hair combings were later examined by technicians with the Federal Bureau of Investigation who discovered no hairs that could be associated with Oswald in the cuttings. The technicians found no evidence of semen in the slides containing vaginal discharge from R.A. Under these circumstances, Oswald argues that he should have been permitted to cross-examine R.A. regarding the prior incident. The trial court viewed the matter as one of discretion under AS 12.-45.045 (the Rape Shield statute) and Alaska Rules of Evidence 403 and 404. After hearing from the parties out of the presence of the jury, the trial judge ruled against cross-examination. The trial court relied on R.A.'s testimony on voir dire that she had experienced little pain or discomfort and had not bled during the earlier incident with her school friend. The implication drawn from that testimony was that digital penetration sufficient to perforate the hymen would have caused pain and some bleeding. In addition, Dr. Brown found recent evidence of blood, i.e., the "old" blood about which she testified, which she concluded could not have been due to an incident eight or nine months earlier. Weighing these factors together, Judge Lewis concluded that the probative value of the earlier incident as an alternate explanation for the perforation of R.A.'s hymen was very weak, and the prejudice of invading her privacy unnecessarily and confusing the issues very high. We note that Oswald wished to cross-examine R.A. to attack her general credibility, i.e., her truthfulness regarding her virginity, rather than to offer an alternate explanation for her physical condition as related by Dr. Brown. The trial court found that the pri- or incident had little probative value for impeachment because a prior digital penetration was not clearly inconsistent with virginity, at least as R.A. apparently understood that term. We also note that the prosecutor did not rely on the condition of R.A.'s hymen in arguing to the jury that intercourse occurred between R.A. and Oswald. We conclude that the trial court did not abuse its discretion in precluding cross-examination in this case. Oswald next argues that the trial court committed reversible error by not declaring a mistrial when it learned of possible jury bias. Oswald was a security guard at the Alyeska Pipeline Service Company office building and allegedly recognized two potential jurors, who ultimately sat on the case, as people he might have had contact with at that time. All jurors denied recognizing Oswald. He brought this matter to the attention of his counsel, but no specific inquiry into possible bias was made. Oswald asserts that this constitutes ineffective assistance of counsel as a matter of law and undermines confidence in the integrity of the fact-finding process. We reject this contention. Oswald next argues that the court committed reversible error when it allowed evidence of the defendant's alleged "sexual propositions" to several other young girls to be presented to the jury. After an extensive hearing the trial court permitted certain friends of R.A. to testify that Oswald expressed an interest in having sexual intercourse with them in the week or so preceding the alleged incident with R.A. The trial court found the evidence relevant in establishing a motive to have sexual intercourse with underage girls and also to show a design, plan or scheme on Oswald's part to seduce young girls. See Alaska Rule of Evidence 404(b). We agree with Oswald that this evidence was not relevant to show motive. In context, motive generally means an emotional attachment to the alleged victim of the offense. Where the state seeks to show an alleged emotional interest in young girls generally, the evidence ceases to show motive and simply shows criminal propensity. See generally, 2 J. Wigmore, Evidence § 399 (Chadbourn rev. ed. 1979). Defendant's former sexual activities with third persons cannot establish motive since it is indistinguishable from a generally lustful character. Id., § 402 at 463. We believe however, that the state made a sufficient showing of design, scheme or plan so that the trial court did not abuse its discretion in permitting the evidence to come in. See J. Wigmore, Evidence § 357(3) at 334-35 (Chadbourn rev. ed. 1979). We construe the evidence in the light most favorable to the state. On September 25, 1984, Oswald, age twenty-six, Jimmy Becker, age eighteen, and D.Y., Becker's thirteen-year-old girlfriend, picked up R.A. in Wasilla and drove to Anchorage. D.Y. arranged the meeting with R.A. The group proceeded to a trailer in a trailer court managed by Oswald, where they spent the night. R.A. testified that Oswald specifically asked her about her virginity while engaging in sexual relations with her. D.Y., a thirteen-year-old eighth grader, testified that Oswald had expressed an interest in meeting her friends and sought her assistance in meeting girls. Finally, the witnesses whose testimony forms the basis for Oswald's objection were D.Y. and two friends of D.Y. and R.A. The two additional witnesses were of approximately the same age as R.A., who Oswald met through D.Y. Under the circumstances, the trial court could find that Oswald had a pre-existing plan to use his friendship with James Becker, and Becker's young friend D.Y., as a means of obtaining access to D.Y.'s young female friends for sexual purposes, and that his actions with R.A. were, in part, a consummation of that plan. This evidence was probative in explaining why Oswald invited R.A. to his trailer, and in rebutting the defense theory of the case: that Oswald was merely acting as a runaway counselor providing sanctuary to teenagers abused by their parents and stepparents. Under the circumstances, the trial court did not abuse its discretion in admitting the evidence. See State v. Bennett, 36 Wash.App. 176, 672 P.2d 772 (1983). In its cross-appeal the state argues that Judge Lewis imposed an illegal sentence. Oswald was convicted of three counts of sexual assault in the first degree. Count I involved digital penetration, while Counts II and III involved genital penetration. Judge Lewis sentenced Oswald to concurrent eightryear, terms on Count I and II. With respect to Count III, Judge Lewis sentenced Oswald to eight years with six years suspended. He ordered that sentence to run consecutively to the eight-year sentence imposed on Counts I and II, for an aggregate sentence of sixteen years with six years suspended. The state concedes that Count I encompassed foreplay leading to the act of sexual intercourse charged in Count II, and consequently could not support a separate conviction. See Tookak v. State, 648 P.2d 1018 (Alaska App.1982). The state asks that the conviction for Count I be vacated, and Oswald joins in this request. We have carefully considered the record and conclude that the parties' position is correct, and that the first act of digital penetration in effect merged with the first act of genital penetration. Only one conviction and sentence was therefore appropriate. On remand, the trial court should correct the judgment to reflect only one conviction on Counts I and II. The state argues that, in contrast, Counts II and III were severable. It reasons that Oswald engaged in an act of sexual intercourse with R.A., during which she experienced pain and discomfort. This act was charged as Count II. In order to alleviate the pain and discomfort, Oswald left R.A. and went to the store and purchased Vaseline and returned and engaged in the second act of sexual intercourse. This act was charged as Count III. Under these circumstances, the state argues, there was a sufficient break in time and circumstance to warrant separate convictions. Oswald argues that, nevertheless, the incidents were part of one continuing transaction and should have resulted in but one conviction. We are satisfied that the state's position is well-founded. See Tuckfield v. State, 621 P.2d 1350, 1352-53 & n. 3 (Alaska 1981). We therefore conclude that the trial court properly entered separate convictions and sentences for Counts II and III. The state next argues that AS 12.55.-025(e) and (g) require consecutive sentences on Counts II and III, and prohibit Judge Lewis from suspending any portion of the mandatory consecutive presumptive term on Count III. We rejected these arguments in our recent decision in State v. Andrews, 707 P.2d 900 (Alaska App.1985) petition for hearing granted, (Alaska, December 6, 1985). We adhere to the reasoning in Andrews. The judgment and sentences of the superior court are AFFIRMED in part and the case is REMANDED to vacate Oswald's conviction on Count I. . Our disposition of this issue would not preclude Oswald from pursuing the issue of ineffective assistance of counsel as a matter of fact in an Alaska Rule of Criminal Procedure 35(c) proceeding. Barry v. State, 675 P.2d 1292, 1295-96 (Alaska App.1984). . State v. Bennett has been criticized as ignoring the distinction between use of evidence to show a plan and use of evidence to show modus operandi: A recent Washington case illustrates the problem many courts have in distinguishing between "plan" and "modus operandi" as grounds for admission of other crimes. [Citing State v. Bennett.] The defendant was charged with two counts of statutory rape and two uncharged crimes were admitted. In all of these, the defendant had enticed teenage runaways into exchanging sex for food and shelter. This common modus operandi was said to be admissible under Rule 404(b) to prove that defendant had engaged in intercourse as part of a plan to take advantage of runaways in this fashion. This is evidence of propensity, not plan. But the opinion suggests that what misled the court was to read "plan" to mean something like a blueprint. Proof that the witch had constructed one gingerbread house will support an inference that she has the "plans" for this type of architectural endeavor but it does not prove whether or not she will ever use the blueprint to construct another lure for lost children. It is only when we can infer a plan for a subdivision to be called "Gingerbread Acres" that we can infer from the plan that the witch also constructed a second house. To say that the defendant had a "plan" to seduce every runaway he could may not do violence to the language but it does undermine the policy of Rule 404(b) by permitting the use of propensity to prove conduct. To be properly admissible under Rule 404(b) it is not enough to show that each crime was "planned" in the same way; rather, there must be some overall scheme of which each of the crimes is but a part. 22 C. Wright & K. Graham, Federal Practice and Procedure: Evidence § 5244 at 359 (Supp.1985) (footnotes omitted). In our view, Oswald's use of D.Y. as a means of meeting each of the witnesses, as well as R.A., meets the authors' test. As they point out in a footnote: Of course, if we find a second gingerbread house and the issue is the identity of the builder, a distinctive floor plan might show that the same witch built both. Or if the issue was why the second one was built, we might call Hansel and Gretel to testify about their experiences with the first. Id. One of the questions in this case was why R.A. was invited to Oswald's trailer. The other girls who were introduced to Oswald by D.Y. were permitted to testify to their experiences with Oswald in order to answer this question. Oswald's overall scheme was to use D.Y. as a means to the seduction of her friends. R.A.'s experience was but a part of this overall scheme.

11713769

Ted FEE, Appellant, v. STATE of Alaska, Appellee

Fee v. State

1992-02-07

No. A-3868

464

467

825 P.2d 464

825

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T18:59:07.157757+00:00

CAP

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

Ted FEE, Appellant, v. STATE of Alaska, Appellee.

Ted FEE, Appellant, v. STATE of Alaska, Appellee. No. A-3868. Court of Appeals of Alaska. Feb. 7, 1992. Cynthia Drinkwater, Asst. Public Defender, Palmer, and John B. Salemi, Public Defender, Anchorage, for appellant. William L. Estelle, Asst. Dist. Atty., Steven H. Morrissett, Dist. Atty., Palmer, and Douglas B. Baily, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and MANNHEIMER, JJ.

1834

10822

OPINION COATS, Judge. Ted Pee was convicted upon his plea of no contest of the charge of refusing to submit to a chemical test of his breath. AS 28.35.032(f). He reserved his right to appeal the district court's denial of his motion to suppress the evidence of his alleged refusal to take the Intoximeter test. See Oveson v. Anchorage, 574 P.2d 801, 803 n. 4 (Alaska 1978); Cooksey v. State, 524 P.2d 1251 (Alaska 1974). Fee was arrested for driving while intoxicated (DWI), AS 28.35.030, by Alaska State Trooper William McKillop. McKillop took Fee to the Palmer trooper station, where he asked Fee to submit to a breath test of his blood alcohol level on the Intoximeter machine. At his request, Fee was given the opportunity to telephone his attorney in Fairbanks. Following Fee's phone call to his attorney, McKillop read Fee the implied consent notice, informing him of his legal obligation to submit to a chemical test of his breath. Fee stated that he was willing to take the test if his attorney came to the station and advised him in person to do so, but that he would not take the test without having his attorney present. McKillop took this response to be a refusal to take the test. Fee argues that all evidence of his alleged refusal to take the Intoximeter test should have been suppressed under the rule of Graham v. State, 633 P.2d 211 (Alaska 1981). In Graham, the supreme court held that: [W]here an arrested person refuses to submit to a breathalyzer test, the administering officer must inquire into the nature of the refusal and, if it appears that the refusal is based on a confusion about a person's rights, the officer must clearly advise that person that the rights contained in the Miranda warning do not apply to the breathalyzer examination. 633 P.2d at 215 (applying Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)). The Graham rule applies only in those cases in which the arres-tee has been advised by an officer of his or her Miranda rights prior to being asked to submit to chemical testing. Lively v. State, 804 P.2d 66, 69 (Alaska App.1991). McKillop read Fee his Miranda rights while transporting him to the trooper station. The state appears to concede that the Graham rule applies in this case. The state argues only that Fee has not sustained his burden of showing that he was in fact confused by, and failed to appreciate the distinction between his Miranda right to decline to answer any questions without having an attorney present and the requirement that he decide without the presence of his attorney whether to submit to Intoximeter testing. The state's apparent concession that the Graham rule controls here is well founded. Although Graham was an administrative appeal of a civil driver's license revocation by the Department of Public Safety, we see no reason not to extend the rule announced in that case to cases involving criminal charges for refusal to submit to chemical testing. The Graham rule arose out of the supreme court's concern that in cases in which Miranda warnings had been read, "the arrested person may be misled into believing that he or she either has a right to have counsel present before deciding whether to take the test, or can refuse to submit to the test without suffering the threatened consequences of that refusal." 633 P.2d at 215. The danger of confusion engendered by the Miranda warnings is even more compelling when the refusal leads to criminal charges than when the sanction is an administrative driver's license revocation. A person who refuses to submit to chemical testing because of confusion caused by the arresting officer's advisement of his or her Miranda rights cannot be held criminally liable for that refusal. The state points out that even when it has been established that the defendant was read the Miranda rights before being asked to submit to a breath test, the defendant has the burden of showing that he or she was in fact confused about those rights. Graham, 633 P.2d at 215. The state argues that Fee has failed to sustain this burden. We disagree. The DWI processing videotape played at the hearing on Fee's motion to suppress clearly indicates that Fee presented sufficient evidence to show that Fee was in fact confused about his rights. In response to the reading of the implied consent form and the trooper's requests that he take the Intoximeter test, Fee stated repeatedly that he was willing to take the test upon his attorney's advice and that he wanted only to wait until his attorney arrived at the station. Fee twice asserted that it was his "right" to wait for his attorney before deciding whether to take the test. Trooper McKillop did not respond directly to the first of these assertions. The second time Fee said, "I'm not going to do it until my attorney is present . that's my right," McKillop responded, "No, it is not your right, sir." When Fee then said, "Yes, it is, sir," McKillop did not explicitly inform Fee that he had no right to have his attorney present when deciding whether to take the test. Fee's apparent confusion about the interplay between his right to remain silent and the request that he take the Intoximeter test is further demonstrated by the following exchanges, all recorded on the videotape: McKILLOP: We are not going to wait for your attorney to get here from Fairbanks. FEE: So what do you want me to do, man, confess? McKILLOP: No, I want you to decide whether or not you're going to take the Intoximeter test. McKILLOP: Well, we're not going to sit here and wait for your attorney to get here from Fairbanks. FEE: So what do you want me to do? Confess that I killed 255 people? McKILLOP: No, I want you to tell me whether or not you're going to take this Intoximeter. McKILLOP: And, we are not going to wait for (your attorney). FEE: And I'm not going to let you use anything I may or might say against me, man, in a court of law. The state argues that Trooper McKillop satisfied the requirements of the Graham rule by informing Fee that he would not wait for Fee's attorney to arrive from Fairbanks and that Fee had to decide on his own whether to take the test. District Court Judge Peter G. Ashman essentially adopted this view. Judge Ashman accepted Fee's claim of confusion over his Miranda rights; in Judge Ashman's view, however, Fee's confusion over his rights resulted not from the lack of an adequate explanation by McKillop, but rather from the fact that Fee was being "sort of oppositional" and did not listen to McKillop's advice. Finding that McKillop's statements to Fee would have been sufficient to inform a reasonable person in Fee's shoes that the test was mandatory, Judge Ash-man concluded that McKillop had substantially complied with Graham. Judge Ashman erred in concluding that McKillop's explanation complied with the requirements of Graham. The Graham rule is triggered when a DWI arres-tee who has been given Miranda warnings refuses to submit to a breath test under circumstances indicating that the refusal may stem from the arrestee's mistaken be lief that, under Miranda, there is a right to decline the test or to insist on the presence of counsel. Once triggered, the Graham rule expressly requires the arresting officer to "clearly advise [the arrestee] that the rights contained in the Miranda warning do not apply to the breathalyzer examination." Graham, 633 P.2d at 215. Thus, under Graham, it is not enough for the officer to advise the arrestee that the breath test is mandatory; the officer must also specifically explain that, under the law, the Miranda rights to silence and to the presence of counsel do not apply to the breath test. In Cameron v. Commonwealth, 581 A.2d 689, 690-91 (Pa.Commw.1990), the court found that statements similar to the statements which Trooper McKillop made to Fee were insufficient. In Cameron, the court was interpreting a decision by the Pennsylvania Supreme Court in Department of Transportation, Bureau of Traffic Safety v. O'Connell, 521 Pa. 242, 555 A.2d 873 (1989), a case in which the Pennsylvania Supreme Court placed an obligation on the police to clarify the defendant's rights similar to the obligation which the Supreme Court of Alaska placed on the police in Graham. In Cameron, the court stated: We find that none of the statements of record made by the Township Police constitute a qualifying instruction as contemplated by O'Connell. Absent from all of these statements is a clear communication that the right to counsel referred to in Miranda warnings is inapplicable to a breathalyzer test. Telling an arrestee that a lawyer need not be present or that consulting with an attorney or anyone else is not necessary before taking the test are insufficient instructions. Telling an arrestee that he must make this decision on his own is also insufficient. None of these statements informs an arrestee adequately of the extent of the right to counsel, nor does anyone [sic] of them clarify for an arrestee that the right is inapplicable to chemical testing for intoxication. Clearly indicating that the right to counsel does not extend to a breathalyzer test achieves the O'Connell court's intent to insure that arrestees who exhibit confusion over their Miranda rights are not being misled into making uninformed and unknowing decisions to take the test. 581 A.2d at 690-91. Because we find that Fee was not clearly advised that his Miranda rights did not apply to the request that he submit to an Intoximeter testing, we REVERSE Fee's conviction for refusal to submit to a chemical test. . Judge Ashman found that Fee was being argumentative and that a reasonable person in Fee's position would have understood that he was required to take the Intoximeter test. Regardless of the reasonableness of Fee's confusion, McKillop was obligated to comply with Graham by specifically advising Fee that his Miranda rights did not apply to the breath test. We emphasize, however, that a different issue would be presented if McKillop's explanation to Fee had complied with Graham, but Fee had nonetheless continued to be argumentative, and had thus remained confused. Because this latter issue does not arise under the facts of this case, we do not address it. . Our resolution of this issue makes it unnecessary for us to consider Fee's argument that the police did not afford him an opportunity to consult privately over the phone with his counsel.

11717489

STATE of Alaska, Petitioner, v. The Honorable Rene GONZALEZ, Jeffrey S. DeGrasse, Carl Jahnke-Leland, and Jill Jahnke-Leland, Respondents

State v. Gonzalez

1992-02-14

No. A-4063

920

936

825 P.2d 920

825

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T18:59:07.157757+00:00

CAP

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

STATE of Alaska, Petitioner, v. The Honorable Rene GONZALEZ, Jeffrey S. DeGrasse, Carl Jahnke-Leland, and Jill Jahnke-Leland, Respondents.

STATE of Alaska, Petitioner, v. The Honorable Rene GONZALEZ, Jeffrey S. DeGrasse, Carl Jahnke-Leland, and Jill Jahnke-Leland, Respondents. No. A-4063. Court of Appeals of Alaska. Feb. 14, 1992. Eric A. Johnson, Asst. Atty. Gen., Office of Sp. Prosecutions and Appeals, Anchorage, and Charles E. Cole, Atty. Gen., Juneau, for petitioner. Margi Mock, Ray Brown, Asst. Public Defenders, and John B. Salemi, Public Defender, Anchorage, for respondent Jeffrey S. DeGrasse. Michael A. Thompson, Juneau, for respondent Carl Jahnke-Leland. Jeffrey F. Sauer, Juneau, for respondent Jill Jahnke-Leland. Before BRYNER, C.J., COATS, J., and ANDREWS, Superior Court Judge. Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution.

