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11716859

FAR NORTH SANITATION, INC., an Alaska Corporation, Appellant, v. ALASKA PUBLIC UTILITIES COMMISSION, Appellee

Far North Sanitation, Inc. v. Alaska Public Utilities Commission

1992-02-07

No. S-3796

867

874

825 P.2d 867

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.

FAR NORTH SANITATION, INC., an Alaska Corporation, Appellant, v. ALASKA PUBLIC UTILITIES COMMISSION, Appellee.

FAR NORTH SANITATION, INC., an Alaska Corporation, Appellant, v. ALASKA PUBLIC UTILITIES COMMISSION, Appellee. No. S-3796. Supreme Court of Alaska. Feb. 7, 1992. Rehearing Denied March 31, 1992. Kirsten Tinglum, John C. McCarron, As-burn & Mason, Anchorage for appellant. Glenn M. Gustafson, Asst. Atty. Gen., Anchorage, Douglas B. Baily, Atty. Gen., Juneau, for appellee. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

4336

26579

OPINION RABINOWITZ, Chief Justice. I. FACTS AND PROCEEDINGS. Far North Sanitation, Inc. (Far North) is a garbage collection company located in Fairbanks (City). It operates both inside and outside the city limits. Before 1980, the Alaska Public Utilities Commission (APUC) regulated Far North's rates only for garbage collection outside the City's limits. Similarly, the collection rates of Far North's competitor, Marche Sanitation (Marche), who operated only within the City's limits, were unregulated. In 1980 the legislature extended APUC's jurisdiction to include garbage collectors inside municipalities. AS 42.05.711; see Ch. 136, § 12, SLA 1980 (repealing AS 42.-05.221(f)); Ch. 76 § 1 SLA 1973. Marche, however, was still exempt from regulation because its revenues were less than $200,-000 per year. AS 42.05.711(i). At that time, Far North and Marche were engaged in litigation over competition and rates in Fairbanks. After the APUC's jurisdiction was expanded, Far North, Marche, and the City submitted a stipulation and agreement to APUC, under which the City would oversee and control the refuse collection rates. In February 1981, APUC adopted a modified version of the stipulation, and issued an order exempting from regulation Far North's rates for garbage collection within city limits. The order noted that Marche was already exempt from regulation, and that this order would "ensure that these two utilities — Far North and Marche — will be able to compete on equal footing." Additionally, the order stated, this exemption, in effect a granting of permission to compete for the business of the commercial refuse customer, is in the nature of an experiment. This is particularly so in that if they are to work effectively, both the exemption and the Stipulation and Agreement require reliance on the good offices of the City of Fairbanks and the Fairbanks City Council to make them work: to monitor the rates, quality of service and management practices of these two utilities and to respond to customer complaints and to do the same with respect to its own refuse collection operations. Pursuant to this order, the City set a maximum rate for the two utilities. While Far North and Marche remained in competition, neither charged the maximum rate. In 1983 Far North purchased Marche and later raised its rates. However, the new rates remained below the maximum rates set by the City. On November 18, 1986, APUC issued an "interim order" revoking Far North's exemption from rate regulation. At all times, Far North's rates outside the City had been subject to regulation; however, at the time of the interim order, Far North was charging its outside customers an unauthorized above-tariff rate. The interim order noted this violation, and declared all of Far North's subsequent rates both inside and outside the City to be "interim" rates and subject to refund pending final rate determination: Since competition in the provision of commercial refuse service no longer exists within the city limits of Fairbanks, the Commission will revoke FNS' exemption from regulation for that portion of its operation within the limits of the City of Fairbanks and require FNS to submit a revenue requirement filing based on a 1986 test year, in accordance with 3 AAC 48.275(a) and 3 AAC 48.270. APUC held a hearing in March 1988 at which Far North presented evidence on the issue of the appropriate rate for refuse collection inside the City. At that hearing, Far North did not contest the legality of APUC's interim order. In August 1988, APUC issued its final rate determination for Far North's operations inside the City (final order). The rate established by APUC was lower than what Far North had been charging, so APUC ordered Far North to refund the difference dating back to November 18, 1986. Far North filed a motion for reconsideration which was granted in part, but led to no change in the result. Far North appealed APUC's final order to the superior court, alleging that the interim order was unauthorized and illegal as retroactive ratemaking. APUC argued to the superior court that Far North had waived this issue by not raising it at the hearing or in its motion for reconsideration. The superior court chose not to decide the issue of waiver, because it was able to dispose of the case on its merits by ruling against Far North. Specifically, the superior court found that: AS 42.05.141(a) provides a broad grant of authority to the APUC to regulate public utilities and set their rates. In this case, the APUC, in determining that FNS was an utility to be regulated, provided for a "test year" for FNS. This is a common procedure used by the Commission when required to establish an initial rate for a previously unregulated entity. The APUC provides that these initial rates be interim, to protect the utility from having the APUC pick an arbitrary initial rate without the ability to determine its reasonableness and to make the rate refundable to protect the customer so that if the rate FNS had been charging was excessive, consumers would be protected. This test year interim rate-setting appears to be one which was within the liberal construction of AS 42.05.141 which grants the APUC, upon its own motion, the right to investigate and set rates which are fair to consumers and provide a reasonable rate of return and profit to the utility. Far North appeals, again arguing that the interim order was an exercise in unauthorized retroactive ratemaking. II. DISCUSSION A. Has Far North Waived its Right to Obtain Review of the 1986 Interim Order of the APUC? As a preliminary matter, we must determine whether Far North has waived its right to appeal. APUC argues that its interim order was a final order, which Far North should have appealed within thirty days of November 18, 1986. Because no appeal was filed until August 1988, APUC believes the current appeal should be dismissed as untimely. Furthermore, APUC argues that Far North had an obligation to raise the issue of agency authority before the agency itself. Because this issue was not raised until the appeal before the superior court, APUC considers it waived. We review APUC's arguments on waiver de novo, as they were not addressed below. Appellate Rule 602(a)(2) provides that appeals from administrative agencies are to be taken "within 30 days from the date that the decision appealed from is mailed or otherwise distributed to appellant." However, the time for appeal commences running only if the agency's decision is a final, appealable order. Ostman v. State, Commercial Fisheries Entry Comm'n, 678 P.2d 1323, 1327 (Alaska 1984). The first question, therefore, is whether the APUC's 1986 interim order constituted a final, appealable order. We employ a "practical" test to determine whether or not an order is a final order. Matanuska Maid, Inc. v. State, 620 P.2d 182, 184 (Alaska 1980). We have stated, "[a]n order by the trial court as a general rule is said to be final if it completely and finally disposes of the contested claims on their merits." Mukluk Freight Lines Inc. v. Nabors Alaska Drilling, Inc., 516 P.2d 408, 411 (Alaska 1973) (footnote omitted). See also Greater Anchorage Area Borough v. City of Anchorage, 504 P.2d 1027, 1030-31 (Alaska 1972) (overruled on other grounds by City and Borough of Juneau v. Thibodeau, 595 P.2d 626 (Alaska 1979)). In Mukluk, the superior court's decision required the parties to continue discovery before a final decision on the merits would issue. However, the superior court simultaneously had determined that the agency action in question was authorized. Nevertheless, we held that the superior court's decision was not a final order, even though it "disposed of Mukluk's claim for an evi-dentiary hearing and approved the Commission's proposed use of the procedure." Mukluk, 516 P.2d at 411. We said, "[necessarily another decision must follow resolving those issues initially raised by the Nabors' application. Since this is so, we must conclude that the order of the superi- or court was not a final order." Id. Similarly, Far North appeals only the 1986 interim order, not the merits of the 1988 final decision. However, as of November 18, 1986, the APUC gave Far North time to submit a tariff advice letter and a revenue requirements study in support of its rates. Under the Mukluk test, we conclude that the 1986 interim order was not a final, appealable order. The final order was the August 1988 order from which Far North did file a timely appeal. Thus we hold that the instant appeal was timely filed. Next, APUC argues that Far North had an obligation to raise the issue of the agency's authority to issue interim refundable rate orders before the agency itself. In Amerada Hess Pipeline Corp. v. Alaska Pub. Util. Comm'n, 711 P.2d 1170, 1181 n. 22 (Alaska 1986), we stated, "[a]s a general rule, we will not consider arguments never raised before the trial court. We agree with the APUC that this same rule should apply to arguments never presented to an agency whose decision is appealed." (citation omitted). See also United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 37, 73 S.Ct. 67, 69, 97 L.Ed. 54 (1952) ("orderly procedure and good administration require that objections to the proceedings of an administrative agency be made while it has opportunity for correction in order to raise issues reviewable by the courts"); 4 K. Davis, Administrative Law Treatise, 441-44 (2d ed. 1983). However, we have acknowledged that questions of subject matter jurisdiction or plain error can be raised de novo before this court. Burrell v. Burrell, 696 P.2d 157, 162 (Alaska 1984) (subject matter jurisdiction); Wettanen v. Cowper, 749 P.2d 362, 364 (Alaska 1988) (plain error). Jurisdictional defects deprive the agency of power to adjudicate or regulate the subject matter. See, e.g., State, Dep't of Labor v. University of Alaska, 664 P.2d 575 (Alaska 1983) (Department of Labor had no jurisdiction to hear claim which was not a wage claim because statute required that a wage claim be properly filed to bring claim within jurisdiction; exhaustion of administrative remedies not required when alleged infirmity is jurisdictional); Leedom v. Kyne, 358 U.S. 184, 188-89, 79 S.Ct. 180, 183-84, 3 L.Ed.2d 210 (1958) (NLRB had no jurisdiction to issue order which went beyond its statutory authority); Van Sickle v. Industrial Comm'n, 121 Ariz. 115, 588 P.2d 857, 859-60 (App.1978) (agency had no jurisdiction to consider claim where no formal claim had been filed; question of jurisdiction could be raised for first time on appeal). Here, as in Kyne, we are asked to "strike down an order of the [agency] made in excess of its delegated powers. Kyne, 358 U.S. at 188, 79 S.Ct. at 183. There are difficulties in determining whether an asserted error is jurisdictional. If Far North's claim of unauthorized illegal rate making is not jurisdictional, then it has waived any errors it now asserts by virtue of its failure to raise any such claims of error before the administrative agency. Here Far North's primary claim is that the APUC lacked authority to enter the 1986 interim rate. B. Was the 1986 Interim Order a Valid Order? Far North quotes from McDaniel v. Cory, 631 P.2d 82, 88 (Alaska 1981) to establish that administrative agencies are "creatures of statute and therefore must find within the statute the authority for the exercise of any power [they] claim." It emphasizes that Alaska statutes do not expressly authorize APUC to declare a rate interim, except when a utility has requested a rate increase. AS 42.05.421(c). Given that AS 42.05.421(c) establishes a specific and detailed procedure for declaring a rate interim, Far North concludes that the legislature did not intend to grant APUC broad powers to declare rates interim. Moreover, Far North argues that AS 42.05.431, which requires a hearing before APUC may establish rates, also does not expressly authorize suspending existing rates. By nega tive inference, Far North concludes that APUC's action was unauthorized. The APUC reaches the opposite conclusion. It argues that the question is "whether the Commission has the power to declare rates to be charged by a public utility, prospectively interim and refundable, during the time in which the Commission goes through the process of setting permanent just and reasonable rates." The APUC views the legislature's authorization of interim rates in AS 42.05.421(c) as proof that the legislature favors interim rates where necessary to ensure a fair process. Under the APUC's approach, the legislature's failure to explicitly address the circumstance where rates are too high is immaterial. The legislature granted APUC broad powers to accomplish its purposes, and further provided that those powers should be liberally interpreted. AS 42.-05.141(a)(1). Moreover, the APUC sees its ability to declare rates interim, particularly when a rate is too high, as indispensable to fair procedures. Finally, the APUC argues that the peculiar facts of the case at bar required its action. Here, the utility was essentially exempt from regulation "by way of an experiment." When the basis for this experiment ended, the broad powers of APUC to set "just and reasonable" rates mandated declaring existing rates interim. The APUC concludes that the "power to issue interim orders is necessarily implied from the express liberal rate-making power granted to the Commission." Our analysis begins by examining the relevant statutory provisions. APUC has the power to make or require just, fair and reasonable rates for public utilities. AS 42.05.141(a)(3). Under the statute, this power "shall be liberally construed to accomplish its stated purposes." AS 42.05.-141(a)(1). However, the statute also states, "[a] legally filed and effective tariff rate . may not be changed except in the manner provided in this chapter." AS 42.05.-371. Alaska Statute 42.05.431(a) establishes the power of the commission to fix rates. It provides that, [w]hen the commission, after an investigation and hearing, finds that a rate demanded, observed, charged or collected by a public utility for a service subject to the jurisdiction of the commission . is unjust, unreasonable, unduly discriminatory or preferential, the commission shall determine a just and reasonable rate . to be observed or allowed and shall establish it by order. (emphasis added). This provision indicates that rates are generally prospective, and that an investigation and hearing must precede the imposition of a new rate. There are significant principles embodied in these requirements. "A fundamental rule of ratemaking is that rates are exclusively prospective in nature." New England Tel. & Tel. Co. v. Public Util. Comm'n, 116 R.I. 356, 358 A.2d 1, 20 (1976). From the point of the utility, the general rule against retroactive rate making is critical. "The wholesale purchasers of electricity cannot plan their activities unless they know the cost of what they are receiving_" Electric Dist. No. 1 v. Federal Energy Regulatory Comm'n, 774 F.2d 490, 493 (D.C.Cir.1985). See also Petition of Elizabethtown Water Co., 107 N.J. 440, 527 A.2d 354, 361 (1987) (investor confidence, utility credit rating, and integrity of service may be affected); Michigan Bell Tel. Co. v. Michigan Pub. Serv. Comm'n, 315 Mich. 533, 24 N.W.2d 200, 206 (1946). In brief, APUC may establish rates only after an investigation and hearing. AS 42.05.431(a). This provision provides notice to both the public and the utility, and helps ensure that the ensuing rates are fair and just. Here, APUC adopted the "interim rate" without first holding a hearing. Granted, the interim rate was the same as the previous rate. Nevertheless, the interim rate was subject to refund. As such, it represented a change of rate. Therefore, under AS 42.05.371, APUC erred by failing to hold a hearing before its 1986 adoption of the interim refundable rate. Review of the record persuades us that Far North, however, waived this error by failing to raise it before the APUC. See Tucker, 344 U.S. at 33, 73 S.Ct. at 67. Had Far North brought this error to APUC's attention, APUC could have taken steps to remedy the error. Here, the only party harmed by the failure to hold a hearing would be Far North. No member of the public has raised an objection to failure to hold a hearing before issuing the interim rate. Moreover, it was in Far North's interest to fail to raise this error before the agency. By delaying assertion of this error, Far North could possibly profit if this court determined that the error was jurisdictional. A holding that the APUC lacked jurisdiction to issue its 1986 interim order would necessitate vacation of the interim order, making the interim rates in question nonrefundable. This would reward Far North for its failure' to assert error. Thus, insofar as the error goes to APUC's failure to hold a hearing before ordering the 1986 interim refundable rate, we hold that the error is nonjurisdictional and on the record has been waived by Far North. Remaining for determination is the question whether APUC has authority to declare a rate interim and refundable after hearing. There is conflicting case law on this question. Electrical Dist. No. 1, 774 F.2d at 492-93, for example, held that the plain language of 16 U.S.C. § 824e(a), requiring the commission to fix rates which are to be observed thereafter, mandated that the commission may only establish fi-naj rates. We think the better view is that the APUC has implied authority to set interim rates. See Pueblo Del Sol Water Co. v. Arizona Corp. Comm'n, 160 Ariz. 285, 772 P.2d 1138, 1140 (App.1988) (although no express authority exists, it is only "logical" that commission can impose interim rates subject to a decrease); United Tel. Co. of Florida v. Mann, 403 So.2d 962 (Fla.1981); Grindstone Butte Mut. Canal Co. v. Idaho Power Co., 98 Idaho 860, 574 P.2d 902, 906 (1978) (implied in an on-going investigation is the power to set temporary rates); see also Potomac Elec. Power Co. v. Public Serv. Comm'n of Dist. of Columbia, 457 A.2d 776, 780 n. 1 (D.C.App.1983) (Commission's power to grant interim rate increases is "implied from Commission's specifically granted statutory powers"). Alaska's statute mandates that the powers of the APUC be liberally construed. AS 42.-05.141(a)(1). Because the APUC must first conduct an investigation and hold a hearing pursuant to 42.05.431(a) before exercising its implied authority, the utility will have an opportunity to be heard, and will know the rate range and the amount at risk. This is consistent with the policy reasons behind prohibiting retroactive ratemaking. Additionally, proper procedure will provide the utility with sufficient prospective notice to enable it to plan for the future. This is consistent with the policy reasons behind prohibiting retroactive rate making. In sum, we hold that the legislature intended to grant the APUC broad powers to establish "fair and just" rates. Implied within that broad grant of powers is the authority for the APUC to declare a rate interim and refundable, so long as the APUC provides protection for the interests of both the utility and the public. Given that the APUC has the substantive power to declare rates interim any error asserted by Far North in the instant case is non-jurisdictional. Accordingly, we hold that Far North waived any procedural objections it had to the establishment of the 1986 interim rate by not raising such objections before the APUC. The decision of the superior court upholding APUC's 1986 interim refundable order is AFFIRMED. . It is undisputed that Far North's rates within Fairbanks were always within the maximum limits established by the Fairbanks City Council. . We reject Far North's argument that APUC waived this argument by not filing a cross appeal. We may affirm the superior court on any basis appearing in the record. Sea Lion Corp. v. Air Logistics of Alaska, Inc., 787 P.2d 109, 116 (Alaska 1990). Accordingly, APUC's waiver argument could be raised in its appellee brief. . APUC quotes from Alaska Pub. Util. Comm'n v. Greater Anchorage Area Borough, 534 P.2d 549, 557 n. 25 (Alaska 1975), to the effect that interim rates are "final acts." There we were referring to interim rates which were held confiscatory in Prendergast v. New York Tel. Co., 262 U.S. 43, 49, 43 S.Ct. 466, 468, 67 L.Ed. 853 (1923). As those rates were not refundable, they were final for the period in which they were in force. Also, that case discussed interim rates in connection with a request for preliminary injunctive relief. These factors differentiate Greater Anchorage Area Borough from the case at bar. . Professor Davis has analyzed court holdings that dealt with assertions that an administrative agency lacks jurisdiction. K. Davis, supra, § 26:4 at 425-31. He states that "Supreme Court cases throughout the twentieth century have gone both ways on the question." Id., § 26:5 at 431. He has proposed that courts consider three factors when determining a question of agency jurisdiction: "extent of injury from pursuit of administrative remedy, degree of apparent clarity or doubt about administrative jurisdiction, and involvement of specialized administrative understanding in the question of jurisdiction." Id. at 432. Here, the first of Davis's factors does not apply because this is not a case of failure to exhaust administrative remedies. The second factor, clarity of lack of jurisdiction cuts both ways. It is clear that APUC has jurisdiction to set rates. Therefore, APUC has subject matter jurisdiction here. However, it is not clear that APUC was given statutory authorization to set interim rates. To that extent, we must analyze Far North's claim to determine whether it is jurisdictional. The third factor, extent of specialized agency understanding, is not applicable here as the validity of the interim rate in question is a matter of statutory interpretation. . A party cannot, by waiver, endow an administrative agency with powers beyond those which are authorized by legislative grant. Therefore, we must review Far North's claim to the extent that it requires an analysis of APUC's statutory authority. However, following Tucker, 344 U.S. at 37, 73 S.Ct. at 69, we caution that any procedural errors which Far North could have raised at hearing will be considered waived. In Tucker, the administrative hearing con-cededly did not conform to the requirement of the federal Administrative Procedure Act. The United States Supreme Court held that this "was an irregularity which would invalidate a resulting order if the Commission had overruled an appropriate objection made during the hearings. But it is not one which deprives the Commission of power or jurisdiction_" 344 U.S. at 38, 73 S.Ct. at 69. Similarly, other courts which have considered challenges to an agency's authority have not automatically concluded that the challenge was jurisdictional. See e.g., Inter-Tribal Council of Nevada v. United States Dep't of Labor, 701 F.2d 770, 771 (9th Cir.1983) (issue of Secretary of Labor's authority to recoup misspent funds "does not go to the jurisdiction of the agency" and "is not a case where the agency was without power to adjudicate" so it was waived when not raised before the agency); Calixto v. Industrial Comm'n, 126 Ariz. 400, 616 P.2d 75, 77 (App.1980) (alleged noncompliance with statute does not "constitute jurisdictional defects affecting the Commission's power to adjudicate"); Campbell v. Key Millwork & Cabinet Co., 116 Idaho 609, 778 P.2d 731, 734 (1989) (claim that agency exceeded its statutory authority by reconsidering its decision will not be heard on appeal when not raised at agency hearing); Hay v. Motor Vehicles Div., 77 Or.App. 398, 713 P.2d 641, 642 (1986) (claim that agency violated statutory procedures by failing to give adequate notice will not be heard on appeal when not raised before agency). .We exercise our independent judgment on this issue concerning the scope of an agency's authority since it involves statutory interpretation, or analysis of legal relationships, about which courts have specialized knowledge and expertise. See Kelly v. Zamarello, 486 P.2d 906, 916 (Alaska 1971); see also Tesoro Alaska Petroleum Co. v. Kenai Pipe Line Co., 746 P.2d 896, 903 (Alaska 1987). We give no deference to the superior court's decision when it acts as an intermediate court of appeals. Instead, we independently review the administrative agency's decision. Thome v. Department of Public Safety, 774 P.2d 1326, 1329 (Alaska 1989); Tesoro, 746 P.2d at 903. . We reject Far North's argument that their due process rights are implicated by a rate which is made prospectively refundable. See Great Northern RR v. Sunburst Oil & Ref. Co., 287 U.S. 358, 363, 53 S.Ct. 145, 148, 77 L.Ed. 360 (1932). . We do not intend to intimate that Far North was intentionally dilatory. Rather, we reiterate that our conclusion that Far North's failure to object or raise the point before the APUC constitutes waiver, because any other result would inevitably create an incentive for dilatory failure to assert error. . While APUC argues that Far North delayed the Commission's hearing for its own economic self-interest, we note that the APUC allowed Far North to use 1986 as a test year and granted Far North's motion to continue the hearing. As the Commission admits, "the Commission granted Far North every reasonable accommodation during the course of its proceedings." Moreover, we note 3 AAC 48.155(b) and (c) provides sufficient authority to the APUC to set a timetable in a rate case and hold the utility to it. .While we have concluded that the APUC has the implied authority to set interim rates in the circumstance where the utility has charged too high a price for its services, our disposition in the instant case turns upon a waiver analysis. Thus, because Far North has waived any assertions of procedural error, we do not address whether this specific instance of ordering an interim refundable rate comports with appropriate procedures.

10342311

Juan K. ESPINOZA, Appellant, v. STATE of Alaska, Appellee

Espinoza v. State

1995-09-08

No. A-5422

450

454

901 P.2d 450

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.

Juan K. ESPINOZA, Appellant, v. STATE of Alaska, Appellee.

Juan K. ESPINOZA, Appellant, v. STATE of Alaska, Appellee. No. A-5422. Court of Appeals of Alaska. Sept. 8, 1995. Michael Dieni, Assistant Public Defender, and John B. Salemi, Public Defender, Anchorage, for appellant. Stephen R. West, Assistant District Attorney, Ketchikan, and Bruce M. Botelho, Attorney General, Juneau, for appellee. Before BRYNER, C.J., and COATS and MANNHEIMER, JJ.

1936

12184

OPINION BRYNER, Chief Judge. Juan K. Espinoza pled no contest to one count of third-degree assault, AS 11.41.220(a)(1). In return for his plea, the state agreed to recommend a sentencing cap of one year's unsuspended incarceration and to dismiss the original charge of attempted second-degree murder. Superior Court Judge Michael A. Thompson sentenced Espinoza to three years' imprisonment with two and one-half years suspended. As a result of a probation revocation action stemming from Espinoza's involvement in a DWI shortly after his assault conviction, Judge Thompson later imposed six months of the originally suspended sentence and, as an added condition of probation, ordered Espinoza to complete six months of residential substance abuse treatment. Espinoza subsequently enrolled in but faded to complete the Salvation Army Clitheroe Center program, and the state petitioned to revoke his probation. Espinoza admitted the probation violation and appeared for disposition before Superior Court Judge Elaine M. Andrews. At the disposition hearing, Espinoza urged Judge Andrews to impose only part of his suspended incarceration. Espinoza pointed out that imposing all of the incarceration that remained suspended would yield a total sentence of three years' imprisonment. He reminded the court that he was a first felony offender and had been convicted of a class C felony. Citing Austin v. State, 627 P.2d 657, 657-58 (Alaska App.1981), Espinoza argued that, absent a formal finding of statutory aggravating factors or extraordinary circumstances, he was entitled to receive a more favorable sentence than the two-year presumptive term specified for a second class C felony offender. Noting that the state had failed to notify him of any proposed aggravating factors prior to the disposition hearing and that no aggravating factors had been alleged or found when he was originally sen- teneed, Espinoza insisted that the Austin rule barred the court from sentencing him to a total of more than two years' unsuspended time for his assault. Espinoza requested Judge Andrews to impose a sentence within the confines of the Austin limit. In response to this request, Judge Andrews expressed uncertainty as to whether the Austin rule applied in the context of sentencing for a probation violation. Alternatively, the judge concluded that the facts recited in the original presentence report appeared to support the conclusion that Espinoza's conduct was among the most serious included in the definition of his offense. See AS 12.55.155(c)(10). The judge ordered Espinoza to serve the entire suspended portion of his sentence. Upon the imposition of this sentence, Espinoza stated his disagreement with the court's interpretation of the facts and took exception to the court's finding of an aggravating factor without prior notice. Espinoza now appeals the sentence imposed upon revocation of his probation. He argues that the superior court erred in imposing a sentence above the Austin limit without giving him prior notice of, and an opportunity to challenge, the court's proposed reliance on an aggravating factor. This court recently summarized the applicable ground rules for sentencing in cases such as Espinoza's: In Austin, we held that "[njormally a first offender should receive a more favorable sentence than the presumptive sentence for a second offender." Id. at 657-68. We indicated that this rule should be deviated from only in exceptional cases. Id. at 658. Subsequently, in Brezenoff v. State, 658 P.2d 1359, 1362 (Alaska App.1983), we clarified that an "exceptional case" for purposes of the Austin rule is one in which there are significant aggravating factors as specified in AS 12.55.155(c), or the kind of extraordinary circumstances that would warrant referral to the three-judge panel, under AS 12.55.165-.175, for enhancement of the presumptive term. More recently, we have held that, before receiving an exceptional sentence under the Austin rule, a first offender is entitled to advance notice of the aggravating factors or extraordinary circumstances to be relied on by the sentencing court. Wylie v. State, 797 P.2d 651, 662 & n. 9 (Alaska App.1990); see also Collins v. State, 816 P.2d 1383, 1384-85 (Alaska App.1991). Austin's fundamental policy of protecting first offenders against harsher treatment than similarly situated second offenders continues to apply when a first offender is sentenced for a probation violation. See, e.g., Luepke v. State, 765 P.2d 988, 990-91 (Alaska App.1988). In such a case, however, the probation violation itself may be indicative of the offender's poor prospects for rehabilitation; this factor, either alone or in conjunction with other factors, may be deemed an extraordinary circumstance justifying the imposition of a sentence in excess of the Austin limits. Witt v. State, 725 P.2d 723, 724 (Alaska App. 1986). Bland v. State, 846 P.2d 815, 817-18 (Alaska App.1993) (footnote omitted). The Austin rule was thus applicable to Espinoza's case when he was sentenced for violating the conditions of his probation. Espinoza could properly be ordered to serve the balance of his originally suspended incarceration, but only if significant aggravating factors or extraordinary circumstances were found in his case. Bland, 846 P.2d at 817-18; Brezenoff, 658 P.2d at 1362. And before the existence of any aggravating factors or extraordinary circumstances could properly be determined, Espinoza was entitled to prior notice and an opportunity to contest the issue. Wylie, 797 P.2d at 662 & n. 9. Espinoza's original sentence fell well below the Austin threshold and provided no occasion for determining the existence of aggravating or mitigating factors. The state alleged no aggravating factors prior to the original sentencing hearing and Judge Thompson found none. The state likewise alleged no aggravating factors in advance of Espinoza's sentencing hearing before Judge Andrews. Although the judge was entitled to make an independent determination as to aggravating factors or extraordinary circumstances, such a determination could not properly be made without providing Espinoza advance notice of the court's intent to do so. Hartley v. State, 653 P.2d 1052, 1056 (Alaska App.1982). Here, Espinoza was given no advance notice of the court's proposed reliance on factor (e)(10). In light of the sentencing court's failure to give Espinoza advance notice of its intent to find factor (c)(10) applicable, we must vacate the sentence and remand for resentencing. The sentence is VACATED, and this case is REMANDED for resentencing. On remand, Espinoza must be given advance notice of any aggravating factors or extraordinary circumstances alleged by the state relied on by the sentencing court, . In relevant part, Espinoza's counsel argued: The court may be inclined to consider terminating probation here and just put Mr. Espinoza in for the remainder of — of the original sentence. Just a few comments. If your thinking is along those lines I really want to make it very clear that we feel that a three-year sentence in this case would be illegal. It's a year in excess of Austin limits. There have been no Wylie aggravators filed, and I believe there are none that would actually be appropriate to the case. He doesn't have a prior felony record so he's entitled by case law under Austin to a sentence substantially more favorable than what would [sic] a second-time felony offender would get, which is two years on a C felony. These matters are seldom discussed at the original sentencing when the actual time imposed is only six months, which is what his original sentence was, three years with all suspended but six months. Routinely the Court of Appeals, if you try to appeal at that stage of the game will look at it and go, well, he only got six months and that's really what we're concerned about, is the actual incarceration, not' — • not suspended and unimposed time. But we are talking about imposing time, now we are talking about appeals because — because I read the offense and — and potential aggravators, although none have been noticed and none have been filed. Two years should be the cap here[.] . Judge Andrews stated, in relevant part: Well, I'm not exactly certain who has the obligation to justify the original sentence but my thinking is that if you feel that a sentence is in violation of an Austin limit or an illegal sentence the obligation is to appeal that sentence initially, but in order to avoid the possibility that that analysis is wrong — in reviewing the original presentence report it appears to me that what happened in this case is that Mr. Espinoza was charged with a — initially charged with attempted murder, significant reduction in the charge resulted, which then brought him into class C felony range, and so although I only know what I know about that case from the presentence report, just taking simply the facts from the presentence report it certainly would end up having aggravators such as the worst possible conduct within the definition of the offense for which he was ultimately charged and it's hard to imagine a more mitigated sentence than what he received. .Espinoza's counsel stated: I don't think the facts support it, I don't think the procedure followed here meets due process from the standpoint of notice and opportunity to be heard. The State has never noticed the aggravator in writing or verbally from what I've seen. Judge Andrews' response again indicated uncertainty as to the role of the Austin rule in probation revocation proceedings: And — and that comment [concerning the most serious conduct aggravating factor] is meant to be to the original sentence. If I were required to pass on that as the sentencing judge on the probation revocation. I don't mean to suggest that this is a worst possible aggravator type of probation revocation situation. I'm just making the record in case the Court of Appeals thinks that I'm the one that has somehow verified the original sentence, which I don't think I am, but in order to — in the interest of judicial economy I make the comments. . The state's argument that Judge Thompson effectively found aggravating factor (c)(10) is mer-itless. At the original sentencing hearing the parties argued their respective interpretations of the seriousness of the case. In imposing sentence, Judge Thompson commented, "It looks like a very strong third-degree assault case. It's a little weak the way it was originally charged." This comment is hardly tantamount to a formal finding, after advance notice to Espinoza, that factor (c)(10) had been established by clear and convincing evidence. . The state maintains that, after Judge Andrews found factor (c)(10) applicable and imposed sentence, Espinoza should have requested a hearing to allow him an opportunity to contest the finding; in the state's view, counsel's failure to do so amounts to a waiver. This argument is merit-less. We have previously held that, to preserve for appeal the issue of lack of advance notice of an aggravating factor, a defendant must raise the issue at the sentencing hearing and object on that ground. See Collins v. State, 816 P.2d 1383, 1385 (Alaska App.1991). But we have never suggested that a defendant who makes a timely objection based on lack of notice but is nevertheless improperly sentenced based on an impromptu aggravating factor bears the added burden of requesting a hearing to litigate the improperly found factor. Espinoza's counsel expressly stated his disagreement with the court's characterization of the seriousness of his conduct and specifically objected to the court's unnoticed reliance on factor (c)(10). Counsel fully complied with the requirements of Collins and thereby preserved the issue for appeal.