10535

67384

OPINION BRYNER, Chief Judge. In this case, we review a superior court order deciding that Alaska's witness immunity statute violates the Alaska Constitution's privilege against self-incrimination. We affirm the superior court's order. PROCEDURAL BACKGROUND Jill Jahnke-Leland, Carl Jahnke-Leland, Peter H. Leland, and Jeffrey DeGrasse were jointly charged with first-degree murder, attempted first-degree murder, and related offenses stemming from a shooting incident near Ketchikan. The superior court ordered separate trials for the defendants. Jill Jahnke-Leland was tried first. The jury acquitted her of murder and attempted murder, but convicted on the lesser-included offenses of manslaughter and assault. Peter Leland and Jeffrey DeGrasse elected to proceed jointly and were tried next. Their jury acquitted them of first-degree murder and attempted murder but deadlocked as to lesser-included offenses and the remaining charges. The superior court declared a mistrial and scheduled a retrial on the unresolved charges. Prior to the retrial, the state issued a subpoena for Jill Jahnke-Leland to appear as a prosecution witness against Leland and DeGrasse. The state sought to compel Jahnke-Leland's testimony by offering her immunity in compliance with Alaska's witness immunity statute, AS 12.50.101(a), which assures that "no testimony or other information compelled under . [an] order [of immunity], or information directly or indirectly derived from that testimony or other information, may be used against the witness in a criminal case...." Jahnke-Leland moved to quash the subpoena. Asserting her constitutional privilege against compulsory self-incrimination, Jahnke-Leland claimed that the statutory prohibition against use of her testimony or information derived therefrom — "use and derivative use immunity" — was constitutionally deficient and that she could adequately be protected against self-incrimination only by a broader grant of immunity categorically precluding her from being prosecuted for any transaction as to which she was compelled to testify — "transactional immunity." Superior Court Judge Rene J. Gonzalez granted Jahnke-Leland's motion to quash the subpoena. Judge Gonzalez found the witness immunity statute's provision for use and derivative use immunity to be insufficient and concluded that "only transactional immunity is adequate to protect an individual's right against self-incrimination under Article I, § 9 of the Alaska Constitution." The state then applied to this court for review of Judge Gonzalez's order. Because the case presents an important legal issue of first impression, the immediate resolution of which would further public interest, we granted the state's application and directed briefing on the merits. FEDERAL LAW The issue presented in this case is whether the Alaska Constitution will permit the state to compel potentially self-incriminatory testimony from a witness by an offer of use and derivative use immunity, or, conversely, whether a broader form of immunity — transactional immunity — is required. Although this issue is one of state constitutional law, decisions construing the federal constitution's privilege against self-incrimination provide the backdrop against which the state constitutional issue must be decided. The fifth amendment to the United States Constitution guarantees that "[n]o person . shall be compelled in any criminal case to be a witness against him-self_" The importance of this constitutional privilege would be difficult to exaggerate: "[T]he American system of criminal prosecution is accusatorial, not inquisitional, and . the Fifth Amendment privilege is its essential mainstay." Malloy v. Hogan, 378 U.S. 1, 7, 84 S.Ct. 1489, 1493, 12 L.Ed.2d 653 (1964). In Ullmann v. United States, 350 U.S. 422, 426-27, 76 S.Ct. 497, 500-01, 100 L.Ed. 511 (1956), the Court described the privilege as "an important advance in the development of our liberty — 'one of the great landmarks in man's struggle to make himself civilized.' " Viewed literally, the language of the privilege would appear only to preclude compelling the accused in a criminal case to testify. However, it is now well settled that the privilege: can be asserted in any proceeding, civil or criminal, administrative or judicial, in vestigatory or adjudicatory; and it protects against any disclosures which the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used. Kastigar v. United States, 406 U.S. 441, 444-45, 92 S.Ct. 1653, 1656, 32 L.Ed.2d 212 (1972) (footnotes omitted). Likewise, it is settled that the privilege extends to a party or a witness alike. Malloy v. Hogan, 378 U.S. at 11, 84 S.Ct. at 1495. Although the privilege against self-incrimination stands as an absolute bar against compelled testimony, it does not attach in all situations. By its own terms, it cannot be claimed when a witness has no reasonable grounds to fear that an answer might be incriminatory. See Hoffman v. United States, 341 U.S. 479, 486-87, 71 S.Ct. 814, 818-19, 95 L.Ed. 1118 (1951); see also McConkey v. State, 504 P.2d 823, 826 (Alaska 1972). This principle has led to the view that a witness may be compelled to testify in exchange for immunity from future prosecution. The first immunity case to reach the Supreme Court was Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110 (1892). In Counselman, the Court considered the validity of a federal immunity statute authorizing the testimony of a witness to be compelled, provided that no "evidence obtained from a party or witness by means of a judicial proceeding . shall be given in evidence, or in any manner used against him . in any court of the United States." Id. at 560, 12 S.Ct. at 197. The Court found the challenged statute deficient because it protected the witness only from direct use of compelled testimony, and not from use of the fruits thereof. Id. at 586, 12 S.Ct. at 206. The Court condemned the statute in broad terms: We are clearly of opinion that no statute which leaves the party or witness subject to prosecution after he answers the criminating question put to him, can have the effect of supplanting the privilege conferred by the Constitution of the United States_ In view of the constitutional provision, a statutory enactment, to be valid, must afford absolute immunity against future prosecution for the offense to which the question relates. Id. at 585-86, 12 S.Ct. at 206. Soon after Counselman was decided, Congress enacted an immunity statute authorizing the testimony of witnesses to be compelled upon a grant of transactional immunity. In Brown v. Walker, 161 U.S. 591, 16 S.Ct. 644, 40 L.Ed. 819 (1896), the Supreme Court reviewed the transactional immunity statute. The issue in Brown was whether any form of immunity could displace the constitutional guarantee against compelling a witness to provide incriminatory testimony. The Court observed that its earlier ruling in Counselman v. Hitchcock raised the inference that, if a "statute does afford . [absolute] immunity against future prosecution, the witness will be compellable to testify." Brown v. Walker, 161 U.S. at 594, 16 S.Ct. at 645. The Court found this inference supported by prior cases addressing the privilege against self-incrimination, which in its view established that "if the testimony sought cannot possibly be used as a basis for, or in aid of, a criminal prosecution against the witness, the rule [against compulsory self-incrimination] ceases to apply, its object being to protect the witness himself and no one else...." Id. at 597,16 S.Ct. at 647. Finding that the transactional immunity statute amounted to a virtual grant of amnesty from future prosecution, the Court concluded: While the constitutional provision in question is justly regarded as one of the most valuable prerogatives of the citizen, its object is fully accomplished by the statutory immunity, and we are, therefore, of opinion that the witness was compellable to answer.... Id. at 610, 16 S.Ct. at 652. Notably, four justices in Brown v. Walker dissented from the majority opinion, maintaining that, under the fifth amendment, even a broad grant of transactional immunity did not justify the government in compelling potentially self-incriminatory testimony from a reluctant witness. Id. at 610-28, 16 S.Ct. at 651-52 (Shiras, J., dissenting), 628-38, 16 S.Ct. at 652-56 (Field, J., dissenting). Sixty years later, in Ullmann v. United States, 350 U.S. 422, 76 S.Ct. 497,100 L.Ed. 511 (1956), the United States Supreme Court was asked to reconsider the decision in Brown v. Walker and to adopt the views of the dissenting justices. At issue in Ull-mann was the federal Immunity Act of 1954, which provided for transactional immunity in much the same language as the 1893 act challenged in Brown v. Walker. See Ullmann, 350 U.S. at 423-24, 76 S.Ct. at 498-99. In refusing to alter its prior holding, the Ullmann Court, in an opinion authored by Justice Frankfurter, emphasized that the Court's holding in Brown v. Walker has never been challenged; the case and the doctrine it announced have consistently and without question been treated as definitive by this Court.... The 1893 statute has become part of our constitutional fabric and has been included "in substantially the same terms, in virtually all of the major regulatory enactments of the federal government." Ullmann, 350 U.S. at 437-38, 76 S.Ct. at 506-07 (citations omitted). Reaffirming Brown v. Walker, the Court in Ullmann reiterated the view that transactional immunity afforded protections equivalent to those of the fifth amendment: The privilege against self-incrimination is a specific provision of which it is peculiarly true that "a page of history is worth a volume of logic." For the history of the privilege establishes not only that it is not to be interpreted literally, but also that its sole concern is, as its name indicates, with the danger to a witness forced to give testimony leading to the infliction of "penalties affixed to the criminal acts_" . Immunity displaces the danger. Once the reason for the privilege ceases, the privilege ceases. Ullmann, 350 U.S. at 438-39, 76 S.Ct. at 506-07 (citations and footnote omitted). By emphasizing that the doctrine of Brown v. Walker had "consistently and without question been treated as definitive" and by characterizing the federal immunity act, with its provision for transactional immunity, as "part of our constitutional fabric," 350 U.S. at 437-38, 76 S.Ct. at 506-07, Ullmann reinforced the widespread belief — originally fostered by the Court's strong language in Counselman v. Hitchcock — that only transactional immunity would meet the requirement of offering protections equivalent to those assured by the fifth amendment. Not until1 eight years after Ullmann did the Supreme Court plant the first seeds of doubt as to whether transactional immunity was constitutionally compelled. In Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964), the Court extended the fifth amendment's privilege against self-incrimination to the states via the due process clause of the fourteenth amendment. This ruling necessitated a reevaluation of earlier decisions holding that, to be effective, a grant of immunity needed only to protect a witness against prosecution in the jurisdiction where the testimony was sought. See, e.g., Feldman v. United States, 322 U.S. 487, 64 S.Ct. 1082, 88 L.Ed. 1408 (1944); United States v. Murdock, 284 U.S. 141, 52 S.Ct. 63, 76 L.Ed. 210 (1931). In Murphy v. Waterfront Commission of New York Harbor, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964)—a companion case to Malloy v. Hogan—the Court took up this issue. After a thorough review of its past decisions and relevant decisions of the English courts, the Court concluded that there is no continuing legal vitality to, or historical justification for, the rule that one jurisdiction within our federal structure may compel a witness to give testimony which could be used to convict him of the crime in another jurisdiction. Murphy, 378 U.S. at 77, 84 S.Ct. at 1608. The Court thus held that the constitutional privilege against self-incrimination protects a state witness against incrimination under federal as well as state law and a federal witness against incrimination under state as well as federal law. Id. at 77-78, 84 S.Ct. at 1608-09. This left the Court with a dilemma: since under the supremacy clause of the United States Constitution states had no authority to preclude federal prosecution by a promise of immunity, it was unclear whether state prosecutors would ever be capable of making a grant of immunity "so broad as to have the same extent in scope and effect" as the fifth amendment. Counselman, 142 U.S. at 585, 12 S.Ct. at 206. The Murphy Court resolved this dilemma by adopting an exclusionary rule for federal cases involving defendants who had been granted immunity under state law: [W]e hold the constitutional rule to be that a state witness may not be compelled to give testimony which may be incriminating under federal law unless the compelled testimony and its fruits cannot be used in any planner by federal officials in connection with a criminal prosecution against him. We conclude, moreover, that in order to implement this constitutional rule and accommodate the interests of the State and Federal Governments in investigating and prosecuting crime, the Federal Government must be prohibited from making any such use of compelled testimony and its fruits. This exclusionary rule, while permitting the states to secure information necessary for effective law enforcement, leaves the witness and the Federal Government in substantially the same position as if the witness had claimed his privilege in the absence of a state grant of immunity. Murphy, 378 U.S. at 79, 84 S.Ct. at 1609 (footnote omitted) (emphasis added). In a concurring opinion, Justice White seized on the Court's adoption of use and derivative use immunity for dual jurisdiction cases as an opportunity to advance the idea that transactional immunity would not be constitutionally required even in single jurisdiction cases. Id. at 92-107, 84 S.Ct. at 1610-18. In the years following Murphy v. Waterfront, Justice White's concept of use and derivative use immunity gained increasing notice. In Piccirillo v. New York, 400 U.S. 548, 91 S.Ct. 520, 27 L.Ed.2d 596 (1971), the Supreme Court granted certiorari to consider the validity of a New York statute that appeared to provide only for use and derivative use immunity. While the case awaited Supreme Court consideration, however, the New York Court of Appeals, in a separate case, construed the statute to require transactional immunity. On this basis, the Supreme Court dismissed the writ of certiorari as improvidently granted. The decision by the majority of the court to dismiss in Piccirillo, however, prompted Justice Brennan to write a dissenting opinion in which he argued that transactional immunity was constitutionally compelled and that use and derivative use immunity could not afford protections that were coextensive with those set out in the fifth amendment. Id. at 561-73, 91 S.Ct. at 527-33. The same year the Court granted certio-rari in Piccirillo, Congress enacted a revised immunity statute providing for use and derivative use immunity, rather than transactional immunity. In Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972), the Supreme Court upheld the statute, adopting the views expressed by Justice White in his separate concurrence in Murphy. The majority of the Court in Kastigar dismissed as dicta language from Counselman v. Hitchcock and subsequent cases suggesting that transactional immunity was the only form of immunity offering protections coextensive with those set out in the fifth amendment. Kastigar, 406 U.S. at 454-55, 92 S.Ct. at 1661-62. Kastigar identified the true basis for Counselman's holding to be merely that a statute protecting only against direct use of compelled testimony, without also prohibiting use of information derived from that testimony, was inadequate. Id. The Court went on to note that use and derivative use immunity had been described in Murphy v. Waterfront Commission as substantially equivalent to the fifth amend ment privilege. The Court found no basis for declining to extend Murphy's holding to the single jurisdiction context: The Murphy Court was concerned solely with the danger of incrimination under federal law, and held that immunity from use and derivative use was sufficient to displace the danger. This protection coextensive with the privilege is the degree of protection that the Constitution requires, and is all that the Constitution requires even against the jurisdiction compelling testimony by granting immunity. Kastigar, 406 U.S. at 458-59, 92 S.Ct. at 1663-64. The Court then went on to consider the practical problem of how a court might decide whether a prosecution was based, directly or indirectly, on previously compelled testimony. Again, the Court relied on Murphy, which placed on the government the burden of proving that its evidence was not tainted and had an independent, legitimate source. Kastigar emphasized that: [T]his burden of proof, which we reaffirm as appropriate, is not limited to a negation of taint; rather, it imposes on the prosecution the affirmative duty to prove that the evidence it proposes to use is derived from a legitimate source wholly independent of the compelled testimony. Kastigar, 406 U.S. at 460-61, 92 S.Ct. at 1664-65. The majority opinion in Kastigar engendered two vigorous dissents, one from Justice Douglas and one from Justice Marshall; both drew heavily on the dissent written in Piccirillo v. New York by Justice Brennan, who did not participate in Kastigar. Justice Douglas decried the Kastigar majority's apparent view that Murphy v. Waterfront Commission overruled Counselman v. Hitchcock sub silen-tio. Kastigar, 406 U.S. at 463, 92 S.Ct. at 1666. He concluded: When we allow the prosecution to offer only "use" immunity we allow it to grant far less than it has taken away. For while the precise testimony that is compelled may not be used, leads from that testimony may be pursued and used to convict the witness. My view is that the framers put it beyond the power of Congress to compel anyone to confess his crimes. The self-incrimination clause creates, as I have said before, "the federally protected right of silence," making it unconstitutional to use a law to "pry open one's lips and make him a witness against himself." That is indeed one of the chief procedural guarantees in our accusatorial system. Government acts in an ignoble way when it stoops to the end which we authorize today. Kastigar, 406 U.S. at 466-67, 92 S.Ct. at 1667-68 (footnote and citation omitted). In his separate dissent, Justice Marshall expressed even greater skepticism as to whether use and derivative use immunity could actually be coextensive with the fifth amendment or with transactional immunity: I do not see how it can suffice merely to put the burden of proof on the government. First, contrary to the Court's assertion, the Court's rule does leave the witness "dependent for the preservation of his rights upon the integrity and good faith of the prosecuting authorities." For the information relevant to the question of taint is uniquely within the knowledge of the prosecuting authorities. They alone are in a position to trace the chains of information and investigation that lead to the evidence to be used in a criminal prosecution. A witness who suspects that his compelled testimony was used to develop a lead will be hard pressed indeed to ferret out the evidence necessary to prove it. And of course it is no answer to say that he need not prove it, for though the Court puts the burden of proof on the government, the government will have no difficulty in meeting its burden by mere assertion if the witness produces no contrary evidence. The good faith of the prosecuting authorities is thus the sole safeguard of the witness' rights. Second, even their good faith is not a sufficient safeguard. For the paths of information through the investí- gative bureaucracy may well be long and winding, and even a prosecutor acting in the best of faith cannot be certain that somewhere in the depths of his investigative apparatus, often including hundreds of employees, there was not some prohibitive use of the compelled testimony. The Court today sets out a loose net to trap tainted evidence and prevent its use against the witness, but it accepts an intolerably great risk that tainted evidence will in fact slip through that net. Kastigar, 406 U.S. at 469, 92 S.Ct. at 1669 (citations omitted). Kastigar's declaration that the fifth amendment demands no more than a grant of use and derivative use immunity to supplant the privilege against self-incrimination remains unaltered to this day. In the present case, Jill Jahnke-Leland has no valid claim of privilege under the United States Constitution. Kastigar establishes that the state's offer of use and derivative use immunity is the effective equivalent of Jahnke-Leland's fifth amendment privilege. ALASKA LAW Recognizing that no valid claim would exist under the fifth amendment, however, Jahnke-Leland has asserted her privilege under article I, § 9 of the Alaska Constitution. We must turn, accordingly, to the Alaska Constitution. Article I, § 9 commands that "[n]o person shall be compelled in any criminal proceeding to be a witness against himself." The Alaska Supreme Court has never expressly determined whether this provision can be displaced by use and derivative use immunity, or whether transactional immunity is instead required. On two occasions, the court has been presented with the issue but has declined to decide it. In Surina v. Buckalew, 629 P.2d 969 (Alaska 1981), the court determined that the prosecution had inherent authority to confer immunity on a reluctant witness, even in the absence of statutory authorization. Id. at 979. The court expressed the general view that Rule 732 of the Uniform Rules of Criminal Procedure "provides appropriate guidance concerning the exercise of" the state's authority to grant immunity. While Uniform Rule 732(b) calls for transactional rather than use and derivative use immunity, the supreme court stopped short of endorsing that standard. Id. at 979 n. 21. Instead, noting that the parties had raised no issue as to the scope of immunity that would suffice, the court indicated that it would "leave for another day the question of what the Alaska Constitution requires in this respect." Id. at 980. In State v. Serdahely, 635 P.2d 1182 (Alaska 1981), the Alaska Supreme Court was again asked to determine the scope of immunity that would be necessary to compel a reluctant witness to testify. Instead of deciding the issue on constitutional grounds, however, the court invoked its supervisory powers and opted, summarily, for transactional immunity: This court adopts pursuant to its supervisory powers as a rule of practice the provisions of Rule 732 of the Uniform Rules of Criminal Procedure including subsection (b) relating to the nature and scope of immunity for the reasons expressed in the commentary to the rule. Id. at 1182. In response to the Alaska Supreme Court's apparent deference to the legislature, the Alaska legislature, in 1982, adopted Alaska's witness immunity statute, AS 12.50.101, specifying use and derivative use as the applicable standard of immunity in Alaska. In contrast to the Alaska Supreme Court's preference for the policies favoring transactional immunity, as expressed in the commentary to Uniform Criminal Rule 732(b), the legislature indicated its preference for policies favoring use and derivative use immunity and stated its belief that such immunity would pass muster under the Alaska Constitution. See House Journal Supplement No. 63 at 12-16, 1982 House Journal 2356. Given the supreme court's reluctance in Surina and Serdahely to decide the scope of immunity required by the Alaska Constitution, the validity of Alaska's witness immunity statute remains an open question. To answer this question, we must decide whether article I, § 9 of the Alaska Constitution embodies more stringent protections than are available under the fifth amendment to the United States Constitution. While the United States Constitution imposes the minimal constitutional standards that we must enforce, we are free, and we are under a duty, to develop additional constitutional rights and privileges under our Alaska Constitution if we find such fundamental rights and privileges to be within the intention and spirit of our local constitutional language and to be necessary for the kind of civilized life and ordered liberty which is at the core of our constitutional heritage. Baker v. Fairbanks, 471 P.2d 386, 401-02 (Alaska 1970). It is the responsibility of Alaska courts to "depart whenever necessary from constitutional interpretations enunciated by the United States Supreme Court and to develop rights and privileges under the Alaska constitution in accordance with our own unique legal background." Scott v. State, 519 P.2d 774, 783 (Alaska 1974). The starting point for interpreting any constitutional provision is the original understanding of those who drafted it. "[T]he fundamental principle in construing a constitutional provision is to give effect to the intention of the framers and the people adopting it." HGEA v. County of Maui, 59 Haw. 65, 576 P.2d 1029, 1039 (1978). The Alaska Constitution's guarantee that "[n]o person shall be compelled in any criminal proceeding to be a witness against himself" is virtually identical to the corresponding guarantee in the fifth amendment to the United States Constitution. Biele v. State, 371 P.2d 811, 813 n. 6 (Alaska 1962). From this similarity in language, a fair inference arises that the drafters of the Alaska Constitution intended article I, § 9 to guarantee protections commensurate with those then available under the fifth amendment. Our inquiry must thus focus on the manner in which the fifth amendment was interpreted and understood when the Alaska Constitution was enacted: This is but another application of the familiar rule that where one State adopts the laws of another, it is also presumed to adopt the known and settled construction of those laws by the courts of the state from which they are taken. Brown v. Walker, 161 U.S. at 600, 16 S.Ct. at 648. Alaska's constitutional convention adopted the Alaska Constitution on February 5,1956; the people of Alaska ratified it on April 24, 1956. The drafting and ratification of Alaska's privilege was thus roughly contemporaneous with the United States Supreme Court's opinion in Ull-mann v. United States, in which Justice Frankfurter characterized the federal transactional immunity statute as having become "part of our constitutional fabric." Ullmann, 350 U.S. at 438, 76 S.Ct. at 506. The universally accepted view at that time was that, in keeping with Counselman v. Hitchcock and Brown v. Walker, only transactional immunity could be deemed coextensive with the protections of the fifth amendment. As we have previously pointed out, the first serious doubts concerning the constitutional status of transactional immunity did not arise until the Supreme Court's 1964 decision in Murphy v. Waterfront Commission — fully eight years after the Alaska Constitution was enacted, and more than five years after the constitution formally took effect with the proclamation of statehood on January 3, 1959. The universal acceptance of transactional immunity in 1956 is convincing evidence that, by selecting language for Alaska's privilege against self-incrimination that was identical to the language of the federal constitutional privilege, the drafters of our constitution contemplated that article I, § 9 would also be read to require transactional immunity. Under circumstances almost identical to those in Alaska, the Supreme Court of Hawaii concluded that the drafters of its constitution intended to require transactional immunity when they wrote the Hawaii Constitution. See State v. Miyasaki, 62 Haw. 269, 614 P.2d 915 (1980). The Hawaii Constitution was drafted in 1950, several years before Alaska's constitution was written. The Alaska and Hawaii constitutions took effect contemporaneously, with the proclamation of statehood in 1959. Article I, § 10 of the Hawaii Constitution — like article I, § 9 of the Alaska Constitution — embodies the privilege against self-incrimination in language virtually identical to that of the fifth amendment. See Miyasaki, 62 Haw. 269, 614 P.2d at 917 n. 5. In determining the intent of the drafters of article I, § 10, the Hawaii Supreme Court stated: That transactional immunity had been "part of our constitutional fabric" from 1893 could not have been lost to a convention that included lawyers among its members. Nor can we conclude the sanguine statements about the Fifth Amendment and interpretations strongly favoring the privilege may have escaped the members of a constitutional convention convened in 1950. Transactional immunity is undoubtedly part of the "fabric" of Article I, § 10 notwithstanding the tear in the "fabric" of the federal constitution caused by Kastigar.... Miyasaki, 614 P.2d at 922-23 (footnotes omitted). Just as Hawaii's Supreme Court found it unlikely that the members of its constitutional convention were unaware of federal law, so we find it inconceivable that members of Alaska's constitutional convention could have ignored the fact that transactional immunity was perceived as "part of our constitutional fabric." Of course, our constitution is not static. We are not inflexibly tied to the interpretation of the fifth amendment that the drafters of article I, § 9 intended to adopt: We are not bound in expounding the Alaska Constitution's Declaration of Rights by the decisions of the United States Supreme Court, past or future, which expound identical or closely similar provisions of the United States Constitution. Roberts v. State, 458 P.2d 340, 342 (Alaska 1969). See also Baker v. Fairbanks, 471 P.2d at 401-02. Yet this does not mean that we should depart from the understanding and intent of the drafters of the Alaska Constitution whenever the United States Supreme Court changes its course on corresponding provisions of the federal constitution. To the contrary, while the Alaska Supreme Court has noted its freedom and duty "to develop additional constitutional rights and privileges under our Alaska Constitution," Baker v. Fairbanks, 471 P.2d at 402, it has exercised this freedom and duty only upon finding "such fundamental rights and privileges to be within the intention and spirit of our local constitutional language and to be necessary for the kind of civilized life and ordered liberty which is at the core of our constitutional heritage." Id. (footnote omitted). Our supreme court has also eschewed reflexive adherence to changes at the federal constitutional level: We are not bound to follow blindly a federal constitutional construction of a fundamental principle if we are con vinced that the result is based on unsound reason or logic. Scott v. State, 519 P.2d at 783. Blind adherence to federal constitutional change is especially inappropriate "where 'unexpected' decisions from the [United States Supreme] Court 'have forced a serious reevaluation of . fundamentals.' " State v. Miyasaki, 614 P.2d at 922 (quoting State v. Kaluna, 55 Haw. 361, 520 P.2d 51, 57 (1974)). After carefully considering the United States Supreme Court's decision in Hosti-gar, the Hawaii Supreme Court has declined to depart from the original intent of the drafters of its privilege against self-incrimination. Similarly, the Supreme Court of Massachusetts has refused to accept Hostigaos shift in direction as an adequate basis for revising its views of the Massachusetts constitution's privilege against self-incrimination: To assume that, because of the common source of the principle articulated in each Constitution, the two provisions must have the same meaning would overturn the interpretation of the Massachusetts Constitution given with clarity and careful consideration in Emery's Case, 107 Mass. 172 (1871)_ Positive safeguards secured to individuals by the Massachusetts Constitution, yet not available under the cognate provisions of the United States Constitution, should not be thus circumscribed. Attorney General v. Colleton, 387 Mass. 790, 444 N.E.2d 915, 921 (1982). The United States Supreme Court's decisions interpreting the fifth amendment do not decide the meaning of the Alaska privilege, and similarity in language does not make the United States Supreme Court the primary interpreter of article I, § 9. See State v. Soriano, 68 Or.App. 642, 684 P.2d 1220, 1222 (in banc), summarily aff'd, 298 Or. 392, 693 P.2d 26 (1984). Departure from the original intent of the drafters of article I, § 9 requires something more than a recent shift in federal constitutional interpretation. Yet the state has failed to provide any compelling, or even cogent, reason for altering the original meaning of article I, § 9. The state argues only that, as a matter of social policy, use and derivative use immunity is preferable to transactional immunity, since it better accommodates the state's undeniably legitimate interest in investigating and prosecuting criminal activity. According to the state, scrupulous application of use and derivative use immunity can protect the rights of witnesses as effectively as both transactional immunity and the constitutional privilege itself. The state's position is essentially an argument based on expediency. That the legislature may deem one course desirable because it accommodates the state's interest by facilitating prosecution does not justify departing from a different course taken by our constitution to protect the rights of Alaska citizens. As the Alaska Supreme Court has said: The argument from expediency contains inherent defects. If an individual right is vested by the Constitution, the overriding demands of governmental efficiency must be of a compelling nature and must be identifiable as flowing from some enumerated constitutional power. To allow expediency to be the basic principle would place the individual constitutional right in a secondary position, to be effectuated only if it accorded with expediency. This would negate our entire theory of constitutional government. The American Constitutional theory is that constitutions are a restraining force against the abuse of governmental power, not that individual rights are a matter of governmental sufferance. Baker v. Fairbanks, 471 P.2d at 394 (footnote omitted). The state's position in this case is flawed in other significant respects. Any narrowing of the originally intended meaning of Alaska's privilege against self-incrimination would seem incompatible with prior decisions in which the Alaska Supreme Court and this court have interpreted article I, § 9 to provide for broader protections than are available under the fifth amendment. In Scott v. State, 519 P.2d at 783-85, the Alaska Supreme Court interpreted article I, § 9 to invalidate a trial court order that required the defendant to disclose, in advance of trial, details concerning potential alibi witnesses. This interpretation was at odds with Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970), in which the United States Supreme Court held that such disclosure was not problematic under the fifth amendment. It is particularly noteworthy that the Supreme Court's decision in Scott was motivated in large part by the Court's fear that compelled disclosure of details concerning an alibi defense might be used indirectly by the prosecution to the disadvantage of the accused. Scott, 519 P.2d at 785. The fear of this type of nontestimonial use of compelled testimony by the prosecution is precisely what has generated the severest and most enduring criticism of use and derivative use immunity. Cf McCracken v. Corey, 612 P.2d 990, 999-1001 (Alaska 1980) (Rabinowitz, J., concurring). In Pinkerton v. State, 784 P.2d 671 (Alaska App.1989), this court construed article I, § 9 of the Alaska Constitution to require that limited target warnings be given to potential defendants subpoenaed by the state to testify before the grand jury. A similar requirement had been rejected as a matter of federal constitutional law in United States v. Washington, 431 U.S. 181, 97 S.Ct. 1814, 52 L.Ed.2d 238 (1977). Beyond these cases construing Alaska's privilege against self-incrimination more stringently than its federal counterpart, several other decisions dealing with related rights under the Alaska Constitution counsel strongly against a hasty narrowing of article I, § 9. In Breese v. Smith, 501 P.2d 159 (Alaska 1972), the supreme court interpreted article I, § 1 of the Alaska Constitution, which includes the guarantee "that all persons have a natural right to life, liberty, the pursuit of happiness, and the enjoyment of the rewards of their own industry." Relying on this provision's affirmative grant of the right to "liberty," the supreme court held that the state was barred from regulating the hairstyle of a public school student, absent compelling justification. Of the right to liberty, the court said: [T]he term "liberty" is an elusive concept, incapable of definitive, comprehensive explication. Yet at the core of this concept is the notion of total personal immunity from governmental control: the right "to be let alone." Id. at 168. In several other cases, the Alaska Supreme Court has considered article I, § 22 of the Alaska Constitution, which specifies that "[t]he right of the people to privacy is recognized and shall not be infringed." Our constitutional right to privacy finds no express counterpart in the federal constitution and has thus served as the basis for extending protections to Alaska citizens that are not extended under the United States Constitution. See, e.g., State v. Glass, 583 P.2d 872 (Alaska 1978) (holding that the right to privacy requires that a search warrant be obtained before police surreptitiously engage in electronic recording of a conversation, even when one of the parties to the conversation consents to the monitoring); Ravin v. State, 537 P.2d 494 (Alaska 1975) (the right to privacy precludes imposition of criminal sanctions for possession of small quantities of marijuana for personal consumption in the home). The Alaska Constitution's unique concern with the rights to liberty and privacy, and the Alaska Supreme Court's vigilant enforcement of these rights, have a strong bearing on the manner in which interpretation of Alaska's privilege against self-incrimination should be approached. For it has long been recognized that the privilege against self-incrimination "reflects a complex of our fundamental values and aspirations." Kastigar v. United States, 406 U.S. at 444, 92 S.Ct. at 1656. Among these fundamental values is the protection of individual liberty and privacy: The privilege against self-incrimination "registers an important advance in the development of our liberty — 'one of the great landmarks in man's struggle to make himself civilized.' " It reflects many of our fundamental values and most noble aspirations: our unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt; our preference for an accusatorial rather than an inquisitorial system of criminal justice; our fear that self-incriminating statements will be elicited by inhumane treatment and abuses; our sense of fair play which dictates "a fair state-individual balance by requiring the government to leave the individual alone until good cause is shown for disturbing him and by requiring the government in its contest with the individual to shoulder the entire load[;]" our respect for the inviolability of the human personality and of the right of each individual "to a private enclave where he may lead a private life [;] " our distrust of self-deprecatory statements; and our realization that the privilege, while sometimes "a shelter to the guilty," is often "a protection to the innocent." Murphy v. Waterfront Commission, 378 U.S. at 55, 84 S.Ct. at 1596 (citations omitted) (emphasis added). The foregoing cases, in our view, stand strongly against narrowing article I, § 9 of the Alaska Constitution to permit use and derivative use immunity as a substitute for the privilege against self-incrimination or transactional immunity. These cases are bolstered by decisions from several other states. Hawaii, Oregon, Massachusetts, and Mississippi have all declined to follow Kastigar, construing the privilege against self-incrimination contained in their state constitutions to require transactional immunity. See State v. Miyasaki, 62 Haw. 269, 614 P.2d 915 (1980); State v. Soriano, 68 Or.App. 642, 684 P.2d 1220 (in banc), summarily aff'd, 298 Or. 392, 693 P.2d 26 (1984); Attorney General v. Colleton, 387 Mass. 790, 444 N.E.2d 915 (Mass.1982); Wright v. McAdory, 536 So.2d 897 (Miss.1988). As we have already observed, the Hawaii Supreme Court's decision in State v. Miya-saki has particular relevance to Alaska because the adoption of the Hawaii Constitution was contemporaneous with the adoption of the Alaska Constitution. Oregon's decision to construe its state constitution to require transactional immunity is also of particular relevance to Alaska because of the closely shared statutory history and legal traditions of the two states. See generally Brown, The Sources of the Alaska and Oregon Codes, Parts I and II, 2 UCLA-Alaska L.Rev. 15, 87 (1972). Moreover, the decisions in the four states that have declined to follow Kastigar are by far better reasoned and more persuasive than decisions from states following Kasti-gar, which, at best, tend to be conclusory. State cases following Kastigar offer no compelling reasons for construing article I, § 9 of the Alaska Constitution more narrowly than its drafters intended. Lastly, we feel compelled to voice skepticism about the state's position that, with carefully implemented and scrupulously followed procedural safeguards, use and derivative use immunity can provide protections coextensive with those of article I, § 9. Perhaps the strongest argument for the proposition that use and derivative use immunity is coextensive with the privilege against self-incrimination is set forth in Justice White's concurring opinion in Murphy v. Waterfront Commission, 378 U.S. at 92, 84 S.Ct. at 1624. The dissenting opinions of Justice Brennan in Piccirillo v. New York, 400 U.S. at 552, 91 S.Ct. at 522, and Justices Douglas and Marshall in Kastigar v. United States, 406 U.S. at 462, 467, 92 S.Ct. at 1665, 1668, offer equally strong legal arguments for the proposition that only transactional immunity offers coextensive protection. These dissents further set forth compelling reasons why use and derivative use immunity cannot work as a matter of practical reality — whatever its theoretical validity. We need not rehash the particulars of this familiar debate. For our purposes, it is sufficient to observe that the twenty years of experience since Kastigar have provided no clear resolution. No consensus has emerged as to any procedural approach that would allow the theoretical guarantees of use and derivative use immunity to be readily implemented in practice; nor has actual practice served to allay the fears of the dissenters in Piccirillo and Kastigar. If the use and derivative use immunity cases since Kastigar teach anything, it is that protecting and vindicating the fifth amendment rights of a person prosecuted after receiving a grant of use and derivative use immunity will often be possible only after complex and protracted litigation at both the trial and appellate levels. See, e.g., United States v. North, 910 F.2d 843 (D.C.Cir.1990); State v. Munoz, 103 N.M. 40, 702 P.2d 985 (1985). Yet the privilege against self-incrimination protects against more than the danger of a final conviction; it extends to the danger of prosecution itself, operating whenever a witness "is asked to incriminate himself — in other words, to give testimony which may possibly expose him to a criminal charge." Hale v. Henkel, 201 U.S. 43, 67, 26 S.Ct. 370, 376, 50 L.Ed. 652 (1906). More broadly put, the privilege "protects against threats to personal liberty without regard to nice distinctions between forms of action." E.L.L. v. State, 572 P.2d 786, 789 (Alaska 1977) (Matthews, J., dissenting). One whose rights under article I, § 9 of the Alaska Constitution are vindicated only after trial and conviction, incarceration pending appeal, and protracted and costly appellate proceedings is hardly in substantially the same position as if no prosecution had been allowed in the first instance. To a person faced with use and derivative use immunity, the apprehension that testimony compelled under that immunity may result in trial, conviction, incarceration, and protracted appellate litigation is neither unreal nor insubstantial. It is a sufficient apprehension to trigger the protections of the constitutional privilege. See McConkey v. State, 504 P.2d 823, 825-26 (Alaska 1972). Moreover, even if use and derivative use immunity were realistically capable of being implemented by fair, effective, and readily enforced procedural safeguards, the substitution of use and derivative use immunity for transactional immunity — or for the protections of the privilege — would remain problematic. In a somewhat different context, the United States Supreme Court has observed: "There is always in litigation a margin of error, representing error in factfinding, which both parties must take into account." Speiser v. Randall, 357 U.S. 513, 525, 78 S.Ct. 1332, 1341, 2 L.Ed.2d 1460 (1958). [This] possibility of mistaken factfind-ing — inherent in all litigation — will create the danger that the legitimate utterance will be penalized.... This is especially to be feared when the complexity of the proofs and the generality of the standards applied provide but shifting sands on which the litigant must maintain his position. Id. at 526, 78 S.Ct. at 1342 (citation omitted). Recognition of the inherent unreliability of the fact finding process has figured prominently in the criticism of use and derivative use immunity. See Hostigar v. United States, 406 U.S. at 468-69, 92 S.Ct. at 1668-69 (Marshall, J., dissenting); Piccirillo v. New York, 400 U.S. at 567-68, 91 S.Ct. at 530-31 (Brennan, J., dissenting). This criticism — which has never been adequately answered — cannot be ignored or simply dismissed. The procedures that have been adopted to implement use and derivative use immunity illustrate the problem. Virtually all of the federal courts dealing with use and derivative use immunity have adopted preponderance of the evidence as the standard that governs the state's burden of proving lack of taint when it prosecutes a previously immunized witness. See United States v. North, 910 F.2d at 854. A minority of courts — particularly solicitous of individual liberties — have adopted the clear and convincing evidence standard. See, e.g., State v. Strong, 110 N.J. 583, 542 A.2d 866, 872 (1988). Under either standard, the prosecution's improper use of immunized testimony will not require reversal of a conviction if the impropriety is found to be harmless beyond a reasonable doubt. See United States v. North, 910 F.2d at 854. And trial court rulings on issues of immunity are subject to reversal only if clearly erroneous. Id. at 855. Each of these procedural standards builds in slippage reflecting the inherent and unavoidable unreliability of the process by which use and derivative use immunity is converted from theory to actuality. The real life consequences should be readily apparent: a person granted use and deriva tive use immunity is forced to exchange the certainty of reliance on the privilege, or the relative certainty of transactional immunity's categorical bar against subsequent prosecution, for the mere probability — or, at best, clear probability — that compelled testimony or its fruits will not be used in the event of a subsequent prosecution. If we are to take seriously — as we believe we must — the notion that a valid grant of immunity must be coextensive with the protections of the privilege against self-incrimination, then it is difficult to see how a mere probability that compelled testimony has not been used in securing a conviction can realistically be equated with the certainty that such testimony can never be used. To argue, as does the state, that procedural safeguards can be adopted to make use and derivative use immunity coextensive seems roughly comparable to arguing that, through diligent effort and scrupulous adherence to the rules of criminal procedure, the preponderance of evidence standard can become the equivalent of, and a constitutionally acceptable substitute for, the requirement of proof beyond a reasonable doubt in a criminal case. CONCLUSION In summary, we have found that the drafters of article I, § 9 of the Alaska Constitution intended the privilege against self-incrimination to be supplanted only by a grant of transactional immunity. The state has failed to advance any sound reason to depart from the originally intended scope of the privilege. Examination of Alaska's case law and the case law of our sister states bolsters the conclusion that a narrowing of article I, § 9 would be inappropriate. Examining the case law that has emerged during the twenty years since Kastigar, we find little to recommend a narrow reading of Alaska's constitutional privilege and much to recommend against it. We thus conclude that only a grant of transactional immunity will meet the requirements of article I, § 9. "Nothing new can be put into the Constitution except through the amendatory process. Nothing old can be taken out without the same process." Ullmann v. United States, 350 U.S. at 428, 76 S.Ct. at 501. Accordingly, Alaska's witness immunity statute, AS 12.50.101, must be held insufficient to overcome an otherwise valid claim of privilege. We AFFIRM the superior court's order. MANNHEIMER, J., not participating. . See Alaska Appellate Rule 404(a); Surina v. Buckalew, 629 P.2d 969, 972-73 (Alaska 1981). . See Alaska Appellate Rule 402(b)(2). . In the present case, Jill Jahnke-Leland has been convicted of and sentenced for manslaughter in connection with the incident as to which her testimony is sought; her conviction awaits appellate review. A grant of use and derivative use immunity under these circumstances would have no effect on Jahnke-Leland's pending appeal and would not preclude the state from reprosecuting in the event of a reversal. On retrial, use and derivative use immunity would only prohibit the state from any direct or indirect reliance on Jahnke-Leland's immunized testimony or the fruits thereof. The potential effects of a grant of transactional immunity, on the other hand, are not clear-cut. While this is an issue that the parties have not briefed and that we do not decide in this opinion, we note that cases from other jurisdictions suggest that transactional immunity would have no effect on Jahnke-Leland's pending appeal and would require dismissal of charges only in the event of a reversal on appeal. See, e.g., Katz v. United States, 389 U.S. 347, 349 n. 3, 88 S.Ct. 507, 510 n. 3, 19 L.Ed.2d 576 (1967); Reina v. United States, 364 U.S. 507, 512-14, 81 S.Ct. 260, 263-65, 5 L.Ed.2d 249 (1960); State v. Runions, 100 Wash.2d 52, 665 P.2d 1358 (1983); cf. Steinberger v. District Court, 596 P.2d 755 (Colo.1979); State v. McCullough, 49 Wash.App. 546, 744 P.2d 641 (1987). . The court's deference to the legislature on what scope of immunity should be required is evidenced by its reluctance to express any overt preference in Surina, 629 P.2d at 979 n. 21, and its subsequent reliance on its supervisory powers in State v. Serdahely. Equally telling is the court's observation, in Surina, "that there is merit to the position that the decision here should be a legislative one.... [W]e emphasize the 'crying need' for appropriate legislation." Surina, 629 P.2d at 978. In this connection, we note that Jahnke-Le-land challenges Alaska's witness immunity statute as invalidly enacted. Jahnke-Leland characterizes State v. Serdahely's. adoption of Uniform Criminal Rule 732 as an exercise of the court's formal rule-making authority. Alaska Const, art. IV, § 15. Under article IV, § 15, once the supreme court promulgates a rule, that rule may be changed by the legislature only "by two-thirds vote of the members elected to each house." Furthermore, unless the legislature's intent to modify a supreme court rule is expressed in the text of the bill purporting to enact the modification, no modification will occur. See Leege v. Martin, 379 P.2d 447 (Alaska 1963). According to Jahnke-Leland, because the legislature failed to specifically state, in the language of AS 12.50.101, its intent to modify Surina v. Buckalew, the statute does not work a modification of the decision. We reject this argument, for we believe it mistaken in characterizing Surina v. Buckalew as an exercise of formal rule-making power under article IV, § 15. In our view, the strong preference that the supreme court expressed in Surina for initial legislative action, the court's evidently calculated reference in Serdahely to its "supervisory powers" as opposed to its constitutional "rule-making power," see Alaska Const, art. IV, § 15, and the court's subsequent failure to formally promulgate the substance of Uniform Criminal Rule 732 as an Alaska Rule of Criminal Procedure, all strongly indicate that the supreme court intended State v. Serdahely to control practice and procedure in the courts only provisionally, until the legislature took action. We do not construe State v. Serdahely as having been intended to place the legislature under the restrictions mandated by article IV, § 15. . As Justice Brennan put it in his dissenting opinion in Piccirillo v. New York, 400 U.S. at 571-72, 91 S.Ct. at 532-33 (citations and footnotes omitted): By 1956, Mr. Justice Frankfurter, writing for the Court, could assert that the 1893 statute, enacted shortly after Counselman and adopting the transactional immunity standard, had "become part of our constitutional fabric." Ullmann v. United States, 350 U.S. 422, 438, 76 S.Ct. 497, 506, 100 L.Ed. 511. Again, the Court in Ullmann relied on the transactional immunity standard to reaffirm the holding of Brown v. Walker against the dissent of two Justices who repeated the arguments of the Brown dissenters that even trans-' actional immunity did not satisfy the constitutional privilege. Ullmann's assertion that transactional immunity has "become part of our constitutional fabric" finds support in the action of Congress in the 78 years since Counselman first announced the standard. Congress has written more than 40 immunity provisions into various federal statutes during that time, and with one minor and unexplained exception in 1898 and two exceptions in 1970, every provision has provided for transactional immunity. Moreover, as reflected by an appendix in petitioner's brief, the majority of state immunity statutes provide for transactional immunity, even though the States were not subject to the full effect of the Fifth Amendment until 1964. . The state attempts to distinguish Miyasaki by pointing out that the Hawaii Supreme Court relied in part on a report of its constitutional convention expressly stating that art. I, § 10, was "derived from the first three clauses of the 5th Amendment . and will give to this State the benefit of Federal decisions construing the same." Miyasaki, 614 P.2d at 922. The state points out that the proceedings of the Alaska constitutional convention contain no corresponding statement of intent with regard to article I, § 9. However, as reflected in the rule that a state is "presumed to adopt the known and settled construction of . laws by the courts of the state from which they are taken," Brown v. Walker, 161 U.S. at 600, 16 S.Ct. at 648, the statement of intent relied on by the Hawaii Supreme Court only makes explicit that which is unmistakably implicit. Absent some affirmative declaration of intent to depart from the meaning of the federal constitutional language, there is simply no basis for presuming that the members of the Alaska constitutional convention intended article I, § 9 to extend protections substantively different from those then available under the federal constitution. Indeed, although the proceedings of the Alaska constitutional convention contain no helpful discussion on article I, § 9, the convention debate concerning Alaska's due process clause, article I, § 7, is enlightening. Article I, § 7 of the Alaska Constitution provides: No person shall be deprived of life, liberty, or property without due process of law. The right of all persons to fair and just treatment in the course of legislative and executive investigations shall not be infringed. The second clause of this provision, dealing with fair and just treatment in the course of investigations, is unique to Alaska. Convention debate surrounding this provision makes it clear that its drafters were particularly concerned about the abuses and inquisitorial practices that had occurred in the McCarthy investigations. The debate on the fair and just treatment clause makes clear that the members of Alaska's constitutional convention were acutely aware of the limits of the federal constitution in protecting individuals against such abuse. If anything, the constitutional debate and the ultimate inclusion of the provision in article I, § 7 bear witness to the convention's concern that protections against compulsory self-incrimination under the federal constitution might be inadequate. For example, Ullmann v. United States reaffirmed, in the context of a McCarthy era grand jury investigation, that the fifth amendment does not protect witnesses against general public opprobrium or similar collateral consequences stemming from being forced to testify under immunity. 350 U.S. at 430-31, 76 S.Ct. at 502-03. The debate on article I, § 7 establishes that this provision was included in the Alaska Constitution for the specific purpose of preventing government officials from using their investigative powers in order to inflict such harm on witnesses. See 2 Proceedings of the Alaska Constitutional Convention (PACC) 1446-1469 (January 7, 1956). . The competing social policies favoring use and derivative use immunity, on the one hand, and transactional immunity, on the other, are summarized and discussed in 2 W. LaFave and J. Israel, Criminal Procedure, § 8.11(b) (1984), and in the Uniform Rules of Criminal Procedure, (U.L.A.) rule 732(b), commentary at 342-53 (1974). Also, compare Feldman and Ollanik, Compelling Testimony In Alaska: The Coming Rejection Of Use And Derivative Use Immunity, 3 Alaska L.Rev. 229, 250-54 (1986) with Note, Standards for Exclusion in Immunity Cases after Kastigar and Zicarelli, 82 Yale LJ. 171 (1972). In State v. Serdahely, the Alaska Supreme Court expressed its preference for the policies favoring transactional immunity, as delineated in the commentary to Uniform Criminal Rule 732(b). Alaska's legislature, in contrast, expressed its preference for the policies favoring use and derivative use immunity, and explained its views in considerable detail when it enacted the 1982 witness immunity statute. See House Journal Supp. No. 63 at 12-16, 1982 House Journal 2356. For purposes of this opinion, it is unnecessary for us to select between the countervailing policies. Nor should our opinion be taken as indicating that the Alaska Supreme Court's preference for the policies favoring transactional immunity should prevail over the legislature's preference for the policies favoring use and derivative use immunity. Our point, rather, is that restriction of a constitutionally specified right necessarily requires more than legislative preference for social policies differing from those expressed in a specific constitutional provision. . The state cites twelve cases for the proposition that the "vast majority of state courts" have elected to follow Kastigar in holding use and derivative use immunity coextensive with the privilege against self-incrimination. However, only four of these cases involve state constitutional issues, and only two of those four cases expressly consider and decide that their state privilege against self-incrimination should not be construed more broadly than the fifth amendment by requiring transactional immunity. In Ex Parte Shorthouse, 640 S.W.2d 924, 928 (Tex.Crim.App.1982) (en banc), the court — relying on a prior decision generally indicating that the Texas Constitution's privilege against self-incrimination provided safeguards similar to the fifth amendment — summarily concluded that the Texas Constitution should not be read more broadly than the fifth amendment with respect to the scope of immunity. In In re Caito, 459 N.E.2d 1179 (Ind.1984), the supreme court of Indiana considered a claim that Indiana's witness immunity statute was deficient because it offered only use immunity, and not use and derivative use immunity. The court rejected the claim, interpreting the statute to provide for use and derivative use immunity. Although the sufficiency of use and derivative use immunity was not challenged, and no state constitutional issue was raised, the court, citing Kastigar and Murphy v. Waterfront Commission, summarily concluded that use and derivative use immunity was sufficient under both the fifth amendment and the Indiana Constitution's privilege against self-incrimination. In re Caito, 459 N.E.2d at 1184. In Patchell v. State, 711 P.2d 647 (Ariz.App.1985), the court held that use and derivative use immunity was not barred by a provision of the state constitution requiring transactional immunity for certain categories of cases; the court declined to read that constitutional provision as implicitly requiring transactional immunity in all categories of cases. The court gave no consideration to the issue of whether Arizona's privilege against self-incrimination should be read more broadly than the fifth amendment, apparently assuming that it should not. In State v. Strong, 110 N.J. 583, 542 A.2d 866 (1988), the court, applying a state use and derivative use immunity statute, construed New Jersey's privilege against self-incrimination more broadly than the fifth amendment by holding the clear and convincing evidence standard applicable to the prosecution's burden of proving that a post-immunity prosecution did not involve tainted evidence. Id. at 878. No claim was raised that use and derivative use immunity was deficient, and the court did not discuss the issue. None of the remaining eight cases cited by the state considers use and derivative use immunity in the context of a state privilege against self-incrimination. Two cases. Brooks v. State, 238 Ga. 435, 233 S.E.2d 208 (1977), and People v. Smith, 102 Ill.App.3d 226, 57 Ill.Dec. 753, 429 N.E.2d 870 (1981), merely rely on Murphy v. Waterfront Commission to reject claims that a state grant of use and derivative use immunity is deficient because it fails to protect against federal prosecution. The other six cases involve no challenge to the adequacy of use and derivative use immunity; instead, they are simply cases in which state courts have applied or expressed approval of use and derivative use immunity, based on Kastigar, with no consideration as to whether transactional immunity should be required on state grounds. See Daly v. Superior Court, 19 Cal.3d 132, 137 Cal.Rptr. 14, 560 P.2d 1193, 1200 (1977) (in bank); State v. Durrani, 244 Kan. 522, 769 P.2d 1174 (1989); Gandy v. State, 96 Nev. 281, 607 P.2d 581 (1980); State v. Munoz, 103 N.M. 40, 702 P.2d 985 (1985); State v. Sinito, 43 Ohio St.2d 98, 330 N.E.2d 896 (1975); In re Investigating Grand Jury, 495 Pa. 186, 433 A.2d 5 (1981). . The state argues that, under the peculiar circumstances of the present case, which involves a grant of immunity extended after Jill Jahnke-Leland has already been tried and convicted, procedural safeguards are readily available to protect Jahnke-Leland from any realistic possibility that her testimony might be used against her in any future prosecution. Based on the likelihood that use and derivative use immunity could be implemented in a trouble-free manner under the circumstances of the present case, the state asks us to construe article I, § 9 to allow use and derivative use immunity. This approach places the cart of expediency squarely before the constitutional horse. There is merit to the state's contention that cases like the present one are among the most suitable for application of the use and derivative use immunity standard. See, e.g., Note, Standards for Exclusion in Immunity Cases after Castigar and Zicarelli, 82 Yale L.J. 171, 181-87 (1972). However, the existence of a limited category of cases in which use and derivative use immunity could be applied with relatively little trouble is not a compelling justification for departing from the intent of the drafters of article I, § 9 of the Alaska Constitution. . Under the United States Supreme Court's decision in Murphy v. Waterfront Commission, it is clear that a state grant of immunity to Jill Jahnke-Leland — whether transactional or use and derivative use immunity — would protect Jahnke-Leland in any federal prosecution against use or derivative use of her compelled testimony. It is at least arguable, however, that, to meet the requirements of the Alaska Constitution, a grant of immunity would be required to provide transactional immunity from both state and federal prosecution. See Surina v. Buckalew, 629 P.2d at 980. The parties to the present case, however, have neither raised nor briefed this issue, and from the facts it appears that Jill Jahnke-Leland stands in no realistic danger of federal prosecution in connection with the incident as to which her testimony has been sought. For these reasons, we find it unnecessary, at this juncture, to address the issue.

10408807

Austin KIZZIRE, Appellant, v. STATE of Alaska, Appellee

Kizzire v. State

1986-02-28

No. A-933

272

274

715 P.2d 272

715

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

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

CAP

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

Austin KIZZIRE, Appellant, v. STATE of Alaska, Appellee.

Austin KIZZIRE, Appellant, v. STATE of Alaska, Appellee. No. A-933. Court of Appeals of Alaska. Feb. 28, 1986. Rehearing Denied March 28, 1986. Carol Greenberg, Asst. Public Defender, Fairbanks, and Dana Fabe, Public Defender, Anchorage, for appellant. David Mannheimer, 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.

913

5539

OPINION BRYNER, Chief Judge. Austin Kizzire was convicted after pleading no contest to two counts of sexual abuse of a minor, in violation of former AS 11.41.440(a)(1). His sole contention on appeal is that the trial court erred in failing to dismiss his case for violation of his right to a speedy trial under Alaska Rule of Criminal Procedure 45. We affirm. In 1976, Kizzire was convicted of committing lewd and lascivious acts against a child, in violation of former AS 11.15.134. After serving a period of imprisonment, he was released on probation in 1980. As a condition of probation, he was ordered to refrain from being in the presence of children. On August 21, 1984, Kizzire was arrested for violating this condition, when his probation officer observed him with three children. The following day, the state filed a petition to revoke Kizzire's probation. The eventual disposition of this petition is not in dispute. Shortly after being arrested, Kizzire made statements admitting that he had engaged in sexual acts with two children several months previously. The Alaska State Troopers conducted an investigation that confirmed Kizzire's admissions and, on November 14, 1984, Kizzire was charged by indictment with two counts of sexual abuse of a minor. Trial on these charges was ultimately scheduled to begin on February 4, 1985. On the date set for trial, Kizzire moved to dismiss his charges, arguing that his right to a speedy trial under Criminal Rule 45 had been violated because more than 120 days of unexeluded time had elapsed since his arrest on August 21, 1984. Superior Court Judge Thomas B. Stewart denied Kizzire's motion. Judge Stewart assumed arguendo that the 120-day speedy trial period had commenced running on August 21, 1984, but concluded that Kizzire's trial counsel waived the right to rely on Rule 45 by acquiescing to the February trial date. See DeMille v. State, 581 P.2d 675 (Alaska 1978); Andrew v. State, 694 P.2d 168 (Alaska App.1985), petition for hearing granted (Alaska, May 6, 1985). On appeal, Kizzire challenges the trial court's finding of a waiver. We find it unnecessary, however, to reach the issue of waiver, because it is clear as a matter of law that the 120-day speedy trial period did not commence running until November 14, 1984, the date of Kizzire's indictment. Criminal Rule 45(c)(1) provides, in relevant part, that the 120-day speedy trial period begins to run: (1) From the date the defendant is arrested, initially arraigned, or from the date the charge . is served upon the defendant, whichever is first.... The arrest, arraignment, or service upon the defendant of a complaint, indictment, or information, relating to subsequent charges arising out of the same conduct, or the refiling of the original charge, shall not extend the time, unless the evidence on which the new charge is based was not available to the prosecution at the time of the original commencement date of the 120 day period and a showing of due diligence in securing the defendant for the original charges is made by the prosecution . It is undisputed in this case that Kizzire's arrest on August 21, 1984, was based exclusively on his being in the presence of children on that date, a violation of his conditions of probation. While two of the same children were apparently the subject of Kizzire's November 14 indictment, that indictment charged offenses occurring months before the violation for which Kiz-zire was arrested. Indeed, the state was unaware of the criminal acts until after Kizzire had already been placed under arrest for violating the conditions of his probation. Under these circumstances, we believe it apparent that, under Criminal Rule 45(c)(1), the August 21 arrest did not commence the running of the 120-day rule for Kizzire's subsequent criminal charges, because the November 14 indictment did not relate "to charges arising out of the same conduct" for which Kizzire was arrested. Kizzire's argument on appeal is predicated on his initial premise that the 120-day speedy trial period began running when he was arrested for violating the conditions of his probation. Our determination that the speedy trial period did not begin to run on that date is therefore dis-positive of Kizzire's claim. The conviction is AFFIRMED. . In affirming the decision of a trial court on an issue of law, we are not restricted to the specific legal theory adopted below and may rely on any independent legal ground. See Rutherford v. State, 605 P.2d 16, 21 n. 12 (Alaska 1979); Hubert v. State, 638 P.2d 677, 688 n. 9 (Alaska App.1981). . Because the November 14 charges did not arise out of the same conduct as the August 21 arrest, the fact that the troopers were made aware of the offenses on August 21, shortly after Kizzire's arrest, is immaterial for purposes of Criminal Rule 45(c)(1). Under the plain language of the rule, the state's awareness of other potential charges becomes relevant to determine whether delay will be excused only when subsequent charges are based on the same conduct for which the prior arrest occurred.

10408750

Roger BLAKESLEY, Appellant, v. STATE of Alaska, Appellee

Blakesley v. State

1986-02-28

No. A-914

269

272

715 P.2d 269

715

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

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

CAP

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

Roger BLAKESLEY, Appellant, v. STATE of Alaska, Appellee.

Roger BLAKESLEY, Appellant, v. STATE of Alaska, Appellee. No. A-914. Court of Appeals of Alaska. Feb. 28, 1986. Donald L. Surgeon, Asst. Public Defender, Bethel, and Dana Fabe, Public Defender, Anchorage, for appellant. W.H. Hawley, 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.

1171

7489

OPINION BRYNER, Chief Judge. After entering a plea of no contest, Roger Blakesley was convicted of one count of misconduct involving a controlled. substance in the third degree (sale of cocaine), in violation of AS 11.71.030(a)(1). Pursuant to Cooksey v. State, 524 P.2d 1251 (Alaska 1974), Blakesley reserved the right to appeal the trial court's denial of his motion to dismiss on grounds of entrapment. Superi- or Court Judge James R. Blair sentenced Blakesley to serve four years in prison, with two and one-half years suspended. Blakesley appeals, reasserting his entrapment claim and contending that his sentence is excessive. We affirm. Blakesley was convicted of selling three grams of cocaine for $450 to Arthur San-tamour, a police informant. Blakesley and Santamour had been close friends for many years prior to the sale. The sale occurred in Bethel shortly before Santamour was to be married. In support of his entrapment motion, Blakesley testified that he sold the cocaine to Santamour after Santamour specifically requested some cocaine for his wedding. Blakesley insisted that he had never sold drugs before and that he had refused many prior requests to sell San-tamour cocaine. According to Blakesley, he obtained the cocaine solely to meet San-tamour's request and sold it to Santamour at cost. Blakesley maintained that he agreed to sell to Santamour only because of their close friendship and Santamour's upcoming wedding. On appeal, Blakesley contends, as he did below, that Santamour committed entrapment by taking undue advantage of his close personal friendship with Blakes-ley. Blakesley's version of the sale, however, is not entirely uncontroverted. In response to Blakesley's testimony, the state called Arthur Santamour to testify on the issue of entrapment. According to Santamour, he first learned that Blakesley had access to cocaine from Blakesley's own statements. Blakesley had told Santamour that he was receiving half an ounce of cocaine per week as partial compensation for driving a taxicab. Although Blakesley, at the entrapment hearing, acknowledged making this statement to Santamour, he claimed that the statement had been untrue. Santamour, however, had no reason to disbelieve this statement, and, according to Santamour's testimony, it was this statement that prompted him to ask Blakesley for cocaine. Santamour specifically denied asking Blakesley for cocaine as a wedding gift. He claimed that he was aware Blakesley had a quarter ounce of cocaine and that he merely told Blakesley he would be too busy with his wedding to look around for cocaine and was willing to buy some from Blakes-ley, as long as Blakesley already had it available. Santamour also denied pursuing Blakesley to obtain drugs. Santamour further testified that he had previously made arrangements to obtain a quarter ounce of cocaine from Blakesley, but that the transaction fell through because Blakesley could not contact his supplier in Anchorage. Santamour insisted that he and Blakesley had both previously been involved in the sale of illicit drugs. A tape recording of the drug transaction between Santamour and Blakesley indicated that, at the time of the sale, Blakesley told Santamour he had additional cocaine available and that he was willing to hold it for Santamour if Santamour wanted him to. Santamour told Blakesley to go ahead and sell it to somebody else if the opportunity arose. After considering the totality of the evidence on the issue of entrapment, Judge Blair found that Santamour had not sought out or targeted Blakesley in order to have him arrested, that Blakesley had been the first to bring up the subject of cocaine, and that Santamour had used no unusual inducements or appeals to friendship to convince Blakesley to sell him cocaine. Based on these findings, Judge Blair concluded that Santamour's conduct did not amount to entrapment. Our review of the record convinces us that Judge Blair's findings are supported by substantial evidence and are not clearly erroneous. See Bush v. State, 678 P.2d 423, 424 (Alaska App. 1984). We are further satisfied that Judge Blair did not err in concluding, based on his factual findings, that Santamour's conduct did not "[fall] below an acceptable standard for fair and honorable administration of justice." Bruce v. State, 612 P.2d 1012 (Alaska 1980). See also Coffey v. State, 585 P.2d 514, 521 (Alaska 1978) (imposing on the accused the burden of establishing entrapment by a preponderance of the evidence); AS 11.81.450. We thus hold that the trial court properly rejected Blakesley's entrapment defense. Blakesley additionally argues that his sentence is excessive. He points out that this was his first felony conviction and that the case involved no profit and was an isolated sale to a friend of only a small quantity of cocaine. Blakesley claims that, in imposing a sentence of four years with two and one-half suspended, Judge Blair in effect ignored these circumstances, electing instead to place exclusive emphasis on the sentencing goals of deterring other offenders and expressing community condemnation for the offense. The sentencing record does not support Blakesley's contention. Although Judge Blair did elect to give emphasis in sentencing to the goals of deterrence and community condemnation, he also appears to have given careful consideration to the circumstances surrounding Blakesley's offense. There is evidence in the record to support the conclusion that Blakesley had previously engaged in the sale of illicit drugs and that, on the occasion of his sale to Santam-our, he had additional cocaine, which he planned to sell to other individuals. Blakesley has previously been convicted of at least six misdemeanors, including one drug-related offense, and he appears to have been extensively involved in using various controlled substances. Misconduct involving a controlled substance in the third degree is a class B felony, punishable by a maximum term of ten years' imprisonment. AS 11.71.030(c); AS 12.55.125(d). For a second felony offender, the presumptive term is four years. AS 12.55.125(d)(1). Here, Santamour, a first-felony offender, has been sentenced to serve an unsuspended term of imprisonment of one and one-half years. This sentence does not violate the general rule that, barring exceptional circumstances, a first-felony offender cannot be given a longer sentence than the presumptive sentence for a second-felony offender. See Austin v. State, 627 P.2d 657 (Alaska App.1981). Further, both the Alaska Supreme Court and this court have consistently upheld similar sentences in comparable cases involving first offenders. See, e.g., LeDuff v. State, 618 P.2d 557 (Alaska 1980); Elliott v. State, 590 P.2d 881 (Alaska 1979); Dana v. State, 623 P.2d 348 (Alaska App.1981); Rosa v. State, 627 P.2d 658 (Alaska App.1981). Having independently reviewed the entire sentencing record, we conclude that Blakesley's sentence is not clearly mistaken. McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974). The conviction and sentence are AFFIRMED.

10418538

STATE of Alaska, Appellant and Petitioner, v. Kenneth PRICE, Appellee and Respondent

State v. Price

1986-03-14

No. A-1101

1183

1187

715 P.2d 1183

715

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

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

CAP

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

STATE of Alaska, Appellant and Petitioner, v. Kenneth PRICE, Appellee and Respondent.

STATE of Alaska, Appellant and Petitioner, v. Kenneth PRICE, Appellee and Respondent. No. A-1101. Court of Appeals of Alaska. March 14, 1986. Mark I. Wood, Asst. Dist. Atty., Harry L. Davis, Dist. Atty., Fairbanks, and Harold M. Brown, Atty. Gen., Juneau, for appellant and petitioner. Geoffry B. Wildridge, Asst. Public Defender, Fairbanks, and Dana Fabe, Public Defender, Anchorage, for appellee and respondent. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

2084

12702

OPINION SINGLETON, Judge. Kenneth Price was charged in an indictment with one count of sexual assault in the first degree, AS 11.41.410(a)(1), and one count of misconduct involving a controlled substance in the first degree, AS 11.71.-010(a)(2). Price pled nolo contendere to the controlled substance count, and the sexual assault count was dismissed. Misconduct involving a controlled substance in the first degree is an unclassified felony, with a minimum five-year and a maximum ninety-nine-year penalty. AS 12.55.125(b). The court and counsel for the parties proceeded to sentencing on the mistaken belief that Price was subject to a five-year presumptive term. Judge Van Hoomissen found one aggravating and two mitigating factors and sentenced Price to five years with two years suspended. The state did not object to this sentence and does not contend on appeal that the mitigating factors were not properly found. Rather, five and one-half months after the imposition of sentence, the state moved in the trial court to correct the sentence to five years in prison. The state relied on Alaska Rule of Criminal Procedure 35(a), and the contention that a statutory minimum sentence could not be adjusted for mitigating factors. The trial court refused to change the sentence, and the state appeals. We treat the state's appeal as a petition for review and grant the petition. We hold that the sentence the trial court imposed on Price was illegal. However, in the interests of justice, we remand the case to the trial court to permit Price to petition to revoke his nolo contendere plea. For purposes of this appeal, Price concedes that a minimum sentence may not be adjusted for statutory mitigating factors. He also concedes that he was subject to a five-year minimum sentence by virtue of his plea of nolo contendere, and that a sentence of five years with two years suspended was therefore "illegal." Yet Price argues that this court lacks jurisdiction to hear the state's appeal from a trial court order denying a motion to correct an illegal sentence under Criminal Rule 35(a). Assuming that the state cannot appeal, Price continues, no petition for review should be granted in this case. First, Price contends, increasing his sentence to the statutory minimum would violate the double jeopardy clauses of the federal and state constitutions and deprive him of due process of law. U.S. Const, amends. V, XIV; Alaska Const, art. I, § 7, 9. Second, he urges that under the totality of the circumstances, the state is equitably estopped from seeking review of Judge Van Hoomissen's court order denying the state relief. We will consider Price's arguments in order. RIGHT OF STATE TO APPEAL UNDER CRIMINAL RULE 35 Alaska Rule of Criminal Procedure 35 has three component parts, each derived from a separate source. Criminal Rule 35(a) is derived from, and virtually identical to, Federal Rule of Criminal Procedure 35. See 3 C. Wright, Federal Practice and Procedure: Criminal 2d § 581, et seq. (2d ed. 1982) (discussing the comparable federal rule). Alaska Criminal Rule 35(b) is a paraphrase of AS 12.55.088 which describes a procedure for sentence modification. See Fermoyle v. State, 638 P.2d 1320 (Alaska App.1982). Subsections (c) through (k) of Criminal Rule 35 are derived from the Uniform Post-Conviction Procedure Act. 11 U.L.A. 485 (1974); Bishop v. Anchorage, 685 P.2d 103, 107 n.10 (Alaska App.1984). Proceedings pursuant to Criminal Rule 35(c)-(k) are deemed civil in nature, and the state may freely appeal an adverse decision. See, e.g., State v. Hannagan, 559 P.2d 1059, 1063 (Alaska 1977) (construing the predecessor to current Criminal Rule 35(c)). In contrast, proceedings under Criminal Rule 35(a) are considered part of the criminal proceeding. See 3 C. Wright, Federal Practice and Procedure: Criminal 2d § 583 at 392 & n. 16 (2d ed. 1982). Cf. Winslow v. State, 587 P.2d 738 (Alaska 1978) (differentiating Criminal Rules 35(a) from the procedures set out in the predecessors to current Criminal Rules 35(c)-(k)). Thus, proceedings pursuant to Criminal Rule 35(a) appear to be within the statutory limitations on the state's right to appeal. AS 22.07.020(d). As Price points out, while the state may appeal a sentence on the ground that it is too lenient, an advisory opinion results. A sentence appeal by the state does not authorize an increase in a defendant's sentence. Thus, the state's challenge to the trial court's refusal to correct an illegal sentence under Criminal Rule 35(a) is not within our appellate jurisdiction. See State v. LaPorte, 672 P.2d 466, 469 n.7 (Alaska App.1983). We are satisfied, however, that the issue in this case is of sufficient importance to warrant treating this proceeding as a petition for review and granting the petition. See, e.g., Kott v. State, 678 P.2d 386, 390-91 (Alaska 1984). This case meets at least two of the criteria for granting petitions for review. Alaska Rule of Appellate Procedure 402(b). Judge Van Hoomissen's refusal to correct his illegal sentence involves an important question of law on which there may be a substantial ground for difference of opinion. Alaska R.App.P. 402(b)(2). More importantly, the trial court's actions constitute a departure from the accepted and usual course of judicial proceedings sufficient to call for our supervision and review. Alaska R.App.P. 402(b)(3). Further, we are not persuaded by Price's arguments to decline review. Clearly, correction of an illegal sentence does not implicate the double jeopardy clauses of the state and federal constitutions, or deny the beneficiary of an illegal sentence substantive or procedural due process. State v. LaPorte, 672 P.2d at 468-69 & n. 7. Shagloak v. State, 597 P.2d 142 (Alaska 1979) and Sonnier v. State, 483 P.2d 1003 (Alaska 1971) are therefore distinguishable. Cf. Gilbert v. State, 598 P.2d 87, 93 n. 10 (Alaska 1979) (distinguishing correction of an illegal sentence from the matters addressed in Sonnier). LACHES AND EQUITABLE ESTOPPEL Price's arguments based upon lach-es and equitable estoppel present a closer question. A defendant's rehabilitation requires, inter alia, that he accept the court's sentence. Subsequent tampering with that sentence, however justified legally, may leave the defendant with an understandable sense of unfairness, jeopardizing rehabilitative efforts. We believe however, that on balance, correction of Price's sentence even though delayed, must be allowed in order to carry out the legislative purpose in establishing minimum sentences and to preclude other defendants from asserting a vested right in an illegal sentence. Defendants and their counsel should not be encouraged to remain silent while judges and prosecutors negligently cooperate in the imposition of an illegal sentence. In order to ensure that the law will be carried out, and that judicial negligence will not result in disparate and unequal sentencing, we exercise our authority and hold that the sentence imposed upon Price was illegal. The mandatory minimum sentence for Price's offense was five years. AS 12.55.125(b). One aspect of Price's laches and equitable estoppel argument requires further consideration. Price intimates that he was sentenced as part of a plea and sentence agreement, and that in entering his plea he detrimentally relied upon the mistaken representation that he would receive a sentence substantially less than the five-year minimum. If Price is correct, we believe he should be permitted to withdraw his plea and go to trial. The state argues that Price could not reasonably rely to his detriment on an illegal sentence, since he and his attorney were obligated to read the relevant statutes and determine the applicable penalties. While there is some merit in the state's contention, we are satisfied that it cannot control. The criminal rules clearly require a trial judge, accepting a plea of no contest or guilty, to address the defendant personally and inform him of any mandatory minimum punishment. Alaska R.Crim.P. ll(c)(3)(i). The court may not rely upon defense counsel's or the defendant's individual research abilities to provide this information. Failure to substantially comply with Criminal Rule 11 invalidates any subsequent plea. See, e.g., Fulton v. State, 630 P.2d 1004, 1006 (Alas ka App.1981). On remand, Price should be permitted to petition to revoke his plea. If the trial court is satisfied that Rule 11 was not complied with in this case, or that Price reasonably relied on mistaken representations by the prosecutor and his defense counsel regarding the range of sentences available to the trial court, Price should be permitted to withdraw his plea. However, if the trial court concludes that Rule 11 was complied with, and declines to set aside Price's plea, the mandatory minimum sentence of five years shall be imposed. The sentence of the superior court is VACATED and this case REMANDED for further proceedings consistent with this opinion. COATS, J., dissents. . Alaska Statute 22.07.020(d) provides: An appeal to the court of appeals is a matter of right in all actions and proceedings within its jurisdiction except that (1) the right to appeal to the court of appeals is waived if an appellant chooses to appeal the final decision of the district court to the superior court; and (2) the state has no right to appeal in criminal cases except to test the sufficiency of the indictment or information or to appeal a sentence on the ground that it is too lenient.

10408636

Glenn J. KALMAKOFF, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee

Kalmakoff v. Municipality of Anchorage

1986-02-21

No. A-920

261

263

715 P.2d 261

715

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

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

CAP

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

Glenn J. KALMAKOFF, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee.

Glenn J. KALMAKOFF, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee. No. A-920. Court of Appeals of Alaska. Feb. 21, 1986. Samuel J. Fortier and Dagmar C. Mikko, Fortier & Mikko, Anchorage, for appellant. Scott Jay Sidell, Asst. Mun. Pros., James Ottinger, Mun. Pros., and Jerry Wertz-baugher, Mun. Atty., Anchorage, for appel-lee. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

1756

10646

OPINION BRYNER, Chief Judge. Glenn J. Kalmakoff was convicted, following a jury trial, of driving while intoxicated (DWI), in violation of AMC 09.28.020, and reckless driving, in violation of AMC 09.28.010. On appeal, Kalmakoff challenges the validity of the trial court's instruction concerning the statutory presumptions that apply to breath test results. He also questions the sufficiency of the evidence with respect to the charge of reckless driving. After arresting Kalmakoff for DWI, Anchorage police officers subjected him to an intoximeter test and obtained a reading of .102. Uncontroverted testimony at Kal-makoff's trial established an inherent error factor of .01 for the intoximeter instrument, indicating that, if Kalmakoff's test was correctly performed, his true score could have been as low as .092 or as high as .112. Based on this testimony, Kalma-koff moved for a judgment of acquittal on the DWI charge and argued, alternatively, that it would be improper to instruct the jury on the statutory presumptions applicable to a breath test result of .10 or greater. Kalmakoff also argued alternatively that, if the jury was instructed on the presumption of intoxication, it should be required to find beyond a reasonable doubt that Kal-makoff's breath alcohol content was .10 or greater before relying on that presumption. District Court Judge Glen C. Anderson denied Kalmakoff's motion for a judgment of acquittal but found that, in view of the marginal intoximeter reading, Kalmakoff's DWI charge could be presented to the jury only on the theory that Kalmakoff was actually under the influence while driving. See AMC 09.28.020(B)(1). Judge Anderson declined to instruct the jury on the alternative statutory theory of DWI, under which Kalmakoff could have been convicted if the jury found that he had driven with a breath alcohol content of .10 or greater. See AMC 09.28.020(B)(2). Judge Anderson instructed the jury on the presumptions applicable to breath test results in Jury Instruction No. 10, which read as follows: Under Alaska law, when a person is alleged to be operating a motor vehicle under the influence of intoxicating liquor, the amount of alcohol in the person's breath at the time alleged, as shown by chemical analysis of the person's breath, may give rise to the following inferences: (1) If there was 0.05 grams of alcohol per 210 liters of breath or less, it may be inferred that the person was not under the influence of intoxicating liquor. (2) If there was in excess of 0.05 grams but less than 0.10 grams of alcohol per 210 liters of breath, that fact, standing alone, gives rise to no inference. (3) If there was 0.10 grams of alcohol per 210 liters of breath or greater, it may be inferred that the person was under the influence of intoxicating liquor. If you find that a breath examination accurately established the defendant's breath alcohol content to be one-tenth of a gram (0.10) of alcohol per 210 liters of breath or greater, and if you find no other believable evidence of his condition, then you may rely solely on the test as a basis for finding that the defendant was under the influence of intoxicating liquor at the time charged. However, if you do find that there is other believable evidence showing that the defendant may not have been under the influence of intoxicating liquor at the time charged then you must decide the issue based on a careful consideration of all the facts and circumstances in evidence bearing on the defendant's condition, no longer relying exclusively on the results of the breath test. This instruction incorporated the substance of the statutory presumption set out in AMC 09.28.023. Kalmakoff contends on appeal that the jury should not have been instructed on the portion of the statutory presumption that applies to a breath alcohol content of .10 or above. He alternatively argues that Jury Instruction No. 10 should have required the jury to find beyond a reasonable doubt that his breath alcohol content was .10 or greater before it was permitted to rely on the statutory presumption. Kalmakoff's conclusion that Jury Instruction No. 10 was improper seems to be based on three premises: first, that a breath alcohol content of .10 or greater is an essential element of DWI, second, that Jury Instruction No. 10 creates a mandatory presumption with respect to that element, and, third, that the instruction shifts the burden of proof to the accused. We find all three of Kalmakoff's premises to be mistaken. In our view, Jury Instruction No. 10, when given a common sense reading, does not create a mandatory presumption. Rather, it establishes nothing more than a permissive inference. In this regard, the instruction substantially complies with the requirements of Evidence Rule 303(a)(1), which governs presumptions against the accused in criminal cases. Similarly, nothing in the plain language of Jury Instruction No. 10 can be said to shift the burden of proof or of persuasion to the accused. Finally, we note that, contrary to the position taken by Kalmakoff on appeal, a breath alcohol level of .10 or greater is simply not an element of DWI under the specific theory of the offense submitted to the jury. The jury was allowed to consider Kalmakoff's guilt only under AMC 09.28.020(B)(1), under which driving while under the actual influence of intoxicating liquor is prohibited, without regard to any specific level of breath or blood alcohol. The evidence of Kalmakoff's breath alcohol reading was obviously relevant on this issue; Jury Instruction No. 10 simply allowed the jury to evaluate the significance of that evidence. See Byrne v. State, 654 P.2d 795 (Alaska App.1982); Denison v. Anchorage, 630 P.2d 1001 (Alaska App.1981). Considering the limited theory on which Kalmakoff s case was submitted to the jury, we conclude that the trial court did not commit error in giving Instruction No. 10 to the jury. Doyle v. State, 633 P.2d 306 (Alaska App.1981). We further conclude that the court did not err in declining to instruct that proof beyond a reasonable doubt was required as a predicate for consideration of the applicable presumptions. Kalmakoff raises additional points with respect to his conviction for reckless driving. We need not address these issues. Kalmakoffs reckless driving conviction was based on precisely the same conduct as his DWI. In arguing the reckless driving charge to the jury, the prosecution characterized it as being, in effect, a lesser-included offense of the DWI charge. Moreover, the jury was told that Kalmakoff's intoxication could be considered as a basis for finding that Kalmakoff had driven recklessly. Under these limited circumstances, we believe that the offense of reckless driving must be deemed to have merged with the offense of DWI, and we hold that it was error to enter a separate judgment of conviction against Kalmakoff on the reckless driving charge. See Tuckfield v. State, 621 P.2d 1350 (Alaska 1981). The conviction of DWI is AFFIRMED. The conviction of reckless driving is VACATED. . Anchorage Municipal Code 09.28.023, in turn, reflects the presumption created under state law in AS 28.35.033. The trial court's instruction departs from the statutory language in only one minor respect: the phrase, "as shown by chemical analysis of the person's breath," which appears in the first paragraph of Jury Instruction No. 10, is not contained in the text of either the Municipal Code or the Alaska Statutes. This phrase appears to have been inadvertently in-eluded in the instruction from prior versions of the statutory provisions. While the discrepancy is not significant in the present case, we believe it would be best, in the interest of accuracy, if the extraneous language were omitted in future DWI instructions. . Alaska Rule of Evidence 303(a)(1) provides: Presumptions directed against an accused. In all criminal cases when not otherwise pro vided for by statute, by these rules or by judicial decision, a presumption directed against the accused imposes no burden of going forward with evidence to rebut or meet the presumption and does not shift to the accused the burden of proof in the sense of the risk of nonpersuasion, which remains throughout the trial upon the party on whom it was originally cast. However, if the accused fails to offer evidence to rebut or meet the presumption, the court must instruct the jury that it may, but is not required to, infer the existence of the presumed fact from the proved fact, but no mention of the word "presumption" shall be made to the jury. If the accused offers evidence to rebut or meet the presumption, the court may instruct the jury that it may, but is not required to, infer the existence of the presumed fact from the proved fact, but no mention of the word "presumption" shall be made to the jury. Jury Instruction No. 10 arguably deviates from the requirements of Rule 303(a)(1) in that it does not expressly inform the jury that it "may, but is not required to," infer the presumed fact from the proved fact. However, the permissive nature of the inference established by Jury Instruction No. 10 is unmistakably expressed in the final paragraphs of the instruction. Nevertheless, we believe that future versions of the instruction should be amended to comply literally with the requirements of A.R.E. 303(a)(1). . In so holding, we find that the municipality substantially complied with applicable foundational prerequisites for admission of the intox-imeter results, see 7 AAC 30.020(b), and we reject Kalmakoff's claim to the contrary. . We recognize, as Judge Anderson apparently did below, that a different conclusion might be required if Kalmakoff's case had been submitted to the jury on the theory that he committed the offense by driving with a breath alcohol content of .10 or greater. Compare State v. Boehmer, 1 Haw.App. 44, 613 P.2d 916 (1980), State v. Bjornsen, 201 Neb. 709, 271 N.W.2d 839 (1978), and State v. Clark, 286 Or. 33, 593 P.2d 123 (1979), with State v. Rucker, 297 A.2d 400 (Del.1972), and State v. Shaping, 312 N.C. 421, 323 S.E.2d 350 (1984). State v. Keller, 36 Wash.App. 110, 672 P.2d 412 (1983). We need not resolve this issue, because it is not raised in the circumstances of this case.

10341978

Kenneth HAROLDSEN, Appellant, v. OMNI ENTERPRISES, INC., d/b/a Swanson's, Appellee

Haroldsen v. Omni Enterprises, Inc.

1995-09-01

No. S-6454

426

434

901 P.2d 426

901

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:58:36.966977+00:00

CAP

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

Kenneth HAROLDSEN, Appellant, v. OMNI ENTERPRISES, INC., d/b/a Swanson’s, Appellee.

Kenneth HAROLDSEN, Appellant, v. OMNI ENTERPRISES, INC., d/b/a Swanson’s, Appellee. No. S-6454. Supreme Court of Alaska. Sept. 1, 1995. James J. Davis, Jr. and Deborah Reichard, Alaska Legal Services Corporation, Bethel, Carol H. Daniel and Joseph D. Johnson, Alaska Legal Services Corporation, Anchorage, for appellant. Scott Jay Sidell, Law Office of Chris Provost, Bethel, for appellee. Before MOORE, C.J., and RABINOWITZ, MATTHEWS, COMPTON and EASTAUGH, JJ.