11717321

Rocky N. SEAMAN, Appellant, v. STATE of Alaska, Appellee

Seaman v. State

1992-02-07

No. A-3956

907

909

825 P.2d 907

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 MICHALSKI, Superior Court Judge.

Rocky N. SEAMAN, Appellant, v. STATE of Alaska, Appellee.

Rocky N. SEAMAN, Appellant, v. STATE of Alaska, Appellee. No. A-3956. Court of Appeals of Alaska. Feb. 7, 1992. Carol A. Brenckle, Kenai, 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 MICHALSKI, Superior Court Judge. Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution.

1243

7516

OPINION COATS, Judge. Rocky N. Seaman was convicted, based upon his plea of no contest, of custodial interference in the first degree, a class C felony. AS 11.41.320. In entering his plea, Seaman reserved his right to appeal Superior Court Judge Charles K. Cran-ston's denial of his motion to dismiss. Seaman argued in the trial court that the prosecution against him for custodial interference in Alaska was barred by the double jeopardy provision of the Alaska Constitution, Alaska Const, art. 1, § 9, and by AS 12.20.010 because Seaman had previously pled and been sentenced for custodial interference in the State of Arizona. Seaman appeals Judge Cranston's denial to this court. We affirm. On December 15, 1987, the Anchorage Superior Court awarded custody of Seaman's minor child, S.S., to the child's mother. On January 27, 1989, a Kenai grand jury indicted Seaman as follows: That on or about [the] 2nd day of August, 1988, at or near Kenai, in the Third Judicial District, State of Alaska, Rocky N. Seaman did knowingly, being the relative of a child under 18 years of age, and knowing that he had no right to do so, did keep S.S. from his lawful custodian and did cause the child to be removed from the state with the intent to hold the child for a protracted period. Seaman was arrested in Arizona on March 9, 1990. An Arizona grand jury indicted Seaman with four counts of drug offenses, three counts of forgery, and one count of custodial interference as follows: On or about March 9, 1990, while at 1274 West Pima, Lot 102, Pinetop/Lake-side, Arizona, Rocky N. Seaman, knowing or having reason to know that he had no legal right to do so, kept 5 year old [S.S.], his son, who was entrusted by the authority of law to the custody of [the] natural mother, a class 6 felony, in violation of A.R.S. § 13-1301 and 13-1302. On May 29, 1990, Seaman entered into a plea agreement on the Arizona indictment. As part of the plea agreement, Seaman was convicted on the custodial interference charge. On May 31, Seaman was assessed a fine and remained in jail until Alaskan authorities arrived and transported Seaman to Alaska on June 7. On August 10, 1990, Seaman moved to dismiss the custodial interference charge of the Kenai indictment on statutory and constitutional double jeopardy grounds. Seaman argued that his plea to custodial interference in Arizona barred prosecution for custodial interference in Alaska. The state responded that the two custodial interference indictments alleged separate and distinct charges. Judge Cranston denied Seaman's motion to dismiss on September 25 and Seaman's motion for reconsideration on October 23. Seaman pled no contest to custodial interference on November 5, 1990, and now appeals the denial of his motion to dismiss. At oral argument in this case, Seaman's counsel conceded that AS 12.20.010 provided broader protection from prosecution by both Arizona and Alaska than did article 1, section 9 of the Alaska Constitution. We believe that counsel's concession is meritorious. Under the Alaska cases on article 1, section 9, the state can prosecute for separate charges if it can show that the defendant committed separate acts. See Whitton v. State, 479 P.2d 302, 312 (Alaska 1970); Yearty v. State, 805 P.2d 987, 993-96 (Alaska App.1991); Rodriguez v. State, 741 P.2d 1200, 1206-08 (Alaska App.1987). Therefore Seaman's argument turns on AS 12.20.010. Seaman argues that the trial court erred in denying his motion to dismiss because AS 12.20.010 barred prosecution for custodial interference because Seaman had already pled to and been sentenced for custodial interference in Ari zona. This court will determine matters of statutory interpretation without deference to the trial court, adopting the rule of law most persuasive in light of precedent, policy, and reason. Zsupnik v. State, 789 P.2d 357, 359 (Alaska 1990). Ambiguities in criminal statutes must be narrowly read and construed strictly against the government. State v. Andrews, 707 P.2d 900, 907 (Alaska App.1985), aff'd, 723 P.2d 85 (Alaska 1986). Alaska Statute 12.20.010 provides as follows: When an act charged as a crime is within the jurisdiction of the United States, another state, or a territory, as well as of this state, a conviction or acquittal in the former is a bar to the prosecution for it in this state. Clearly, Seaman cannot be prosecuted for "an act charged as a crime" in Alaska if that "act" is also within the jurisdiction of Arizona and Seaman has been convicted in Arizona. The crucial issue in this case is whether Arizona convicted for the same "act" that Seaman was prosecuted for in Alaska. When a defendant engages in a continuous criminal episode it can be difficult for a court to properly separate the conduct into separate criminal offenses. See Yearty, 805 P.2d at 995. However, in the instant case, it seems plain that the Alaska custodial interference charge and the Arizona custodial interference charge describe separate acts. The Alaska conviction was for Seaman's act of taking S.S. from the state of Alaska on or about August 2,1988. The Arizona conviction was for custodial interference on or about March 9, 1990, over one and one-half years after Seaman removed S.S. from Alaska, and was based upon Seaman's act of keeping his son from the lawful custody of the son's natural mother. It seems clear to us that the two charges encompass different acts and could support different charges. We accordingly affirm Seaman's conviction. The conviction is AFFIRMED. MANNHEIMER, J., not participating. . Alaska Statute 11.41.320 provides: (a) A person commits the crime of custodial interference in the first degree if the person violates AS 11.41.330 and causes the victim to be removed from the state. (b) Custodial interference in the first degree is a class C felony. Alaska Statute 11.41.330 provides: (a) A person commits the crime of custodial interference in the second degree if, being a relative of a child under 18 years of age or a relative of an incompetent person and knowing that the person has no legal right to do so, the person takes, entices, or keeps that child or incompetent person from a lawful custodian with intent to hold the child or incompetent person for a protracted period. (b) Custodial interference in the second degree is a class A misdemeanor. Arizona Revised Statute 13-1302 provides in part: A. A person commits custodial interference or visitation interference if, knowing or having reason to know that he has no legal right to do so, such person knowingly takes, entices or keeps from lawful custody or specified visitation any child less than eighteen years of age or incompetent, entrusted by authority of law to the custody of another person or institution. C. If committed by a parent or agent of a parent of the person taken, custodial interference is a class 6 felony unless the person taken, enticed or kept from lawful custody or visitation is returned voluntarily by the defendant without physical injury prior to arrest in which case it is a class 1 misdemeanor.

10429003

Susan SHIFFMAN and Frederick A. Hart III, Appellants, v. "K", INC., an Alaska corporation and the Municipality of Anchorage, a municipal corporation and Sunrise Electric, Inc., an Alaska corporation, Appellees; Susan SHIFFMAN, Appellant, v. MUNICIPALITY OF ANCHORAGE, a municipal corporation, "K", Inc., an Alaska corporation and Sunrise Electric, Inc., an Alaska corporation, Appellees

Shiffman v. "K", Inc.

1983-01-21

Nos. 5615, 6312

401

404

657 P.2d 401

657

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

Susan SHIFFMAN and Frederick A. Hart III, Appellants, v. “K”, INC., an Alaska corporation and the Municipality of Anchorage, a municipal corporation and Sunrise Electric, Inc., an Alaska corporation, Appellees. Susan SHIFFMAN, Appellant, v. MUNICIPALITY OF ANCHORAGE, a municipal corporation, “K”, Inc., an Alaska corporation and Sunrise Electric, Inc., an Alaska corporation, Appellees.

Susan SHIFFMAN and Frederick A. Hart III, Appellants, v. “K”, INC., an Alaska corporation and the Municipality of Anchorage, a municipal corporation and Sunrise Electric, Inc., an Alaska corporation, Appellees. Susan SHIFFMAN, Appellant, v. MUNICIPALITY OF ANCHORAGE, a municipal corporation, “K”, Inc., an Alaska corporation and Sunrise Electric, Inc., an Alaska corporation, Appellees. Nos. 5615, 6312. Supreme Court of Alaska. Jan. 21, 1983. Robert Opland, Opland, Johnston & Boe-deker, Anchorage, for appellants. Mark A. Sandberg, Camarot, Sandberg & Hunter, Anchorage, for appellees. Before BURKE, C.J., and RABINOWITZ, CONNOR, MATTHEWS and COMPTON, JJ.