3939

25035

OPINION RABINOWITZ, Justice. This ease requires us to determine whether the superior court properly granted summary judgment against Kenneth Haroldsen in his wrongful termination action against his former employer, Swanson's. I. FACTS & PROCEEDINGS Haroldsen is a Yup'ik man, who, until he was fired, was an employee in the maintenance department of Swanson's in Bethel. He was initially hired by Swanson's in 1991 to work in the furniture department, and was later promoted to manager of that department. In December 1992, Haroldsen was transferred to the maintenance department for which he received a pay raise from $11.00 to $12.50 per hour. When Haroldsen took this position there was only one other employee in the maintenance department, the department's manager, Jim Panko. Sometime later, Chris Tav-eres was rehired by the department. Tav-eres had worked on and off for Swanson's, and particularly for the maintenance department, for many years. Both Taveres and Panko are Caucasian. In February 1993, George Myran took over as Swanson's sole general manager. He had previously been co-general manager with Don Tubbs, Haroldsen's father-in-law. Several weeks later, Myran terminated Harold-sen's employment. In an affidavit, Myran described his reasons for doing so: [W]hen I took over responsibility for the maintenance department, there were three people in the department_ It was immediately obvious to me that there was no need for three maintenance workers. I made the decision to execute a reduction in work force by layoff. It made no difference to me what race the individual was; there were labor dollars being spent that did not need to be spent. Ken Haroldsen was by far the least skilled and experienced of the three and had the least time in the department. The maintenance supervisor, Jim Panko, was very skilled and experienced. His assistant Chris Taveres, though not always reliable, was the most skilled and experienced of the three. Mr. Taveres had been with Swanson's for many years and knew the physical plant as well as anyone, including his supervisor, Jim Panko. In contrast, Mr. Haroldsen had to my knowledge no previous experience as a maintenance worker and had done little in the position since his transfer. Jim Panko had mentioned to me on more than one occasion that Mr. Haroldsen was "useless" to him. Myran attributed Haroldsen's advance in the company and certain privileges he had previously received as a worker to the "blatant nepotism exhibited by Don Tubbs." Myran affied that the special privileges which Har-oldsen had received were resented by the other employees and created a morale problem. Swanson's did not rely solely on the reduction in force to justify its decision to terminate Haroldsen. To this effect, Myran further stated in his affidavit as follows: I would have laid off anyone in the job with as little experience as Mr. Haroldsen. I must admit, however, that I did not think that Swanson's was losing a valuable worker when Mr. Haroldsen was discharged. To the contrary, there were at least three other reasons why, in my opinion, Mr. Haroldsen could and should have been fired for cause long before.... He then detañed these reasons including a history of absenteeism and tardiness, Har-oldsen's poor work performance, and alleged thefts from the store. However, Swanson's presented no evidence that Haroldsen had ever been previously reprimanded for his actions, nor had any prior notice been given that he would be terminated unless his performance improved. FinaUy, Haroldsen was never denied a raise which he requested. Haroldsen attributes the firing decision to Myraris racial animus and argues that Swanson's stated reasons were pretextual. He provided the superior court with affidavits of several former employees of Swanson's who claim to have heard Myran make raciaüy derogatory remarks about other Native employees. He also provided affidavits, primar-üy by himself and his father-in-law, Tubbs, in an effort to rebut the other justifications Myran gave for firing him. Shortly after Haroldsen was fired both Panko and Taveres quit. Swanson's did not extend an offer to Haroldsen to return. Two Caucasians were hired to fill the vacant positions. In July 1993, Haroldsen filed suit in the superior court in Bethel alleging that he had been wrongfully terminated. Specifically, he alleged that Swanson's had violated Alaska's Civü Rights Statute by engaging in racial discrimination. AS 18.80.220. He also claimed that Swanson's had violated the implied covenant of good faith and fair dealing which is a part of every employment contract in Alaska. Before trial, Swanson's moved for, and the superior court granted, summary judgment on both of Haroldsen's claims. In its written decision, the court concluded that Haroldsen had raised genuine issues of material fact with respect to the work performance, tardi ness and absenteeism, and theft justifications offered by Swanson's. Additionally, it concluded that with respect to employee morale, Swanson's had failed to provide evidence of any formal company policy which was violated, and further that morale could have been improved by other less drastic measures such as removing the privileges. However, the court held that Swanson's had demonstrated that it had reduced the number of employees in its maintenance department from three to two. Because Haroldsen failed to show that he was more experienced and skilled than either of the retained employees, he did not demonstrate that this reason was pretextual. Finally, the superior court held that the factual basis for Haroldsen's claim regarding the implied covenant of good faith was the racial discrimination which he had alleged violated Alaska's Civil Rights Statute. Thus, his failure to raise a genuine issue of material fact on his statutory claim meant that summary judgment was granted on the contract claim as well. Haroldsen now appeals. II. DISCUSSION A. The Statute and Analytic Framework Alaska Statute 18.80.220(a)(1) states, "It is unlawful for an employer to refuse employment to a person, or to bar a person from employment, or to discriminate against a person in compensation or in a term, condition, or privilege of employment because of the person's race, religion, color, or national origin...." In applying AS 18.80.220(a)(1), this court has expressly adopted the three-part analytic framework used by federal courts in Title VII cases. Alaska State Comm'n for Human Rights v. Yellow Cab, 611 P.2d 487, 488 n. 1, 490 (Alaska 1980). First, the employee "carries] the initial burden under the statute of establishing a prima facie case of racial discrimination." McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). The burden then shifts to the employer "to articulate some legitimate, nondiscriminatory reason" why the employee was discharged. Id. Finally, the burden shifts back to the employee "to show that [the employer's] stated reason for [discharging the employee] was in fact pretext." Id. at 804, 93 S.Ct. at 1825. B. The Prima Facie Case The superior court stated that in a workforce reduction situation, a prima facie case is established when the employee produces evidence to show "(1) that he is within the protected class, (2) that he was qualified for the job and performing according to the legitimate expectations of the employer, (3) that he was adversely affected by an employment decision, (4) and that others, who are not within the protected class, were treated more favorably." The superior court concluded that Haroldsen had met this burden. Swanson's argues that this formulation of the prima facie case is incorrect. Relying on Barnes v. GenCorp Inc., 896 F.2d 1457,1465 (6th Cir.1990), Swanson's contends that an inference of discrimination is raised only where the discharged employee demonstrates that he is more qualified than a retained employee who is not within the protected class. Because Haroldsen's evidence at best showed "[Taveres] was more skilled in certain areas and [Haroldsen] was more skilled than [Taveres] in other areas," he failed to demonstrate a prima facie case. We reject the Barnes formulation because it misconstrues the purpose of the prima facie case. The U.S. Supreme Court has stated in the context of a hiring discrimination ease that the prima facie ease is meant to require the alleged discriminatee [to] demonstrate at least that his rejection did not result from the two most common legitimate reasons on which an employer might rely to reject a job applicant: an absolute or relative lack of qualifications or the absence of a vacancy in the job sought. International Brotherhood of Teamsters v. United States, 431 U.S. 324, 358 n. 44, 97 S.Ct. 1843, 1866 n. 44, 52 L.Ed.2d 396 (1977). In Barnes, the court reasoned that this rationale is inapplicable in work force reduction cases because the employer had a legitimate reason: the elimination of excess employees which necessarily reduces costs. 896 F.2d at 1464-65. However, this still leaves unexplained why the employer chose one employee rather than another, and it is here that the potential discrimination lies. The employer is required at the second step of the analysis to rebut the presumption by stating the permissible, objective criteria which led to the decision to terminate the plaintiff rather than another employee. By cutting the analysis off before such an inquiry, the court never gets to determine whether such criteria exist. Additionally, although the U.S. Supreme Court recognized in McDonnell Douglas Corp. that the prima facie case will vary with the factual circumstances of the particular case, 411 U.S. at 802 n. 13, 93 S.Ct. at 1824 n. 13, the formulation used by the superior court is closer to the test adopted by this court in other cases under Alaska's Civil Rights Statute. For example, in Yellow Cab, a case involving hiring discrimination, this court held that a prima facie case was demonstrated if after the plaintiffs rejection "the position remained open and the employer continued to seek applications from persons of complainant's qualifications." 611 P.2d at 490 (quoting McDonnell Douglas Corp., 411 U.S. at 802, 93 S.Ct. at 1824) (emphasis added). C. Swanson's Stated Rationale Swanson's gave five business justifications for terminating Haroldsen rather than Tav-eres: (1) poor work performance; (2) damage to employee morale resulting from Tubbs' favoritism; (3) a reduction in force (RIF); (4) absenteeism and tardiness; and (5) theft. These reasons were all amply supported by affidavits provided by Swanson's. D. Pretext The U.S. Supreme Court adopted the three-part analysis for Title VII cases because it is usually impossible for an employee to directly prove that the employer acted with a discriminatory intent. Instead, the employee is allowed to prove such animus inferentially by challenging the employer's stated justifications for taking the adverse action. Thus, once the employee has established a prima facie case, the proper inquiry for the trial court at summary judgment is not "Has the employer stated a justifiable reason for terminating the employee?" Rather, it is "Has the employee raised sufficient doubts regarding the employer's stated justifications to permit a reasonable jury to infer that the reasons given are pretextual?" 1. Reduction in Force The superior court determined that Haroldsen failed to provide sufficient evidence to create a genuine issue of material fact that Swanson's alleged RIF was a pretext for unlawful discrimination. Thus, even though he had provided affidavits to raise a genuine issue of material fact with respect to the other reasons, Haroldsen had failed to meet his burden to avoid summary judgment. The problem with the superior court's reasoning is that the decision of who to terminate, Haroldsen or Taveres, was inextricably bound to the other justifications for which the superior court found that Haroldsen had demonstrated there was a material factual dispute. In his affidavit, Myran justified the decision to terminate Haroldsen rather than Taveres not only by making factual alléga-tions distinguishing between their relative abilities, but also by discussing Haroldsen's alleged tardiness, poor work performance, and thievery. If, as the superior court held, a jury could find that these reasons were pretextual, then even if Taveres was more qualified, the jury would be free to conclude that Myran was motivated by racial animus in making the decision to terminate him rather than Taveres. The other evidence before the court also supports this conclusion. Haroldsen submitted affidavits from two other ex-employees of Swanson's regarding alleged racist remarks made by Myran. Swanson's failed to provide any evidence that Haroldsen was at any time warned or reprimanded prior to his firing, even after Myran took over as sole general manager. The fact that Tavares was rehired shortly before Haroldsen was laid off and that both Tavares and Panko left Swanson's shortly thereafter raises a question as to whether a reduction in force even occurred. Finally, Haroldsen provided evidence that his performance was satisfacto ry. Viewing this evidence in the light most favorable to Haroldsen, a reasonable jury could conclude that Swanson's stated reasons were pretextual. We therefore conclude that summary judgment on this issue was improper. 2. The Other Reasons Alleged by Swanson's Finally, we briefly address Swanson's arguments that summary judgment should be upheld because the trial court erred in finding Haroldsen had raised a material issue of fact with respect to its other justifications for firing him. This discussion will also serve to clarify the parties' respective burdens of proof at trial. First, with respect to Haroldsen's work performance, Swanson's argues that the relevant issue is not the actual quality of the employee's performance, but rather whether the employer is sincere in stating that performance is the reason for the termination. Thus, because the only evidence Haroldsen provided was his personal opinion of his own performance, he failed to demonstrate that Swanson's reason was pretextual. This argument is in part correct. The ultimate issue in any employment discrimination case is whether racial animus motivated the employer in making its employment decision. Thus, if an employer can show that it subjectively believed it had a legal justification, and that it was acting solely on this belief, an employee's racial discrimination claim must fail. However, this does not mean that objective evidence regarding the justification is irrelevant, or even secondary. An individual's testimony regarding their intent or motivation is not always reliable, especially where the individual is a party to the litigation. One of the primary means for the fact-finder to verify a party's testimony regarding their intent is to examine the objective evidence that supports that party's conclusion. This is especially true on summary judgment where there is no opportunity to observe the witness testifying. If the objective evidence is such that it does not support the stated justification, a reasonable jury could conclude that the party's intent was other than they have testified, and summary judgment would therefore be improper. Swanson's also argues that Harold-sen's self-interested assessment of his own qualifications is irrelevant. It is true that an employee should not be permitted to create their own job description in such a manner as to show they are qualified. However, where as here, there is no pre-existing job description against which to objectively measure an employee's qualifications, the scope of relevant evidence must necessarily be broader. Thus, we conclude that in such a case an employee can avoid summary judgment with his own affidavit if he avers specific facts which would tend to show that he was qualified to do the work which he was assigned to do. After reviewing the evidence, we conclude that the superior court properly found that Haroldsen had raised genuine issues of material fact with respect to the other justifications. III. CONCLUSION We conclude that summary judgment was improper because Kenneth Haroldsen raised an issue of material fact as to whether Swanson's stated reasons for terminating his employment were pretextual. We therefore REVERSE the superior court's entry of summary judgment in favor of Swanson's and REMAND for further proceedings. Because Swanson's is no longer the prevailing party, the award of attorney's fees is VACATED. . Swanson's is owned and operated by defendant OMNI Enterprises, Inc. . The circumstances surrounding his transfer are in dispute. Swanson's contends that Haroldsen was transferred by his father-in-law, Don Tubbs, who at the time was co-manager of the store. Haroldsen contends that Jim Panko, head of the maintenance department, requested that Harold-sen be transferred, and that he was then offered the job. . Myran states that Swanson's did not rehire Haroldsen because of the other problems which it alleged justified its firing of Haroldsen. . The superior court also dismissed Haroldsen's evidence regarding racial remarks which Myran allegedly made because Haroldsen had failed to link these comments to the disputed personnel decision. . This court reviews a grant of summary judgment using its independent judgment. The "court must determine whether any genuine issue of material fact exists and whether the moving party is entitled to judgment on the law applicable to the established facts. All reasonable inferences of fact from proffered materials must be drawn against the moving party and in favor of the non-moving party." Wright v. State, 824 P.2d 718, 720 (Alaska 1992) (citation omitted). . The superior court cited Williams v. Williams Electronics, Inc., 856 F.2d 920, 922-23 (7th Cir. 1988), and Thombrough v. Columbus and Green-ville R.R., 760 F.2d 633, 641-45 (5th Cir. 1985). . We note that Swanson's unnecessarily limits the concept of "qualification" to job skill. The trial court may consider any factor an employer would consider in evaluating the job perfor- manee of its employees. Thus, where, as here, there are serious questions regarding the reliability of the retained employee, and the same concerns do not exist with regard to the terminated employee, the question is raised: "Why did the employer choose to retain this employee rather than the employee in the protected class?" This is precisely the question which the prima facie case is meant to raise. . See, e.g., Thombrough, 760 F.2d at 644 ("If we focus not on why employees, in general, were discharged, . but instead on why the plaintiff rather than another employee was discharged, the discharge of an older employee rather than a younger one is initially unexplained. Under these circumstances, requiring the employer to articulate reasons for his decision to fire the plaintiff is appropriate. It serves the primary function of the prima facie case doctrine: 'to sharpen the inquiry into the elusive factual question of intentional discrimination.' "). . See United States Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 716, 103 S.Ct. 1478, 1482, 75 L.Ed.2d 403 (1983) ("There will seldom be 'eyewitness' testimony as to the employer's mental processes."). . See Hairston v. Gainesville Sun Publishing Co., 9 F.3d 913, 921 (11th Cir.1993) ("plaintiff's burden at summary judgment is met by introducing evidence that could form the basis for a finding of facts, which when taken in the light most favorable to the non-moving party, could allow a jury to find by a preponderance of the evidence that the plaintiff has established pretext"). .Haroldsen argues first that as a general rule, summary judgment is an inappropriate means to resolve issues of intent. Because racial discrimination cases go directly to the question of intent, summary judgment should not have been granted in the present case. We have previously stated that even where intent is an issue summary judgment may be proper in certain cases. See Turnbull v. LaRose, 702 P.2d 1331, 1335 (Alaska 1985). Therefore, we choose not to adopt a per se rule barring summary judgment in all employment discrimination cases. However, we have also noted that summary judgment should only be granted in clear cases because, generally, "the fact finder should be given the opportunity to observe the demeanor of the witnesses whose states of mind are at issue." Id..; see also Jones v. Central Peninsula Gen. Hosp., 779 P.2d 783, 789 (Alaska 1989). Other courts addressing this issue in the context of employment discrimination have also noted that summary judgment is often inappropriate to resolve issues of the existence of discriminatory intent. See, e.g., Yartzoff v. Thomas, 809 F.2d 1371, 1377 (9th Cir.1987) ("a grant of summary judgment, though appropriate when evidence of discriminatory intent is totally lacking is generally unsuitable in Title VII cases in which the plaintiff has established a prima facie case because of the 'elusive factual question' of intentional discrimination"); E.E.O.C. v. Southwest Texas Methodist Hosp., 606 F.2d 63, 65 (5th Cir.1979). . Our statute bars employment decisions based on both racial animus and other legitimate considerations. See Price Waterhouse v. Hopkins, 490 U.S. 228, 241, 109 S.Ct. 1775, 1785, 104 L.Ed.2d 268 (1989) ("Title VII meant to condemn even those decisions based on a mixture of legitimate and illegitimate considerations."). . Swanson's argues that these statements are not sufficient evidence on their own to survive summary judgment because they are not directly related to the employment decision at issue. See Cariddi v. Kansas City Chiefs Football Club, Inc., 568 F.2d 87, 88 (8th Cir.1977); Crader v. Concordia College, 724 F.Supp. 558, 564 (N.D.Ill.1989). However, precedent on this issue is mixed and we need not resolve this issue. At the very least, this was competent and relevant evidence which a jury would be entitled to evaluate in determining the likelihood that the reasons given by Swanson's were pretextual. See E.E.O.C. v. Beverage Canners, Inc., 897 F.2d 1067, 1071 n. 9 (11th Cir.1990). . Swanson's admitted in its answer to Harold-sen's complaint that he had never been denied a raise which he had requested. Additionally, Don Tubbs, the former general manager, affied that while Haroldsen managed the furniture department, gross profits increased and that the operations manager of Swanson's parent company had told him that he was impressed with Haroldsen's job performance. Finally, with respect to his work in the maintenance department, Tubbs af-fied that Haroldsen successfully fixed a heating system which Panko had been unable to fix, and that Haroldsen was often left alone in the department when Panko's job forced him to travel to other stores. While Tubbs' relationship with Haroldsen suggests that he might have a motive to lie or to exaggerate, such credibility determinations are for the trier of fact. . See Branson v. Price River Coal Co., 853 F.2d 768, 772 (10th Cir.1988). . Otherwise, Swanson's own arguments with regard to Haroldsen would apply equally to them. That is, Swanson's would be free to make up a job description which Haroldsen did not meet, and then on summary judgment simply state he was not qualified. . For example, with respect to work performance, Haroldsen provided the following evidence: (1) that he was often called upon to work alone in the department for long periods; (2) that an OMNI executive had complimented his work as furniture department manager; (3) that he was able to repair the heating system at one of Swanson's other properties; and (4) that Tubbs stated that all of the jobs which he saw Harold-sen do were done well. . Based on his complaint, Haroldsen's claim with respect to the implied covenant of good faith and fair dealing is premised on the same basic factual allegations as his racial discrimination claim. Because we reverse summary judgment on the statutory claim, we also conclude that reversal is appropriate on the contract claim to allow Haroldsen to more clearly articulate the contours of his breach of contract claim. . Our disposition of the summary judgment issue in favor of Haroldsen makes it unnecessary for us to consider the other issues he raises on appeal. The question of whether the superior court improperly struck the additional evidence offered with Haroldsen's motion for rehearing is moot.

11717267

David E. MILES, Appellant, v. STATE of Alaska, Appellee

Miles v. State

1992-02-07

No. A-3556

904

907

825 P.2d 904

825

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T18:59:07.157757+00:00

CAP

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

David E. MILES, Appellant, v. STATE of Alaska, Appellee.

David E. MILES, Appellant, v. STATE of Alaska, Appellee. No. A-3556. Court of Appeals of Alaska. Feb. 7, 1992. Leslie A. Hiebert, Asst. Public Advocate, and Brant G. McGee, Public Advocate, Anchorage, for appellant. Kenneth M. Rosenstein, Asst. Atty. Gen., Anchorage, and Charles E. Cole, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and MANNHEIMER, JJ.

1657

10437

OPINION MANNHEIMER, Judge. David E. Miles participated in two sales of cocaine to a police undercover agent. He was indicted on two counts of misconduct involving a controlled substance in the third degree, AS 11.71.030(a)(1). Miles asked the superior court to suppress the tape recordings of his conversations with the undercover agent. When the superior court denied Miles's motion, Miles and the State reached a plea agreement. Miles pleaded no contest to one count of third-degree misconduct involving a controlled substance, and Miles and the State stipulated that Miles could appeal the superior court's denial of his motion to suppress the tape recordings. Cooksey v. State, 524 P.2d 1251 (Alaska 1974). Miles filed the agreed-upon appeal and he has briefed the suppression issue. In its responding brief, the State argues that the plea agreement is improper under the refinement of the Cooksey rule announced by the Supreme Court in Oveson v. Anchorage, 574 P.2d 801, 803 n. 4 (Alaska 1978). At common law, a plea of guilty or no contest constituted a waiver of all non-jurisdictional defects in a criminal prosecution. Cooksey, 524 P.2d at 1255. In Cook-sey, the Alaska Supreme Court altered this common-law rule, allowing' a defendant to plead no contest yet at the same time reserve the right to appeal an issue litigated in the trial court. Cooksey, 524 P.2d at 1256-57. In Oveson, the Supreme Court refined and limited the Cooksey rule. The court announced: [A]ppeals under the Cooksey doctrine will not be approved unless it is clearly shown, and the parties have stipulated with trial court approval, that our resolution of the issue reserved for appeal will be dispositive of the entire case. Oveson, 574 P.2d at 803 n. 4. In the present case, Miles and the State told the superior court that Miles's motion to suppress the tape recordings of his conversations with the undercover agent was "dispositive" because, without these tape recordings, the State would probably elect not to go forward with the prosecution. The superior court apparently accepted this stipulation. However, under Oveson and ensuing decisions, this court must independently evaluate whether an issue is disposi-tive for Cooksey purposes. See, for example, Heuga v. State, 609 P.2d 547, 548 (Alaska 1980), and Cronin v. Anchorage, 635 P.2d 840, 842 (Alaska App.1981). Past cases have not provided a clear definition of what kind of issue is "dispositive" for Cooksey purposes. See C. Pengilly, Post-Plea Appeal of "Dispositive" Issues, 5 Alaska Law Review 221 (1988). The parties in this case took the position that suppression of evidence becomes "dispositive" if the prosecutor would decline to pursue the case in the absence of that evidence, regardless of the legal sufficiency of the remaining evidence. We reject this definition of "dispositive" for several reasons. If the categorization of an issue as "dis-positive" hinged on the prosecuting attorney's personal view of the evidence in the case, it would be almost impossible for this court to discharge the responsibility imposed by Oveson — the duty of independently reviewing the issue preserved for appeal to make sure it is truly dispositive. The decision of a prosecutor to pursue criminal charges in the absence of particular evidence is often a judgement call based on that prosecutor's experience, workload, and temperament. A prosecutor's evaluation of the likelihood of success without the questioned evidence (i.e., the likely credibility and convincing power of the remaining evidence) will almost always rest on intangible factors that cannot be independently assessed by this court. Moreover, there is always the possibility that an over-worked prosecutor's view of whether evidence is crucial to the case will be consciously or unconsciously influenced by the knowledge that calling an issue "dis-positive" will mean the disappearance of that case from the trial calendar. This same knowledge might also influence the defense attorney and the trial court judge to acquiesce in the prosecutor's evaluation. Another objection to such a subjective definition of "dispositive" — perhaps the most important objection — is that it leaves the appellate courts vulnerable to having the parties "thrust upon us the determination of hypothetical and abstract questions". Heuga, 609 P.2d at 548. An appellate court should not undertake to decide a legal question simply because it is interesting or simply because the parties would like to have the question answered. Under Alaska Criminal Rule 43(a), the prosecution has unfettered discretion to dismiss a criminal case up until the commencement of trial. Thus, if the disposi-tiveness of an issue depended on the subjective intention of the prosecutor, virtually any issue could become "dispositive" if the prosecutor were willing to commit the state to dismiss the case in the event the defendant prevailed on that issue. Had the Supreme Court contemplated this result in Oveson, it certainly would not have required an independent judicial finding that the issue preserved for appeal is disposi-tive. We believe that the proper definition of a "dispositive" issue can be derived by examining the underlying purposes of the Supreme Court's insistence that the issue preserved for appeal be dispositive. One reason for this requirement is to insure that the issue preserved for appeal will be strenuously litigated in the trial court, so that the resulting appellate record will be adequate for meaningful review. Another reason for the requirement is to avoid having issues presented on appeal in an evidentia-ry vacuum. There are times when a particular witness's testimony or a particular piece of evidence may have obvious crucial importance to the litigation; examples are the drug or the weapon in a drug or weapon possession case. More often, however, the ultimate importance of particular evidence to the litigation — and, more to the point, whether erroneous admission of this questioned evidence would require reversal of a criminal conviction — cannot be evaluated without knowing the rest of the government's case. Justice would not be served if Cooksey pleas could be employed to evade the harmless error rule that would normally govern appellate resolution of the defendant's evidentiary claim if he or she went to trial. In the present case, suppression of the tape recordings of Miles's conversations with the undercover agent clearly poses no legal impediment to the State's pursuit of this prosecution. Despite suppression of the tapes, the police agent could still testify about these conversations, could still testify that Miles participated in the two drug sales, and could still provide the evidentia-ry foundation for admission of the drugs. State v. Glass, 583 P.2d 872, 877, 880 (Alaska 1978). This evidence, if admitted, would be sufficient to take the case to the jury. Thus, even if we ruled on appeal that admission of the tapes had been error, we would still have to decide whether that error was "reversible" — whether a conviction supported by legally sufficient evidence should nonetheless be reversed because of the admission of the tapes. The Alaska Supreme Court has cautioned us that we are not to decide such an issue in a "factual vacuum". State v. Wickham, 796 P.2d 1354, 1357-58 (Alaska 1990). To safeguard the proper functioning of the Cooksey / Oveson rule, we now hold that an issue is "dispositive" for Cooksey purposes only if resolution of the issue in the defendant's favor would either legally preclude the government from pursuing the prosecution or would leave the government without sufficient evidence to survive a motion for judgement of acquittal at the conclusion of the government's case. We adopt a judgement of acquittal standard because it provides a more objective benchmark than a test that hinges on the prosecutor's strategic evaluation of the chances for a favorable verdict. In the future, to comply with the Cooksey/Oveson rule, the prosecuting attorney, as an officer of the court, must certify that the issue which the defendant proposes to appeal is dispositive, either because a ruling in the defendant's favor would, as a matter of law, bar continuation of the prosecution or because a ruling in the defendant's favor would leave the government with insufficient evidence to, withstand a motion for judgement of acquittal at the conclusion of the government's case. Both the defense attorney and the judge must concur in the prosecutor's assessment. Of course, it will remain the obligation of this court to independently evaluate the propriety of Cooksey pleas. Oveson, 574 P.2d 801. Nevertheless, under the standard that we adopt today, we anticipate that trial judges, prosecutors, defense attorneys, and this court will generally agree on what constitutes a proper Cooksey issue. We recognize that criminal cases will, from time to time, give rise to important questions of law which, although not "dis-positive", are nonetheless deserving of immediate appellate resolution. Our holding does not preclude, nor is it intended to discourage, either or both parties from petitioning this court for interlocutory review under Alaska Appellate Rule 402 in such cases. Alternatively, if the parties concur that the only crucial aspect of the case is a non-dispositive legal issue and that there are no material factual disputes to be litigated, the parties may agree to hold a trial on stipulated facts or upon the grand jury record, thus obtaining an appealable judgement. Returning to the present case, the issue Miles attempted to preserve for appeal is not "dispositive" as we have defined that term today. We must therefore dismiss Miles's appeal for lack of jurisdiction. Because Miles entered his no contest plea in reliance on his ability to litigate the suppression issue on appeal, he must now be given an opportunity to withdraw his plea. Cooksey, 524 P.2d at 1256. This appeal is DISMISSED and this case is REMANDED to the superior court to allow Miles to withdraw his plea.

10345277

Randall GYLES, Appellant, v. STATE of Alaska, Appellee

Gyles v. State

1995-08-18

No. A-5321

1143

1150

901 P.2d 1143

901

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T18:58:36.966977+00:00

CAP

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

Randall GYLES, Appellant, v. STATE of Alaska, Appellee.

Randall GYLES, Appellant, v. STATE of Alaska, Appellee. No. A-5321. Court of Appeals of Alaska. Aug. 18, 1995. Hearing Denied Oct. 13, 1995. Linda K. Wilson, Assistant Public Defender, and John B. Salemi, Public Defender, Anchorage, for appellant. John K. Bodick, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for appellee. Before BRYNER, C.J., COATS, J., and ANDREWS, Superior Court Judge. Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution.

3903

24729

OPINION BRYNER, Chief Judge. Randall Gyles appeals an order entered by Superior Court Judge Milton M. Souter dismissing a post-conviction relief application in which Gyles claimed that he was unlawfully imprisoned because his parole had been unlawfully revoked. Specifically, Gyles asserted that the Alaska Parole Board lacked jurisdiction to revoke his parole and violated his constitutional privilege against self-incrimination. We conclude that Gyles' jurisdictional claim is meritless but that the superior court erred in summarily dismissing Gyles' self-incrimination claim. Randall Gyles was convicted in 1986 of one count of sexual abuse of a minor in the second degree, AS 11.41.436(a)(3), and three counts of sexual abuse of a minor, former AS 11.41.440(a)(2). He received a presumptive sentence of six years on the second-degree sexual abuse of a minor count and presumptive sentences of three years each on the remaining three counts. The sentences were partially concurrent and partially consecutive for a composite term of eight years. While Gyles was serving this sentence, the Department of Corrections (DOC) set his mandatory parole release date for October of 1990. Gyles filed a habeas corpus petition arguing that DOC's calculation of his release date was incorrect and that he was entitled to release approximately four months earlier. The superior court agreed and, on June 26, 1990, ordered DOC to recalculate Gyles' release date. Based on the recalculation, Gyles was released on mandatory parole the next day, June 27, 1990. In April of 1992, while Gyles was on mandatory parole, this court reversed the superi- or court's order requiring DOC to recalculate Gyles' mandatory release date; we concluded that the original DOC calculation had been correct. State v. Gyles, Memorandum Opinion and Judgment No. 2388 (Alaska App., April 1, 1992). As a result of our decision, Gyles was ordered to serve out the remaining four months of his sentence, based on the original mandatory release date. By then, however, Gyles' parole had been transferred to Idaho. The state declined to seek his extradition, allowing him to continue under the supervision of his Idaho parole officer. As a condition of his mandatory parole in Alaska, Gyles had been ordered to participate in sexual offender treatment at the direction of his parole officer. Upon commencing parole supervision in Idaho, Gyles encountered problems gaming admission to a sexual offender treatment program, since he refused to acknowledge responsibility for his offenses. Gyles' original Idaho parole officer, Barbara Purdy, allowed Gyles to participate in individual counseling in lieu of sexual offender treatment. Purdy reported to Gyles' Alaska parole officer that Gyles was cooperative and in compliance with his treatment requirements. During the summer of 1992, however, Pur-dy retired. Gyles fell under the supervision of parole officer Richard Wold, who proved less tolerant of Gyles' failure to enroll in a sexual offender treatment program. Wold believed Gyles to be "a dangerous sex-offender in need of treatment." In Wold's view, "[b]ecause [Gyles] has never admitted to [his] offenses, nobody will provide any sex-offender treatment. Alaska had this problem with Mr. Gyles and Idaho has this problem." Wold notified Gyles that he would be required to enroll in a treatment program; as a step toward enrollment — a step that is evidently routine in Idaho — Wold directed Gyles to submit to a polygraph examination: 'We have scheduled Mr. Gyles for a polygraph examination ., hoping we can gain some insight and determine if he has re-offended or has had any contact with minors." On October 17, 1992, however, upon arrival at the polygraph examiner's office, Gyles declined to submit to the test. Based upon Gyles' refusal to submit to the polygraph, the Idaho Department of Corrections closed interest in Gyles' case and instructed Gyles to report to Alaska parole authorities by November 1, 1992. Alaska Parole Officer Amy Rabeau spoke to Gyles by telephone on December 10,1992, instructing him to return to Alaska by January 18, 1993. On December 23, 1992, Rabeau sent Gyles a confirming letter, indicating that a parole hearing was scheduled for January 26. On January 13, 1993, Rabeau prepared a parole violation report, formally alleging that Gyles had violated the conditions of his parole by failing to obtain sexual offender treatment. Gyles subsequently returned to Alaska voluntarily, and Rabeau served him with the parole violation report at the parole revocation hearing on January 26,1993. Because Gyles was unrepresented and had not previously been served with the report, the Parole Board continued the revocation hearing until February 11, 1993. At the February 11 hearing, Gyles, through counsel, argued, in relevant part, that his failure to submit to the polygraph test in Idaho did not amount to a violation of his treatment requirement, since the polygraph examiner asked questions that might have required Gyles to incriminate himself. Gyles maintained that his parole could not properly be revoked for his assertion of the constitutional privilege against self-incrimination. The board nevertheless found that Gyles had violated parole by failing to obtain sexual offender treatment and ordered him to serve the remainder of his sentence. Gyles filed a pro se petition for habeas corpus challenging the parole revocation order. The superior court deemed the petition an application for post-conviction relief and appointed counsel for Gyles. Gyles' attorney eventually submitted an amended application for post-conviction relief asserting two claims: first, that the parole board lacked authority to revoke Gyles' parole, because he was no longer on mandatory parole when served with the notice of violation on January 26, 1993; second, that Gyles' parole was unlawfully revoked because he exercised his privilege against self-incrimination by refusing to submit to the Idaho polygraph test. After considering Gyles' application, the state's response, and Gyles' reply to the state's response, the superior court served Gyles with notice of its intent to dismiss the application. Gyles filed a reply to the notice. On April 22, 1994, finding Gyles' reply to be "nothing more than a rehashing of the arguments in the original application [that] does not cure the defects[,]" the superior court entered a final order dismissing the post-conviction relief application. On appeal, Gyles renews the two arguments he raised in his application below. Gyles' first argument — that the parole board's jurisdiction over him had lapsed— presents a purely legal issue that lends itself to summary disposition. Under AS 33.16.010(a), a prisoner who, like Gyles, has been sentenced to a term of two years or more becomes eligible for mandatory parole. To establish the length of a mandatory parole term, subsection (c) of this statute relies on the amount of good time credit the prisoner earns while incarcerated: "A prisoner . shall be released on mandatory parole for the term of good time deductions credited under AS 33.20[.]" By contrast, AS 33.16.200, another parole statute, adopts a slightly different measure in fixing the duration of the parole board's authority over a prisoner released on mandatory parole: "[T]he board retains custody of . mandatory parolees until the expiration of the maximum term or terms of imprisonment to which the parolee is sentenced." In most cases and for most purposes involving mandatory release, there is no difference between these two statutory measures: adding a prisoner's good-time deductions to the amount of pre-release time served will equal the maximum term of imprisonment that prisoner received. Gyles' case, however, involves a unique set of circumstances. As we have already indicated, the superior court ordered Gyles released on mandatory parole beginning June 27, 1990, approximately four months before the October mandatory release date that DOC had originally calculated. This court subsequently reversed the superior court's order. Our decision resulted in the reinstatement of approximately four months of imprisonment, which in effect meant that Gyles, who was by then in Idaho, had been paroled four months prematurely. Had Gyles returned immediately to serve out the reinstated four-month term and then been re-released on mandatory parole, his initially premature release would have had no significant effect on the expiration date of his mandatory parole or the expiration date of the parole board's jurisdiction over his case. But as long as Gyles did not serve the added four-month term, the expiration date of his parole, as fixed by AS 33.16.010(c), would theoretically arrive four months sooner than the expiration of the parole board's jurisdiction over his case, as fixed by AS 33.16.200. Gyles in fact did not return to serve out the reinstated portion of his sentence. He remained on mandatory parole until the initial date of his parole revocation hearing, January 26, 1993. Gyles calculates that, under AS 33.16.010(e), his parole expired on January 7, 1993, almost three weeks before his appearance before the parole board. Since Gyles was not served notice of the alleged parole violation until the hearing, and since no parole violation warrant had previously issued, Gyles argues that the board lacked jurisdiction over his case. The state, in response, insists that the expiration of Gyles' mandatory parole must be governed by AS 33.16.200, which gave the board jurisdiction over Gyles' case until the expiration of the maximum term of imprisonment Gyles received. According to the state, Gyles should thus be deemed to have remained on parole until April 24,1993, despite his failure to serve his added jail term. For purposes of deciding Gyles' ease, we think it immaterial whether Gyles was technically on parole when his revocation hearing was held. It is undisputed that the event triggering Gyles' parole violation hearing was his refusal to submit to the polygraph examination in Idaho at the direction of his parole officer. That event occurred in October of 1992, when Gyles was still plainly on mandatory parole, even under his own theory of expiration. And just as plainly, regardless of the date fixed by AS 33.16.010(c) for expiration of Gyles' parole, the statute governing the parole board's jurisdiction over Gyles (AS 33.16.200) gave the board continuing jurisdiction over Gyles' case until the expiration of the maximum term to which Gyles had been sentenced — a date that did not arrive until April of 1993, well after the hearing. Because Gyles was charged with a violation that indisputably occurred while he was still on parole under AS 33.16.010(c), and because notice of the violation was served on Gyles and resolved while the board indisputably retained jurisdiction over Gyles under AS 33.16.200, the validity of the board's action does not hinge on whether Gyles is deemed to have been technically on parole at the time of his hearing. The superior court did not err in rejecting Gyles' jurisdictional claim. We turn now to Gyles' self-inerimination claim, which is more difficult to characterize as a purely legal issue than was his jurisdictional argument. On the one hand, Gyles broadly argues that he had a right to invoke the privilege against self-incrimination in response to any questions dealing with sexual misconduct — even questions dealing with the misconduct for which he was convicted. This argument is mistaken in its breadth. On the other hand, the superior court appears to have concluded that Gyles had no right to claim the constitutional privilege, even as to questions seeking information about sexual offenses for which Gyles has not been convicted. This conclusion also sweeps too broadly. In Minnesota v. Murphy, 465 U.S. 420, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984), the United States Supreme Court addressed the federal constitution's Fifth Amendment privilege against self-incrimination in the context of a probation case. The Court held that a defendant who has been convicted and placed on probation does not lose the protection of the constitutional privilege, "notwithstanding that [the] defendant is imprisoned or on probation at the time [of the] incriminating statements[.]" For this reason, the state may not revoke, or threaten to revoke, probation for a valid invocation of the privilege. Id. at 435, 104 S.Ct. at 1146. As the Arizona Supreme Court has recently recognized, "Minnesota v. Murphy makes clear that the state cannot make waiver of the privilege against self-incrimination a condition of probation." Eccles, 877 P.2d at 800 (citation omitted); see also State v. Gleason, 576 A.2d 1246, 1251 (Vt.1990). A probationer or parolee cannot validly invoke the constitutional privilege, however, when there is "no real or substantial hazard of incrimination." State v. Gonzalez, 853 P.2d 526, 530 (Alaska 1993) (quoting E.L.L. v. State, 572 P.2d 786, 788 (Alaska 1977)). As expressly recognized in Minnesota v. Murphy, a probationer may be questioned concerning matters relevant to probation that pose "no realistic threat of incrimination in a separate criminal proceeding." 465 U.S. at 435 n. 7, 104 S.Ct. at 1146 n. 7. The burden of establishing a hazard of incrimination is on the claimant. McConkey v. State, 504 P.2d 823, 825 (Alaska 1972). But this burden is not a great one: " 'To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.'" Id. (quoting Hoffman v. United States, 341 U.S. 479, 486-87, 71 S.Ct. 814, 817-18, 95 L.Ed. 1118 (1951)). In the present ease, to the extent Gyles' post-conviction relief application alleges a violation of his privilege against self-incrimination based on his refusal to answer questions concerning the conduct for which he had been convicted, Gyles has failed to meet even this modest burden. Gyles was convicted and sentenced in 1986 and he has no remaining right of direct appeal. Gyles mentions in his application that he had a federal habeas corpus action pending when he transferred parole to Idaho, but he makes no claim that the action was still pending when he refused to take the polygraph examination. Nor does he set forth any factual circumstances to establish that the habeas action, even if still pending, might give rise to a realistic hazard of incrimination. Under the circumstances, Gyles has failed to show that he had a valid claim of privilege as to questions dealing with the offenses for which he already stands convicted. The same cannot be said of Gyles' claim that he properly invoked his privilege as to questions dealing with other potential criminal misconduct — acts of abuse for which he had not previously been prosecuted or convicted. Under Minnesota v. Murphy, 465 U.S. at 435 n. 7, 104 S.Ct. at 1146 n. 7 a state may compel a probationer to answer incriminating questions relating to unprosecuted offenses only upon express recognition of the probationer's immunity from criminal prosecution as a result of the answers given. As the Vermont Supreme Court recently held: "If the questions asked of a probationer call for answers that would incriminate him in a pending or later criminal prosecution, the State will have created the classic penalty situation if it asserts, either expressly or by implication, that an invocation of the privilege would result in probation revocation." Gleason, 576 A.2d at 1251. In the affidavit Gyles filed in support of his application for post-conviction relief, Gyles expressly alleged, in relevant part, that Mr. Fisher [the polygraph examiner] told me the questions he'd ask me during the polygraph examination would convey [sic] not only the offenses for which I was convicted but also any and all past behavior. I refused to cooperate based upon Mr. Fisher's line of questioning of my behavior prior to my conviction, without the advice of an attorney or one pressent [sic] at questioning by Fisher. This sworn statement may reasonably be read as an allegation that Gyles asserted the constitutional privilege, not in response to questions dealing with the offenses for which he was convicted, but with respect to other potentially unlawful conduct. Under McConkey, Gyles' claim must be deemed valid "unless it is 'perfectly clear . that the witness is mistaken, and that the answer[s] cannot possibly have such tendency' to incriminate." Id. at 825-26 (quoting Hoffman v. United States, 341 U.S. at 488, 71 S.Ct. at 818). The record contains nothing suggesting that Gyles had been assured immunity from prosecution for any newly revealed misconduct. If Gyles' sworn statement is taken in the light most favorable to Gyles' ease, as it must be at the first stage of a post-conviction relief proceeding, the statement must be read to assert that Gyles refused to take the polygraph to avoid potential self-incrimination, and the facts set forth by Gyles demonstrate a sufficient hazard of incrimination to support a valid claim of priv-jlege> Other information in the record certainly casts doubt on the accuracy of the assertion in Gyles' affidavit, suggesting that Gyles may have declined to cooperate out of a reluctance to discuss the conduct that led to his conviction. This contradictory information, however, indicates the potential existence of disputed facts whose resolution would require an evidentiary hearing. The contradictory information does not defeat the facial adequacy of Gyles' post-conviction relief application, since the facts alleged therein are assumed to be true for purposes of deciding the appropriateness of dismissal on the pleadings. For this reason, we conclude that the superior court erred in dismissing Gyles' application on the pleadings, without allowing the case to proceed to discovery and an eventual hearing, if necessary. The superior court's order of dismissal is VACATED, and this case is REMANDED for further proceedings consistent with this decision. MANNHEIMER, J., not participating. . AS 33.16.900(7) defines mandatory parole as "the release of a prisoner who was sentenced to one or more terms of imprisonment of two years or more, for the period of good time credited under AS 33.20, subject to conditions imposed by the board and subject to its custody and jurisdiction[.]" . See also AS 33.20.040(a), which governs the custody of released prisoners and the parole board's jurisdiction over them: Except as provided in (c) of this section, a prisoner released under AS 33.20.030 shall be released on mandatory parole to the custody and jurisdiction of the parole board under AS 33.16, until the expiration of the maximum term to which the prisoner was sentenced, if the term or terms of imprisonment are two years or more. However, a prisoner released on mandatory parole may be discharged under AS 33.16.210 before the expiration of the term. . DOC had originally given Gyles 921 days of good time (935 minus 14 forfeited days); after recalculation, Gyles was awarded 1043 days of good time. . The two dates would have continued to correspond: adding Gyles' total time served to his accumulated good-time deductions (the term of parole prescribed by AS 33.16.010(c)) would still have yielded a result approximately equivalent to "the expiration of the maximum term or terms of imprisonment to which" he had been sentenced (the parole board's last day of jurisdiction as prescribed by AS 33.16.200). .As a threshold matter, we must mention the state's contention that, by agreeing to be supervised on parole in Idaho and to follow the instructions of his Idaho parole officer, Gyles waived any claim of self-incrimination he might otherwise have had. It is well settled that a parolee's failure to challenge an invalid condition of parole upon its imposition does not amount to a waiver barring a subsequent claim of invalidity. See Roman v. State, 570 P.2d 1235, 1241-42 (Alaska 1977); State v. Eccles, 179 Ariz. 226, 877 P.2d 799, 802 (1994) (en banc). The state's waiver argument thus lacks merit. . Although Minnesota v. Murphy dealt with probation, it is clear that, for present purposes, the ruling applies equally to parole. See Roman, 570 P.2d at 1244. . The Supreme Court went on to make clear that the threat of divulging information that might lead to revocation of probation could not justify invocation of the privilege against self-incrimination, since revocation proceedings are not criminal in nature. Id. . See, e.g., State v. Carrizales, 191 Wis.2d 85, 528 N.W.2d 29, 32 (1995); Gleason, 576 A.2d at 1251. . In DeJesus v. State, 897 P.2d 608, (Alaska App., 1995), we stated: Alaska Criminal Rule 35.1 governs post-conviction relief applications. This rule establishes "a three-phase process, the first phase involving the filing of the application and the assessment of its sufficiency to set out a prima facie case for relief, the second phase involving discovery and review for genuine issues of material fact, and the third involving the evidentiary hearing and formal resolution of disputed facts." Parker v. State, 779 P.2d 1245, 1246 (Alaska App.1989) (footnote omitted). Here, the superior court disposed of DeJesus' application in the first phase of the process, ordering the application dismissed for failure to set out a prima facie case for relief. In reviewing the superior court's decision, we must thus determine whether the application sets out facts which, if true, would entitle DeJesus to the relief claimed. See Alaska R.Crim.P. 35.1(f)(2); State v. Jones, 759 P.2d 558, 565 (Alaska App.1988). . While Gyles argues that his privilege against self-incrimination shields him from discussing the misconduct for which he was convicted — an argument that we have rejected here — he does not assert that the condition of parole requiring him to obtain treatment is per se invalid or that his parole could not properly be revoked for violating that condition in the absence of a valid claim of self-incrimination. Accordingly, although both parties devote considerable attention to the issue of whether a probationer or parolee can be forced, as a condition of probation or parole, to admit responsibility for the sexual misconduct that resulted in the conviction, we have no occasion to consider this difficult question. Cf. Nelson v. Jones, 781 P.2d 964, 969 (Alaska 1989). Compare State v. Imlay, 249 Mont. 82, 813 P.2d 979 (1991), with Asherman v. Meachum, 957 F.2d 978, 982-83 (2d Cir.1992) (prisoner may be terminated from home-release for refusing to discuss his crime); State v. Eccles, 179 Ariz. 226, 877 P.2d 799, 801 (1994) (defendant must answer questions about crimes for which he has been convicted, even if answers may result in probation revocation); People v. Ickler, 877 P.2d 863, 866-67 (Colo. 1994) (defendant who pled guilty and subsequently refused to admit crime for sex offender evaluation violated conditions of his probation; to not revoke probation under such circumstances would encourage sex offenders to deny crimes to avoid participation in treatment); Henderson v. State, 543 So.2d 344, 346 (Fla.Dist.App.1989) (treatment that requires sex offender to admit responsibility for behavior does not violate right against self-incrimination because admission comes after conviction); State v. Gleason, 576 A.2d 1246, 1250-52 (Vt.1990) (special condition of probation which required defendant to discuss sexual issues surrounding his convictions for sex offender treatment did not violate right against self-incrimination); State v. Ralph, 41 Wash.App. 770, 706 P.2d 641, 646 (1985) (probation properly revoked where defendant refused to submit to evaluation without which he could not be accepted in sexual offender treatment); State v. Carrizales, 191 Wis.2d 85, 528 N.W.2d 29, 32 (1995) (right of self-incrimination not violated by sex offender treatment that required defendant to admit committing the sexual assault for which he had been convicted).

11716988

Diane G. LOWDERMILK, Appellant, v. Samuel E. LOWDERMILK, Appellee

Lowdermilk v. Lowdermilk

1992-02-07

No. S-3565

874

882

825 P.2d 874

825

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:59:07.157757+00:00

CAP

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

Diane G. LOWDERMILK, Appellant, v. Samuel E. LOWDERMILK, Appellee.

Diane G. LOWDERMILK, Appellant, v. Samuel E. LOWDERMILK, Appellee. No. S-3565. Supreme Court of Alaska. Feb. 7, 1992. Allison E. Mendel, Anchorage, for appellant. William T. Ford, Anchorage, for appellee. Before MATTHEWS, C.J., and RABINOWITZ, BURKE, COMPTON and MOORE, JJ.

3793

23176

OPINION COMPTON, Justice. I. DID THE TRIAL COURT ERR IN DENYING DIANE'S MOTION TO DISQUALIFY SAMUEL'S ATTORNEY FOR CONFLICT OF INTEREST? A. Facts Diane was represented by Homer Burrell in a custody dispute with Philip Holman concerning their child Jamie. Diane and Samuel eventually became concerned about the quality of Burrell's work. Samuel asked William Ford, his attorney in other matters including a domestic violence proceeding involving Diane, to look into the adequacy of Burrell's representation of Diane in the custody dispute over Jamie. Ford says he told Samuel he did not want to get involved because Samuel had consulted Ford about a divorce, creating a potential conflict of interest. Samuel nevertheless brought Burrell's case file to Ford, who "did not review" it, but only "glanced through" it. Ford also reviewed the court file. Burrell stated to the court that his file contained no mental impressions or attorney work product, but only mirrored the contents of the court file plus billings and copies of legal opinions. He also stated that during the only conversation, he had with Ford about the matter he expressed no opinion concerning Diane's suitability as a parent. The trial court denied Diane's motion to disqualify Ford, stating that it was unable to find that there was a former professional relationship between him and Diane and that there was no substantial possibility that Ford gained any knowledge in his contacts with Burrell and exposure to the file which could be used against her. B. Discussion We will reverse a trial court's decision concerning a motion to disqualify opposing counsel only when it constitutes an abuse of discretion. Munn v. Bristol Bay Hous. Auth., 777 P.2d 188, 196 (Alaska 1989). This court has stated: 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. Aleut Corp. v. McGarvey, 573 P.2d 473, 474-75 (Alaska 1978). The superior court found that no professional relationship existed. This finding is supported by evidence that Diane never consulted with Ford and that Ford did not have access to confidential information about Diane. Since Ford did not have access to confidential information, there was nothing he could possibly use against Diane. Since there was no "prior representation," we need not determine whether the subject matter in this case has a substantial relationship to the custody dispute between Diane and Philip Holman. The order is affirmed on this issue. II. PROPERTY DIVISION. A. Facts At the time of the parties' marriage, Samuel owned and operated full-time a car business, known as Alaska Motor Doctor, out of his garage. During the marriage, he continued to operate the Alaska Motor Doctor full-time, except for a nine-month to one-year period during which he took a second job and worked at the Alaska Motor Doctor part-time. Diane also worked at the Alaska Motor Doctor during the marriage, though evidence as to the extent of her involvement is conflicting. The evidence indicates that at least she picked up parts at various times and performed some administrative tasks for the business. The superior court determined that Alaska Motor Doctor was Samuel's separate property. A 1985 Ford Bronco was purchased during the marriage. Diane made the down payment, but the evidence is conflicting as to whether Samuel reimbursed her fully or only for half of it. Samuel made the monthly payments out of his separate retirement account, and at one point he borrowed $5,000 to redeem it from repossession after he fell behind in the payments. The superior court found that Samuel repaid Diane for the funds she advanced and that the Bronco was Samuel's separate property. Samuel sought reimbursement for roughly $17,000 worth of time and money he claimed he expended on two houses which were Diane's separate premarital property. As proof of expenditures he introduced some of the checks he remembered were expenditures for material used on Diane's properties. He had no receipts or other record of expenditures, and Diane testified she had "no doubt" that she paid for all of the materials used on her houses out of her separate account. Samuel claimed he spent 460 hours of labor on the houses, 163 of which he performed before the marriage. The superior court determined he was entitled to reimbursement for half of his claimed expenditures and labor. B. Discussion When a marriage is of long duration or assets are commingled, the method for determining property division is governed by Wanberg v. Wanberg, 664 P.2d 568 (Alaska 1983), and Merrill v. Merrill, 368 P.2d 546 (Alaska 1962). When the marriage is of short duration and the parties do not commingle assets, an alternative method is to treat property division as if it were contract rescission. Rose v. Rose, 755 P.2d 1121 (Alaska 1988). In Bell v. Bell, 794 P.2d 97, 102 (Alaska 1990), we held the alternative method was unavailable, even though the marriage was of short duration, because the couple had "combined thousands of dollars to acquire and improve various property." Bell is not apposite here because the Bells' commingling of assets was significantly more substantial than the Lowdermilks'. However, the superior court did not use the alternative method of Rose, which requires that it put the parties back to the positions they were in before the marriage. The superior court instead reimbursed Samuel for his efforts both before and during the marriage, while giving him the entire benefit of Diane's efforts towards Motor Doctor during the marriage. The correct method of property division in this case is the method set forth in Wanberg and Merrill. It involves (1) identifying the specific property available for distribution, (2) determining the value of this property, and (3) determining the most equitable division of the property, beginning with the presumption that an equal division is most equitable. Bell, 794 P.2d at 101; Wanberg, 664 P.2d at 570, 574-75. C. Did the Superior Court Err in Finding that The Alaska Motor Doctor and All of its Assets were Samuel's Separate Property? The superior court found that Alaska Motor Doctor was Samuel's separate property. Diane asserts that any increase in Alaska Motor Doctor's tangible assets acquired after the marriage, including inventory and accounts receivable, is marital property subject to division. We agree. Alaska Statute 25.24.160 allows the trial court to divide the property, whether joint or separate, acquired only during marriage, in a just manner. The time and energy of both spouses during the marriage is to be considered in dividing marital property. See, e.g., Bussell v. Bus- sell, 623 P.2d 1221, 1223-24 (Alaska 1981). Samuel should not be allowed to take his contributions of time and energy out of the marital estate by rolling them back into a business which he began before the marriage. Diane devoted much of her time and energy during the marriage to caring for the couple's child and keeping the family home. It is also undisputed that she made some direct contribution to the business during the marriage. It is "an abuse of discretion for the trial court to shield the property from equitable distribution merely by affixing to the property the label of 'pre-marital asset.' " Wanberg, 664 P.2d at 572. This is exactly what the superior court did with Alaska Motor Doctor. Our comments in Wanberg apply equally well to this case: There may well be reason for granting less than an even share in this property to [the other spouse], but we hold that such a determination must be made through the exercise of the'trial court's equitable discretion, to be guided by the factors relevant to such determinations, and to be articulated in terms of those factors. Id. D. Did the Trial Court Err in Classifying the Bronco as Separate Property? Property purchased during a marriage, yet paid for out of one party's separate assets, may be considered a premarital asset so long as the parties did not demonstrate an intent to jointly hold the property. See Carlson v. Carlson, 722 P.2d 222, 224-25 (Alaska 1986). Samuel presented evidence that he ultimately paid for the Bronco entirely out of his own premarital property. The superior court accepted Samuel's evidence and found that the Bronco was Samuel's separate property. This finding is not clearly erroneous. E. Did the Trial Court Err in Reimbursing Samuel for Work Accomplished on Diane's Separate Property? The superior court accepted Samuel's testimony about his expenditures on Diane's separate property, and found that he was entitled to reimbursement for half that amount. This finding is not clearly erroneous in light of the evidence presented. Samuel's evidence consisted of his own recollection of the work he performed. Although he had no receipts for materials purchased, he presented independent documentary evidence consisting of a sampling of checks he said were for materials for Diane's properties. Diane testified that she had "no doubt" that she paid all of the separate property expenses out of her own account. Jim Black, who worked on Diane's properties on jobs for which Samuel claimed reimbursement rights, testified that many of the jobs Samuel listed were either not done or took substantially less time to accomplish than Samuel claimed. On the record as a whole, we are not left with a definite and firm conviction that the trial court made a mistake. However, the trial court failed to distinguish pre-marital from post-marital expenditures. Samuel is not entitled to reimbursement for expenditures made gratuitously and not in contemplation of marriage. The trial court must determine what portion of the 163 hours of labor performed prior to the marriage, if any, are subject to reimbursement. III. DID THE TRIAL COURT ERR IN AWARDING CUSTODY OF CHRISTOPHER TO SAMUEL? The issue of custody must be remanded for reconsideration, in light of the inadequacy of the record to support certain findings, consideration of improper factors, and failure to consider mandated factors. The trial court may take additional evidence on interim conditions when reconsidering custody. The trial court considered improper factors and at the same time failed to consider statutorily mandated factors. See McClain v. McClain, 716 P.2d 381, 385 (Alaska 1986). The court's written findings state: DIANE LOWDERMILK was generally not a credible witness and it was difficult to believe anything she said. She also projects her feelings onto other persons. The court specifically finds that DIANE LOWDERMILK is unstable. The court believes the testimony of Dr. Cassell regarding both parties. The comments and findings made by the court in Holman v. Lowdermilk apply in this case as well. The court also finds DIANE LOWDER-MILK does not see the world as the average person sees it, and would therefore not be a good role model for the child. The court finds that DIANE LOWDERMILK has undermined the child/father relationship by her conduct and the court had no confidence that this is likely to change in the future. It was improper to consider that Diane "does not see the world as the average person sees it" without any articulated explanation of what these statements mean and how such factors affect her parenting ability. This finding bears on her mental state, and there must be a nexus between mental state and parenting ability for it to be a proper consideration. See Morel v. Morel, 647 P.2d 605, 608 (Alaska 1982). The court ignored the issue of spousal abuse, a factor it is required to consider by AS 25.24.150(c)(7), despite extensive evidence of spousal abuse in the record.. Although detailed findings on every factor mandated by AS 25.24.150(c) are not required where the factor is not at issue, spousal abuse was unquestionably at issue in this case. The court abused its discretion by failing to make findings in regard to spousal abuse, its effect on Diane, and its effect — if any — on Diane's apparently unacceptable mental state, i.e. her instability. IV. DID THE TRIAL COURT ERR IN DENYING DIANE'S COUNTERCLAIM SEEKING COMPENSATION FOR INJURIES RESULTING FROM DOMESTIC VIOLENCE INCIDENTS? In its written findings of fact, the superior court stated: "The court finds that as to the assaults alleged in the counter claim, that they were not intentionally inflicted, but came about because of DIANE LOWDERMILK'S own actions." We are unable to discern from this statement the basis of the superior court's denial of Diane's tort claim. Samuel admitted that he intended the contact which resulted in Diane's injuries. A person is liable for assault and battery if the person intends to cause harmful or offensive contact. Merrill v. Faltin, 430 P.2d 913, 917 (Alaska 1967). Intent to cause physical injury is not required. It is unclear from the finding quoted above whether the superior court found Samuel was not liable because he had an affirmative defense or for some other reason, or that the court applied the incorrect legal standard. This issue is remanded to the superior court for redetermi-nation. V. CONCLUSION. The superior court's order denying Diane's motion to disqualify Mr. Ford for conflict of interest is AFFIRMED. The decree of divorce is AFFIRMED in part, REVERSED in part, and REMANDED for proceedings consistent with this opinion. MATTHEWS, J., with whom BURKE, J., joins, dissenting in part. . The trial court also found that Diane was "unstable," without any articulated explanation of what it meant in using such a conclusory term. Some explanation of the term in context may be helpful.

11713595

ALASKA STATE EMPLOYEES ASSOCIATION, and Linda Brenton, Alma Fitzgerald Seward, and Joseph S. Johnson, individually and on Behalf of all others similarly situated, Appellants, v. ALASKA PUBLIC EMPLOYEES ASSOCIATION and Alaska Public Employees Association Legal Trust Fund, Appellees

Alaska State Employees Ass'n v. Alaska Public Employees Ass'n

1991-11-29

No. S-3755

451

461

825 P.2d 451

825

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:59:07.157757+00:00

CAP

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

ALASKA STATE EMPLOYEES ASSOCIATION, and Linda Brenton, Alma Fitzgerald Seward, and Joseph S. Johnson, individually and on Behalf of all others similarly situated, Appellants, v. ALASKA PUBLIC EMPLOYEES ASSOCIATION and Alaska Public Employees Association Legal Trust Fund, Appellees.

ALASKA STATE EMPLOYEES ASSOCIATION, and Linda Brenton, Alma Fitzgerald Seward, and Joseph S. Johnson, individually and on Behalf of all others similarly situated, Appellants, v. ALASKA PUBLIC EMPLOYEES ASSOCIATION and Alaska Public Employees Association Legal Trust Fund, Appellees. No. S-3755. Supreme Court of Alaska. Nov. 29, 1991. Don Clocksin, Wagstaff, Pope & Clock-sin, Anchorage, for appellants. Bradley D. Owens, Jermain, Dunnagan & Owens, P.C., Anchorage, for appellees. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

6125

37095

OPINION MATTHEWS, Justice. I. INTRODUCTION Appellants, the Alaska State Employees Association ("ASEA") and three individual members of the General Government Unit of State employees ("GGU"), sued the Alaska Public Employees Association ("APEA") and the Alaska Public Employees Legal Trust Fund. The trial court granted summary judgment for APEA. ASEA appeals. The suit involves three union funds, the Business Leave Bank, the Strike Fund, and the Legal Trust Fund. The GGU members contributed the majority of the assets deposited in these funds. APEA once represented the GGU members, but now ASEA represents the GGU members. After it was elected to represent the GGU members, ASEA sued to obtain possession of pro-rated portions of the funds and for damages for alleged breaches of fiduciary duty by APEA. II. FACTS AND PROCEEDINGS APEA was the certified bargaining representative for the GGU members between 1974 and 1988. GGU membership in 1988 consisted of approximately 8,300 employees. APEA only represented approximately 1,600 other employees in 1988. In May 1988, the GGU members voted to decertify APEA as their bargaining representative. In that election, ASEA received 1,565 votes, Public Employees Local 71 received 1,554 votes, and APEA received 1,551 votes. ASEA won a run-off election against Public Employees Local 71, and on September 28, 1988, the State Labor Relations Agency certified ASEA as the bargaining representative for the GGU. In addition to its general operating accounts, APEA maintained three funds which are the subject of this lawsuit: the Association Business Leave Bank, the APEA Strike Fund Trust, and the APEA Legal Trust Fund. The Leave Bank was established by Article 30, Section 4 of a 1984-1986 collective bargaining agreement between the State of Alaska and APEA on behalf of the GGU ("State/GGU Agreement"). The agreement requires new GGU members to contribute their first earned day of annual leave to the Leave Bank. The State converts these leave days into cash at the employee's rate of pay and holds the money in an account. The purpose of the Leave Bank is to compensate GGU members when they take unpaid leave from their State duties to conduct union business. GGU members could request withdrawals from the Leave Bank by submitting leave slips to APEA. However, the contract provided that only APEA's executive director or designee could request Leave Bank disbursements from the State. APEA has refused to transfer the assets in the Leave Bank to ASEA. As of June 1989, the Leave Bank contained approximately $450,000. ASEA also seeks damages for APEA's alleged breaches of fiduciary duties relating to the Leave Bank. Between May 1986 and March 1988, APEA withdrew approximately $360,000 from the Leave Bank. Each of these withdrawals was accompanied by a "letter of agreement" between APEA and the State. ASEA alleges that these withdrawals were improper because they were not paid to GGU members nor accompanied by a leave slip. The second dispute concerns the APEA Strike Fund Trust. The Strike Fund is a trust created by APEA. The declaration of trust designates APEA as the trustee. The declaration of trust appears to be silent as to the purpose of the trust. An unlabeled document attached to the declaration of trust in the record states that the purpose of the Strike Fund is to help win strike issues, build support in the public, improve the image of public employees, communicate with the membership, and provide financial support for striking members. The Strike Fund was funded and available to all members of APEA including non-GGU members. Specifically, the Strike Fund was funded by a $5 per APEA member per month fee, collected by the State and transmitted to APEA for deposit in the fund. APEA has refused to transfer the GGU members' share of the Strike Fund to ASEA. As of May 1989, the Strike Fund held approximately $1.3 million in assets. In addition, ASEA seeks damages for APEA's alleged breaches of fiduciary duty relating to the Strike Fund. ASEA alleges that APEA made improper withdrawals from the Strike Fund and did not properly invest the assets of the Strike Fund. APEA withdrew approximately $50,000 in 1987 and authorized the expenditure of approximately $250,000 in 1988 from the Strike Fund. ASEA alleges that these transactions were improper because they were not related to any strike. As to APEA's investment duty, the declaration of trust provides that the trustee "shall exercise the judgment and care under the circumstances then prevailing which an institutional investor of ordinary prudence, discretion, and intelligence exercises in the management of investments entrusted to it...." In November 1988, two months after the GGU members removed APEA as the GGU members' representative, APEA sold three APEA owned buildings to the Strike Fund for $215,000. APEA then leased back the buildings from the Strike Fund for $1 per building per year. ASEA alleges that these transactions involved unethical self-dealing by APEA and breached APEA's duty to invest prudently. The third dispute concerns the Legal Trust Fund. Article 39 of the State/GGU Agreement authorized the Legal Trust Fund. Each month, the State paid into the trust $25,000 plus $5.00 per represented employee in pay status. Approximately eighty-five percent of the total contributions received were made on behalf of GGU members, some $62,000 per month. The purpose of the Legal Trust Fund is to "create and administer a legal services plan for the employees on whose behalf the contributions are made." The State ceased contributing on behalf of GGU members after the GGU members decertified APEA. The fund then removed the GGU members as beneficiaries, and increased benefits for the remaining beneficiaries. APEA has refused to transfer the GGU members' share of the Legal Trust Fund to ASEA. As of May 1989, the Legal Trust Fund contained approximately $746,000. As noted above, ASEA sued APEA, seeking a pro-rated distribution of funds from the Leave Bank, the Strike Fund, and the Legal Trust Fund, and damages. APEA moved for summary judgment, which was orally granted by the trial court over opposition. Subsequently, a written order dismissing all claims with prejudice was entered. This appeal followed. III. DISCUSSION A. Procedural Issues ASEA argues for dismissal and remand based on Civil Rule 54(b). It contends that the trial court's ruling did not address all its claims and did not contain the certification required under Rule 54(b) when fewer than all claims are addressed. APEA, citing Reed v. Municipality of Anchorage, 741 P.2d 1181, 1194 (Alaska 1987), responds that we should presume that the trial court resolved all issues before it since there were "ground[s] asserted [in support of] the decision of the trial court." ASEA notes that the trial court's oral ruling on summary judgment did not refer to ASEA's breach of fiduciary duty claims. However, both parties addressed all of ASEA's claims at oral argument on November 22, 1989, at the close of which the trial court made its ruling. Thus, we can presume that the trial court intended to grant summary judgment as to all of ASEA's claims. Further, any ambiguity in the trial court's oral ruling is resolved by its written order granting summary judgment. The order states that there exists no genuine issue as to any material facts pertaining to plaintiffs' claims regarding the business leave bank, the strike fund and the legal trust fund.... IT IS HEREBY ORDERED that summary judgment is granted in favor of defendants concerning plaintiffs' claims involving the Association Business Leave Bank, the APEA Strike Fund and the APEA Legal Trust Fund. IT IS FURTHER ORDERED that all claims asserted by plaintiffs in this action are thereby dismissed with prejudice. . (Emphasis added.) This order clearly indicates that the trial court entered final judgment on all of ASEA's claims. APEA contends that ASEA should have joined the State as a necessary party for claims related to the Leave Bank. While the State was a party to the agreement which created the Leave Bank, its absence below did not rise to a level such that "relief [could not] be accorded among those already parties." Civil Rule 19(a). Thus, the State is not a necessary party. B. Competency ASEA asks us to use our equitable power to order a pro-rated transfer of trust assets. Courts have equitable jurisdiction over trusts. Clews v. Jamieson, 182 U.S. 461, 479, 21 S.Ct. 845, 852, 45 L.Ed. 1183 (1901). This includes the power to create any remedy that furthers the cause of justice. As Justice Story noted: In all situations and under all circumstances, whether new or old, the principles of equity will point the way to justice . Where a new condition exists, and the legal remedies afforded are inadequate or none are afforded at all, the never failing capacity of equity to adapt itself to all situations will be found equal to the case, extending old principles, if necessary, . for that purpose. Story, 1 Story's Equity Jurisprudence, § 4 (14th ed. 1918). Specifically, courts have the equitable power to order a prorated transfer of trust assets to prevent unjust enrichment. E.g., Judge v. Kortenhaus, 79 N.J.Super. 574, 192 A.2d 320, 329 (1963). Thus, our courts have the authority to order the affirmative relief sought by ASEA. C. Pro-Rated Transfer The first issue concerns ASEA's request for a pro-rated transfer of trust assets. The trial court granted summary judgment to APEA. We reverse. The trial court relied on Judge v. Kortenhaus, 79 N.J.Super. 574, 192 A.2d 320 (1963) and Occidental Life Insurance Company of California v. Blume, 65 Wash.2d 643, 399 P.2d 76 (1965), in granting summary judgment for APEA. Finding this case nearly analogous to those cases, the court remarked: "This was a voluntary departure of certain employees from a labor union to another labor union." As the trial court noted, Kortenhaus and Occidental are decisions where courts have declined to order a pro-rated distribution of trust funds to a new employee organization following the voluntary withdrawal of employee beneficiaries from an existing employee organization. Both courts stressed the voluntary nature of the withdrawal. Kortenhaus, 192 A.2d at 326; Occidental, 399 P.2d at 80-81. As the trial judge's emphasis on the voluntary nature of the GGU members' withdrawal from APEA implies, there are cases where, after an involuntary transfer from one union to another, a pro-rated remedy in favor of the transferring members has been ordered. E.g., Whelan v. O'Rourke, 5 A.D.2d 156, 170 N.Y.S.2d 284 (1958); Nicoletti v. Essenfeld, 11 Misc.2d 197, 171 N.Y.S.2d 373 (1958). In Kortenhaus and Occidental, the trustees had decided not to effect a pro-rated distribution of trust funds to the new employee organization, and in Whelan and Nicoletti, the trustees had decided to make such a transfer. Each of these cases can be read for the proposition that the decision of the trustees in such matters will be upheld absent an abuse of the trustees' discretion. Kortenhaus, 192 A.2d at 327 ("the court will interfere when [the trustee] acts outside the bounds of a reasonable judgment") (quoting 2 Scott on Trusts, § 187 at 1374 (2d ed. 1956)); Occidental, 399 P.2d at 79 ("[t]he question is whether the . [trustees' determination . constituted an abuse of discretion."); Whelan, 170 N.Y.S.2d at 287 ("the [tjrustees possess broad and flexible discretion in the administration of the [trust]."); Nicoletti, 171 N.Y.S.2d at 377-378 (the trustee's power to construe and interpret the trust provisions includes the power to transfer a pro-rated portion of the trust assets.) In Occidental, the court made a careful analysis of the factual situation and decided that not ordering the pro-rated remedy was not inequitable on the facts of that case. Occidental, 399 P.2d at 81. Likewise, the New Jersey court in Kortenhaus recognized that pro-rated relief could be ordered in an appropriate case to prevent unjust enrichment, but that no such unjust enrichment occurred in the voluntary withdrawal case before it. Kortenhaus, 192 A.2d at 329. The court in Nicoletti, in upholding the trustees' discretion to effect a pro-rated distribution to the new employee organization, noted that there would be "gross injustice" if the remaining members of the old organization "were to be held entitled to retain the entire reserve for themselves...." They would "in such event, reap an unintended windfall based on a transfer of membership over which [the transferred employees] had no control." 171 N.Y.S.2d at 378. A case that depends neither on the voluntary nature of an employee group's disassociation with the union nor on judicial deference to the decision of the trustees is Local 50, Bakery and Confectionery Workers Union, AFL-CIO v. Local 3, Bakery and Confectionery Workers Union, AFL-CIO, 733 F.2d 229 (2nd Cir.1984). In that case the employees voted to change bargaining representatives from Local 50 to Local 3. Local 3 claimed reserves in the Local 50 health benefits fund attributable to past payments made by the employer on the behalf of its employees. The trustees of the Local 50 fund refused to transfer these reserves. The trial court held that a pro-rated distribution should be made and this was upheld by the Second Circuit on appeal. The Second Circuit expressed concerns relating both to unjust enrichment, and to the chilling effect which not transferring the trust funds to a successor employee organization would have on representation elections. The court stated: Before beginning an analysis of the law, it is helpful to recognize some of the equities at issue. On its face, this case deals with the rights of employees to reap the benefits of employer contributions made in lieu of wages. Viewed in this light, the problem here might be considered one of entitlement on the part of Entenmann's employees or, alternatively, unjust enrichment of those workers who retain Local 50 as their collective bargaining representative. Yet a more fundamental problem exists — one that strikes at the very core of collective representation. Specifically, were we to hold that Local 50 may retain the contributions made by Entenmann's on behalf of its employees, we would be imposing a great disincentive for employees ever to change bargaining representatives. Faced with the devil's alternative of either forfeiting their right to a substantial sum of employer contributions or retaining a collective bargaining representative with which they are less than satisfied, employees may well choose the latter. Such a result would not only impinge on free choice in representation, but would also permit unions without penalty to them to become less attentive to their constituencies' demands. See Summers, Union Schism in Perspective, 45 Va.L.Rev. 261, 279, n. 84 (1959). We see no necessity to make employees choose between two such bad bargains. Local 50, 733 F.2d at 233. The legal context in which Local 50 was decided differs from that present in this case. Section 302(c)(5) of the Federal Labor-Management Relations Act permits payments by an employer to the representative of its employees only "with respect to money or other thing of value paid to a trust fund established by such representative, for the sole and exclusive benefit of the employees of such employer, and their families and dependents_" 29 U.S.C. § 186(c)(5). Federal courts have jurisdiction to remedy "structural defects" in trust funds established pursuant to § 302(c)(5). The structural defect in the Local 50 case was the fact that there was no provision in the trust providing for a transfer of funds in case of a change to a different bargaining representative, in violation of the "sole and exclusive benefit" provision of the LMRA. This difference does not substantially detract from the precedential value of the Local 50 case. The statutory command that employer contributions be for the sole and exclusive benefit of employees and their dependents is merely a specific example of the equitable principle against unjust enrichment which is expressed in more general terms by the state authorities which we have discussed. The equitable basis for the Local 50 decision becomes clearer when one compares the later Second Circuit case of O'Hare v. General Marine Transport Corp., 740 F.2d 160 (2nd Cir.1984). There, some employees of the employer joined a different union while others did not. The Second Circuit held that a prorated transfer of union trust funds was not required, distinguishing Local 50 as a case where "all of an employer's employees have left a fund en mass, creating a great distortion in the organization and financing of the Funds." 740 F.2d at 173. To claim that monies retained by the Funds contributed by an employer on behalf of all of its employees is not contributed "for the sole and exclusive benefit of the employees of such employer" whenever some of the employees choose to leave the union and fund would be an unfair and unrealistic construction of section 302(c)(5). This is especially true when considering pension funds, where financing is based on long-range actuarial projections and vesting requirements which assume that some employees for whom contributions are made will never be eligible for benefits.... Simply put, section 302(c)(5) does not require that when a small number of employees leave a large multi-employer unit, pension funds, by virtue of that circumstance alone, must return money contributed on their behalf to the employees or their new funds. 740 F.2d at 173-74. We are in general agreement with the approach taken by the Second Circuit in Local 50 and, in our view, it should be applied to this case. The loss of the GGU decimated APEA's membership rolls. In 1988, APEA represented about 8,300 GGU employees and about 1,600 other employees. Not to require a pro-rated transfer of the trust funds would work an obvious unjust enrichment in favor of the remaining employees represented by APEA to the detriment of the GGU members. Such a result would plainly be inequitable. Further, to withhold the transfer remedy in this case could, in future cases, give an undue advantage to an incumbent union in a representation election. This would interfere to some extent with employees' right to freely choose their bargaining representative which is implicit in the Public Employment Relations Act, AS 23.40. Kenai Peninsula Borough School Dist. v. Kenai Peninsula School Dist. Classified Ass'n, 590 P.2d 437, 439 (Alaska 1979). Moreover, to stress the voluntary nature of the decertification in this case ignores the fact that the decertification of APEA as the GGU representative was accomplished by a closely divided vote. One thousand five hundred and fifty-one GGU members voted to retain APEA representation, yet when APEA was decertified, they did not retain the option to continue to be represented collectively by APEA. It is unrealistic to say that those members voluntarily chose to leave APEA. For the above reasons, we conclude that the trial court erred in refusing to grant a pro-rated transfer. APEA concedes that the Strike Fund and the Legal Trust Fund are trusts. Therefore, we require a pro-rated transfer of those funds to ASEA. APEA contends that the Leave Bank is not a trust. However, as we discuss below, we conclude that the Leave Bank is a trust. Thus, we also require a pro-rated transfer of the Leave Bank to ASEA. APEA also contends that because the Strike Fund was funded through "dues," we should treat the Strike Fund differently than the Leave Bank and the Legal Trust Fund. The Strike Fund was funded by a $5 per member contribution that the State collected and turned over to APEA. APEA placed the money into the Strike Fund pursuant to the Strike Fund Declaration of Trust. The Strike Fund Declaration of Trust labeled these contributions as "dues" and as "funds." APEA contends that since part of the Strike Fund Declaration of Trust labels these contributions as "dues," they were dues and are the property of APEA. We disagree. The source of the assets in the Strike Fund is not of controlling importance. Assuming, without deciding, that the contributions were dues and hence originally the property of APEA, APEA transferred its equitable interest in the contributions to its members when it placed the contributions in the Strike Fund. See Island Homes, Inc. v. City of Fairbanks, 421 P.2d 759, 764 (Alaska 1966). As trustee, APEA retained legal title in the Strike Fund assets solely to administer the assets faithfully for the benefit of its members. See Restatement (Second) of TRUSTS § 74 comment a, § 170. As settlor, APEA lost all ownership rights. Thus, APEA's ownership interest in the assets of the Strike Fund is no different than its ownership interest in any assets which it owns solely as trustee. In arguing that the source of the Strike Fund is determinative, APEA incorrectly relies on In re PATCO, 724 F.2d 205 (D.C.Cir.1984). PATCO involved a dissolution of a trust that failed its essential purpose. Id. at 210. In PATCO, unsecured creditors of a bankrupt union sought a declaration that the union owned the assets in a strike benefits trust fund. The D.C. Circuit held""that the trust was funded through union member dues. Id. at 210. Since union dues are the union's property, the court held that the union, not the union members,. was the trust settlor. Id. at 209-210. The court applied the general rule that when a trust fails its essential purpose the assets in the trust revert back to the settlor. Id. (citing Restatement (Second) of TRUSTS § 411 (1959)) (other citations omitted). Therefore, the court declared that the union owned the assets of the strike benefits trust fund. Id. Unlike PATCO, the Strike Fund Trust will not be dissolved in this case. Thus the dissolution remedy ordered in PATCO is not appropriate here. D. Breach of Fiduciary Duty Although the foregoing is sufficient to decide the prorated transfer issue raised by ASEA, we also must address ASEA's claims concerning breach of fiduciary duty. ASEA claims that APEA breached its fiduciary duty with respect to two of the three trusts, the Strike Fund and the Leave Bank. APEA suggests that these claims should be disposed of on appeal favorably to it on grounds different from the rationale used by the trial court which we have rejected in the preceding section. This is procedurally proper as a judgment may be defended on grounds not utilized by the trial court. Ransom v. Haner, 362 P.2d 282, 285 (Alaska 1961). With respect to the Strike Fund, however, the record is insufficiently developed and the parties' arguments are too general for us to make a determinative ruling. With respect to the Leave Bank, we are able to rule. We agree with APEA that no claim for damages is appropriate. ASEA claims that the Leave Bank is a trust and that "[a]s a holder of the power of control, APEA is subject to a fiduciary duty, since the power it holds is for the benefit of GGU members." ASEA claims that APEA breached its fiduciary duties by participating in various withdrawals from the Leave Bank, namely: withdrawal of $100,000 to be transferred to the Legal Trust Fund; withdrawal of $60,000 paid to the State of Alaska; withdrawal of $150,-000 to offset unexpected and unbudgeted negotiation costs of APEA; withdrawal of $14,116.75 to pay salary and benefits of a non-State employee; and withdrawal of $40,352.76 to pay salary and benefits of a non-GGU member. In response, APEA argues that the Leave Bank is not a trust. Alternatively, APEA argues that if the Leave Bank is a trust, APEA is the beneficiary of the trust and has no fiduciary duty as such. Further, APEA argues that the withdrawals from the Leave Bank were proper because all withdrawals were authorized under letters of understanding which in effect amended the agreement creating the trust. A trust is defined in the Restatement as "a fiduciary relationship with respect to property, subjecting the person by whom the title to the property is held to equitable duties to deal with the property for the benefit of another person, which arises as a result of a manifestation of an intention to create it." Restatement (Second) of TRUSTS § 2 (1959). Comment h of section 2 describes the elements of a trust. They are: (1) a trustee, who holds the trust property and is subject to equitable duties to deal with it for the benefit of another; (2) a beneficiary, to whom the trustee owes equitable duties to deal with the trust property for his benefit; (3) trust property, which is held by the trustee for the beneficiary. As noted, APEA argues that the Leave Bank is not a trust. Rather, it creates either a third-party beneficiary contract between the State and APEA, or a debtor-creditor relationship between those parties. According to section 14 of the Restatement, comment a, one of the major differences between a contract for the benefit of a third party and a trust is that "[t]he beneficiary of a trust has the beneficial interest in the trust property; the beneficiary of a contract has merely a personal claim against the promisor...." The Leave Bank does not appear to be a third-party beneficiary contract because the State has not agreed to assume personal liability to APEA or its members. The State has merely agreed to administer the fund created by the transfer of annual leave. When the fund is insufficient to meet the purposes of the Leave Bank, the State is not personally liable. Instead, it is then to grant annual leave if the employee in question has annual leave coming, or approve leave without pay at the option of the employee. State/GGU Agreement at Art. 30 § 4.3(b). Likewise, the Leave Bank provision did not create a debtor-creditor relationship between APEA and the State. According to section 12 of the Restatement (Second) of TRUSTS, comment a, the distinction between a trust and a debt is that the beneficiary of a trust has the beneficial interest in the trust property, whereas a creditor has merely a personal claim against the debtor. Here, article 30 creates no grounds for a personal claim against the State, whereas a segregated fund in which APEA or its members have a beneficial interest is created. For these reasons, we conclude that the Leave Bank is a trust. We turn then to ASEA's second point. ASEA argues that the State is the trustee under the Leave Bank and APEA has the status of a person holding power of control and as such is subject to a fiduciary obligation to the GGU members. ASEA relies on the black letter rule expressed in section 185 of the Restatement (Second) of Trusts: If under the terms of the trust a person has power to control the action of the trustee in certain respects, the trustee is under a duty to act in accordance with the exercise of such power, unless the attempted exercise of the power violates the terms of the trust or is a violation of a fiduciary duty to which such person is subject in the exercise of the power. This section itself does not impose a fiduciary duty on a person holding power of control. However, comment e provides that "[i]f the power is for the benefit of someone other than the holder of the power, the holder of the power is subject to a fiduciary duty in the exercise of the power." ASEA argues that the power of APEA to make requests for withdrawals from the bank — an exclusive power under article 30, section 4 subsection 3(a) of the State/GGU Agreement — is for the benefit of GGU members. APEA counters that this power is for the benefit of APEA, and thus no fiduciary obligation arises. We interpret the Leave Bank provisions as designed for the benefit of the APEA and of the employee members of GGU who take business leave for union purposes. Thus, we agree with ASEA that APEA was subject to a fiduciary duty in the exercise of its power to make requests for withdrawals. We turn then to the question as to whether APEA was entitled to summary judgment on the grounds that it did not breach its fiduciary duty with respect to the Leave Bank. APEA's first argument on this point is that the Leave Bank's purpose was basically open ended. The final clause of the first sentence of subsection 3(a) provides that withdrawal requests from the bank will be for purposes "as may be determined by the Executive Director." APEA argues that clause means that Leave Bank funds may be withdrawn for any legitimate purpose at the sole discretion of the executive director. We reject this interpretation. The sentence in full reads as follows: Withdrawal requests from the Bank will be for purposes of contract negotiations and formulation, executive meetings, general assembly, and State Administrative Council meetings, training sponsored by the Association, attendance at arbitration hearings as witnesses for the Association and other purposes as may be determined by the Executive Director. In our view, the specific purposes listed prior to the "other purposes" clause, all of which involve employee attendance at union-related functions, give meaning to the more general clause. The principle applicable here is ejusdem generis (the general is controlled by the particular). See State v. First National Bank of Anchorage, 660 P.2d 406, 413 (Alaska 1982). Thus, the "other purposes" authorized under subsection 3(a) must bear a relationship to participation by an employee in some aspect of APEA's business. APEA's second argument is that all withdrawals were proper because they were made pursuant to a letter of understanding with the State. APEA is arguing that each letter of understanding is, in effect, a modification of the .trust, authorizing withdrawal of funds for the purposes mentioned in the letter of understanding. This argument has merit. Article 33 of the State/GGU Agreement provides that the agreement can be changed using the device of a letter of understanding. Article 33 provides in part: Prior to enacting any change in the terms and conditions of employment, as established by a specific provision of this Agreement, the Commissioner of Administration [of the State] shall obtain the approval of APEA in the form of a Letter of Understanding. Trusts may be modified to the extent that the "settlor" of the trust has reserved the power of modification. Restatement (Second) of TRUSTS § 331 (1959). Here it appears that the joint settlors of the trust, APEA and the State, reserved the power of modification, and that in accordance with the terms of the power of modification, modified the trust with respect to each of the withdrawals about which ASEA complains. Thus we agree with APEA that it is entitled to summary judgment on the question of whether the withdrawals from the Leave Bank amounted to a breach of APEA's trust duties with respect to the Leave Bank. As to the Strike Fund, ASEA claims that the sale by APEA of its three office buildings to the Strike Trust Fund was a breach of duty, especially since APEA was allowed to lease back the buildings from the Strike Fund for rental of $1 per year for each building. Further, ASEA contends that the expenditure of $50,000 from the Strike Fund was for the purpose of general APEA operations, not a purpose of the Strike Fund Trust. Finally, ASEA contends that the appropriation of some $250,000 was for the purpose of conducting a public relations campaign in the decertifi-cation election, also not an allowable purpose under the Strike Fund Trust. In response to ASEA's contentions concerning investment in the three buildings, APEA contends first, that the investment was reasonable and prudent and thus not a fiduciary violation. Second, APEA argues that the question of investment of the funds in the buildings was presented to the APEA membership and approved, noting that where there is consent of all beneficiaries there can be no breach of fiduciary duty. Third, APEA argues that the failure of the investment to earn income does not constitute a violation of duty because of the potential for capital appreciation of the buildings. In our view there are questions of fact concerning whether APEA, as trustee of the Strike Fund, breached its fiduciary duty. First, the purposes of the Strike Fund are not expressed in the declaration of trust which created it. Nor are the beneficiaries of the Strike Fund defined. Second, the declaration of trust creating the Strike Fund permits investment "in property of any kind . irrespective of any statute, case, rule, or custom limiting the investment of trust funds." Whether this clause is effective to override the general rule that a trustee may not sell property which he owns individually to himself as trustee has not been briefed or argued. See Restatement (Second) Trusts § 206, comment c (1959). Further, apart from the conflict of interest question, there are questions of fact as to the value of the buildings and the prudence of the investment which need to be developed. We thus conclude that summary judgment in favor of APEA as to whether it was in breach of its fiduciary obligations to the Strike Fund was inappropriately granted. IV. CONCLUSION In conclusion, we direct the trial court to order a pro-rated transfer of each trust's assets. We affirm the trial court's grant of summary judgment to APEA with respect ASEA's breach of fiduciary duty claim concerning the Leave Bank. We reverse the trial court's grant of summary .judgment to APEA with respect ASEA's breach of fiduciary duty claim concerning the Strike Fund and remand that claim for further proceedings. The decision of the trial court is AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings. . Although appellants consist of ASEA and three individuals, for ease of discussion we will refer only to ASEA as the appellant. Likewise, although appellees consist of APEA and the Alaska Public Employees Legal Trust Fund, we will refer only to APEA. . This case does not fall under the Employee Retirement Income Security Act ("ERISA") because the collective bargaining agreements at issue qualify as "governmental plans" within the meaning of Section 3(32) of ERISA, 29 U.S.C. § 1002(32). The Labor-Management Relations Act ("LMRA") excludes states from its definition of employers. 29 U.S.C. § 152(2). Thus this case is decided under state law. . The legal characterization of this $5/month fee as "dues" or "temporary special assessment" is hotly contested by the parties. The declaration of trust refers to the contributions as "dues," but ASEA argues that the fees have little in common with regular "dues." . Civil Rule 54(b) provides: When more than one claim for relief is presented . the court may direct the entry of a final judgment as to one or more but fewer then all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order . shall not terminate the action as to any of the claims or parties, and the order . is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties. (Emphasis added.) . The court also noted with approval "the district court's requirement that the post-transfer position of the successor fund's members may not be better than their pre-transfer position. This stipulation should assure that bargaining representatives will not use today's holding as a tool with which to lure groups of employees from their current representatives." 733 F.2d at 238. . Once ASEA was certified by the State Labor Relations Agency as the new bargaining representative for the GGU, no employee within the GGU was eligible to be a member of APEA. . Paragraph one of the trust declaration provides: 1. Declaration of Trust APEA hereby declares that it has set aside and now holds in trust those dues monies received as "strike fund" contributions_ APEA further declares that it will contribute to the Trust, when received, all future funds which it receives which are designated as "strike fund" contributions. (Emphasis added.) . After a settlor has created a trust, the settlor has no rights or powers with regard to the trust unless the trust instrument provides otherwise. Bogert, The Law of Trusts & Trustees § 42, at 431 (rev.2d ed. 1984). In the present case, APEA reserved no rights in the Strike Fund other than the right to be the trustee.