1684

10091

OPINION PER CURIAM. These cases involve procedural questions concerning dismissal for want of prosecution and the application of the statute of limitations to the refiling of such a dismissed case. We hold that the superior court's dismissal for want of prosecution pursuant to Alaska Civil Rule 41(e) was improper and accordingly reverse. On August 10,1977, a car owned by Frederick Hart (Hart) in which Susan Shiftman (Shiftman) was travelling collided with a light pole near the corner of Arctic Boulevard and Tudor Road in Anchorage, Alaska. On April 27, 1978, Shiftman and Hart filed a complaint (No. 3AN 78-2898) against "K", Inc. and the Municipality of Anchorage, alleging that negligent road construction at the intersection proximately caused Shiftman's personal injuries and Hart's property damage. Two answers, a cross-claim, and a reply to the cross-claim were subsequently filed. Thereafter the parties stipulated to allow the filing of an amended complaint. On June 7, 1979, an amended complaint was filed by Shiftman and Hart adding Sunrise Electric, Inc. as a defendant. On June 25, 1979, defendant Sunrise Electric, Inc. filed its answer. On August 21, 1979, a counsel substitution for Shiftman and Hart was filed with the court. Nothing further occurred on record in this case until June 20, 1980, when the defendants, appellees here, filed a motion to dismiss for lack of prosecution under Rule 41(e). On July 3, 1980, Shiftman and Hart filed opposition to the dismissal motion, and noticed a deposition of the "K", Inc. Project Manager to be taken on July 15, 1980. On August 11, 1980 the superior court dismissed the case pursuant to the motion: "It appearing that no proceedings have taken place in this litigation for more than one year.... " Shiftman and Hart appealed. On December 23, 1980, Shiftman and Hart refiled their complaint (No. 3AN 80-8666) against all three defendants. The complaint included a statement of the previous filing and cited AS 09.10.240 as extending the time for timely filing. A motion to dismiss Shiftman's claims for personal injury as barred by the two year statute of limitations provided in AS 09.10.-070 was granted by the superior court on March 23, 1981. Shiftman again appealed. The two appeals have been consolidated, as a reversal in either case will moot the other. Shiftman and Hart on appeal argue that in dismissing their first suit the superior court inappropriately relied on Rule 41(e), which provides: "Dismissal for Want of Prosecution. Actions which have been pending in a court for more than one year without any proceedings having been taken therein may be dismissed as of course, for want of prosecution, by the court on its own motion or on motion of a party to the action. The court shall review all pending cases at least semiannually, and in all cases in which no proceedings have been taken for more than one year, the court shall either (1) hold a call of the calendar or (2) send notice to the parties to show cause in writing why a dismissal of the action should not be ordered. If good cause to the contrary is not shown at a call of the calendar or within 33 days of the mailing of a notice to show cause in writing, the action shall be dismissed. The court may also dismiss such cases for want of prosecution at any time on motion of any party upon notice to other parties." Shiftman and Hart seize upon the term "proceedings" as that term is used in Rule 41(e), and raise the questions of whether a plaintiff's substitution of counsel and whether a defendant's answer falls within its meaning. Past cases indicate several purposes to be served by Rule 41(e). First, it encourages plaintiffs to keep their cases moving at a reasonable speed. First National Bank of Fairbanks v. Taylor, 488 P.2d 1026, 1032 (Alaska 1971). Under Rule 41(e), the plaintiff bears the burden to diligently pursue the enforcement of his cause of action. Second, Rule 41(e) serves to protect a defendant from undue delays which might subject him to harassment or force settlement of an otherwise nonmeritorious lawsuit. Zeller v. Poor, 577 P.2d 695, 697 (Alaska 1978). Finally, Rule 41(e) serves to provide the trial court with a device to clear its calendar of cases that have stood void of any proceeding for more than one year. First National Bank of Fairbanks v. Taylor, 488 P.2d 1026 at 1032. These past decisions remind us that the evil to be avoided is the stagnant case cluttering a court's calendar or threatening harassment of the party-defendant. A case stands 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. Such steps, acts or measures constitute the "affirmative action" referred to in First National Bank as necessary to terminate a period of lapse. First National Bank of Fairbanks v. Taylor, id. at 1031-32. The court should also take into consideration any unique features of the litigation under review and any special circumstances of the parties which may help to explain the lack of proceedings. See Brown v. State, 526 P.2d 1365 (Alaska 1974). Keeping the purposes of Rule 41(e) in mind, as well as the evil to be avoided, a "proceeding" as the term is used in the rule is a step, act or measure of record, by the plaintiff, which reflects the serious determination of the plaintiff to bring the suit to a resolution; or a step, act or measure of record, by either party, which reflects that the suit is not stagnant. Shiftman and Hart argue that the filing of the answer by the defendant Sunrise Electric is a proceeding under Rule 41(e). We agree. An answer obviously is an act on the record and just as obviously indicates that the suit does not stand stagnant. "K", Inc. contends that even if the filing of the answer is a proceeding, the net effect is that their motion was simply filed five days prematurely. In that period of five days no further proceedings were taken. Therefore, according to "K", Inc. there was a total period of time greater than one year in which no proceedings occurred. The cases, however, expressly provide that the one year period must "continue to and include the time when the motion is filed." Atlas Enterprises v. Consolidated Construction Company, 572 P.2d 68, 71 (Alaska 1977). Accordingly, the motion to dismiss did not invoke the application of Rule 41(e). Additionally, the superior court could not have dismissed the case sua sponte under Rule 41(e) on August 11,1980. Intervening in that time period was a Notice of Taking of Deposition by Shiftman and Hart on July 3, 1980. Even the appellees concede that this was an affirmative action on the part of the plaintiffs sufficient to terminate the period of lapse. Therefore, at the time the superior court dismissed the action, further proceedings had been taken. "Where . the lapse has already occurred and further proceedings have been taken, it is neither necessary or justifiable to allow dismissal...." First National Bank of Fairbanks v. Taylor, 488 P.2d at 1032. In conclusion, we hold that Civil Rule 41(e) did not apply to the facts of this case and the superior court lacked discretion to dismiss the case under that Rule. No. 5615 REVERSED and REMANDED. No. 6312 DISMISSED. . Therefore, we do not decide whether a case dismissed for want of prosecution falls within the statute of limitations saving statute (AS 09.10.240) so as to extend the time for refiling. . AS 09.10.240 provides: "Commencement of action añer dismissal or reversal. If an action is commenced within the time prescribed and is dismissed upon the trial or upon appeal after the time limited for bringing a new action, the plaintiff or, if he dies and the cause of action in his favor survives, his heirs or representatives may commence a new action upon the cause of action within one year after the dismissal or reversal on appeal. All defenses available against the action, if brought within the time limited, are available against the action when brought under this provision." . AS 09.10.070 provides: "Actions to be brought in two years. 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." . In Atlas Enterprises v. Consolidated Construction Company, 572 P.2d 68, 71 (Alaska 1977), we found that "[a]ny affirmative action by the plaintiff starts the one year period running again." (Emphasis added). This finding is not inconsistent with today's finding that affirmative action taken by either party terminates the period of lapse. It matters not which party affirmatively acts, particularly when at various stages of the proceedings the plaintiff must wait until the defendant acts. It is the absence of forward progress in the litigation that is sought to be prevented. . Appellees argue vehemently that their filing of the motion to dismiss did not terminate the period of lapse. This rebuttal seriously misconstrues Shiffman and Hart's argument, which does not contend that this action on the part of the appellee terminated the period of inaction.

10428837

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

Curran v. Mount

1982-12-03

No. 6139

389

392

657 P.2d 389

657

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

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

Mary Jane CURRAN, individually and as Executrix for the Estate of Thomas E. Curran, Jr., and The Parrish Company, Appellants, v. James L. MOUNT and Helen R. Mount, Appellees. No. 6139. Supreme Court of Alaska. Dec. 3, 1982. Robert M. Libbey, Anchorage, for appellants. Clem H. Stephenson, Fairbanks, for ap-pellees. Before BURKE, C.J., RABINOWITZ, CONNOR and COMPTON, JJ., and DIMOND, Senior Justice. Dimond, Senior Justice, sitting by assignment made pursuant to article IV, section 11, of the Constitution of Alaska and Alaska R.Admin.P. 23(a).

1516

9060

OPINION CONNOR, Justice. This appeal arises from a quiet title action involving claims of fraud and adverse possession. The property in dispute is a part of Block 95, Original Townsite of Fairbanks. A diagram of the area is set out below. The record owner of Lots 6, 7A and 7B is appellant, The Parrish Company, successor in interest to appellants Mary Jane Curran and Estate of Thomas E. Curran, Jr. (All of the appellants will hereafter be referred to as "Curran"). From the mid-1980s to 1978, Simeon Bu-lavski was the record owner of Lot 8. In 1973, appellees James and Helen Mount purchased a parcel of land from Bulavski, described in the deed as Lot 8. Bulavski later signed two "correcting" deeds which described the property as including portions of Lots 6, 7A and 7B, and all of lot 7C. On July 14, 1976, Curran brought suit to eject the Mounts and others from Lots 6, 7A and 7B. By counterclaim, the Mounts sought to quiet title in their favor to portions of Lots 6, 7A and 7B and all of 7C, alleging ownership of the property either because of a surveyor's error or by adverse possession. On July 23, 1979, the trial court granted partial summary judgment in favor of Cur-ran as to Lot 7A. This judgment is the subject of the appeal and petition for rehearing in Mount v. Curran, 631 P.2d 496 (Alaska 1981). The record owners of Lot 7C are Thomas and Mary Flood, the residents of the house located on Lot 6 and former named defendants in this case. Because the suit was dismissed as to them, the ownership of Lot 7C was not an issue at trial and is not an issue on appeal. Thus, the only property in dispute here is the westerly portion of Lot 7B and a very small portion of Lot 6. The case went to trial on November 13, 1979, on the issues of adverse possession and surveyor's error. At trial, Curran also sought to introduce evidence of fraud in the transaction between Bulavski and the Mounts. After an extensive offer of proof, the court orally ruled that the evidence was inadmissible because fraud had not been affirmatively pleaded by Curran. On January 4, 1980, the trial court entered judgment based on its findings of fact and conclusions of law. The court quieted title to the disputed property in favor of the Mounts, concluding that their predecessor in interest had acquired title by adverse possession and under the doctrine of agreed boundaries. The court further found that there was insufficient evidence to support the Mounts' claims of surveyor's error and actual or constructive fraud. This appeal followed. A preliminary issue is whether Cur-ran has standing to assert fraud in the Bulavski-Mounts transaction. In Moore v. State, 553 P.2d 8, 23 (Alaska 1976), we stated that "[wjhether a party has standing to obtain judicial resolution of a controversy depends on whether the party has a sufficient personal stake in the outcome of the controversy." Here, Curran has no personal stake in the resolution of the fraud claim. Bulavski's title, if any, to the disputed property was acquired long before the transaction with the Mounts. And, if fraud were found, either the title to the property would revert to Bulavski (not to Curran) or the Mounts would retain title but be liable for damages to Bulavski. Thus, Curran lacks standing to assert fraud in the transaction between Bulavski and the Mounts and we need not discuss the merits of the fraud issue. Therefore, the superior court's decision on this issue is affirmed, but not on the grounds stated by the court. In challenging the lower court's disposition of the adverse possession issue, Curran urges this court to adopt the "clear and convincing evidence" standard of proof for adverse possession cases rather than a mere preponderance of the evidence. This appears to be the prevailing rule in other jurisdictions. We hereby adopt that more stringent standard because of our desire to foster reliance on record title and enhance marketability. A party claiming title to real property by adverse possession must bear the burden of proving each element by clear and convincing evidence. The superior court's findings of fact and conclusion of law do not indicate what standard of proof it used. Accordingly, we remand the case to the superior court with instructions that the trial judge indicate what standard of proof he applied. In the event that the clear and convincing evidence standard was not applied, he shall review the evidence and advise whether he would have resolved the issues differently by applying that standard. If so, he shall file amended findings of fact and conclusions of law, along with an appropriate judgment. Pending the superior court's compliance with our order on remand, we shall retain jurisdiction of this matter. Thereafter, the adverse possession claim will be disposed of on its merits. In the event of any change in the superior court's decision, the parties may apply for leave to file supplemental briefs. One final issue deserves very brief mention. The superior court also concluded that the Mounts acquired title to the disputed property under the doctrine of agreed boundaries because of a longstanding acceptance of the fence as the boundary line by plaintiffs' and defendants' predecessors. This issue was never raised before or during trial. Moreover, there is nothing in the record that would support such a conclusion. The superior court's decision on this issue was error. AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings in conformity with this opinion. MATTHEWS, J., not participating. . Curran stipulated to the dismissal, with prejudice, of the claims against all of the named defendants other than the Mounts. . The Mounts do not challenge this finding on appeal. . Counsel for the Mounts raised the standing issue at trial, but the trial judge did not rule on it. . We have stated the difference between the clear and convincing standard and the preponderance standard as follows: "Where one has the burden of proving asserted facts by a preponderance of the evidence, he must induce a belief in the minds of the jurors that the asserted facts are probably true. If clear and convincing proof is required, there must be induced a belief that the truth of the asserted facts is highly probable." Saxton v. Harris, 395 P.2d 71, 72 (Alaska 1964). . The following courts have explicitly adopted the clear and convincing (or an analogous) standard in adverse possession cases: Calhoun v. Smith, 387 So.2d 821 (Ala.1980); Busby v. State, 2 Ariz.App. 451, 409 P.2d 735 (1966) rev'd on other grounds, 101 Ariz. 388, 420 P.2d 173 (1966); Nutting v. Herman Timber Co., 214 Cal.App.2d 650, 29 Cal.Rptr. 754 (1963); Howey v. Eshe, 168 Colo. 568, 452 P.2d 393 (1969); Wadsworth Realty Co. v. Sundberg, 165 Conn. 457, 338 A.2d 470 (1973); Grant v. Strickland, 385 So.2d 1123 (Fla.App.1980); Lai v. Kukahiko, 58 Hawaii 362, 569 P.2d 352 (1977); Aldape v. State, 98 Idaho 912, 575 P.2d 891 (1978); Klingel v. Kehrer, 81 Ill.App.3d 431, 36 Ill.Dec. 719, 401 N.E.2d 560 (1980); Piel v. DeWitt, 170 Ind.App. 63, 351 N.E.2d 48 (1976); Moffitt v. Future Assurance Associates, Inc., 258 Iowa 1160, 140 N.W.2d 108 (1966); Boese v. Crane, 182 Kan. 77, 324 P.2d 188 (1958); Department of Parks v. Stephens, 407 S.W.2d 711 (Ky.1966); Caywood v. Department of Natural Resources, 71 Mich.App. 322, 248 N.W.2d 253 (1976); SSM Inv. v. Siemers, 291 N.W.2d 383 (Minn.1980); Horton v. Gentry, 357 Mo. 694, 210 S.W.2d 72 (1948); Meyers v. Pavalkis, 73 N.J.Super. 208, 179 A.2d 534, 535 (N.J.App.1962); Birtrong v. Coronado Building Corp., 90 N.M. 670, 568 P.2d 196 (1977); Van Valkenburgh v. Lutz, 304 N.Y. 95, 106 N.E.2d 28 (1952); Hodny v. Hoyt, 243 N.W.2d 350 (N.D.1976); Sears v. Department of Wildlife Conservation, 549 P.2d 1211 (Okl.1976); Lee v. Hansen, 282 Or. 371, 578 P.2d 784 (1978); Stevenson v. Stein, 412 Pa. 478, 195 A.2d 268 (1983); Zinnerman v. Williams, 211 S.C. 382, 45 S.E.2d 597 (1947); Bartels v. Anaconda Co., 304 N.W.2d 108 (S.D.1981); Matthews v. W.T. Freeman Co., 191 Va. 385, 60 S.E.2d 909 (1950); and Allie v. Russo, 88 Wis.2d 334, 276 N.W.2d 730 (Wis.1979). .This court previously has adopted the clear and convincing standard in several other property contexts where documentary evidence is lacking: Jackson v. White, 556 P.2d 530, 534 (Alaska 1976) (oral contract for sale of land); Hamerly v. Denton, 359 P.2d 121, 125 (Alaska 1961) (dedication of a public way); Roberts v. Jaeger, 5 Alaska 190, 192-93 (D.Alaska 1914) (prescriptive easement).

10342036

Harvey SHADE and Anna Shade, Appellants, v. CO & ANGLO ALASKA SERVICE CORP., d/b/a Peak Oilfield Services, and Peak Alaska Ventures, Inc., d/b/a Peak Maintenance and Equipment Co., and Grove Manufacturing Co., d/b/a Grove Manlift, Appellees

Shade v. Co & Anglo Alaska Service Corp.

1995-09-08

No. S-6605

434

439

901 P.2d 434

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.

Harvey SHADE and Anna Shade, Appellants, v. CO & ANGLO ALASKA SERVICE CORP., d/b/a Peak Oilfield Services, and Peak Alaska Ventures, Inc., d/b/a Peak Maintenance and Equipment Co., and Grove Manufacturing Co., d/b/a Grove Manlift, Appellees.

Harvey SHADE and Anna Shade, Appellants, v. CO & ANGLO ALASKA SERVICE CORP., d/b/a Peak Oilfield Services, and Peak Alaska Ventures, Inc., d/b/a Peak Maintenance and Equipment Co., and Grove Manufacturing Co., d/b/a Grove Manlift, Appellees. No. S-6605. Supreme Court of Alaska. Sept. 8, 1995. Charles W. Coe, Anchorage, for appellants. Alex K.M. Vasauskas and Timothy M. Stone, Stone, Waller, Jenicek, Brown & Gibbs, Anchorage, for appellees Peak Oilfield Services and Peak Alaska Ventures, Inc. Before MOORE, C.J., and RABINOWITZ, MATTHEWS and COMPTON, JJ.