11717098

James T. PRUITT, Appellant, v. STATE of Alaska, DEPARTMENT OF PUBLIC SAFETY, DIVISION OF MOTOR VEHICLES, Appellee

Pruitt v. State, Department of Public Safety, Division of Motor Vehicles

1992-02-07

No. S-3991

887

896

825 P.2d 887

825

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:59:07.157757+00:00

CAP

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

James T. PRUITT, Appellant, v. STATE of Alaska, DEPARTMENT OF PUBLIC SAFETY, DIVISION OF MOTOR VEHICLES, Appellee.

James T. PRUITT, Appellant, v. STATE of Alaska, DEPARTMENT OF PUBLIC SAFETY, DIVISION OF MOTOR VEHICLES, Appellee. No. S-3991. Supreme Court of Alaska. Feb. 7, 1992. Robert Merle Cowan, Law Offices of Co-wan & Gerry, Kenai, for appellant. Teresa Williams, Asst. Atty. Gen., Anchorage, Charles E. Cole, Atty. Gen., Juneau, for appellee. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

5118

31165

OPINION RABINOWITZ, Chief Justice. This is an appeal from the superior court's affirmance of the Department of Public Safety's revocation of James Pruitt's driver's license. The primary issue in this appeal is whether the Division of Motor Vehicles (DMV), Department of Public Safety (DPS) was bound by the District Court's ruling that Pruitt's due process rights were violated in regard to the criminal refusal to take a breathalyzer test charge which had been filed against Pruitt. I. PACTS AND PROCEEDINGS On April 15, 1988, James T. Pruitt was stopped and arrested for driving while intoxicated (DWI). After being taken to the Seward Correctional Center, Pruitt was asked to submit to a chemical test of his blood alcohol content by blowing into an intoximeter. Pruitt refused to submit to the test and asked to make a phone call to his lawyer. After making a phone call, Pruitt refused the test again stating "[m]y lawyer told me to do anything I want to, but I'm still not blowing." The police then read Pruitt the implied consent notice, after which Pruitt again refused to submit to the test. Pruitt was then brought into the booking room. As Pruitt was taking his possessions out of his pocket, he grabbed a bottle of Binaca (a breath freshener which has an alcohol content), and sprayed it down his throat. While an officer was reading Pruitt the DMV order of license revocation, Pruitt stated that he wanted to take the intoxime-ter test. The officer refused to administer the test on the bases that Pruitt had already refused to take the test after discussing the matter with his attorney; had refused to take the test after the informed consent notice had been read to him; and had sprayed his throat with Binaca, which would alter the test results and consequently require another twenty minute observation period before the intoximeter test could be administered. Pruitt's driver's license was revoked by DMV on the basis that he refused to submit to the breath test. On April 20, 1988, Pruitt appealed the revocation and requested an administrative hearing. He conceded the validity of the stop but asserted that he had not refused to take the test. In the underlying criminal case, concerning breath test refusal (BTR), Magistrate Peck ruled on September 12, 1988 that "[t]he court at this point is not necessarily prepared to find as a matter of law that there was no actus reus to the charge of BTR." The magistrate ordered further briefing on the issue. Thereafter an administrative hearing was held on November 7, 8, & 10, 1988, before a hearing officer in regard to the revocation of Pruitt's driver's license. The sole issue at this hearing was whether Pruitt's actions constituted a refusal to take a breath test, and whether he had cured that refusal by subsequently consenting. The hearing officer affirmed the revocation of Pruitt's license on the basis that Pruitt had been given ample time and opportunity to take the breath test. Pruitt objected to the hearing officer's ruling, arguing that Magistrate Peck's decision of September 12 was a final binding ruling which dictated a contrary holding. Pruitt further argued that Briggs v. State, Dep ¾ of Public Safety, 732 P.2d 1078 (Alaska 1987), supported his contention that the administrative agency was collaterally es-topped by virtue of the district court's ruling in the criminal proceeding. The hearing officer indicated that she would examine the case and determine whether she was bound by Magistrate Peck's decision. On November 9, Magistrate Peck issued a second ruling in the criminal case. He found that the issue of whether Pruitt refused to take the breath test was a matter of fact to be determined by the jury. The following day, on November 10, the hearing officer ruled that Magistrate Peck's decision of September 12 was not binding, as the magistrate had not dismissed the refusal charge. The hearing officer also held that Briggs was not controlling. Accordingly, the hearing officer affirmed Pruitt's license revocation. Pruitt then appealed that administrative decision to the superior court. On August 1, 1989, Magistrate Peck entered a third order in the criminal case, reversing himself and dismissing the criminal charge for refusal to take a breath test. The prosecution petitioned the court of ap peals for review of the dismissal. The petition was subsequently denied. On December 22, 1989, Pruitt filed a petition for reconsideration with the DMV. Pruitt's petition for reconsideration was based on Magistrate Peck's August 1, 1989 decision in the criminal case. No action was taken by the DMV on the petition. At oral argument before the superior court in connection with his administrative appeal, Pruitt moved to supplement the record with the petition for reconsideration he had filed with DMV. The superior court denied supplementation of the record, concluding that the materials had not been before the hearing officer and that they were not relevant or material to the pending administrative appeal. The superior court then affirmed the administrative agency's decision to revoke Pruitt's driver's license. It concluded that the administrative agency was not collaterally estopped from considering the issue of Pruitt's refusal since there was no final judgment on the merits on the refusal to take a breath test prior to the decision reached by the hearing officer. Moreover, it ruled that there was substantial evidence presented to the hearing officer to support the finding that Pruitt refused to take the breath test despite several opportunities, and assuming that this jurisdiction adopted a flexible rule allowing a motorist to cure a refusal, Pruitt had not cured his refusal. This appeal followed. II. COLLATERAL ESTOPPEL Pruitt's main contention is that the administrative agency was collaterally es-topped from considering the issue of his breath test refusal by virtue of the district court's third decision. That decision dismissed the criminal breath test refusal charge on the basis that Pruitt's due process rights were violated since he was not given an opportunity to cure his refusal. Pruitt cites Briggs v. State, Dep't of Public Safety, 732 P.2d 1078 (Alaska 1987) for the proposition that an order in a criminal case is binding on a subsequent administrative action when the requirements of collateral estoppel are met Pruitt contends that in the instant case all of the requirements for collateral estoppel have been met. He urges this court to hold that the administrative agency was bound by the district court's decision that his due process rights were violated in connection with the refusal charge. The state responds that Magistrate Peck's September 18, 1988 Order did not constitute a final order for purposes of collateral estoppel. The state argues that prior to the administrative decision being entered, the magistrate in his Order of November 9, 1988 found the question of refusal to be a jury issue. The magistrate's Final Ruling and Dismissal Order of August 1, 1989 was entered after the agency had made its determination on November 10, 1988 revoking Pruitt's license. Accordingly, the state asserts that for purposes of issue preclusion, the final judgment must be entered prior to the administrative decision. We agree with the state and reject Pruitt's arguments. In Briggs, we stated that the requirements for collateral estoppel are: (1) the issue decided in a prior adjudication was precisely the same as that presented in the action in question; (2) the prior litigation must have resulted in a final judgment on the merits; and (3) there must be 'mutuality' of parties, i.e., collateral estoppel may be invoked only by those who were parties or privies to the action in which the judgment was rendered. 732 P.2d at 1081, (citing Pennington v. Snow, 471 P.2d 370, 375, 377 (Alaska 1970)); see also Kott v. State, 678 P.2d 386, 391 (Alaska 1984) (upholding mutuality requirement in criminal context). Pruitt has fulfilled the first requirement. The issue of whether Pruitt was given a reasonable opportunity to cure his refusal was presented in both the criminal and civil proceedings. The privity requirement has also been fulfilled. See Briggs, 732 P.2d at 1082 (the Department of Public Safety and the state were in privity because the general rule is that litigation by one agency is binding on other agencies of the same government). We conclude, how ever, that Pruitt has not met the finality requirement. In Briggs we stated: Concerning the finality requirement for collateral estoppel, we observe that the state did not appeal the district court's suppression ruling. For purposes of issue preclusion, "final judgment" includes "any prior adjudication of an issue in another action that is determined to be sufficiently firm to be accorded conclusive effect." (citations omitted). Factors supporting a conclusion that a decision is final for this purpose are "that the parties were fully heard, that the court supported its decision with a reasoned opinion, that the decision was subject to appeal or was in fact reviewed on appeal." (quoting Restatement (Second) of Judgments § 13g (1982).) Id. In the instant case the parties were fully heard and the district court's decision on the refusal issue was appealable. However, finality is lacking if an issue of law or fact essential to the adjudication of the claim has been reserved for future determination. Restatement (Second) of Judgments § 13b (1982). In Pruitt's case, a final determination in the criminal proceeding was not rendered until August 1, 1989, when Magistrate Peck reversed his previous ruling that the issue of Pruitt's refusal was a jury issue, and dismissed the criminal charge against Pruitt regarding his refusal to take the breath test. Thus, the final judgment on the merits in the criminal case was entered nine months subsequent to the hearing officer's final decision. In arguing that the agency should have granted his motion for reconsideration by virtue of the district court's final judgment, Pruitt essentially asks this court to hold that the doctrine of collateral estoppel can be retroactively applied. We refuse to do so. Collateral estoppel requires that a final judgment on the merits occur prior to the decision reached by the hearing officer. Restatement (Second) of Judgments § 27 (1982) supports our position: 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. (Emphasis added). § 27 comment states: a. Subsequent action between the same parties. The rule of issue preclusion is operative where the second action is between the same persons who were parties to the prior action, and who were adversaries (see § 38) with respect to the particular issue, whether the second action is brought by the plaintiff or by the defendant in the original action. (Emphasis added). Pruitt cites Brownsberger v. Dep't of Transp., 460 N.W.2d 449 (Iowa 1990), for an example of a case in which collateral estoppel was retroactively applied. We do not find that case persuasive, however, because the reviewing court was interpreting a statute, which required reinstatement under certain circumstances, to determine whether it effectively operated as a statutory exclusionary rule. Id. at 450. The court concluded that it did and reversed the DOT's refusal to rescind Brownsberger's revocation. Id. at 451. Unlike Brownsberger, Pruitt is not basing his arguments for retroactivity on a statute, but on the doctrine of collateral estoppel. In Briggs v. State, Dep't of Public Safety, 732 P.2d 1078 (Alaska 1987), we held that the state was collaterally es-topped from relitigating whether the state took reasonable steps to preserve a breath sample, but we retroactively applied the rule of Champion v. Dep't of Public Safety, 721 P.2d 131 (Alaska 1986), which found that due process requires the state to take reasonable procedures to preserve a breath sample. Thus, we have held that when a new rule of law is adopted it can be retroactively applied in certain circumstances. See Farleigh v. Municipality of Anchorage, 728 P.2d 637 (Alaska 1986); Howe v. State, 611 P.2d 16 (Alaska 1980). However, we reject Pruitt's contention that collateral estoppel should be retroactively applied for the reason that collateral estoppel requires the final judgment to be entered prior to a determination in the subsequent proceeding. The final judgment of dismissal in the criminal proceeding against Pruitt was not obtained until nearly nine months after the agency made its license revocation determination. Therefore, we affirm the superior court's rejection of Pruitt's collateral estoppel claim. III. DID THE HEARING OFFICER AND THE SUPERIOR COURT ERR IN NOT ADOPTING A FLEXIBLE TEST ALLOWING A MOTORIST TO CURE A REFUSAL TO TAKE A BREATH TEST? The issue of whether a person should be allowed an opportunity to cure a refusal to take a breath test is one of first impression for this court. Pruitt submits that in ad- dressing the question of whether a person should be allowed to cure a refusal, this court should adopt a "flexible" rule and allow an accused motorist a "reasonable" opportunity to change a refusal into a consent. Pruitt argues that absent evidence that a delay would materially affect the results of the test, or would be a substantial inconvenience, a motorist should be able to cure a refusal. Pruitt further submits that a delay of less than 20 minutes in the instant case would not have interfered with the results of the test. In support of these arguments Pruitt draws on cases from other jurisdictions that have adopted the "flexible" rule. E.g., Zahtila v. Motor Vehicle Div., 39 Colo.App. 8, 560 P.2d 847 (1977) (refusal may be changed into consent unless the delay will materially affect the results of the test); Larmer v. State Dep't of Highway Safety, 522 So.2d 941 (Fla.Dist.Ct.App.1988) (defendant may change initial refusal to take a breath test to a consent by changing his mind moments later and clearly stating it); State v. Moore, 62 Haw. 301, 614 P.2d 931 (1980) (defendant can cure a refusal unless a delay would materially affect the test results or prove substantially inconvenient to administer); Lund v. Hjelle, 224 N.W.2d 552 (N.D.1974) (a subsequent consent cures a prior refusal when a request to take the test is made within a reasonable amount of time after the prior refusal). The state argues that once a motorist makes an informed decision to refuse to take a breath test, that person should be bound by the decision and not be permitted to later cure the refusal by agreeing to take the test. The state points out that many jurisdictions have favored a strict standard because of the serious impediment to law enforcement that a contrary interpretation would have. The state quotes Hoyle v. Peterson, 216 Neb. 253, 343 N.W.2d 730, 734 (1984), for an example of such considerations: There are several factors militating against the argument for additional time to allow a driver's subsequent offer to take the test. As time elapses between arrest and the test, the reliability and accuracy of the test diminishes. The time element may require involvement of an expert to extrapolate information derived from a delayed test. This tends to unnecessarily compound or complicate matters of evidence. Also, permitting a delayed test at the subsequent offer of the motorist would require officers to wait and see if there was a change of mind by the refusing motorist, and would require officers to forego other responsibilities in order to arrange the belated test — all contrary to the clear intent behind the implied consent law that the test be submitted and completed expeditiously- (Citations omitted); See also, Zidell v. Bright, 264 Cal.App.2d 867, 71 Cal.Rptr. 111 (1968) (refusal found where motorist refuses test upon arrest, but consents 30-45 minutes later); State v. Landry, 428 A.2d 1204, 1206 (Maine 1981) (once motorist has voluntarily refused a reasonable opportunity to take test, police do not need to provide test when motorist changes his mind); Application of Kunneman, 501 P.2d 910 (Okla.Ct.App.1972) (police had sufficient grounds to deny motorist's ultimate request to take test after five prior refusals); Peterson v. State, 261 N.W.2d 405, 409 (S.D.1977) (refusal found where motorist does not comply with three requests for test over a 23-minute period, then consented an hour later after calling a friend). The state submits that jurisdictions that have adopted a flexible standard do not allow motorists to contact an attorney prior to making a decision whether to take the test. Moreover, the courts which have adopted the "flexible" rule are reluctant to bind a motorist with an error of judgment, which is often the result of an uncounseled decision. The state contends that there is no basis to be similarly reluctant in Alaska, which has adopted a different rule on access to counsel. The elements of consideration for courts that have adopted the "flexible" test are stated in Lund v. Hjelle, 224 N.W.2d at 557 (in which the motorist reconsidered his initial refusal about one hour later after speaking with his insurance agent): [T]he subsequent consent to take the test cures the prior first refusal when the request to take the test is made within a reasonable time after the prior first refusal; when such a test administered upon the subsequent consent would still be accurate; when testing equipment or facilities are still readily available; when honoring a request for a test, following a prior first refusal, will result in no substantial inconvenience or expense to the police; and when the individual requesting the test has been in police custody and under observation for the whole time since his arrest. The state submits that even under standards articulated by courts which allow the flexible approach, Pruitt did not establish by a preponderance of the evidence that his eventual request to take the test was sufficiently timely to cure his prior refusal. The issue of whether a motorist should be allowed an opportunity to cure a refusal has previously been addressed by the court of appeals in a criminal prosecution context. In Lively v. State, 804 P.2d 66 (Alaska App.1991), the court of appeals considered the question of whether to adopt a subsequent consent as an affirmative defense to the charge of refusal to submit to a chemical test. The court noted that although all fifty states have enacted implied consent laws making licence suspension the automatic penalty for refusal to submit to a chemical test, only Alaska and Nebraska have made a refusal a criminal offense in and of itself. Id. at 69. Reviewing case law from other jurisdictions, the court examined the rationales behind the minority (flexible) and majority (absolute) rules: There are two basic rationales behind the adoption of the rule that a subsequent consent can cure a prior refusal. The first reason is fairness to the arrestee. The Arizona Court of Appeals held: Although an absolute rule preventing a subsequent consent after an initial refusal has the advantage of granting unmistakable clarity to the defendant's obligation under the implied consent law, it could lead to unnecessarily harsh and self-defeating results. The other basis for the subsequent consent rule is the belief that this rule best furthers the purpose of the implied consent statutes by encouraging the administration of chemical tests in as many cases as possible. The majority rule is that a refusal cannot be vitiated by a subsequent consent. . As in the case with the minority rule, there are two basic rationales for the bright-line rule that a refusal cannot be rescinded by a subsequent consent. The first is the concern that the reliability of the test results diminishes with the passage of time, thus allowing arrestees to manipulate their test results by delaying their consent.... The other rationale for the bright-line rule is that it is unreasonable to expect the arresting officer to consider a refusal as conditional, and to require the officer to remain available to test the arrestee in the event of subsequent change of heart. Id. at 69-70 (citations omitted). After balancing the opposing rationales of the minority and majority rules, the court of appeals stated that it was inclined to allow a cure under certain circumstances, but declined to adopt the defense for a motorist who had already been turned over to jail custodians by the arresting officer and allowed to smoke a cigarette. Id. at 71. We agree with the court of appeals and think that the adoption of a flexible rule is appropriate in light of the reasons in support of the flexible rule and the fact that Alaska has criminalized a refusal to take a breathalyzer test. AS 28.35.032. Moreover, we see no reason to apply a different rule for administrative proceedings when the court of appeals has adopted a flexible rule for criminal proceedings. In determining whether a motorist's subsequent consent to take the test cures the prior refusal, we adopt the factors articulated in Lund v. Hjelle, 224 N.W.2d at 557, i.e.: that the subsequent consent occurred within a reasonable time after the prior first refusal; that the test administered following the subsequent consent will still be accurate; that the test will not result in any substantial expense or inconvenience to the police; and that the arrestee has been in continuous custody of the arresting officer and under observation for the entire time. We next address the question of whether under the flexible rule Pruitt cured his refusal to take a breath test. Pruitt has the burden to establish by a preponderance of the evidence that his eventual request to take the test was made within a reasonable time, that a breath test administered upon his eventual consent would have been accurate, and that honoring his request for a test would not have resulted in substantial inconvenience or expense to the police. Our study of the record leads us to hold that Pruitt has failed to do so. Officer Richard's testimony indicates that Pruitt was read the implied consent notice, was allowed to call his attorney, yet continued to refuse to take the test after several opportunities, and only consented after spraying breath spray containing alcohol down his throat. This latter act on Pruitt's part is tantamount to a refusal regardless of any expressed willingness on his part to take the breath test. See e.g., White v. Melton, 60 A.D.2d 1000, 401 N.Y.S.2d 664 (1978); Moseley v. Commonwealth, 492 S.W.2d 204 (Ky.App.1973). Moreover, Pruitt's act of spraying his throat necessitated an additional twenty minute observation period according to the provisions of 7 AAC 30.020. Such a delay would pose a substantial burden on the officer who then had custody of Pruitt since the officer would have been prevented from fulfilling other duties. For the reasons stated above, we affirm the superior court's affirmance of DMV's revocation of Pruitt's driver's license. IV. ATTORNEY'S FEES We next address the question of whether the superior court abused its discretion in granting the state $1,106.00 in attorney's fees. A. Background Pruitt appealed the decision of the DMV hearing officer to suspend his license. The superior court entered its decision on April 20, 1990, affirming the agency's decision. Pruitt filed a notice of appeal to this court and also sought a stay of the enforcement of his license suspension pending resolution of the appeal. Pruitt's application for a stay was denied. Thereafter Pruitt's attorney contacted the Attorney General's Office and proposed to withdraw Pruitt's appeal to this court "as long as both parties suffer théir own costs and fees." The Attorney General's Office conditioned the agreement on the grounds that Pruitt pay $500 in attorney's fees. Pruitt refused. Then on November 28, 1990, the state requested the superior court to award it attorney's fees pursuant to Appellate Rule 508(e). Thereafter, on January 4, 1991, the superior court entered an award in the amount of $1,106, which sum represented 50% of the state's actual attorney's fees. Pruitt argues that the superior court abused its discretion in granting the State's attorney's fees in response to a motion that was untimely and for which no showing of excusable neglect or good cause was offered. Although Pruitt concedes that there is no explicit time limit for the filing of motions for attorney's fees following appeal, he submits that nine months constitutes an excessive and prejudicial delay. Pruitt argues that he should have been accorded the benefit of an adjudication of attorney's fees prior to making a decision as to whether to appeal from the superior court to this court. Pruitt notes that the state's delayed motion for attorney's fees after this appeal was filed forced him to file motions to supplement the points on appeal and. for permission to file supplemental briefing. Additionally, Pruitt notes the recent amendment of Civil Rule 82 which provides for a 30 day deadline in which to move for an award of attorney's fees after the date shown in the Clerk's Certificate of Distribution on the Judgment. The state cites Rosen v. State Bd. of Pub. Accountancy, 689 P.2d 478, 482 (Alaska 1984), in arguing that the determination of Rule 508(e) attorney's fees, when the superior court is acting as an intermediate appellate tribunal, "is committed to the sound discretion of our trial courts." Moreover, the state argues that under Ro-sen, the superior court is not required to give its reasons for awarding attorney's fees. Thus, the state contends that the court properly exercised its discretion in awarding attorney's fees against Pruitt. We have previously held that it is within the discretion of the trial court to impose a time limit for the filing of attorney's fees. State v. University of Alaska, 624 P.2d 807 (Alaska 1981). However, a motion for attorney's fees must be made within a reasonable time after the entry of final judgment. Id. As Justice Matthews previously noted, It is important that a motion for attorney's fees be made reasonably promptly after judgment because the losing party may base his decision whether to appeal on the merits on the size of the adverse award of attorney's fees. Since the decision on whether to appeal on the merits must be made within 30 days after distribution of the judgment, Appellate Rule 204(a)(1), a motion for attorney's fees should be made at a time soon enough after judgment so that the motion may be ruled upon before the 30 days in which an appeal may be taken has expired. T & G Aviation, Inc. v. Footh, 792 P.2d 671, 672 (Alaska 1990) (Matthews, C.J., dissenting). We hold that the state's motion for attorney's fees, filed seven months after final judgment has been entered, was not filed within a "reasonable time." Here we think it relevant that Pruitt has shown he was prejudiced by the state's delay. Accordingly, we conclude that the superi- or court abused its discretion in awarding the state attorney's fees under Appellate Rule 508(e) on a motion that was filed seven months after judgment was entered. Thus we hold that the superior court's award of attorney's fees must be vacated. The decision of the superior court is AFFIRMED in part and REVERSED in part. . Alaska Statute 28.35.032 provides in part: (a) If a person under arrest refuses the request of a law enforcement officer to submit to a chemical test under AS 28.35.031(a), after being advised by the officer that the refusal will, if that person was arrested while operating or driving a motor vehicle for which a driver's license is required, result in the denial or revocation of the license or nonresident privilege to drive, 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 or driving a motor vehicle or operating an aircraft or a watercraft while intoxicated, and that the refusal is a misdemeanor, a chemical test shall not be given, except as provided by AS 28.35.035. . We have often stated that a final judgment retains all of its res judicata effects pending resolution of an appeal of the judgment. Rapoport v. Tesoro Alaska Petroleum Co., 794 P.2d 949, 952 (Alaska 1990); Holmberg v. State, Div. of Risk Mgt., 796 P.2d 823 (Alaska 1990). Such preclusive effect is only afforded, however, when the issue in the first action has been resolved by a final judgment on the merits. Rapoport, 794 P.2d at 951. . Iowa Code section 321J.13(4) provides in part: A person whose motor vehicle licence or operating privilege has been or is being revoked under section 321J.9 or 321J.12 may reopen a department hearing on the revocation if the person submits . a petition stating that a criminal action on a charge of a violation of section 321J.2 filed as a result of the same circumstances which resulted in the revocation has resulted in a decision in which the court has held that the peace officer did not have reasonable grounds to believe that a violation of section 321J.2 had occurred to support a request for or to administer a chemical test.... Such a decision by the court is binding on the department and the department shall rescind the revocation. Brownsberger, 460 N.W.2d at 450. . In Briggs this court addressed the issue of whether Champion should be retroactively applied: Champion was decided on June 20, 1986. Briggs's breathalyzer test was administered on April 13, 1984, and the administrative hearing held on August 24, 1984. This court has weighed certain criteria in determining the extent to which a new rule of law should be applied in the criminal area: (1) the purpose to be served by the new standards; (2) the extent of 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 10, 13 (Alaska 1979); Lauderdale v. State, 548 P.2d 376, 383 (Alaska 1976). 732 P.2d at 1080, n. 4. . For purposes of an administrative license revocation, a blood alcohol test result must be .10 or more. AS 28.35.030(a)(2). It is possible that a timely breath test result would have been above .10, but that a delay would allow the alcohol level to dissipate below .10. Thus, a second observation period potentially would have skewed the test results since a dissipation of blood alcohol would occur, making a delay in implementing a breath test prejudicial.