2837

17395

OPINION MOORE, Chief Justice. I. INTRODUCTION Harvey Shade alleges that he was injured when a manlift that he was operating during his employment with ARCO Alaska unexpectedly shifted into high speed. Shade and his wife Anna sued Grove Manufacturing Company d/b/a Grove Manlift (Grove), the manufacturer of the manlift, and Peak Oilfield Services and Peak Alaska Ventures, Inc. d/b/a Peak Maintenance and Equipment Company (Peak), an independent contractor hired to maintain ARCO's manlifts, for negligent repair, breach of implied warranty of repair, products liability, and loss of consortium. The trial court entered summary judgment in favor of Peak, dismissing the Shades' complaint against the contractor in its entirety. The Shades challenge this decision, as well as a subsequent award of attorney's fees. Because we conclude that the summary judgment dismissal of Peak was improper, we reverse. II. FACTS AND PROCEEDINGS For purposes of this summary judgment motion, the following facts are undisputed. Harvey Shade worked as a heavy equipment mechanic for approximately twenty years, during which time he repaired and maintained manlifts for ARCO, including those manufactured by Grove. In 1988 ARCO closed down the mechanic's shop where Shade worked and contracted the repair and maintenance of its heavy equipment to Peak. Shade was reassigned as a heavy equipment operator, which required the delivery of heavy equipment to work sites for use by ARCO personnel. On September 17, 1988, Shade's superior directed him to pick up a Grove manlift and deliver it to a remote work site. Shade picked up a Grove manlift referred to as the "PB 1470." Before attempting to load the manlift for transport, Shade inspected it. He noticed no red tags which would indicate that the equipment was not functional. He also performed an operational test of the manlift, in which he did a "walk around," listened to the engine, and operated the controls from the basket. Shade specifically did an operational test of all of the switches, including the high/low speed switch. The operational test performed by Shade was designed to check a specific safety feature: with the basket raised, the operator should be unable to place the Grove manlift into high gear. When Shade later attempted to unload the manlift at the work site, however, it apparently malfunctioned. Shade was backing off a tilt trailer with the throttle in low gear and the basket raised. When Shade was halfway down the ramp, the engine suddenly shifted into high gear by itself and threw him into the air. As a result, Shade broke his ankle and leg. The Shades brought suit against Grove and Peak in July 1993. The complaint alleged that under Peak's contract with ARCO, Peak was required to repair, maintain, monitor, and inspect the heavy equipment which Shade used. The Shades asserted that the injuries suffered by Shade were proximately caused by Peak's negligence in failing to properly repair the manlift, as well as Peak's breaches of both the contract to repair and an implied warranty of workmanship. Peak moved for summary judgment. In support, Peak presented Harvey Shade's deposition testimony, in which he described inspecting the Grove manlift before using it on September 17 and observing no malfunction with the speed control switch. Peak also attached the affidavit of Don York, a Peak mechanic who went to the scene shortly following the accident to examine the manlift. York affied that he operated the manlift in all of its functions, "including the manlift's high and low speed mode," and found no indication of any malfunction. York further stated that the lift appeared to operate normally when it was loaded back onto the trailer and off-loaded at the shop, and that after additional inspection in the shop, he determined that the speed mode switch was operating in proper condition. Based upon this evidence, Peak argued that the manlift was functioning properly before and after the accident and, even if there were a defect, that "Peak could not have been reasonably expected to discover that there was anything malfunctioning with the manlift before Mr. Shade . was injured." In opposition, the Shades first attempted to characterize the location where Shade picked up the manlift on September 17 as an implied certification by Peak that the manlift was safe to operate. Shade and another operator, Parnell Lockhart, affied that the PB 1470 had been placed on the "ready line" that day, an area where mechanics routinely placed completely repaired and inspected equipment after it had been worked on. The Shades also submitted a Peak repair report for the PB 1470 dated September 17, 1988. At the top of the report next to a space marked "Problem" was written, "Travel & eng[ine] controls touchy." Below, York indicated that he "[cheeked] out [the] operation of control for travel." As a result, four switches were ordered. Next to the repair entry was the indication "0900," which York later explained is a "miscellaneous" task code — not an indication for 9:00 a.m. York testified that he recalled performing this particular repair late in the afternoon on September 17, after the accident. However, York admitted that based upon the work order itself, one cannot determine what time of day the repair was performed. The Shades also submitted evidence of some difficulty that Shade experienced on the day of the accident while initially loading the PB 1470 manlift onto the tilt trailer for transport. Shade explained that as was required for loading and unloading, he had the manlift in low gear with the basket raised. Shade testified that once all four wheels were on the tilt, the manlift was unable to climb. Shade stated that it was necessary to have Lockhart raise the rear of the manlift with a forklift so that Shade could drive straight onto the trailer. Shade affied that although the manlift was not switching gears at that time, the PB 1470 "was not moving right." Finally, the Shades attempted to directly link Peak's repairwork to the malfunction that allegedly caused Shade's injury. Shade testified that in his opinion, the manlift shifted into high gear due to "a malfunction in the wiring." He explained that Peak could have detected a defect such as this before the accident by performing an operational test, or by opening up the machine. Shade stated that inside the machine, Peak should have been able to discover cracks in the wiring or wires touching, or Peak could have used a continuity tester to learn if any leads were grounded to the speed control switch. Lockhart, who had ten years of experience as a heavy equipment operator, provided additional information. He testified that prior to and after Shade's accident, employees discussed "ongoing" problems with manlifts shifting from low to high gear unexpectedly. Lockhart stated that he personally experienced a sudden change in speed on at least two or three occasions, and that when the speed change occurred, the lift became unstable and felt like a "teeter-totter." Lock-hart stated that the most recent time that he experienced an unexpected speed change was three weeks to six months before Shade's accident. Although he could not recall whose mechanics were then manning the shop, he testified that at that time, ARCO had gotten rid of all of its own mechanics. Lockhart recalled that on that occasion, as he did every time that he experienced a problem with a piece of equipment, he wrote up the problem and turned it in to the dispatcher. Lockhart explained that employees were required to document problems with machines, and that afterwards, the dispatcher would turn the forms over to the mechanic's shop. After reviewing the evidence, the trial court granted summary judgment in favor of Peak. The court noted that while the jury has significant latitude in making a finding of negligence, in the present ease, it would be necessary for the jury to "speculate" in order to find a connection between Peak's conduct and Shade's injury. The Shades moved unsuccessfully for reconsideration, and the trial court certified the judgment as final. The clerk awarded Peak costs, and the trial court awarded Peak 20% of its attorney's fees. This appeal followed. III. DISCUSSION This appeal allows us to revisit some of the important principles underlying Alaska Civil Rule 56 and the law of summary judgment. As Peak frames the question presented by this ease, "[t]he determinative issue . does not involve the question of whether or not the manlift malfunctioned.... In order to avoid summary judgment dismissal, [the] Shades were obligated to present some admissible, material evidence demonstrating that Peak's negligence proximately caused Mr. Shade's injury." The trial court impliedly agreed with Peak's characterization of the purpose of these proceedings, and it ultimately concluded that the Shades had not carried their evidentiary burden. We believe that the trial court's assessment of the Shades' evidence was premature, and we therefore reverse. It is well settled that when reviewing a grant of summary judgment, we must determine whether a genuine issue of material fact exists and whether the moving party is entitled to judgment as a matter of law. Broderick v. King's Way Assembly of God Church, 808 P.2d 1211, 1215 (Alaska 1991). Because a premature grant of summary judgment forecloses a litigant's right to trial, however, we must be mindful that both on appeal and at the trial level, it is the moving party that bears the initial burden of proving, through admissible evidence, the absence of genuine factual disputes and its entitlement to judgment. Id.; Williams v. Municipality of Anchorage, 683 P.2d 248, 250 (Alaska 1981) ("[T]he party seeking summary judgment 'has the entire burden of proving that his opponent's case has no merit.' ") (quoting Nizinski v. Golden Valley Elec. Ass'n, 509 P.2d 280, 283 (Alaska 1973)). The non-moving party is given the benefit of all reasonable inferences which can be drawn from the proffered evidence. Deal v. Kearney, 851 P.2d 1353, 1361 (Alaska 1993). Moreover, although prudent counsel for the non-moving party will always attempt to demonstrate a genuine issue for trial, it is not obligated to do so until the moving party makes a prima facie showing of its entitlement to judgment on established facts. Alaska R.Civ.P. 56(e), (e); Broderick, 808 P.2d at 1215; Weaver Bros., Inc. v. Chappel, 684 P.2d 123, 126 (Alaska 1984) (holding that when movant does not satisfy initial burden, non-moving party need not present opposing evidence and summary judgment must be denied); 10A Charles A. Wright, Arthur R. Miller & Mary K. Kane, Federal Practice and Procedure § 2727, at 143-46 (1983) (noting that under parallel federal rule, burden of production shifts to opposing party only when mov-ant "makes out a prima facie case that would entitle him to a directed verdict if uneontro-verted at trial"). In their complaint, the Shades allege that Peak failed to properly "repair, maintain, monitor, and inspect" the PB 1470 man-lift, and in doing so, acted negligently and/or in violation of the express or implied terms of its contract with ARCO. Both parties cite Alvey v. Pioneer Oilfield Services, 648 P.2d 599 (Alaska 1982), for the elements of the Shades' claim against Peak. In Alvey we stated that in a negligence action, summary judgment is inappropriate when there is a genuine issue for trial concerning whether (1) the defendant owed the plaintiff a duty of care; (2) the defendant breached its duty; (3) the plaintiff was injured; and (4) the injury was proximately caused by the defendant's breach. Id. at 600. Thus, in the absence of a meritorious affirmative defense, in order to obtain summary judgment, Peak must demonstrate the absence of a factual dispute as to at least one necessary element of the Shades' case. Our review of the evidence offered by Peak in support of its motion for summary judgment leaves us unconvinced that Peak has carried this burden. First, Peak presented the deposition testimony of Harvey Shade, in which he recalled performing his own operational test on the PB 1470 before picking it up on the day of the accident; he tested the speed control switch and apparently found nothing malfunctioning. Peak infers from this that if Shade could find no problem, its mechanics could not reasonably have been expected to have discovered any defect. The record does not make clear, however, whether Shade's inspection of the PB 1470 as an operator was as thorough as the inspection that a reasonable mechanic would have performed. Standing alone, the fact that Shade inspected the PB 1470 before using it does not indicate, for the purposes of summary judgment, that Peak was free from negligence. Second, Peak offered evidence that its mechanic, Don York, operated the PB 1470 manlift in its high and low speed mode at the scene shortly after the accident and again back at the shop and found the equipment to be in proper operating condition. Peak therefore implies that because its mechanics could not duplicate the malfunction or discover an actual defect during the post-accident inspection of the PB 1470, they could not have done so beforehand and prevented Shade's injury. While we consider such evidence probative, York's testimony cannot shift to the Shades the burden of producing evidence of negligence without some further evidence of the standard against which Peak's conduct is to be measured. We believe that in order to demonstrate that its conduct prior to the accident was reasonable, as Peak attempted to do in its summary judgment motion, it was incumbent upon Peak to present some evidence of the following: the appropriate standard for maintenance of the Grove manlift, the manner in which Peak had maintained the PB 1470, and whether that maintenance met or exceeded the appropriate standard. Peak chose not to support its motion with affidavits or other evidence relevant to any of these fundamental questions. In the absence of such evidence, Peak failed to demonstrate that it was entitled to summary judgment. Similarly, Peak has argued that the Shades' breach of contract claim cannot stand because the Shades failed to present explicit language from the contract between Peak and ARCO outlining Peak's duties in maintaining ARCO's heavy equipment. Based upon the same analysis as presented above, we do not agree. If Peak desires to seek summary judgment on the Shades' breach of contract claim, as the moving party, Peak is required to demonstrate that no genuine issue of material fact exists. Because Peak chose not to support its motion by presenting evidence pertaining to the contract, the fact that the Shades have not done so is immaterial. Weaver Bros., Inc., 684 P.2d at 126. Because Peak has failed to satisfy its initial burden to demonstrate the absence of genuine issues of material fact and its entitlement to judgment as a matter of law, we reverse the decision of the trial court which granted summary judgment in favor of Peak. IV. CONCLUSION For the reasons set forth above, the entry of summary judgment in favor of Peak is REVERSED and the ease REMANDED for further proceedings. EASTAUGH, J., not participating. . In his deposition, York stated that he did not know what the four switches were intended for or whether he was the mechanic who ordered them. . The parties do not specifically address what standard applies to the claims raised by the Shades for Peak's breaches of the repair contract and an implied warranty of workmanship. During oral argument below, Peak briefly cited case law for the proposition that Alaska does not recognize implied warranties for repairs. See Swenson Trucking & Excavating, Inc. v. Truck-weld Equip. Co., 604 P.2d 1113, 1119 (Alaska 1980). However, Swenson is inapposite to the present case. In Swenson we held that a contract for repair services does not fall under the provisions of article two of the Uniform Commercial Code. Id. at 1119. The U.C.C. has not been invoked here. We believe that the general principles of Alvey provide a uniform standard for all of the Shades' claims on review. In Pepsi Cola Bottling Co. v. Superior Burner Service Co., 427 P.2d 833 (Alaska 1967), we reviewed jury instructions in an action for improper repair of a boiler. We held that "[w]hether the tort standard of care is considered, or the duty of care imposed by an implied warranty of workmanlike performance . the resultant standard of care required . is identical." Id. at 840. . Because we reverse the case on these grounds, we need not reach the Shades' remaining points on appeal: (1) whether jthe trial court abused its discretion when it denied the Shades' motion for reconsideration; and (2) whether the trial court erred in awarding Peak fees and costs.

10342120

Sheila WAHRER, Appellant, v. STATE of Alaska, Appellee

Wahrer v. State

1995-08-18

No. A-5148

442

445

901 P.2d 442

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.

Sheila WAHRER, Appellant, v. STATE of Alaska, Appellee.

Sheila WAHRER, Appellant, v. STATE of Alaska, Appellee. No. A-5148. Court of Appeals of Alaska. Aug. 18, 1995. Sharon Barr, Assistant Public Advocate, and Brant G. McGee, Public Advocate, Anchorage, for appellant. Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Bo-telho, Attorney General, Juneau, for appellee. Before BRYNER, C.J., and COATS and MANNHEIMER, JJ.

1312

8055

OPINION MANNHEIMER, Judge. Sheila Wahrer appeals her conviction for fourth-degree misconduct involving a controlled substance, AS 11.71.040(a)(5). She contends that the trial judge misinstructed the jury concerning an element of this offense. We find that the challenged jury instruction was proper, and we therefore affirm Wahrer's conviction. The statute Wahrer was convicted of violating, AS 11.71.040(a)(5), forbids a person to knowingly keep[ ] or maintain! ] any . building, vehicle, boat, aircraft, or other structure or place which is used for keeping or distributing controlled substances in violation of a felony offense under [AS 11.71] or AS 17.30[J At Wahrer's trial, the State asserted that Wahrer had maintained an apartment in the Mountain View area of Anchorage that was being used as a "crack house" — a place where cocaine was prepared and sold. Viewed in the light most favorable to the State, the evidence at trial showed that Wahrer, using a false name, rented the apartment and then allowed various individuals to use the premises as the site of a cocaine business. Wahrer defended by contending that she rented the apartment so that a man named "Ray" could live there. Wahrer testified that she barely knew "Ray", but she was interested in getting to know him better. She asserted that she had rented the apartment for Ray out of friendship, and that she had no idea that the apartment was being used for drug sales. Wahrer explained that she, rather than Ray, had rented the apartment because she believed that a landlord would be more likely to rent to her (a white woman) than to Ray (a black man). She said that she had used false identification because she was nineteen years old and she believed that she could not legally rent an apartment unless she was twenty-one. At the close of trial, when the court was formulating the jury instructions, both the parties and the court struggled over the definition of "keep or maintain" a building. Superior Court Judge Rene J. Gonzalez ultimately decided to give the following instruction (over Wahrer's objection): A person keeps or maintains a building, dwelling, or other structure or place if that person [either] conducts business operations or knowingly allows others to conduct business operations in a building [or] place which that person controls or had the right to control either through ownership or lease. Said business may be either legal or illegal. Wahrer objected that the court's definition of "maintaining" suggested that this element could be satisfied by proof of a defendant's passive and purely legal relationship to the premises — that Wahrer could be found guilty simply because she signed the lease for the apartment. Wahrer contended that the statute required that the defendant have a more active relationship to the premises — one involving the exercise of control, not mere legal title. Wahrer's attorney proposed the following instruction: To keep or maintain a dwelling, building, or other structure . means to take care of, support, conduct, or manage a structure or place for some particular purpose. Judge Gonzalez rejected this instruction, but he informed Wahrer's attorney that the defense would be entitled to argue to the jury that, even though Wahrer signed the lease, Wahrer nevertheless had no right to control the activities taking place at the apartment. On appeal, Wahrer renews her argument that the challenged jury instruction was improper. She argues that, under the court's instruction, the jury might have convicted Wahrer even if they believed that her only connection to the apartment was that she signed the lease and then relinquished control over the premises to Ray and his associates. The short answer to Wahrer's argument is that, once she secured the lease, even if she later chose to relinquish control of the apartment to Ray and the others, she still might properly be convicted. In Dawson v. State, 894 P.2d 672 (Alaska App.1995), this court recently analyzed the meaning of the statute in question, AS 11.71.040(a)(5). We concluded that the statute requires proof that the defendant "knew" (as defined in AS 11.81.900(a)(2)) that the premises were being used for continuing illegal drug activity. Dawson, 894 P.2d at 677. We also concluded that the statutory phrase "keeps or maintains" refers to a defendant's possessing "control or hav[ing] authority to control the use or occupancy of the structure". Id. at 676. With the hindsight of Dawson, it can be seen that Judge Gonzalez correctly rejected Wahrer's proposed instruction concerning "keep or maintain". Under Wahrer's proposed definition, the jury could not have convicted her unless they found (a) that she actively took care of or managed the apartment, and (b) that she did so with the intention that the apartment be used as a site for the sale of illegal drugs. (Wahrer's proposed instruction defined "keep or maintain" as "tak[ing] care of, support[ing], conduct[ing], or managing] a structure or place for some particular purpose".) As Dawson clarifies, AS 11.71.040(a)(5) does not require proof that the defendant actively controlled or participated in the illegal drug activity, nor does the statute even require proof that the defendant shared the purpose of advancing the illegal drag activity. Rather, the State must prove that the defendant knowingly permitted the illegal drug activity to take place on the premises. The defendant's act of permitting the illegal drug activity may be proved by evidence of the defendant's express authorization, but it may also be proved by evidence that the defendant allowed the illegal drug activity to proceed by "tacit consent or by not hindering [or by] taking no steps to prevent [it]". Dawson, 894 P.2d at 677 n. 5 (quoting State v. Pyritz, 90 Or.App. 601, 752 P.2d 1310, 1313 (1988). In Wahrer's case, the State was obliged to prove that Wahrer had sufficient control over the apartment that she could have prevented its use as a site for cocaine sales had she wished. The State introduced evidence that Wahrer was the leaseholder of the apartment and that Ray and the other occupants of the apartment were, essentially, tenants at her sufferance. This evidence, if believed, was sufficient to prove that Wahrer "kept or maintained" the apartment within the meaning of AS 11.71.040(a)(5). The State was not required to prove that Wahrer managed or otherwise actively controlled the apartment — only that she had the authority to control the premises if she chose to exercise it. Judge Gonzalez's instruction to the jury embodied this interpretation of the statute. The court's instruction told the jurors that the element of "keep or maintain" was satisfied if the State proved that Wahrer (a) "knowingly allowed" (that is, Wahrer was aware of and permitted) (b) other people to conduct "business operations" (in this ease, continuing sales of cocaine) (c) in an apartment that she either "controlled] or had the right to control . through . lease". We find no error in this instruction. The judgement of the superior court is AFFIRMED. . As we recognized in Dawson, and as the parties to the present appeal concede, most of the important terms in AS 11.71.040(a)(5) have no express statutory definition, and there is a paucity of legislative history to aid in analyzing the statutory language. It is one thing for an appellate court to construe this statute after weeks of deliberation, quite another when a trial judge is called upon to construe the statute in the press of an ongoing trial. We commend Judge Gonzalez for his careful analysis of the statute.

10345268

In re the Estate of Gerald M. EVANS, Deceased. LAW OFFICE OF WILLIAM F. BRATTAIN II, and Shulkin, Hutton & Bucknell, Inc., P.S., Appellants, v. Merwin E. ANDERSON, Personal Representative of Estate of Gerald M. Evans, Deceased, Appellee

Law Office of Brattain v. Anderson

1995-09-08

No. S-6264

1138

1143

901 P.2d 1138

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.

In re the Estate of Gerald M. EVANS, Deceased. LAW OFFICE OF WILLIAM F. BRATTAIN II, and Shulkin, Hutton & Bucknell, Inc., P.S., Appellants, v. Merwin E. ANDERSON, Personal Representative of Estate of Gerald M. Evans, Deceased, Appellee.

In re the Estate of Gerald M. EVANS, Deceased. LAW OFFICE OF WILLIAM F. BRATTAIN II, and Shulkin, Hutton & Bucknell, Inc., P.S., Appellants, v. Merwin E. ANDERSON, Personal Representative of Estate of Gerald M. Evans, Deceased, Appellee. No. S-6264. Supreme Court of Alaska. Sept. 8, 1995. William F. Brattain, Baker, Brattain & Huguelet, Anchorage, for appellants. Winston S. Burbank, Call, Barrett & Burbank, Fairbanks, for appellee. Before MOORE, C.J., and RABINOWITZ, MATTHEWS, COMPTON and EASTAUGH, JJ.

3366

20661

OPINION MOORE, Chief Justice. I. INTRODUCTION Appellants (the lawyers) are the holders of a promissory note executed by Gerald Evans two years before his death. The lawyers filed a petition for payment against the Evans estate. The superior court held their claim time-barred under AS 13.16.475(a), and entered summary judgment in favor of the estate. We reverse. II. FACTS AND PROCEEDINGS In 1981 Gerald Evans signed a promissory note in favor of the lawyers. The note represented Evans' share of the expense of legal work that the lawyers had performed on behalf of a partnership. Evans died, allegedly without satisfying the debt, and by a letter dated September 2, 1983, the lawyers filed a timely notice of a claim against the Evans estate (the estate). Under Alaska's probate code, an estate can disallow a claim and initiate a sixty-day period in which the claimant must petition the superior court for allowance or have the claim become permanently time-barred. AS 13.16.475(a). The estate's representative "may mail a notice to any claimant stating that the claim has been disallowed." Id. The sixty-day statute of limitations against the claimant begins to run "if the notice warns the claimant of the impending bar." Id. Under the same provision of the probate code, the estate in this case had to determine the validity of all claims within sixty days of December 12, 1983. Any claim which was not disallowed by the end of that period would be deemed allowed as a matter of law. AS 13.16.475(a). On December 9, the lawyers inquired by letter of the estate's attorney, Richard Saveli, about the status of their claim. Saveli responded by letter (the Saveli letter) on December 22. The Saveli letter stated, in relevant part: I am in receipt of your letter dated December 9,1983 inquiring of the status of the Evans Estate. As I explained to you in our conversation of December 8, 1983,1 will need more information in order to advise the personal representative in making a determination as to your claim. I have requested background documentation from you so that I can gain the fullest understanding of the case you handled [on behalf of Evans] and its settlement. I have requested to see the notes, security, if any, and complaint prepared by [the party that sued Evans and his partners]. I will also need all pleadings prepared by you, the final settlement agreement, correspondence between you and Jerry [Evans], and a record of attorney time devoted to Jerry's case. Finally, I should be advised of the total fees agreed to be paid by all parties, including the fees from [one of Evans' partners] on his affirmative recovery from the [plaintiff], and any and all fees arrangements made with Jerry before, after or during the case. Lest we drop the ball and delay acting upon the claim while waiting for a response from you, it would be safer to disallow the claim pending receipt of the requested documentation. Of course, the personal representatives will reconsider any decision within the next sixty days if the requested material is provided. After sixty days the claim will be barred under AS 13.16.475. I look forward to your cooperation in complying with my requests so that a satisfactory resolution of this claim can be reached. It was not until May 1993 that the lawyers filed a petition for payment of their claim. The parties cross-moved for summary judgment. The estate argued that the Saveli letter was a notice of disallowance. Since the lawyers had not filed their petition within sixty days after the letter was mailed, the estate concluded that the claim was time-barred under AS 13.16.475(a). One of the lawyers, William Brattain, argues that he never understood the Saveli letter to be a disallowance of the claim. He asserts that he sent Saveli some of the documentation requested in the letter, and that Saveli informed him during a telephone conversation that "there was little point in getting involved in a drawn out controversy," because the estate was insolvent due to tax liabilities. Brattain claims he then assumed, since [he] never received an unequivocal disallowance of the claim, that Mr. Saveli concluded . [that] there was no point in disallowing the claim since: (1) it was prima facie valid; (2) there was no money to pay it; (3) there was little likelihood that sufficient assets would ever come into the estate to pay it and, (4) finally, and not insignificantly, the estate had no money to defend a full blown hearing on the merits. Brattain says that he safeguarded the promissory note on the off-chance that it might someday be paid. When the lawyers discovered that the estate had resolved its tax problems and remained solvent, they filed a petition for allowance. The affidavit testimony of another lawyer, Jerome Shulkin, basically confirmed Brattain's account. Shulkin's time sheets reflect that he spoke to Saveli and was told that the estate might be insolvent. Shulkin affirmed that he did nothing to pursue the claim, because he accepted Saveli's statement that "there was no money in the estate to pay claims." Saveli states that he intended the December 22 letter to serve as a notice of disallowance, and also recalls orally informing Brattain that the claim would be disallowed, that the State Bar might be asked to arbitrate the claim, and that additional, unspecified Bar involvement was possible. Saveli agrees that he subsequently discussed the estate's potential insolvency with Brattain, but insists that he also reiterated during that or 'another conversation that the lawyers' claim was disallowed. A probate master concluded that the Saveli letter constituted a valid notice of disallowance and that the claim was therefore time-barred under AS 13.16.475(a). The master further stated that as an "alternative to concluding as a matter of law that the Saveli Letter constitutes plain notice of disallowance on its face . undisputed facts exist which support the conclusion that [the lawyers] objectively understood the letter . to be a notice of disallowance." That is, the master considered the claim barred regardless of whether the Saveli letter was a valid notice of disallowance. The superior court adopted the master's findings and recommendation and granted summary judgment. The lawyers appeal. III. DISCUSSION A. Standard of Review Summary judgment will be affirmed if the record presents no genuine issue of material fact and if the moving party was entitled to judgment on the law applicable to the established facts. Hernandez-Robaina v. State, 849 P.2d 783, 785 n. 2 (Alaska 1993). Whether the Saveli letter constituted a legally adequate notice of disal-lowance under AS 13.16.475(a) is a question of law which we review de novo, adopting the rule which is most persuasive in light of precedent, reason and policy. Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979). B. The Saveli Letter Was Not a Proper Notice of Disallowance 1. Case law The parties agree that a notice of disallowance must be "clear and unequivocal" if it is to initiate the sixty-day period after which claims are barred. See Andrea G. Nadel, Annotation, What Constitutes Rejection of Claim Against Estate to Commence Running of Statute of Limitations Applicable to Rejected Claims, 36 A.L.R.4& 684, 688 (1985) (rejection must be "clear, unequivocal, and leave no room in the creditor's mind that the claim has been disallowed"). In support of their contention that the Saveli letter was not a sufficient notice of disallowance, the lawyers cite Hawkes Hospital v. Colley, 2 Ohio St.3d 40, 442 N.E.2d 761 (1982). That opinion states: If there has been, concurrent with the alleged rejection, an agreement to refer; or if . at the time of the alleged rejection, the administrator does or says anything from which the claimant may reasonably infer that the determination to dispute or reject the claim is not final, but that it will be further examined or considered, the administrator may not set up such a dispute as a rejection. Id., 442 N.E.2d at 763 (quotation omitted) (citations omitted). Hawkes Hospital held that the letter at issue violated this standard, because although the letter stated plainly in its final paragraph that the claim was rejected, its opening paragraph said that the claim had been referred to the probate court for a determination of validity. Id., 442 N.E.2d at 763. Because of this "unmistakable inconsistency," the court ruled that the letter could not serve as a notice of disallowance. Id. The lawyers also cite Lowery v. Hairston, 73 Md.App. 189, 533 A.2d 922 (1987). In Lowery, the claimants were attempting to exercise an option granted by the deceased, but their letters to the estate went unanswered. The claimants' lawyer then wrote the estate asking for confirmation that the claim was denied. Id., 533 A.2d at 924. In the court's view, the estate's response was not a "flat-out rejection," and could "be read to mean that . settlement may be had in the future." Id., 533 A.2d at 927-28. Consequently, the court held that the letter was "too vague and indefinite to qualify" as a notice of disallowance. Id., 533 A.2d at 927. The estate downplays the importance of case law on this subject. It correctly characterizes the cases as fact-specific in nature and argues that "[n]o case has been found which is similar enough to Mr. Saveli's letter . to decide this dispute." We find some similarities, however, between the case at bar and the cases cited by the lawyers. Accordingly, while those cases do not resolve the instant dispute, their analysis is helpful. Like the letter in Hawkes Hospital, the Saveli letter is characterized by a tension between its opening paragraph, which implies that the estate's representative would make a decision about the claim after the lawyers provided more information, and its fourth paragraph, which states that "it would be safer to disallow the claim," and sets forth the statute of limitations for filing suit. This tension may not rise to the level of an "unmistakable inconsistency," 442 N.E.2d at 763, but it violates Hawkes Hospital's principle that an estate's communication to a claimant will not be considered a rejection of a claim when the estate does or says anything from which one might reasonably infer that there has been no final decision and that the claim will be further considered. Id. In addition, like the letter in Lowery, the Saveli letter does not seem to be a "flat-out rejection." 533 A.2d at 927. Rather, it appears mainly to be an invitation to provide more information. In sum, these out-of-state eases imply that the Saveli letter was "too vague and indefinite to qualify" as a notice of disallowance. Lowery, 533 A.2d at 927. 2. The Saveli letter fails to meet the "clear and unequivocal'' standard Some passages of the letter arguably support the estate's assertion that the letter constitutes a notice of disallowance. Specifically, the fourth paragraph states: "Lest we drop the ball and delay acting upon the claim while waiting for a response from you, it would be safer to disallow the claim pending receipt of the requested documentation." However, the lawyers' reading of this portion of the letter is not implausible. They contend that [t]he phrase "... it would be safer to disallow the claim_" could easily be interpreted to mean that the writer, in the ordinary course of events, would not give the claimant an opportunity to provide ad ditional information since to do so would necessarily involve risk to the Estate, but in this case, (presumably as a professional courtesy) the writer would make an exception and wait for the requested information before making a final determination. Another passage cited by the estate reads, "Of course, the personal representatives will reconsider any decision within the next sixty days if the requested material is provided. After sixty days the claim will be barred under AS 13.16.475." (Emphasis added.) The estate argues that by referencing the sixty-day period which begins to run after a notice of disallowance, the letter clearly informs the lawyers that their claim has been denied. The passage seems capable of another interpretation, however. Since the letter refers to "any decision" instead of "this decision" or "the disallowance," the sentence can also be read to indicate that a decision will be made at some future date. The overall structure of the Saveli letter supports the proposition that it fails to meet the "clear and unequivocal" standard that applies to notices of disallowance. The focal point of the letter seems to be the paragraph in which Saveli asks the lawyers for documentation of the fees underlying the promissory note. As the A.L.R. Annotation explains: Where the executor or administrator of an estate, when presented with a claim, has requested a bill of particulars or further information in connection with the claim, several courts have held that such conduct . did not amount to a rejection of the claim for purposes of commencing the statute of limitations ., the view being taken that such behavior was inconsistent with an unequivocal rejection of the claim, and had the effect of inducing the claimant not to bring suit within the statutory period. Nadel, 36 A.L.R.4th at 688. Moreover, the letter's crucial opening and closing passages strongly imply that a final decision on the claim is not contained in the letter, but will occur at a later date. The first paragraph states that Saveli "will need more information in order to advise the personal representative in making a determination as to [the lawyers'] claim." The final paragraph anticipates cooperation with the request "so that a satisfactory resolution of this claim can be reached." In sum, the Saveli letter does not contain a "flat-out rejection," but rather contemplates further consideration of the lawyers' claim after their submission of additional information to the estate. Because a notice of disal-lowance must be clear and unequivocal, we hold that the Saveli letter does not constitute an adequate notice of disallowance. C. Summary Judgment Was Not Properly Entered on the Basis that the Lawyers Had Actual Notice of the Estate's Disallowance of their Claim 1. Actual notice The trial court adopted an alternative rationale articulated by the probate master, who found that "undisputed facts exist which support the conclusion that [the lawyers] objectively understood the letter . to be a notice of disallowance." If this conclusion were correct, then the lawyers' claim would be time-barred under AS 13.16.475(a) regardless of whether the Saveli letter constituted a proper notice of disallowance. An examination of the record, however, reveals that while it may be true that the lawyers had actual notice that their claim was rejected, it is incorrect to characterize this conclusion as supported by "undisputed facts." The master originally based her finding that the lawyers knew that their claim was rejected on the "undisputed" fact that Saveli had orally informed Brattain of the disallowance. This portion of the master's findings was subsequently deleted, however, in implicit recognition of the fact that Brattain disputed Saveli's account of the oral communication. The amended opinion maintained the position that the lawyers knew that their claim was denied, but reached this conclusion inferentially, based on (1) the fact that there was no further correspondence between the parties after the Saveli letter and (2) the fact that for nearly ten years the lawyers took no action on their claim. It was improper for the master to conclude from these facts that the lawyers must have known that their claim was rejected. This inference was not a mere recognition of undisputed testimony, as would be appropriate at the summary judgment stage. Rather, it was a rejection of Brattain's affidavit testimony, wherein he asserts that his inaction was a product of his understanding that Sa-veli had allowed the claim to lapse into acceptance because the estate had no money to pay the claim and, under such circumstances, it made no sense to reject the claim and invite litigation. The trial court's finding resulted from the master's choice between the parties' competing accounts of the facts. On summary judgment, such a choice was inappropriate and must be reversed. While actual notice can serve as a substitute for a properly executed notice of disallowance, the issue of whether the lawyers had actual notice presents a genuine issue for trial. 2. Inquiry notice The trial court also adopted the master's conclusion that because the plaintiffs were lawyers, the Saveli letter's references to a sixty-day time-bar put them on inquiry notice as to whether their claim had been disallowed. The master reasoned that "an attorney exercising the reasonable care expected of counsel should/would have made further inquiry regarding the status of the claim before the 60-day period had expired." We reject this inquiry notice theoiy as inconsistent with the law applicable to notices of disallowance. It is the estate's responsibility to compose and dispatch a notice of disallowance, AS 13.16.475(a), and the law demands that such notices be clear and unequivocal in order to facilitate communication and allow the parties to expeditiously reach the gravamen of a probate claim. See III.B., supra. An "inquiry notice rationale" would frustrate this purpose, replacing the current legal regime with one in which an estate would be encouraged to hint at disal-lowance in a way which would alert a competent attorney that her client's claim might be in jeopardy. Since the law should promote clear communication rather than obfuscation, we decline to hold that in the absence of a proper notice of disallowance, inquiry notice is sufficient to initiate the running of the sixty-day period in which a petition for allowance must be filed. IV. CONCLUSION The Saveli letter was not clear and unambiguous, and thus was not a valid notice of disallowance under AS 13.16.475(a). Additionally, there are material facts at issue as to whether the lawyers had actual notice in late 1983 that their claim had been disallowed. Consequently, this case was improperly resolved on summary judgment, and we REVERSE and REMAND for further proceedings. . The statute provides: Failure of the [estate's] personal representative to mail a claimant a notice of action on a claim for sixty days after the time for original presentation of the claim has expired has the effect of a notice of allowance, AS 13.16.475. . Shulkin's records also reflect that Saveli told him that the claim was disallowed. This conversation did not occur, however, until March 1985. Consequently, this conversation is of no relevance to the status of the lawyers' claim, because it occurred after the date on which unresolved claims against the estate would have been deemed to be allowed as a matter of law. AS 13.16.475(a). For a discussion of whether the lawyers had actual notice that their claim was disallowed within 60 days of the Saveli letter's mailing, however, see III.C., infra. . In other circumstances we have held that a statutory requirement to give written notice need not be satisfied if actual notice has been provided. Morkunas v. Anchorage Tel. Util., 754 P.2d 1117, 1120 (Alaska 1988) (provision of actual notice amounts to substantial compliance with code provision requiring written notice); In re L.A.M., 111 P.2d 1057, 1060-61 (Alaska 1986) (violation of notice requirement would be harmless if actual notice existed). . As explained in note 1, supra, it is undisputed that a March 1985 conversation between Shulkin and Saveli eventually put the lawyers on notice that Saveli had disallowed the claim. This fact does not support the lower court's grant of summary judgment, however. Unless the estate sent the lawyers a notice of disallowance within sixty days after December 12, 1983, the claim would be considered allowed as a matter of law under AS 13.16.475(a). A conversation that did not occur until March of 1985 is thus of no relevance in determining the status of the lawyers' claim.