11717410

David JURCO, Appellant, v. STATE of Alaska, Appellee

Jurco v. State

1992-02-14

No. A-3382

909

920

825 P.2d 909

825

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T18:59:07.157757+00:00

CAP

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

David JURCO, Appellant, v. STATE of Alaska, Appellee.

David JURCO, Appellant, v. STATE of Alaska, Appellee. No. A-3382. Court of Appeals of Alaska. Feb. 14, 1992. David Jurco, pro se. Joseph N. Levesque, Asst. Dist. Atty., Kenai, and Douglas B. Baily, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and MANNHEIMER, JJ.

6763

41293

OPINION Mannheimer, Judge. David Jurco was convicted, following a jury trial in district court, of disorderly conduct, AS 11.61.110(a)(6), and resisting arrest, AS 11.56.700(a)(1). These offenses resulted from a confrontation between Jur-co and members of the State Troopers who had come to Jurco's residence to serve a court order directing them to take possession of Jurco's truck. The Kenai District Court had ordered seizure of the truck in connection with a civil action filed by the State seeking forfeiture of the vehicle because it had been used in furtherance of a violation of the fish and game laws. Unbeknown to the troopers, Jurco had recently filed for bankruptcy. The federal bankruptcy court had directed Jurco not to sell or transfer any of his property or allow creditors to take any of his property without court order. Jurco believed that the bankruptcy court's directive obliged him to resist the troopers' attempt to seize his truck. At first, Jurco argued with the troopers. Finding he could not dissuade them, Jurco got into the truck and started it. With Trooper Eugene Kallus trying to hang on to the side of the truck, Jurco drove the truck away to a different location on his property. Jurco then got out of the truck, removed the battery from the vehicle, and began to let the air out of the. truck's tires. At this point, Trooper Kallus informed Jurco that he was placing him under arrest for disorderly conduct. Kallus attempted to handcuff Jurco, but Jurco resisted; he broke free from Kallus's hold and ran into his house. Eventually, after Jurco spoke on the telephone with Kallus's superior officer, Jurco decided to come out of the house and surrender himself. 1. Regardless of the Validity of the District Court's Order to Seize Jur-co's Truck, Jurco Was Properly Convicted of Disorderly Conduct and Resisting Arrest Jurco argues that the criminal prosecution against him should have been dismissed under the supremacy clause of the United States Constitution (Art. VI, clause 2). He asserts that, because he had filed for bankruptcy, the Alaska District Court lacked power either to order forfeiture of his truck or to issue a warrant for its seizure. But even if we assume for purposes of argument that Jurco's interpretation of bankruptcy law is correct, the question remains whether Jurco was entitled to forcibly resist the troopers when they came to execute the Kenai District Court's warrant. We conclude that Jurco was not entitled to forcibly resist the troopers even if he reasonably believed that the seizure of his truck was illegal. As a preliminary matter, even if Jurco were legally entitled to forcibly resist the troopers' taking of his truck — so that his attempts to thwart this taking did not constitute the crime of disorderly conduct — Jurco would still be properly charged with resisting arrest. As will be discussed in more detail below, even if a person is being subjected to unlawful arrest by police officers, Alaska law does not allow that person to use force to resist the arrest (so long as the officers do not use excessive force in making the arrest). AS 11.81.-400(a). Once the troopers undertook to arrest Jurco for disorderly conduct, Jurco was obliged not to resist this arrest even if the disorderly conduct charge was invalid. Thus, Jurco's claim that he was entitled to forcibly resist the taking of the truck calls into question only his conviction for disorderly conduct, not his conviction for resisting arrest. Jurco was charged with disorderly conduct under AS 11.61.110(a)(6), the provision of the statute which forbids a person from "recklessly [creating] a hazardous condition for others by an act which has no legal justification or excuse". The State argued that Jurco had put Trooper Kallus at risk when he drove the truck across the property. Jurco responded that his obstruction of the troopers was legally justified or excused because he acted under a reasonable belief that the Kenai District Court (and thus the officers executing that court's order) had no authority to seize his truck. At common law, a public officer was authorized to use reasonable force against other persons when executing a court order requiring or authorizing the officer to seize another person's property. LaFave and Scott, Substantive Criminal Law (1986), § 5.5(a), Vol. 1 at 641. This common-law rule has been codified in Alaska; AS 11.81.-420 provides: Justification: Performance of public duty. (a) Unless inconsistent with AS 11.81.-320 — 11.81.410, conduct 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 . the person reasonably believes the conduct to be required or authorized by a decree, judg ment, or order of a court of competent jurisdiction or in the lawful execution of legal process, notwithstanding lack of jurisdiction of the court or defect in the legal process[.] Under this statute, law enforcement officers are empowered to use force to execute court decrees, even if it is later shown that the court had no authority to issue the decree. Thus, in Jurco's case, the State Troopers were authorized to use all reasonable force to execute the Alaska District Court's order to seize Jurco's vehicle, even if Jurco was correct in claiming that the pendency of his bankruptcy petition deprived the state district court of the judicial authority to issue orders affecting his property. However, the common law also recognized a principle that is seemingly in contradiction to the rule just discussed: a property owner was entitled to use force to resist an unlawful taking of his property. "One whose lawful possession of property is threatened by the unlawful conduct of another, and who has no time to resort to the law for its protection, may take reasonable steps, including the use of force, to prevent or terminate such interference with the property." LaFave and Scott, Substantive Criminal Law, § 5.9(a), Yol. 1 at 668. This second common-law rule has also been codified in Alaska; AS 11.81.-350(a) provides: Justification: Use of force in defense of property and premises. (a) A person may use nondeadly force upon another when and to the extent the person reasonably believes it is necessary to terminate what the person reasonably believes to be the commission or attempted commission by the other of an unlawful taking or damaging of property or services. For purposes of deciding this appeal, we assume that Jurco reasonably believed that the Kenai District Court's order to seize his truck ran afoul of the federal bankruptcy court's order to keep his property together. In such a situation, the joint operation of AS 11.81.420 and 11.81.350(a) would seemingly allow Jurco to use force against the troopers to resist the taking of his truck while at the same time authorizing the troopers to respond with force of their own against Jurco — creating an escalating confrontation that would end only when the troopers resorted to deadly force against Jurco. (The statute allowing Jurco to use force, AS 11.81.350(a), authorizes only the use of "nondeadly force", while the statute allowing the troopers to use force, AS 11.-81.420, contains no such limitation.) This could not have been the legislature's intention. With emotions running high on both sides, a property owner who sees that non-deadly force is not enough to make law enforcement officials back down might well begin (unlawfully) to use deadly force on the officers. Or, in the heat of the moment, the officers might mistakenly conclude that the property owner has begun to use deadly force upon them and respond in kind. Both possibilities could easily lead to the infliction of serious injury or death. Thus, the question presented by Jurco's case is: which of these two statutes did the legislature intend to take precedence when law enforcement officers attempt to execute a court order calling for the seizure of property? We conclude that a person is not entitled to use force to resist the taking of property by law enforcement officers pursuant to a court order. When the Alaska legislature enacted the present criminal code in 1978, modern common law had already taken the position that a person did not have the right to forcibly resist police officers performing their duty (unless the officers used excessive force). For instance, courts had restricted a citizen's right to use force to resist an arguably illegal search. United States v. Woodring, 536 F.2d 598, 599-600 (5th Cir.1976); United States v. Ferrone, 438 F.2d 381, 389-390 (3rd Cir.1971); State v. Doe, 92 N.M. 100, 583 P.2d 464, 466-67 (1978); and State v. Hatton, 116 Ariz. 142, 568 P.2d 1040, 1045-46 (1977). See also State v. Mattila, 77 Or.App. 219, 712 P.2d 832 (1986) (there is no right to use force to obstruct police officers serving a contested eviction notice). The major Alaska court decision on this subject is Miller v. State, 462 P.2d 421 (Alaska 1969). In Miller, the Supreme Court confronted — and rejected — the old common-law rule that entitled a person to use non-deadly force to resist a peaceable unlawful arrest: We feel that the legality of a peaceful arrest should be determined by courts of law and not through a trial by battle in the streets. It is not too much to ask that one believing himself unlawfully arrested should submit to the officer and thereafter seek his legal remedies in court. Such a rule helps to relieve the threat of physical harm to officers who in good faith but mistakenly perform an arrest, as well as to minimize harm to innocent bystanders. The old common law rule has little utility to recommend it under our conditions of life today. Miller v. State, 462 P.2d at 427. While Miller dealt with resistance to arrest, not resistance to the judicial seizure of property, attorneys and legislators could easily foresee the extension of the Miller rule to seizures of property. Under Miller, citizens having good reason to believe they were being unlawfully arrested were nevertheless obliged to submit peaceably to a deprivation of their personal liberty and await their day in court. The rule could hardly be different when, under a disputed court decree, a citizen was being deprived of a lesser interest — the possession of personal property. The rule established in Miller, that a citizen was not entitled to use force to resist even an unlawful arrest, was the law in Alaska when the legislature began its consideration of a revised criminal code in the mid-1970's. The Criminal Code Revision Subcommission recommended retention and codification of the Miller rule. See Alaska Criminal Code Revision, Tentative Draft, Part 2 at 43 (proposed AS 11.-21.200) and at 66 (commentary). However, the legislature specifically reinstated a citizen's right to forcibly resist an illegal arrest when it enacted the original version of AS 11.81.400, contained in section 10 of chapter 166, SLA 1978: Justification: Use Of Force In Resisting Or Interfering With Arrest. (a) A person may not use force to resist the arrest of himself . by a peace officer who is known to him, or reasonably appears to be, a peace officer, whether the arrest is lawful or unlawful, unless . (2) the person resisted the arrest of himself and (A) the arrest was unlawful; (B) the person knew the arrest to be unlawful; and (C) the person did not use deadly force in resisting the arrest. The legislature did not include any similar provision in AS 11.81.350(a), the section dealing with defense of property, or in AS 11.81.420, the section authorizing police officers to use force to enforce court decrees. Moreover, immediately following their reinstatement of the rule authorizing forceful resistance to an arrest, the legislature began to reconsider and recede from their decision. In 1980 (the first legislative session after the new criminal code took effect), the legislature voted to place the burden on the arrested person of proving that the resistance to the arrest was justified, and to have the trial judge, not the jury, decide the issue of the legality of the arrest. § 26 ch 102 SLA 1980. Two years later, the legislature returned to the position adopted by the supreme court in Miller, repealing all the portions of AS 11.81.-400 that authorized forceful resistance to a peaceable arrest. Ch 63 SLA 1982. Thus, when a person believes he or she is being arrested unlawfully by an identified-police officer, Alaska law requires that person to submit peaceably to the officer and wait to litigate the validity of the arrest in a court of law. The same beneficial policies underlying this rule apply with equal force when an identified police officer attempts to take possession of property pursuant to a court decree. As the supreme court pointed out in Miller, society would be ill-served by a rule that allowed property owners to engage in combat with law enforcement officers whenever there was reason to doubt the validity of the court order carried by the officers. A rule allowing forcible resistance would achieve only a dubious social benefit, but it would certainly jeopardize the safety of police officers, property owners, and bystanders. To paraphrase the supreme court in Miller, the legality of a court order directing seizure of property should be determined by courts of law, not through trial by battle. In fact, the Alaska Supreme Court recently indicated that the rule forbidding forcible resistance to law enforcement officers does indeed apply when personal property is at stake. In Thompson v. Anderson, 824 P.2d 712 (Alaska, 1992), the court ruled that a bailee of another person's property does not commit the tort of conversion when the bailee complies with a police demand to surrender the property to police custody — whether or not the police demand is lawful. The court stated, "[E]ven if the bailee suspects or knows that a police seizure is unlawful, . [t]o require a bailee to resist a police demand to turn over property would be to promote public disorder and potentially violent confrontations." At 715. As noted above, the Alaska legislature briefly reinstated the common law rule that allowed such battles between officers and private citizens who disputed the legality of an arrest. Soon, however, the legislature re-established the rule and policies announced in Miller. When the legislature modified AS 11.81.400 to make it conform to Miller, the legislature made no simultaneous change to either AS 11.81.350(a) or AS 11.81.420 — thereby indicating that the 1978 criminal code had never been intended to confer a right of forcible resistance to court-ordered seizures of property. This view of these two statutes is also supported by the fact that the Legislature has imposed an affirmative duty on citizens to assist police officers in the performance of their duties. AS 11.56.720(a) provides: Refusing to assist a peace officer or judicial officer. A person commits the offense of refusing to assist a peace officer or judicial officer if, upon a request, command, or order by someone the person knows to be a peace officer or judicial officer, that person fails to make a good faith effort to physically assist the officer in the exercise of official duties. It would not make sense for the legislature to have meant AS 11.81.350(a) to authorize citizens to forcibly resist police efforts to enforce a court order for seizure of property while at the same time requiring those same citizens, under AS 11.56.720(a), to physically assist the officers once the officers had requested or commanded this assistance. Our interpretation of AS 11.81.350(a) and AS 11.81.420 is also consonant with AS .12.35.040, governing the authority of police officers executing a search warrant. This statute provides: In the execution or service of a search warrant, the officer has the same power and authority in all respects to break open any door or window, to use the necessary and proper means to overcome forcible resistance made to the officer, or to call any other person to the officer's aid as the officer has in the execution or service of a warrant of arrest. For these reasons, we conclude that when a person is confronted by a police officer (1) who is known to be or reasonably appears to be a police officer, and (2) who is known to be or reasonably appears to be required or authorized to take possession of the person's property under a judicial decree, judgement, or order, that person must submit peaceably to the officer's taking of the property. If there is any question regarding either the validity of the court decree itself or the scope of the officer's seizure of property under the de cree, the owner or possessor of the property must wait to litigate that question in court. It follows that Jurco was not entitled to forcibly resist the State Troopers' efforts to seize his truck under the order issued by the Kenai District Court. When he did so, and when his resistence created a hazardous condition for others, his actions formed a proper basis for a criminal charge of disorderly conduct. Our resolution of this issue also disposes of Jurco's claim that he was entitled to have the trial jury instructed to acquit him of disorderly conduct if they concluded that he had reasonably believed the Kenai District Court's order to be invalid. 2. The Troopers Could Arrest Jurco Without a Warrant Jurco also argues that his arrest was illegal because the troopers did not have an arrest warrant. Jurco acknowledges that AS 12.25.030 authorizes police officers to arrest without a warrant when a misdemeanor is committed in their presence, but he claims that this statutory authority is limited by AS 12.25.180(a), which provides: When a person is stopped or contacted by a peace officer for the commission of a misdemeanor or the violation of a municipal ordinance, the person may, in the discretion of the contacting peace officer, be issued a citation instead of being [arrested], unless (1) the person does not furnish satisfactory evidence of identity; (2) the contacting officer has reasonable and probable cause to believe the person is a danger to self or others; (3) the crime for which the person is contacted is one involving violence or harm to another person or to property; or (4) the person asks to be taken before a judge or magistrate under AS 12.25.150. Jurco has misread this statute. AS 12.25.-180(a) authorizes a police officer to issue a citation to a misdemeanor offender in lieu of making an arrest, unless one of the four enumerated exceptions applies. But the statute does not require a police officer to follow this course. Additionally, the facts of Jurco's case appear to fall within the third exception listed in the statute. Because Jurco fought with Trooper Kallus and because Jurco was in the process of dismantling and disabling his truck when he was arrested, Jurco's crimes involved violence and harm to property. This being so, AS 12.25.180(a) would have prohibited Trooper Kallus from issuing Jurco a citation in lieu of arrest. Finally, even if some additional justification were needed for the troopers' decision to make an arrest instead of issue a citation, that justification was present. It was clear that Jurco was intent on thwarting the troopers' performance of their duty under the court order directing seizure of Jurco's truck; the troopers could reasonably conclude that Jurco would continue to impede their efforts unless he were physically taken into custody. 3. Despite a Pre-trial Discovery Violation, Jurco Was Not Entitled to a Continuance of His Trial Toward the end of the prosecution's casein-chief, during Jurco's cross-examination of the State's final witness, Trooper Kallus, Jurco discovered that Kallus was referring to pages of a police report that Jurco did not have. The prosecuting attorney and Jurco conferred; it turned out that Jurco was missing ten pages of discovery materials. These ten pages comprised: Jurco's prior criminal record, three pages of a report filed by Kallus, a three-page report filed by Trooper Donna Edmond (a State's witness who had already testified), and a one-and-one-half-page synopsis prepared by Trooper JoAnna Roop of an interview she conducted with witness Thomas Ware (who likewise had already testified). The parties vigorously debated whether the State had violated Alaska Criminal Rule 16 or whether Jurco had received and then lost the ten pages. The trial court eventually ruled that the State had, through oversight, failed to send the ten pages to Jurco. The trial court gave Jurco an hour's continuance to examine the ten pages. When court was reconvened, the judge asked Jur-co what he wished to do about this matter. Jurco announced that he was prepared to resume his interrupted cross-examination of Kallus, and that he then proposed to make his motion for judgment of acquittal (since Kallus was the final witness for the State). Jurco wished to reserve his right to seek a continuance of trial in the event the trial judge denied his motion for judgment of acquittal. The court agreed to Jurco's proposal. Jurco finished his cross-examination of Kallus, then unsuccessfully moved for a judgment of acquittal. Immediately following the trial judge's denial of this motion, Jurco asked for a continuance of trial. His stated reason for seeking a continuance was that he was not a trained lawyer, this was his first criminal trial, and he felt he could not go forward without having more time to prepare. The trial judge responded that Jurco would have to be more specific. Jurco then said he would be satisfied if he could re-call both Trooper Edmond and Thomas Ware as hostile witnesses during his defense case. Jurco claimed that Trooper Edmond's undisclosed report contained statements that were inconsistent with her trial testimony and that Trooper Roop's summary of her interview with Ware contained things that Ware had not said on the stand when he testified during the prosecution's case-in-chief. The assistant district attorney announced he had no opposition to re-calling Trooper Edmond. With respect to re-calling Ware, the district attorney offered a counter-proposal: that Ware's entire tape-recorded interview with Trooper Roop, previously offered as Defense Exhibit A, would be stipulated into evidence, and that Trooper Roop would herself be made available as a defense witness. Jurco initially indicated this was satisfactory, but then he decided to request a 60-day continuance. Jurco's only articulated reason for rejecting the proposal was that he did not know exactly what evidence he was missing — that he could not be sure what he did not have. The prosecutor responded that no prejudice to the defense could possibly have arisen from Jurco's late receipt of the ten pages. The prosecutor pointed out that, after receiving the three pages of Kallus's report, Jurco had chosen to continue his cross-examination of Kallus rather than seek a continuance. Regarding the portions of the ten pages attributable to Trooper Edmond and Trooper Roop, both of these witnesses were still available to give testimony during the defense case— and the court had already ruled that they would be considered hostile witnesses, thus allowing Jurco to ask them leading questions. Moreover, Trooper Roop's synopsis of her tape-recorded interview with Ware was only that — a synopsis; Jurco had received a timely copy of the tape itself, containing Ware's complete statement. The trial judge ruled that Jurco had failed to demonstrate any prejudice stemming from his late receipt of the ten pages. The judge also ruled that, since Jurco had already had one hour to examine the ten pages, and given the fact that Jurco would soon have the advantage of a long lunch break (apparently from 12:80 p.m. until 3:00 p.m.) to further examine the documents, Jurco would have plenty of time to discover any inconsistencies between previous witnesses' testimony and the version of events related in the ten pages. For these reasons, the court denied Jurco's request for a continuance. The trial judge's ruling on Jurco's request for a continuance of trial was premised on the conception that it was Jur-co's burden to demonstrate he had been prejudiced by the State's failure to make proper discovery. This allocation of the burden of proof was explicitly rejected by the supreme court in Bostic v. State, 805 P.2d 344 (Alaska 1991). In Bostic, the court held that, at least in the context of mid-trial discovery violations, it is the government's burden to disprove prejudice rather than the defendant's burden to establish it. Id. at 348-49. However, the trial judge's error in placing the burden of proof on the wrong party makes no difference to the outcome here. Even though the government bears the burden of proof under Bostic, the defendant must set forth a plausible way in which his or her defense could be prejudiced by the government's failure to make timely disclosure. Jurco's request for a continuance of trial was ultimately grounded on his claim that the evidentiary concessions discussed above were inadequate to protect his right to a fair trial. But, as noted by the trial judge, Jurco failed to articulate any specific way in which he would remain prejudiced after receiving the favorable treatment offered by the court and the prosecutor. Jurco's only assertions were (1) that he was not trained as an attorney and he therefore felt uncomfortable proceeding with the trial, and (2) that he could not be sure what evidence he was missing. Neither of these assertions is sufficient to warrant a continuance. When Jurco chose to represent himself at trial, he took on the burden of conducting the trial without formal legal training. Jurco told the trial court that, from his one-hour examination of the late-disclosed police reports, the inconsistencies between the police reports and the various witnesses' previous testimony were clear to him. This being so, Jurco was not entitled to two months to decide how best to cross-examine the witnesses with the police reports. As to Jurco's assertion that he could not be sure exactly what evidence he was missing, the trial court found that, given Jur-co's familiarity with the case and the disclosure already made, Jurco could digest the contents of the ten new pages in the three hours available to him. Jurco never disputed the sufficiency of the three hours later in the trial. Thus, even viewing the record in the light most favorable to Jurco — that is, employing a summary judgment standard of review because of the trial judge's misallo-cation of the burden of proof — Jurco's allegations of prejudice were insufficient to establish even a prima facie showing that his case had been damaged by the late disclosure of the ten pages. For this reason, we conclude that the trial judge's mis-allocation of the burden of proof was harmless error, and that Jurco was not entitled to a continuance of the trial. Conclusion The judgement of the district court is AFFIRMED. . These cases involved prosecutions under statutes making it unlawful for a person to obstruct public officers in the performance of their duties. The Alaska counterpart is AS 11.56.-720(a), "Refusing to assist a peace officer or judicial officer".

10432176

GREATER AREA INCORPORATED, Appellant, v. Bruce BOOKMAN, Appellee

Greater Area Inc. v. Bookman

1982-11-26

No. 5557

828

831

657 P.2d 828

657

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

GREATER AREA INCORPORATED, Appellant, v. Bruce BOOKMAN, Appellee.

GREATER AREA INCORPORATED, Appellant, v. Bruce BOOKMAN, Appellee. No. 5557. Supreme Court of Alaska. Nov. 26, 1982. Stan Stanfill, Kevin F. McCoy, Hahn, Jewell & Stanfill, Anchorage, for appellant. David H. Thorsness, Hughes, Thorsness, Gantz, Powell & Brundin, Anchorage, for appellee. Before RABINOWITZ, C.J., CONNOR, BURKE and COMPTON, JJ., and BLAIR, Superior Court Judge. Blair, Superior Court Judge, sitting by assignment made pursuant to article IV, section 16 of the Constitution of Alaska.

1922

12045

OPINION BURKE, Justice. The issue in this appeal is whether the superior court erred when it granted summary judgment in favor of an attorney who allegedly committed malpractice. To resolve the question, we must determine whether the lower court correctly ruled that the action was barred by the statute of limitations. We hold that summary judgment was improperly granted. Early in 1976, attorney Bruce Bookman was engaged to assist in the formation of Greater Area Incorporated [GAI], a corporation designed to provide taxi services. Mr. Bookman participated in several organizational meetings attended by promoters and shareholders of the new venture. He also assisted in preparing draft articles of incorporation and a pre-incorporation stock subscription agreement circulated at a meeting on April 3, 1976. After about a dozen shareholders signed the subscription agreement, which provided for the exchange of taxicab permits for stock in the corporation, the corporation was formed. Mr. Bookman was thereafter named corporate counsel and drafted the articles of incorporation. The articles were properly filed with the Commissioner of Corporations on April 9,1976. Mr. Bookman failed, however, to register the corporation's stock as required by AS 45.55.070. On March, 1977, two dissident shareholders engaged an attorney to regain ownership of the taxicab permits they had transferred to the new corporation. One basis of the challenge was the corporation's failure to register the stock under AS 45.55.070. Bookman informed GAI that it was possible that the dissident shareholders' nonregistration challenge would succeed, and advised the corporation to consult with Mr. Miles Schlossberg, an attorney with securities expertise. On May 19, 1977, a meeting was held between Bookman, Schlossberg and GAI. Schlossberg told Bookman and GAI that he believed the dissident shareholders' nonregistration claim would fail because it appeared that GAI was a nonprofit cooperative and exempt from registration under AS 45.55.140(a)(ll). On June 10,1977, the dissident shareholders filed suit against GAI claiming, among other things, that the stock was not registered. Mr. Schlossberg was formally retained to defend against the suit on July 6, 1977. After taking several depositions, Mr. Schlossberg advised the corporation on February 22,1978, that the dissident shareholders had a greater than fifty percent chance of prevailing on the nonregistration issue. GAI then settled with the shareholders and the lawsuit was dismissed on March 3,1978. GAI, at this point, had incurred attorney's fees in excess of $5,000.00 and had relinquished four taxicab permits valued at $30,-000.00 each. On June 7, 1979, GAI sued Mr. Bookman, alleging that his failure to properly register the corporation's stock under AS 45.55.070 constituted negligence. Mr. Bookman moved for summary judgment, arguing that the two year statute of limitations for tort actions had expired, thereby barring GAI's action. The trial court granted the motion and GAI now appeals. Our task is to determine whether the trial court properly applied the statute of limitations and whether the resulting grant of summary judgment was correct. The statute of limitations governing personal injury actions provides: No person may bring an action (1) for libel, slander, assault, battery, seduction, false imprisonment, or for any injury to the person or rights of another not arising on contract and not specifically provided otherwise; (2) upon a statute for a forfeiture or penalty to the state; or (3) upon a liability created by statute, other than a penalty or forfeiture; unless commenced within two years. AS 09.10.070. This is the statute to be applied in attorney malpractice actions based on negligence. See Van Horn Lodge, Inc. v. White, 627 P.2d 641, 643 (Alaska 1981). Our next task is to determine when the statute of limitations begins to run as to a malpractice action against an attorney. Our statute is silent on this question and the issue is one of first impression in this jurisdiction. Courts in other jurisdictions have utilized one of four alternative rules. The statute of limitations may begin to run on the date of the negligent act or omission, on the date actual harm occurred, on the date of discovery, or on the date the attorney-client relationship is terminated. See Annot, 18 A.L.R.3d 978 (1968). Of the various alternatives, the one that we believe most appropriate for our own jurisdiction is the so-called "discovery rule." According to the best formulation of that rule, the statute of limitations for legal malpractice does not begin to run until the client discovers, or reasonably should discover, the existence of all the elements of his cause of action. See Neel v. Magana, Olney, Levy, Cathcart & Gelfand, 491 P.2d 421, 422 (Cal.1971); Budd v. Nixen, 491 P.2d 433 (Cal.1971); Raymond v. EH Lilly & Co., 117 N.H. 164, 371 A.2d 170, 174 (1977). In reaching this conclusion, we rely heavily upon the reasoning of the California Supreme Court in Neel v. Magana: In ordinary tort and contract actions, the statute of limitations, it is true, begins to run upon the occurrence of the last element essential to the cause of action. The plaintiffs ignorance of the cause of action, or of the identity of the wrongdoer, does not toll the statute. In cases of professional malpractice, however, postponement of the period of limitations until discovery finds justification in the special nature of the relationship between the professional man and his client. In the first place, the special obligation of the professional is exemplified by his duty not merely to perform his work with ordinary care but to use the skill, prudence, and diligence commonly exercised by practitioners of his profession. If he further specializes within the profession, he must meet the standards of knowledge and skill of such specialists. Corollary to this expertise is the inability of the layman to detect its misapplication; the client may not recognize the negligence of the professional when he sees it. He cannot be expected to know the relative medical merits of alternative anesthetics, nor the various legal exceptions to the hearsay rule. If he must ascertain malpractice at the moment of its incidence, the client must hire a second professional to observe the work of the first, an expensive and impractical duplication, clearly destructive of the confidential relationship between the practitioner and his client. In the second place, not only may the client fail to recognize negligence when he sees .it, but often he will lack any opportunity to see it. The doctor operates on an unconscious patient; although the attorney, the accountant, and the stockbroker serves the conscious client, much of their work must be performed out of the client's view. In the legal field, the injury may lie concealed within the obtuse terminology of a will or contract; in the medical field the injury may lie hidden within the patient's body; in the accounting field, the injury may lie buried in the figures of the ledger. Finally, the dealings between petitioner and client frame a fiduciary relationship. The duty of a fiduciary embraces the obligation to render a full and fair disclosure to the beneficiary of all facts which materially affect his rights and interests. "Where there is a duty to disclose, the disclosure must be full and complete, and any material concealment or misrepresentation will amount to fraud." (Pashley v. Pacific Elec. Ry. Co. (1944) 25 Cal.2d 226, 235, 153 P.2d 325, 330.) Thus, as we stated in Amen v. Merced County Title Co. (1962) 58 Cal.2d 528, 534, 25 Cal.Rptr. 65, 68, 375 P.2d 33, 36, "Cases in which the defendant stands in a fiduciary relationship to the plaintiff are frequently treated as if they involved fraudulent concealment of the cause of action by the defendant. The theory is that although the defendant makes no active misrepresentation, this element 'is supplied by an affirmative obligation to make full disclosure, and the non-disclosure itself is a "fraud".' " Thus the fact that a client lacks awareness of a practitioner's malpractice implies, in many cases, a second breach of duty by the fiduciary, namely, a failure to disclose material facts to his client. Postponement of accrual of the cause of action until the client discovers, or should discover, the material facts in issue vindicates the fiduciary duty of full disclosure; it prevents the fiduciary from obtaining immunity for an initial breach of duty by a subsequent breach of the obligation of disclosure. 491 P.2d at 428-29 (footnotes omitted). It remains for us to consider the date at which GAI knew or reasonably should have known of its alleged cause of action, thereby permitting the statute of limitations to begin to run. Ordinarily, we would remand to the trial court for such a determination, since it involves a question of fact. See Budd v. Nixen, 491 P.2d 433, 437-38 (Cal.1971) (when plaintiff suffered damage raises a question of fact). Here, however, the undisputed facts compel us to hold, as a matter of law, that GAI's action was not barred by the statute. Bookman contends that GAI initially discovered the existence of his allegedly negligent act more than two years before suing him for malpractice on June 7, 1979. Although Bookman informed GAI in March or April of 1977 that there might be a possible problem with the nonregistration of GAI's stock, GAI exercised reasonable diligence, and consulted with Schlossberg on May 19, 1977. Schlossberg told Bookman and GAI that he believed GAPs stock did not need to be registered. It was not until February 22, 1978 that Schlossberg informed GAI that the dissident shareholders had a greater than fifty percent chance of prevailing on the nonregistration issue. Thus, it is clear that GAI did not discover the existence of Bookman's allegedly negligent act prior to two years before it filed its complaint on June 7,1979. Accordingly, GAI may proceed with its malpractice action against Bookman. The judgment of the trial court is REVERSED and REMANDED for further proceedings consistent with this opinion. MATTHEWS, J., not participating. . The statute provides: It is unlawful for a person to offer or sell a security in this state unless (1) it is registered under this chapter or (2) the security or transaction is exempted under AS 45.55.140. AS 45.55.070; see Hentzner v. State, 613 P.2d 821, 822 (Alaska 1980). . AS 45.55.140 provides in part: (a) The following securities are exempted from AS 45.55.070: (11) a security issued by a person organized and operated not for private profit but exclusively for religious, educational, benevolent, charitable, fraternal, social, athletic, or reformatory purposes, or as a chamber of commerce or trade or professional association. . Thus, if the client discovers his attorney's negligence before he suffers consequential damages, the statute of limitations will not begin to run until the client suffers actual damages. See Budd v. Nixen, 491 P.2d 433, 434 (Cal.1971). As we stated in Austin v. Fulton Insurance Co., 444 P.2d 536, 539 (Alaska 1968), "a tort is ordinarily not complete until there has been an invasion of a legally protected interest of the plaintiff." See Restatement (Second) of Torts § 899, Comment c (1979). . Since GAI did not even discover the existence of the allegedly negligent act prior to two years before filing its complaint, it is unnecessary for us to determine when GAI sustained actual damages.

11717219

Christopher J. BIRCH, Appellant, v. STATE of Alaska, Appellee

Birch v. State

1992-01-31

No. A-3904

901

903

825 P.2d 901

825

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T18:59:07.157757+00:00

CAP

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

Christopher J. BIRCH, Appellant, v. STATE of Alaska, Appellee.

Christopher J. BIRCH, Appellant, v. STATE of Alaska, Appellee. No. A-3904. Court of Appeals of Alaska. Jan. 31, 1992. Dick L. Madson, Fairbanks, for appellant. Gayle L. Garrigues, Asst. Dist. Atty., Harry L. Davis, Dist. Atty., Fairbanks, and Charles E. Cole, Atty. Gen., Juneau, for appellee.

1156

7003

OPINION Before BRYNER, C.J., and COATS and MANNHEIMER, JJ. BRYNER, Chief Judge. Christopher J. Birch appeals from his conviction for driving while intoxicated (DWI), in violation of AS 28.35.030. Birch argues on appeal that the trial court erred in denying his motion to suppress the results of a blood alcohol test performed by the Alaska Crime Lab on a sample of his blood that was drawn after his arrest. Following Birch's arrest for DWI, he was taken to the Fairbanks Police Station where he submitted to an Intoximeter test which showed his blood alcohol level to be .122. He was then informed of his right to have an independent test of his blood done. At his request, he was allowed to call and consult with his attorney. On the advice of his attorney, Birch decided to have an independent blood test done at his own expense. Alaska State Trooper Mark Ridling took Birch to Fairbanks Memorial Hospital to have his blood drawn for the independent test. However, when they got to the hospital, Birch was unable to have a blood test done because he did not have the $82 in cash which the hospital required as payment for the test. Ridling told Birch that he could have a blood sample drawn at state expense and Birch agreed to this. Trooper Ridling then took Birch to the Fairbanks Correctional Center, where two vials of Birch's blood were drawn and placed in the state evidence locker. The state subsequently obtained a search warrant for one of the two vials of blood. The sample was tested at the State Crime Lab and was found to have an alcohol content of .121. Birch moved to suppress the results of the blood test done at the State Crime Lab, on the grounds that the seizure by the state of the vial of blood violated his attorney-client privilege. He based his argument on our recent opinion in Oines v. State, 803 P.2d 884 (Alaska App.1990). In Oines, we held that the results of a blood test performed by an expert hired by Oines' defense attorney were privileged. We reversed the trial court's ruling which allowed the state to call the defense-consulted expert to testify as to the results of the independent test. The state had argued in Oines that because no attorney was involved at the time Oines decided to sign the consent form to have blood drawn, the attorney-client privilege did not attach to the result of any test done on the blood. We rejected this argument, holding: Although an attorney was not involved at the time Oines made the decision to sign the consent form, an attorney was directly responsible for the decision to secure Dr. Rogers as a defense expert witness regarding blood test results. In our view, the attorney-client privilege was triggered when Oines' counsel, acting in his professional capacity as Oines' representative, initiated this contact with Dr. Rogers as a defense expert. 803 P.2d at 886 (footnote omitted). District Court Judge Charles R. Pengilly denied Birch's motion to suppress. Judge Pengilly determined that the Oines decision did not address the situation found in this case, in which the state had the defendant's blood tested by its own expert and thus obtained blood test results without relying on the work of anyone hired or consulted by the defense. Judge Pengilly held that the blood sample itself, although drawn on the advice of Birch's attorney, was not covered by the attorney-client privilege. The court held that as physical evidence, the blood sample was seizable by the state with a valid warrant. Judge Pengilly was correct in concluding that Oines applies only where an expert has been consulted either by the defendant's attorney or by the defendant on the advice of an attorney. The Oines decision is based on Alaska's lawyer-client eviden-tiary privilege, which is set forth in Alaska Evidence Rule 503. That rule provides in relevant part: A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client, (1) between himself or his representative and his lawyer or his lawyer's representative, or (2) between his lawyer and the lawyer's representative, or (3) by him or his lawyer to a lawyer representing another in a matter of common interest, or (4) between representatives of the client or between the client and a representative of the client, or (5) between lawyers representing the client. A.R.E. 503(b). The situation in Oines involved confidential communications between Oines' lawyer and the lawyer's representative, the doctor he retained to analyze Oines' blood sample. Here, there was no such confidential communication. Neither Birch's attorney nor any representative of his attorney was called upon to produce blood test results or to testify regarding such results. Evidence Rule 503 was not violated by the state in this case. In addition, the general rationale behind the Oines decision is not implicated here. This reasoning is set forth in the following excerpt from the Alaska Supreme Court's opinion in Houston v. State, which we quoted in Oines: Disclosures made to the attorney [by a defense-consulted expert] cannot be used to furnish proof of the government's case. Disclosures made to the attorney's expert should be equally unavailable, at least until he is placed on the witness stand. The attorney must be free to make an informed judgment with respect to the best course for the defense without the inhibition of creating a potential government witness. If the state were allowed to subpoena [defense-consulted expert witnesses], the defense counsel's initial effort to become fully informed as to the possibility or likelihood of . valid . defense[s] may be inhibited because of the potential that an adverse opinion will be used by the state. Houston v. State, 602 P.2d 784, 791-92 (Alaska 1979) (quoting United States v. Alvarez, 519 F.2d 1036 (3rd Cir.1975)). Birch's attorney was in no way hindered from consulting experts or having an additional blood test done on behalf of the defense. No communications between defense counsel and any of his representatives or between Birch and his counsel were compromised. The danger to the attorney-client privilege against which Oines is a safeguard is not present in this case. The judgment of the district court is AFFIRMED. . Cf. Russell v. Anchorage, 706 P.2d 687, 692 (Alaska App.1985) (attorney-client privilege does not preclude testimony by experts consulted by a client without the involvement of an attorney). . The state apparently seized only one of the two vials of blood drawn after Birch's arrest, leaving the other vial available for additional testing by the defense.