11890961

Noel GARCIA, Appellant, v. STATE of Alaska, Appellee; George MORANGE, Appellant, v. STATE of Alaska, Appellee; Richard A. RUTAN, Appellant, v. STATE of Alaska, Appellee

Garcia v. State

1997-11-14

Nos. A-6389, A-6390 and A-6391

1363

1367

947 P.2d 1363

947

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T18:49:14.956391+00:00

CAP

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

Noel GARCIA, Appellant, v. STATE of Alaska, Appellee. George MORANGE, Appellant, v. STATE of Alaska, Appellee. Richard A. RUTAN, Appellant, v. STATE of Alaska, Appellee.

Noel GARCIA, Appellant, v. STATE of Alaska, Appellee. George MORANGE, Appellant, v. STATE of Alaska, Appellee. Richard A. RUTAN, Appellant, v. STATE of Alaska, Appellee. Nos. A-6389, A-6390 and A-6391. Court of Appeals of Alaska. Nov. 14, 1997. Patrick Reilly, Seward, for Appellants Garcia and Morange. Daniel L. Aaronson, Kenai, for Appellant Rutan. Todd K. Sherwood, Assistant District Attorney, Sharon A.S. Illsley, District Attorney, Kenai, and Bruce M. Botelho, Attorney General, Juneau, for Appellee. Before COATS, C.J., and ' MANNHEIMER and STEWART, JJ.

2580

15860

OPINION MANNHEIMER, Judge. In these consolidated appeals, we must apply Alaska Criminal Rule 45(c) to a situation that is not specifically addressed in the rule. As we explain in more detail below, the three defendants in this case were each charged with driving while intoxicated. After the Department of Public Safety took administrative action against their driver's licenses, the district court dismissed the criminal charges on double jeopardy grounds. These charges were reinstated several months later, after we decided an unrelated appeal (State v. Zerkel) that involved the same double jeopardy issue. The question is how Rule 45 should have been calculated when the district court resumed jurisdiction over the defendants' cases. We hold that, under these circumstances, Rule 45's speedy trial "clock" was reset to Day 1 when jurisdiction over the defendants' cases returned to the district court. Further, because the defendants filed suppression motions, an additional period of 30 days was excluded from the Rule 45 calculation. For these reasons, we conclude that Rule 45 was not violated, and we therefore affirm the defendants' convictions. In late 1994 and early 1995, Noel Garcia, George Morange, and Richard Rntan were each charged in the Seward district court with driving while intoxicated (DWI), AS 28.35.030(a). While the defendants were awaiting trial, the Department of Public Safety administratively revoked their driver's licenses. Following this administrative action against their licenses, the defendants asked the district court to dismiss the pending DWI prosecutions. They asserted that the revocation of their licenses constituted a "punishment" for the act of driving while intoxicated and, thus, any additional criminal prosecution based on the same incident would violate the guarantees against double jeopardy contained in the Fifth and Fourteenth Amendments to the United States Constitution and in Article I, Section 9 of the Alaska Constitution. The district court agreed with the defendants and dismissed their DWI cases. The State appealed these dismissals. All of this happened while this court was actively considering the same double jeopardy issue in a group of consolidated cases now known as State v. Zerkel. The State's appeal of the three dismissals in this case was held in abeyance pending our decision in Zerkel. On July 28, 1995, this court held that administrative suspension or revocation of a driver's license based on the driver's act of driving while intoxicated or refusing to submit to a breath test did not constitute a "punishment" for double jeopardy purposes, and thus the driver could later be prosecuted for a criminal offense based on the same conduct. State v. Zerkel, 900 P.2d 744 (Alaska App.1995). Within a few weeks of our decision, the Seward district court reinstated the criminal charges against Garcia, Morange, and Rutan. Almost immediately, the defendants filed motions to suppress their Intoximeter results on the grounds that the machine used to test their breath had not been properly calibrated. However, the district court acted prematurely when it reinstated the charges against the three defendants: jurisdiction over the defendants' cases had not yet returned to the district court. A petition for hearing was filed in Zerkel, and thus our decision had not yet become final. While the Zerkel petition for hearing was still pending, the Seward district court recognized its jurisdictional error and withdrew its orders reinstating the defendants' prosecutions. The defendants' cases were again dismissed (with the State's appeal pending). On December 4, 1995, the supreme court denied the petition for hearing in Zerkel. On January 12, 1996, this court issued an order dealing with all the cases that had been held in abeyance pending resolution of Zerkel. In pertinent part, our order stated: In all cases where criminal charges were dismissed based on a trial court ruling that administrative suspension or revocation of the defendant's driver's license barred a later criminal prosecution for a related driving offense: these eases shall be REMANDED to the trial courts for further consideration in light of this Court's decision in Zerkel. For purposes of deciding the present appeals, we assume that the Seward district court reassumed jurisdiction over Garcia's, Morange's, and Rutan's cases on January 13, 1996 — the day after we issued this order. The primary question presented in this appeal is how to calculate the time for bringing these three defendants to trial under Criminal Rule 45. Two provisions of Rule 45 — subsections (c)(2) and (c)(5) — -specifically address instances in which charges are dismissed and then reinstituted. However, neither provision directly governs the facts of this case. Rule 45(c)(2) declares: Refiling of Original Charge. If a charge is dismissed by the prosecution, the refiling of the charge shall not extend the time. If a charge is dismissed upon motion of the defendant, the time for trial shall run from the date of service of the second charge. In the present appeal, the charges were dismissed upon the defendants' motions, but there were never any "second charges". Instead, the district court reconsidered its dismissal order in light of Zerkel and then reinstated the original charges. Rule 45(c)(5) declares: Mistrial, New Trial or Remand. If the defendant is to be tried again following a mistrial, an order for a new trial, or an appeal or collateral attack, the time for trial shall run from the date of mistrial, order granting a new trial, or remand. This provision addresses situations in which defendants have already been tried once and now face a second trial, either because their first trial ended in a mistrial, or because they appealed their conviction and it was overturned, or because they received a favorable ruling on a motion for new trial or a petition for post-conviction relief. The present case is different: it involves a situation in which charges were reinstated following the government's appeal of a pre-trial order of dismissal and, ultimately, the trial court's rescission of that order (after this court returned jurisdiction over this matter to the trial court). Under these facts, the defendants were not going to be "tried again", but rather tried for the first time. Thus, neither Rule 45(c)(2) nor Rule 45(c)(5) directly addresses the present situation, where the government has obtained reversal or reconsideration of a trial court's order of dismissal, thereby causing reinstatement of the pre-existing charge. The defendants contend that, because neither (c)(2) nor (c)(5) directly applies to their case, the answer to the present Rule 45 problem must be found in our decisions in Sundberg v. State, 657 P.2d 843 (Alaska App.1982), and 667 P.2d 1268 (Alaska App.1983). The question in Sundberg was how to handle the Rule 45 speedy trial calculation when a defendant's case returned to the trial court after being on hold for several months while the appellate courts resolved a petition for review involving an evidentiary ruling. This court ultimately ruled that extra time should be granted in such circumstances — up to 30 days automatically, and more time if the State can prove that more time is reasonable. Sundberg (II), 667 P.2d at 1270. The defendants contend that their case should be decided under the Sundberg rule. That is, the defendants argue that Rule 45 was tolled during the State's appeal (so that the intervening months were not counted toward the 120 days), but the 120-day time limit was not started anew when the district court reinstated the charges. We conclude, however, that the defendants' case should not be resolved under Sundberg. Criminal Rule 45 did not contain subsection (e)(2) when Sundberg was decided; the supreme court enacted this provision ten years later. See Supreme Court Order No. 1127 (effective July 15, 1993). When we apply the policy of subsection (c)(2) to the present case, we conclude that Sundberg should not govern this ease. Instead, we apply a rule analogous to the rule codified in subsection (c)(2): the district court's reinstatement of the charges restarted the Rule 45 calculation at Day 1. Coneededly, Rule 45(c)(2) only contains directions for what to do if the State accepts the trial court's dismissal and files new charges. It seems that no provision of Rule 45(c) directly addresses what to do when charges are dismissed on the defendant's motion but the State, instead of filing new charges, pursues an appeal of the trial court's dismissal order and ultimately obtains reversal or rescission of the dismissal. However, when the supreme court added subsection (e)(2) to Rule 45, the court manifested its intent to have Rule 45 restarted (not merely extended) when a prosecution is reinstituted after criminal charges have been dismissed on the defendant's motion. Rule 45(c)(2) essentially "overrules" this court's decision in State v. Nitz, 684 P.2d 134, 138 (Alaska App.1984), where we held that, when a defendant is reindicted following the trial court's dismissal of a previous indictment, the new indictment is "treated as a continuation of the original prosecution for purposes of the speedy trial rule". Under Rule 45(c)(2), this is no longer true; instead, the speedy trial calculation is restarted. The three defendants in this case admit that if the State had not appealed the district court's dismissal order, but had instead simply waited for our decision in Zerkel and had then refiled DWI charges against the defendants, the Rule 45 calculation would have started anew, pursuant to subsection (c)(2). We perceive no convincing reason why the State's decision to appeal should change the Rule 45 outcome. In either situation, criminal charges have been dismissed on the defendant's motion and the government is diligently seeking to reanimate the prosecution. If the filing of an identical second charge restarts the Rule 45 calculation, so too should the reinstatement of the original charge. Accordingly, we hold that Rule 45 was restarted (reset to Day 1) on January 13, 1996 — the day we returned jurisdiction over the three defendants' cases to the district court. On that day, the district court already had suppression motions under advisement in each of the three defendants' cases. (As described above, the defendants had each filed a motion to suppress their Intoximeter results during the period when the district court did not have jurisdiction to hear such motions.) Criminal Rule 45(d)(1) states that the Rule 45 "clock" is tolled by the filing of a suppression motion, but the clock begins to run again when the trial court holds a pre-trial motion under advisement for longer than 30 days. The district court did not rule on the defendants' suppression motions until February 22nd. The 30-day time limit of Rule 45(d)(1) expired on February 11, 1996. Thus, the Rule 45 clock began to run on February 12th; that day was Day 1 for Rule 45 purposes. Without further tolling, the 120 days allowed by Rule 45 for bringing the defendants to trial would have expired on June 10, 1996. The defendants were notified in mid-May that their eases would be called for trial on May 28, 1996 — a trial date that was within the limits of Rule 45. Within days of receiving these trial notices, each of the defendants moved to dismiss their case for violation of Rule 45. Under Rule 45(d)(1), the defendants' motions to dismiss tolled the running of Rule 45. See State v. Angaiak, 847 P.2d 1068, 1072 n. 5 (Alaska App.1993). In the end, the defendants never went to trial: after the district court denied their Rule 45 motions, the defendants entered Cooksey pleas (reserving their right to raise their Rule 45 claim on appeal). See Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska 1974). For these reasons, we conclude that Rule 45 was not violated in the defendants' eases. Our reasoning is different from the reasoning employed by the district court, but we are authorized to affirm the district court's decision on any legal ground revealed by the record. Rutherford v. State, 605 P.2d 16, 21 n. 12 (Alaska 1979); Ransom v. Haner, 362 P.2d 282, 285 (Alaska 1961); Millman v. State, 841 P.2d 190, 195 (Alaska App.1992). The judgements of the district court are AFFIRMED. . Defendants Garcia and Morange argue, without citation to any legal authority, that the district court never lost jurisdiction of their cases, despite the State's appeal of the district court's dismissal order. This contention is seemingly at odds with Appellate Rule 203, which declares that "supervision and control of the proceedings on appeal is in the appellate court from the time the notice of appeal is filed". Rule 203 further states that the appellate court "may at any time entertain a motion . for directions to the trial court, or to modify or vacate any order made by the trial court in relation to the prosecution of the appeal". This language implies that, once the trial court has issued a final order and an appeal has been taken, the trial court no longer has the authority to modify its order unless permission has been granted by the appellate court. See, e.g., State v. Salinas, 362 P.2d 298, 301 (Alaska 1961), and Bowell v. State, 728 P.2d 1220, 1226 n. 5 (Alaska App.1986), overruled on other grounds, Echols v. State, 818 P.2d 691 (Alaska App.1991), both indicating that a trial court does not have jurisdiction to grant a motion for new trial while an appeal is pending, unless the appellate court has remanded the case to the trial court for that purpose. Because Garcia and Morange have presented a purely conclusory argument that fails to address the legal authorities cited in the preceding paragraph (and fails to cite any others), wc conclude that the two defendants have inadequately briefed their argument that the district court retained concurrent jurisdiction to modify its dismissal order during the State's appeal. On account of this inadequate briefing, the argument is waived. Petersen v. Mutual Life Ins. Co. of New York, 803 P.2d 406, 410 (Alaska 1990); Wren v. State, 577 P.2d 235, 237 n. 2 (Alaska 1978). . We note that, in the present case, the district court's order of dismissal became final, the State filed an appeal, and the district court lost jurisdiction of the defendant's cases for several months. We express no opinion as to how Rule 45 should be calculated (extended versus restarted) when the trial court, still having jurisdiction over the case, reinstates dismissed charges shortly after it enters the order of dismissal — for example, in response to a timely motion for reconsideration filed by the government. This situation is arguably more analogous to Sundberg, so that the reinstatement could be viewed as simply a continuation of the original proceedings for Rule 45 purposes. . Criminal Rule 45(d)(1) provides, in pertinent part: The period of delay resulting from other proceedings concerning the defendant, including but not limited to motions to dismiss or suppress . [is exempted from the speedy trial calculation]. [However, no] pre-trial motion shall be held under advisement for more than 30 days[,] and any time longer than 30 days shall not be considered as an excluded period.