11717566

Alex FOX, Appellant, v. STATE of Alaska, Appellee

Fox v. State

1992-02-21

Nos. A-3092, 3381

938

940

825 P.2d 938

825

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T18:59:07.157757+00:00

CAP

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

Alex FOX, Appellant, v. STATE of Alaska, Appellee.

Alex FOX, Appellant, v. STATE of Alaska, Appellee. Nos. A-3092, 3381. Court of Appeals of Alaska. Feb. 21, 1992. Rex Lamont Butler, Anchorage, for appellant. Kenneth M. Rosenstein, Asst. Atty. Gen., Office of Special Prosecutions and Appeals, Anchorage, and Charles E. Cole, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., COATS, J., and ANDREWS, Superior Court Judge. Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution.

927

5799

OPINION BRYNER, Chief Judge. Alex Fox was convicted by a jury of two counts of selling cocaine (misconduct involving a controlled substance in the third degree). He appeals, contending that the evidence against him should have been suppressed because it resulted from unlawful electronic monitoring. Fox also contends that his sentence is excessive. We affirm. In January of 1988, Anchorage police received a tip that Alex Fox and his brother, John, were engaged in cocaine trafficking and that John was actively looking for new customers. The police made arrangements for an undercover officer to buy cocaine at the Fox residence. The transaction occurred as scheduled. John Fox made a sale of cocaine to undercover officer David Koch. Alex Fox was not present. On February 17, 1988, following the initial purchase, the police secured a warrant authorizing them to monitor and record a further undercover buy from John Fox. The police arranged another transaction for February 25. On that date, at the appoint ed time, undercover officer Koch arrived at the Fox residence with his recorder running. However, upon asking for John Fox, Koch was told that he was not present. Alex Fox — whom Koch had never met— then came to the door and asked Koch what he wanted. When Koch told Alex Fox that he had come to buy cocaine from John, Alex said that he would "take care of" Koch. Alex proceeded to sell Koch a gram of cocaine. The sale was recorded by Koch. Based on this transaction, the police arranged another buy with Alex Fox, obtained a second warrant, and, on February 29, 1988, made another purchase of cocaine from Alex Fox at his residence. As a result of the February 25 and 29 sales, Alex Fox was charged with two counts of misconduct involving a controlled substance in the third degree. Fox moved to suppress the evidence, arguing that the initial warrant was invalid because it did not authorize the police to record a conversation with him, but, instead, only allowed the recording of a transaction involving John Fox. Fox further claimed that the evidence obtained during the February 29 transaction was the fruit of the initial invalid warrant. After an evidentiary hearing, Superior Court Judge Peter A. Michalski denied Fox's motion to suppress. Although Judge Michalski concluded that the initial warrant did not permit the police to record the transaction with Alex Fox, the judge nevertheless found that recording the transaction was justified by exigent circumstances, given the unanticipated absence of John Fox and the unexpected intervention of Alex Fox. The trial court's findings concerning the validity of the warrantless search are reversible only for clear error. State v. Bianchi, 761 P.2d 127, 129 (Alaska App.1988). In the present case, there is substantial evidence in the record to support Judge Michalski's finding of exigent circumstances; we are satisfied that Judge Michalski was not clearly erroneous in denying Fox's motion to suppress. Fox separately argues that his sentence is excessive. Misconduct involving a controlled substance in the third degree is a class B felony. By virtue of a prior conviction for first-degree sexual assault, Fox was a second felony offender and was subject to a presumptive term of four years for each count. In the present case, Judge Michalski imposed mitigated presumptive terms of four years with two years suspended for each of Fox's convictions. Judge Michalski made the two counts concurrent to each other but consecutive to a four-year term previously imposed on Fox by Superior Court Judge Karl S. Johnstone for a separate conviction of misconduct involving a controlled substance in the third degree, which occurred while the current charges against Fox were pending. In imposing the four-year presumptive term on the prior charge, Judge Johnstone had provided that it be consecutive to any future sentence Fox might receive in other pending cases. The sentences imposed by Judge Michalski in the present case were also made consecutive to a two-year sentence imposed by Superior Court Judge Mark C. Rowland upon revocation of Fox's probation on his original felony conviction for sexual assault. The revocation was prompted by Fox's current drug offenses. Fox's composite sentence is thus ten years with two years suspended. On appeal, Fox does not challenge the appropriateness of the individual sentences he received for the two counts in this case. He argues only that imposition of these sentences consecutively to the sentences imposed by Judges Rowland and Johnstone— for a total of ten years with two years suspended — is clearly mistaken. Given the serious nature of Fox's prior conviction, however, as well as his probationary status and the repetitive and commercial nature of his current criminal activity, the three superior court judges who imposed the sentences that make up Fox's composite term all had good cause to conclude that consecutive sentencing would be appropriate. Farmer v. State, 746 P.2d 1300, 1301-02 (Alaska App.1987). After independently reviewing the entire sentencing record, we are persuaded that Fox's composite sentence of ten years with two years suspended is not clearly mistaken. McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974). The conviction and sentence are AFFIRMED. MANNHEIMER, J., not participating.

11717164

Michael SIEMION, Julie Siemion, Chris Siemion and Scott Siemion, a minor, Appellants, v. Timothy RUMFELT, Appellee

Siemion v. Rumfelt

1992-02-14

No. S-4399

896

901

825 P.2d 896

825

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:59:07.157757+00:00

CAP

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

Michael SIEMION, Julie Siemion, Chris Siemion and Scott Siemion, a minor, Appellants, v. Timothy RUMFELT, Appellee.

Michael SIEMION, Julie Siemion, Chris Siemion and Scott Siemion, a minor, Appellants, v. Timothy RUMFELT, Appellee. No. S-4399. Supreme Court of Alaska. Feb. 14, 1992. Bradley D. Owens, Jermain, Dunnagan & Owens, P.C., Anchorage, for appellants. Daniel T. Quinn, Richmond & Quinn, Anchorage, for appellee. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

3122

18979

OPINION RABINOWITZ, Chief Justice. FACTS On February 2, 1987, Jeffrey Rumfelt, then a minor, ran into the Siemions' vehicle while driving a vehicle owned by his father, Timothy Rumfelt. On January 19, 1989, Michael Siemion, Julie Siemion, Chris Siem-ion, and Scott Siemion (Siemions) filed a complaint against Timothy Rumfelt alleging personal injuries arising out of the February 1987 accident. The complaint and summons were served on Timothy Rumfelt by registered mail. Attempts at settlement were unsuccessful and an answer to the complaint was filed on October 5, 1990. Timothy Rumfelt then filed a Motion to Dismiss or for Summary Judgment, raising the failure to name Jeffrey Rumfelt as a defendant. Timothy Rumfelt argued that the only apparent theory of liability arose out of his status as either the owner of the vehicle or the father of the allegedly negligent driver. He further argued that one's status as either vehicle owner or parent does not give rise to vicarious liability unless there was some direct negligence in either entrusting one's vehicle to someone known to be incompetent, or in supervising one's child. The Siemions opposed the Motion to Dismiss or for Summary Judgment, arguing that Timothy Rumfelt might bear liability under AS 28.15.071(b) if he had signed Jeffrey's driver's licence application. Alternatively, the Siemions pointed to AS 28.20.-050(a) (a section of the Motor Vehicle Safety Responsibility Act) which applied to both the driver and owner of a vehicle to suggest an alternative theory of liability against Timothy Rumfelt. Additionally, the Siemions moved to amend their complaint to add Jeffrey Rumfelt and Vicky Rumfelt as named defendants. The Siem-ions also requested that the proposed amendment relate back to the date the original complaint was filed and served upon Timothy Rumfelt, which was within the two-year statute of limitations prescribed by AS 09.10.070. The Siemions' Motion to Amend Complaint was denied by the superior court on the basis that the Siemions failed to meet the requirements for relation back stated in Farmer v. State, 788 P.2d 43 (Alaska 1990). The new parties had no notice that they would be named as defendants, and in fact could assume to the contrary since their identities were known and they were not named. Contrary to the situation in Farmer, there was no "John Doe" defendant and there was fault on the part of the plaintiff in failing to name the proper parties. Vicky and Jeffrey Rumfeldt (sic) were entitled to rely on the statute of limitations under the circumstances of this case. The Siemions moved for reconsideration. The motion was denied and the court then entered an order dismissing the Siemions' complaint with prejudice. The Siemions now appeal from the denial of their Motion to Amend Complaint. DISCUSSION I. Did the Superior Court Abuse its Discretion in Denying Siemions' Motion to Amend Their Complaint? The Siemions, citing Farmer v. State, 788 P.2d 43, 47 (Alaska 1990), argue that the requirements of Civil Rule 15(c) are to be liberally construed in order to reach the merits of a case and to ensure that no litigant is deprived of his day in court solely because of the intricacies and technical limitations of pleading. The Siemions further assert that the superior court failed to adhere to these principles and, in so doing, deprived them of their right to an adjudication on the merits. Rumfelt argues that even under a liberal construction, all of Rule 15(c)'s requirements must be met before the relation back doctrine can override the statute of limitations. Rumfelt concludes that the superior court did not abuse its discretion in denying Siemions' motion to amend because that motion failed to meet all the requirements of Civil Rule 15(c). Rule 15 of the Alaska Rules of Civil Procedure provides in part: (c) Relation Back of Amendments. Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against him, the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him. This court has adopted and reiterated the liberal amendment policy articulated by the United States Supreme Court in Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962): Rule 15(a) declares that leave to amend "shall be freely given when justice so requires".... If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test this claim on the merits.... The leave sought should, as the rules require, be "freely given." Id. at 182, 83 S.Ct. at 230 (quoted in Magestro v. State, 785 P.2d 1211, 1213 n. 5 (Alaska 1990); Betz v. Chena Hot Springs Group, 742 P.2d 1346, 1348 (1987), and Wright v. Vickaryous, 598 P.2d 490, 495 (Alaska 1979)). However, when the applicable statute of limitations has run, for an amendment to be allowable under Rule 15(c), the proposed amended pleading must "relate back" to the date of a timely origi nal pleading. McCutcheon v. State, 746 P.2d 461, 469 (Alaska 1987). See Alaska R.Civ.P. 15(c). In Farmer v. State, 788 P.2d 43, 49 (Alaska 1990), we adopted the requirements of the Rule 15(c) relation back doctrine as stated in Schiavone v. Fortune, 477 U.S. 21, 29, 106 S.Ct. 2379, 2384, 91 L.Ed.2d 18 (1986): Relation back is dependent upon four factors, all of which must be satisfied: (1) the basic claim must have arisen out of the conduct set forth in the original pleading; (2) the party to be brought in must have received such notice that it will not be prejudiced in maintaining its defense; (3) that party must or should have known that, but for a mistake concerning identity, the action would have been brought against it; and (4) the second and third requirements must have been fulfilled within the prescribed limitations period. No dispute exists as to the first Rule 15(c) requirement since the claims against Jeffrey and Vicky Rumfelt arise out of the conduct set forth in the Siemions' original pleading against Timothy Rumfelt. The Siemions assert that Jeffrey Rum-felt was placed on fair notice of the cause of action within the prescribed limitations period because the original complaint alleged that Jeffrey Rumfelt was involved in the accident with the Siemions and was responsible for the injuries and damages sustained by them as a result of the accident. The Siemions further contend that insofar as the allegations of the complaint assert claims against "Rumfelt" who is identified in the body of the complaint as Jeffrey Rumfelt, (R. 2) it is plainly reasonable to infer or assume that Jeffrey Rumfelt would have been advised by his father Timothy Rumfelt that a complaint had been received by him on or about January 24, 1989 involving claims arising out of the accident in which Jeffrey Rumfelt was involved with Siemion. This Court has previously stated that: [t]he identity of interest standard usually requires a nexus between the new and the old parties as to the subject of the litigation and an analogous legal position within the case itself. See 3 J. Moore, supra, § 15.15[4.-1] at 15-160 n. 12. Where the new and the old party share the same attorney, imputed notice can readily be found and the dictates of Civil Rule 15(c) are nonetheless adhered to. Farmer v. State, 788 P.2d 43, 49 (1990). Based on this record, we conclude that Jeffrey Rumfelt received sufficient notice of the subject claim. The facts show that Jeffrey had actual notice of the occurrence giving rise to the claim since he was directly involved in the accident. Jeffrey is mentioned in the original complaint as the operator of the vehicle. Further, the record shows that Jeffrey resided with his parents at the time of the accident. Thus, we believe it is reasonable to infer that Jeffrey had notice of the institution of the suit within the same time he would have known had he been a properly named defendant. Moreover, since Jeffrey was covered under his father's insurance policy, the evidence gathered by his insurer regarding the accident would be identical to that utilized were Jeffrey a named defendant. Similarly, it seems reasonable to infer that Vicky Rumfelt received sufficient notice as to the subject of the litigation by virtue of her familial relation to both Timothy and Jeffrey. Moreover, the record indicates that Vicky is insured under the same insurance policy, and thus would be represented by the same attorney, fulfilling the identity of interest requirement. Timothy Rumfelt further asserts that the Siemions have failed to meet the "mistaken identity" requirement of Rule 15(c)(2). Rumfelt contends that Alaska case law favors a strict interpretation of the mistaken identity requirement. Under a strict approach, a party seeking to amend must have made a true mistake concerning the identity or name of the proper party. Atkins v. DeHavilland Aircraft Co., 699 P.2d 352, 354 (Alaska 1985). "A tactical decision, for instance, to omit a possible defendant bars the application of the relation back doctrine when a claim is later added against the omitted party." Id. Rumfelt notes that a strict interpretation of the mistaken identity requirement was recently reaffirmed by this court in Farmer v. State, 788 P.2d 43 (Alaska 1990) in discussing McCutcheon v. State, 746 P.2d 461 (Alaska 1987): McCutcheon is not applicable to the issues in this case. In McCutcheon, the plaintiff knew the defendant's identity, but merely neglected to add that defendant to his original complaint.... McCutcheon did not utilize a "John Doe" pleading; rather McCutcheon had actual knowledge of the defendant's true identity. Our discussion in Footnote 18 of McCutcheon was premised on the fact that, where the identity of the defendant is known, the relation back doctrine and the imputed notice doctrine are extremely limited, if applicable at all. Farmer, 788 P.2d at 48-49. Timothy Rumfelt also asserts that "[t]he second prong of Rule 15(c)(2), that the proposed defendants knew or should have known that but for a mistake, they would have been named as defendants in the original complaint, has not been met." He argues that Jeffrey Rumfelt's identity was well known to the Siemions, and yet they did not sue him within the applicable two year limitations period. Similarly, Timothy Rumfelt contends that Vicky Rumfelt could not have known that the Siemions' failure to name her as a defendant was caused by a mistake in identity since Timothy Rum-felt was identified accurately in all respects. The Siemions do not address the mistaken identity requirement of Rule 15(c)(2). Instead they argue that during negotiations, [a]t no time did Mr. Robinson, Timothy Rumfelt, or their attorneys ever indicate or suggest that the designation of Timothy Rumfelt as the defendant named in the caption on this action was improper or incorrect in any way. Indeed, there was little reason for that to occur since the allegations in the complaint identified Jeffrey Rumfelt as the driver of the automobile and the individual whose negligence resulted in the property damage and injury sustained by the Siemions. Given the factual context in which the amendment arose, the Siemions argue that fairness requires that their amendment be allowed to relate back. We conclude that Rumfelt's position is more persuasive than the Siemions' who offered no evidence that they made a mistake regarding identities of either Jeffrey or Vicky Rumfelt. See Atkins v. DeHavilland Aircraft Co., 699 P.2d 352 (Alaska 1985). We have previously held that where the plaintiff knew the defendant's identity, but merely neglected to add that defendant to his original complaint, "the relation back doctrine and the imputed notice doctrine are extremely limited, if applicable at all." Farmer v. State, 788 P.2d 43, 49 (Alaska 1990). It appears that the Siemions neglected to add Jeffrey and Vicky as defendants although knowing their respective identities. Thus we conclude that the superior court did not abuse its discretion in denying the Siemions' motion to amend. Here the Siemions have failed to meet the provisions of Civil Rule 15(c)(2) which require that they demonstrate that they were mistaken as to the identity of the proper parties and that Jeffrey and Vicky Rumfelt knew or should have know that, but for such mistake, claims would have been brought against them. AFFIRMED. . On January 9, 1989, Siemions' counsel sent a letter to Mr. Robinson, (the insurance adjuster handling the claim under the insurance policy issued to Timothy Rumfelt which covered both the automobile and Jeffrey Rumfelt as the driver of the automobile) concerning the Siemions' claims, and the necessity of filing a complaint prior to the expiration of the statute of limitations, or an agreement to extend the statute of limitations. In a note dated January 11, 1989, Mr. Robinson responded that he could not extend the statute of limitations, but advised Siem-ions' counsel to file the suit and "give me an open extension" by which to file an answer. Mr. Robinson sent Siemions' counsel a form letter confirming this agreement on January 25, 1989. The letter also identified Richmond & Quinn in Anchorage as the defense attorneys for Timothy Rumfelt and the insurance company. . Both parties agree that this court reviews a trial court's denial of a motion to amend a complaint under an abuse of discretion standard. See Shooshanian v. Wagner, 672 P.2d 455, 458 (Alaska 1983); Estate of Thompson v. Mercedes-Benz, Inc., 514 P.2d 1269, 1271 (Alaska 1973). Under the abuse of discretion standard, a trial court's denial of a motion to amend will be reversed if this court is left with a "definite and firm conviction" that the trial court erred. Betz v. Chena Hot Springs Group, 742 P.2d 1346, 1348 (Alaska 1987). . We have held that "Civil Rule 15(c) requirements are strictly construed when the amendment adds a new defendant." McCutcheon, 746 P.2d at 469 n. 16; (citing Atkins v. DeHavilland Aircraft Co., 699 P.2d 352, 354 (Alaska 1985) and Adkins v. Nabors Alaska Drilling Inc., 609 P.2d 15, 20-21 (Alaska 1980)). Since "the policies behind the statute of limitations are best served by adopting the conservative approach," the Siemions must fulfill all the requirements of Rule 15(c) for their amended complaint to relate back. Atkins v. DeHavilland Aircraft Co., 699 P.2d 352 (Alaska 1985). . The Siemions also submit "that there is a sufficient identity of interest between Timothy Rumfelt, Jeffrey Rumfelt, Vicky Rumfelt and their insurer to charge the new defendant with constructive notice of the action within the two year statute of limitations period." The Siemions cite cases from other jurisdictions that have found "identity of interests" between the insurance company and the insured in similar circumstances. See, e.g. Denver v. Forbes, 26 F.R.D. 614, 616 (E.D.Pa.1960) (Plaintiffs were allowed to amend their complaint to substitute the name of their daughter in place of her mother as a new defendant because "the same insurance company is involved no matter whether the mother or the daughter is sued."); Pontiff v. Baily, 509 So.2d 451, 454 (La.App.1987) (Rule 15(c) amendment allowed because insurance carrier was aware of allegations surrounding accident); McKinley v. Bethel, 147 Ariz. 72, 708 P.2d 753 (App.1985) (Rule 15(c) amendment allowing substituting son as named defendant in place of father because insurer aware of claim and in position to defend prior to expiration of limitations period.). Timothy Rumfelt responds that the "identity of interest concept, a mechanism which establishes, in essence, constructive or imputed notice, must be carefully applied, however, to those circumstances in which the new and old parties share identical or nearly identical interests in the' litigation." He asserts that Vicky Rumfelt and Jeffrey Rumfelt's interests are not identical to his; for instance: Timothy Rumfelt has asserted defenses successfully in this action which would not be available to Jeffrey who, unlike Timothy, was driving the accident vehicle and is subject to a direct negligence claim, or to Vicky, who, unlike Timothy, signed Jeffrey's driver's license application and against whom the Siem-ions have asserted a claim under AS 21.15.-071(b). Timothy Rumfelt also asserts that the fact that Vicky and Jeffrey may share insurance coverage with Timothy does not give rise to an identity of interest because "they all face exposure beyond the limits of insurance coverage." . Vicky Rumfelt's alleged liability was predicated on AS 28.15.071(a) and (b), which provide: Application of minors, (a) The application of a person under the age of 18 years for an instruction permit or driver's license must be signed by the father, mother, guardian, or spouse who is 18 years of age or older, or if there is no parent, guardian, or spouse, then by another responsible adult who is willing to assume the obligation imposed under this section upon a person signing the application. The application must be signed and verified before a person authorized to administer oaths, or be signed in the presence of an authorized representative of the department, (b) Any negligence or wilful misconduct of a person under the age of 18 years when driving a motor vehicle in this state is imputed to the person who signed the application of the person for a permit or license, and that person is jointly and severally liable for damage caused by the negligence or wilful misconduct of the person under the age of 18 years, except as provided in (c) of this section. . Inherent in our affirmance of the superior court's ruling is our conclusion that the Siem-ions' equitable estoppel argument lacks merit.

10341823

In the Matter of Edward E. McNALLY, District Attorney, Regarding sanctions imposed in State v. Knight, and State v. Wheeler

In re McNally

1995-08-18

No. S-6009

415

421

901 P.2d 415

901

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:58:36.966977+00:00

CAP

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

In the Matter of Edward E. McNALLY, District Attorney, Regarding sanctions imposed in State v. Knight, and State v. Wheeler.

In the Matter of Edward E. McNALLY, District Attorney, Regarding sanctions imposed in State v. Knight, and State v. Wheeler. No. S-6009. Supreme Court of Alaska. Aug. 18, 1995. William H. Hawley and Cynthia M. Hora, Assistant Attorneys General, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for petitioner, Edward E. McNally. Christine S. Schleuss, Schleuss & McCo-mas, Anchorage, for respondent, Superior Court, Third Judicial District. Robert L. Eastaugh and Susan Orlansky, Delaney, Wiles, Hayes, Reitman & Brubaker, Inc., Anchorage, for amicus curiae, Delaney, Wiles, Hayes, Reitman & Brubaker, Inc. Before MOORE, C.J., and RABINOWITZ, MATTHEWS and COMPTON, JJ.

3330

21005

RABINOWITZ, Justice. I. INTRODUCTION The District Attorney of Anchorage, Edward McNally, appealed the superior court's imposition of monetary sanctions against him in the amount of $300. The sanctions were imposed pursuant to Civil Rule 95 for McNally's failure to either appear personally or to have an assistant appear on his behalf at a calendar call held in Kenai in connection with two separate Seward criminal cases. The court of appeals affirmed the superior court's imposition of sanctions. McNally then filed a petition for hearing from the court of appeals' judgment. This court subsequently granted the petition for hearing. Essentially, for the reasons stated and analysis applied by the court of appeals, we affirm the court of appeals' disposition. II. FACTUAL BACKGROUND AND PROCEEDINGS The essential facts as set forth in the court of appeals' memorandum opinion are as follows: Effective August 1, 1992, the Criminal Division of the Attorney General's office in Juneau shifted responsibility for prosecuting Seward criminal cases from the Kenai District Attorney's office to the Anchorage District Attorney's office. The Anchorage District Attorney's office assigned the Seward cases to Assistant District Attorney Ethan Berkowitz. Evidently no one in the Anchorage District Attorney's office arranged for the Kenai District Attorney's office to coordinate with it concerning the scheduling of pending Seward cases. Similarly, no one in the Anchorage District Attorney's office formally notified the trial courts in Kenai — through which the Seward cases are handled — of the transfer of responsibility. Judge Cranston scheduled a trial call in Kenai in various pending cases, including two Seward cases — State v. Wheeler, 3KN-S92-738CR, and State v. Knight, 3KN-S92-630CR, — for September 3, 1992. Calendaring orders in Wheeler and Knight were sent to the Kenai District Attorney's office, whose attorneys had previously appeared in connection with the cases. On September 2, 1992, the Kenai District Attorney's office received a copy of Judge Cranston's September 3 calendar, which listed Wheeler and Knight as scheduled for trial call at 2:30 p.m.; the calendar was not sent to Anchorage. That same day, September 2, Ethan Berkowitz spoke by telephone with Seward Court personnel and asked if there were any upcoming matters he should know about. Berkowitz was told that there were none. Later that day, Berkowitz spoke by telephone with Judge Cranston's secretary about motions for continuances that had been filed in two pending Seward cases, one of which was Wheeler. Berkowitz asked for a fax of the motions paperwork; he also asked Judge Cranston's secretary to forward him a copy of the forthcoming Seward calendar. (The record does not disclose precisely when eases were calen-, dared to be heard in Seward.) No mention of the trial call in Kenai was made during Berkowitz' telephone conversation with Judge Cranston's secretary. That afternoon, Berkowitz' office received the faxes Berkowitz had requested from her. The continuance paperwork in Wheeler was accompanied by a memorandum from Judge Cranston's secretary indicating "this is set for 9/3/92 trial call. Please call me today if you oppose or non-oppose." Berkowitz was occupied with other matters when the faxes arrived in Anchorage. A secretary placed them in his "in basket," but they were soon covered by other incoming documents and Berkow-itz did not see them before the end of the following business day — after the time for trial call in Wheeler and Knight had already come and gone. At the trial call hearing in Kenai, a representative of the Kenai District Attorney's office was present to handle Kenai cases, but no one appeared in connection with the Seward matters. When Judge Cranston called the Seward cases, the assistant district attorney from Kenai informed the judge that the matters were being handled out of the Anchorage office. After efforts to reach an attorney in the Anchorage District Attorney's office by telephone from the courtroom proved fruitless, Judge Cranston issued an order requiring District Attorney McNally to appear and show cause why monetary sanctions should not be imposed against him for failing to appear for the trial calls in Wheeler and Knight. Following a hearing on the issue of sanctions, Judge Cranston found, in relevant part, that "Mr. McNally's mismanagement of case assignments caused the failure of an attorney to appear for the September 3, 1992 calendar call." The judge imposed a fine of $150 against McNally in each ease for failing to appear. McNally v. Superior Court, Mem.Op. & J. No. 2770, at 1-4 (Alaska App., September 22, 1993). III. DISCUSSION A McNally's Challenges to the Superior Court's Findings of Fact It is against this factual background that District Attorney McNally challenged several of the superior court's predicate findings of fact relating to notice, which furnished the underlying basis for the imposition of its sanctions orders. McNally also challenged several of the superior court's conclusions of law. As indicated at the outset, we are in agreement with and adopt both the court of appeals' analysis and disposition of the issues McNally raised before that court. We now turn to McNally's contentions regarding the superior court's findings of fact. McNally's contention that the Anchorage District Attorney's office did not receive either fax or telephonic notice of the September 3 trial calendar call hearings is without merit. As the court of appeals correctly concluded, the record shows that faxed communication concerning Wheeler, however, clearly disclosed that that case was set for trial call the following day. Faxed notice was thus given as to one of the two cases. Id. at 4. More significantly, the court of appeals further concluded that the record established that the superior court's calendaring orders, as well as a copy of the court's September 3 calendar, were distributed to the Kenai District Attorney's office. Based on the foregoing, the court of appeals properly held that: This distribution amounted to full and sufficient notice on the state of the scheduled hearings, since Kenai prosecutors had previously appeared in connection with the cases and the Kenai trial court clerk's office had never been formally notified of the transfer of responsibility to Anchorage. Id. at 5. Finally, as to the adequacy of notice issue raised by McNally, the court of appeals came to the conclusion that any lack of faxed or telephonic notice to Anchorage was wholly unnecessary to support the superior court's "core" conclusion that the "Anchorage District Attorney's office's failure to appear was basically unexeused." Id. More specifically, the court of appeals held that the Anchorage District Attorney's office's failure to be aware of the hearings resulted from its failure to provide formal notice to the court system of the transfer of responsibility over Seward cases from Kenai to Anchorage and/or its failure to make arrangements with the Kenai District Attorney's Office for cooperation with respect to scheduling. Id. (emphasis added). B. McNally's Challenges to the Superior Court's Legal Determinations We now address McNally's challenges to certain of the superior court's legal rul-mgs. McNally contended that Civil Rule 95(b) applies only to violations of rules and that his failure to appear at the calendaring proceedings did not implicate any formal rule of court. McNally bases this contention on his characterization of the superior court's regular scheduling of trial call hearings as an informal practice related to the type of local rules that are now prohibited. The court of appeals rightly rejected this argument stating: McNally appears to be mistaken, however, since the superior court's authority to hold trial call hearings and to compel parties' attendance thereat finds provision within the ambit of Alaska Criminal Rule 22(a)(4).[ ] The duty of the District Attorney's office to attend any properly noticed hearings inheres in Rule 3.4(e) of the Alaska Rules of Professional Conduct.[ ] Id. at 7. McNally next argued that the superi- or court erred in imposing monetary sanctions without finding that he acted with a culpable mental state. In rejecting this contention the court of appeals noted that the superior court expressly found "McNally's failure to appear attributable to 'mismanagement of case assignments[.]' " Id. at 8. In turn, the court of appeals concluded that this was tantamount to a finding of negligence on McNally's part, reasoning that the record supports the conclusion that McNally acted negligently in failing to take formal, systematic measures to assure that the court system was apprised in a timely and adequate manner of the changes resulting from the transfer of responsibility over Seward cases from Kenai to Anchorage. The record further supports the conclusion that the failure to appear for which McNally was sanctioned resulted from this negligence. Id. McNally advanced the additional contention that the superior court's sanction orders deprived him of due process of law "since he was asked to show cause why he should not be sanctioned for failure to appear and was never placed on notice of the court's intent to impose sanctions for 'mismanagement of case assignments.' " Id. at 9. Observing that this argument confuses the conduct he was sanctioned for with the underlying causes of that conduct, the court of appeals held that McNally did in fact receive adequate notice of the conduct for which the court contemplated and did in fact impose sanctions: "the unjustified failure of the Anchorage District Attorney's office to appear for the trial call hearings in Wheeler and Knight." Id. Since "[a]ll that is required is that the notice be sufficient to acquaint counsel with the nature of the alleged infraction," here the order to show cause was fully sufficient to accomplish this end. Davis v. Superior Court, 580 P.2d 1176, 1180 (Alaska 1978). McNally's last contention is that the superior court erred because it failed to give him an initial warning before imposing monetary sanctions against him. In support of this argument, McNally relies on our opinion in Davis, 580 P.2d at 1180. Davis does contain language suggesting that an initial warning is generally preferable to monetary sanctions when a supervising attorney is held responsible for violations of a subordinate on the theory of "administrative mismanagement." Id. Central to the court of appeals' rejéetion of this point was its interpretation that the text from Davis, upon which McNally relies, appears to be only advisory in nature concluding that it did "not construe it to preclude judges from ever imposing sanctions against a supervising attorney without prior warning." Id. at 8. We are not persuaded that the court of appeals erred in its disposition of this initial warning issue. In brief, we agree with the court of appeals that the text of Davis does not impose a mandatory requirement of an initial warning before monetary sanctions could lawfully be imposed against a supervising attorney. AFFIRMED. EASTAUGH, J., not participating. . Currently, Civil Rule 95(b) provides: In addition to its authority under (a) of this rule and its power to punish for contempt, a court may, after reasonable notice and an opportunity to show cause to the contrary, and after hearing by the court, if requested, impose a fine not to exceed $1,000.00 against any attorney who practices before it for failure to comply with these rules or any rules promulgated by the supreme court. Civil Rule 95(b) applies to criminal proceedings. State v. Superior Court, 743 P.2d 381, 382 (Alaska App.1987); Alaska Criminal Rule 50(b). In September 1992, Civil Rule 95(b) authorized fines of up to $500. . Justices Rabinowitz and Compton would affirm the court of appeals' affirmance of the superior court's imposition of monetary sanctions against the Anchorage District Attorney. Chief Justice Moore, joined by Justice Matthews, would reverse the court of appeals' decision and vacate the superior court's orders imposing sanctions against McNally entered in the two criminal cases. Given that Justice Eastaugh is not participating in this matter, the result is equal division of the participating justices as to the proper resolution of the merits of this petition for hearing. This division of the court has the legal consequence of affirming the court of appeals' affirmance of the imposition of monetary sanctions against District Attorney McNally. . Implicit in our affirmance of the court of appeals' disposition of McNally's notice contentions is our agreement with the court of appeals' rejection of McNally's reliance on Berkowitz' affidavit. Here again in our view the court of appeals did not err in holding that Berkowitz' informal conversation with Judge Cranston's secretary concerning continuances in pending Seward cases "did not suffice as formal notice to the court system that the Anchorage office had replaced Kenai on Seward cases and that future calendaring orders should have been directed to Anchorage." Id. at 6. . As the court of appeals observed, "None of the grounds asserted by McNally, however, were raised below; and none have been included in his statement of points on appeal. In any event, none of the legal grounds appear to have merit." Id. at 7. . See note 1, supra, for the text of Civil Rule 95(b). . Criminal Rule 22(a)(4) provides: (a) At any time after the return of the indictment or the filing of the information the court upon motion of any party or upon its own motion may invite the attorneys to appear before it for a conference in open court, at which the defendant shall have the right to be present, to consider: (4) Such other matters as may aid in the disposition of the proceeding. . Rule of Professional Conduct 3.4(c) provides: A lawyer shall not knowingly violate or disobey an order of a tribunal or the rules of a tribunal except for an open refusal based on an assertion that the order is invalid or that no valid obligation exists. . The court of appeals further said: McNally was not simply being sanctioned vicariously for the inappropriate acts of an assistant; instead, he was responsible in his own right, as District Attorney, for failure to take the type of institutional measures that could have prevented the unfortunate situation that occurred in this case — a situation that seems all too predictable in the absence of such measures. Id. at 8-9. . In general we are not adverse to requiring an initial warning to supervising attorneys as a predicate to the imposition of sanctions. Such a requirement would accord supervising attorneys the opportunity to consider the feasibility of instituting remedial measures. In turn, our courts would be unambiguously placed on notice that initial warnings are required before the imposition of sanctions against supervising attorneys is authorized. Further, this matter could be submitted to our standing advisory committees on both Civil and Criminal Rules of Procedure for their recommendations, if any, regarding the adoption of formal rules requiring initial warnings to supervising attorneys.

10342176

Donald T. KIEHL, Appellant, v. STATE of Alaska, Appellee

Kiehl v. State

1995-08-25

No. A-5492

445

448

901 P.2d 445

901