10402418

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

Bond v. State

1987-12-24

No. A-2066

546

548

747 P.2d 546

747

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T18:50:40.035891+00:00

CAP

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

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

Michael BOND, Appellant, v. STATE of Alaska, Appellee. No. A-2066. Court of Appeals of Alaska. Dec. 24, 1987. Joseph A. Kalamarides, Kalamarides & MacMillan, Anchorage, for appellant. Cynthia L. Ducey, Asst. Dist. Atty., Dwayne W. McConnell, Dist. Atty., Anchorage, and Grace Berg Schaible, Atty. Gen., Juneau, for appellee.

952

6035

OPINION Before BRYNER, C.J., and COATS and SINGLETON, JJ. COATS, Judge. Michael Bond was convicted by a jury of misconduct involving a controlled substance in the second degree, a class A felony. AS 11.71.020. A defendant convicted of a class A felony is subject to a maximum sentence of twenty years. The presumptive sentence for a first felony offender is five years. AS 12.55.125(c). Bond is a first felony offender. Trial Judge Roy H. Madsen concluded that imposing the five-year presumptive term would constitute manifest injustice and referred the case to the three-judge panel. AS 12.55.165. In referring Bond's case to the three-judge panel, Judge Madsen relied on Lloyd v. State, 672 P.2d 152, 154 (Alaska App.1983), which directed trial judges to resolve doubts about whether a particular presumptive sentence constituted manifest injustice in favor of referring the case to the three-judge panel. Bond was convicted of delivering one hundred Dilaudid tablets for $5,000 to undercover Officer Wilbur Hooks through an accomplice, Willie Roberts. The panel concluded that this offense was significant, based upon the quantity of drugs and the amount of money involved. The panel concluded that this sale had been made to obtain a monetary profit. At the time of sentencing Bond was forty-one years of age. His only prior conviction was for manufacturing alcohol in 1984. He was sentenced to thirty days with twenty days suspended on this, offense. The three-judge panel concluded that Bond's prospects for rehabilitation were good, but not so extraordinary that imposition of the presumptive term would be manifestly unjust. In making this finding, the court pointed out Bond's clean prior record, responsible family history, history of community service, and support from the community. The panel directed Judge Madsen to impose the presumptive term. On remand from the three-judge panel, Judge Madsen imposed the five-year presumptive term. Bond now appeals. We affirm. Bond first argues that the three-judge panel erred in not finding the presumptive term manifestly unjust because of his prospects for rehabilitation. See Smith v. State, 711 P.2d 561 (Alaska App.1985). Given Bond's age and the nature and seriousness of his offense, however, we believe that the three-judge panel could properly find that Bond's good prospects for rehabilitation did not require imposition of less than the presumptive sentence. Bond next argues that the three-judge panel erred in not considering the fact that he had been under court custody for two years prior to his conviction. Bond was tried three times before he was ultimately convicted of this offense. In his appeal, Bond has not argued that his conditions of release were particularly onerous. The fact that he was facing charges for two years and had to undergo three trials, however, is a difficult circumstance that a sentencing court could consider. It seems clear, however, that the three-judge panel did consider this fact and still concluded that imposition of the presumptive term would not be manifestly unjust. We believe that the three-judge panel could properly arrive at this conclusion. Most defendants in criminal cases will have their freedom restricted to some degree and will be under enormous pressure because of pending criminal charges. Because of the length of the proceedings and the fact that he had to undergo three trials, it appears that Bond's experience may have been more difficult than most. We do not believe, however, that this circumstance was so egregious as to require the three-judge panel to afford Bond relief by finding the existence of a nonstatutory mitigating factor and reducing Bond's sentence from the presumptive term. Bond next argues that his sentence is excessive in comparison with other sentences for similar offenses. Bond cites McReynolds v. State, 739 P.2d 175 (Alaska App.1987). In McReynolds, we concluded that McReynolds' sentence for a transfer of heroin should not exceed five years with two and one-half years suspended. McRey-nolds' case, however, involved the sale of less than one-quarter of a gram of heroin for one hundred dollars under mitigated circumstances. Id. at 179-180. In McRey-nolds' case, the trial judge found two distinct mitigating factors. The judge found that the offense involved a small quantity of drugs. AS 12.55.155(d)(14). The trial judge also found that McReynolds' conduct was among the least serious within the definition of the offense. AS 12.55.-155(d)(9). We summarized McReynolds' conduct as follows: In short, McReynolds was convicted of an isolated, non-commercial sale of a minute quantity of drugs; the transaction was instigated by McReynolds' friend, and McReynolds apparently derived no personal profit therefrom. Without assuming the presence of extraordinary circumstances that would have justified referral to the three-judge panel, it is difficult to envision a less serious transaction involving heroin than the one involved in this case, or one that would depart further from the type of conduct that is characteristic of this type of offense. 739 P.2d at 180 (footnote omitted). By contrast, Bond's sale involved a substantial quantity of drugs for a substantial amount of money and was done strictly for profit. We have reviewed the other cases cited by Bond and conclude that the sentence which Bond received is not out of line with other sentences that have been imposed for similar offenses, even in light of the provisions of the revised criminal code. Given Bond's age and the nature and seriousness of his offense, we conclude that the sentence which he received was not clearly mistaken. The judgment of the superior court is AFFIRMED.

10459160

ARCO PIPELINE COMPANY et al., Petitioners, v. 3.60 ACRES, MORE OR LESS, etc., and Jackie J. Stewart, et al., Respondents

Arco Pipeline Co. v. 3.60 Acres, More or Less

1975-08-01

No. 2419

64

73

539 P.2d 64

539

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

ARCO PIPELINE COMPANY et al., Petitioners, v. 3.60 ACRES, MORE OR LESS, etc., and Jackie J. Stewart, et al., Respondents.

ARCO PIPELINE COMPANY et al., Petitioners, v. 3.60 ACRES, MORE OR LESS, etc., and Jackie J. Stewart, et al., Respondents. No. 2419. Supreme Court of Alaska. Aug. 1, 1975. Karl L. Walter, Jr., of Groh, Benkert & Walter, Anchorage, for petitioners. Jackie J. Stewart, in pro. per. Before RABINOWITZ, C. J., and CONNOR, ERWIN, and BURKE, JJ.

5331

32512

OPINION ERWIN, Justice. Petitioners are the owners and constructors of the Trans-Alaska Pipeline. In order to facilitate the prompt completion of this monumental and historic project, the State of Alaska in AS 38.35.130 authorized a delegation of its power of eminent domain and permitted thereby the use by petitioners of a declaration of taking to condemn real property in the state for right-of-way purposes. Pursuant to this grant, on July 15th, 1974, petitioners filed an eminent domain complaint and a declaration of taking seeking to condemn a 3.6 acre right-of-way and easement — 100 feet wide arid approximately 1400 feet long — across the 80 acre homestead of respondent Stewart in the area of Delta Junction. The sum of $700.00 was deposited in the court as estimated compensation for the taking. Respondent Stewart answered and asserted that condemnation of the respondent's property was not necessary since petitioners had public lands available to them which were suitable for the pipeline construction. A consolidated hearing concerning this as well as other parcels in the same area was conducted on September 20 and November 1, 1974. At the hearing petitioners offered expert testimony on the subjects of route selection and design criteria and the necessity of the taking of respondent's property. The testimony revealed that in the opinion of the pipeline company the route selected was optimal in satisfying design and construction criteria and maintained the straightest line possible, one having the fewest number of angles detrimental to the proper flow of crude oil. The expert testimony further indicated that core drilling of the property had revealed that the soil was suitable for burying the pipeline. Respondent, on the other hand, offered no testimony questioning the efficacy of the route selected, but provided instead evidence that there were state and university lands north of respondent's property over which the pipeline could be constructed. After hearing the testimony and after additional briefing the trial court denied the taking, concluding that petitioners had failed to demonstrate that they had considered routing the line over public lands and thereby avoid private injury. The court ruled that where the option of alternative routing over public land exists petitioners have the burden of submitting convincing evidence that they have at least considered the alternative routing across state land to avoid private injury, and that they must give cogent reasons for their ultimate selection. Following the decision a petition for review was filed in the Supreme Court and an order granting such review was entered on February 18, 1975. Before discussing the issues raised in this review, it should be pointed out that the trial court specifically found that petitioners have been given statutory authority by the state of Alaska to take property for the construction of the Trans-Alaska Pipeline; it also apparently found that petitioners had been properly delegated this power and had otherwise complied with the applicable statutes governing the exercise of the power of condemnation by way of declaration of taking. These conclusions are supported on the record and have not been contested herein by respondent. They are therefore not at issue in this Petition for Review. The specific issue presented here for review is whether or not the trial court was correct in its determination that for purposes of the exercise of the power of condemnation,by way of a declaration of taking petitioners have the burden of showing consideration of possible alternate pipeline routes and of providing sufficient proof of the necessity of the particular route selected. The resolution of this question necessarily entails an analysis of the statutes governing the use of a declaration of taking by petitioners and, correlatively, an inquiry into the question of the proper scope of judicial review in such proceedings. AS 09.55.420-09.55.450, governing the use of a declaration of taking in this state, constitute the authority for petitioners' taking in this case. In Bridges v. Alaska Housing Authority, 349 P.2d 149 (Alaska 1959), the only case in which this court has engaged in a comprehensive analysis of the general import of these provisions in the context of the exercise of eminent domain in this state, it was observed that [a] declaration of taking enlarges the rights of the condemning authority and reduces those of the landowner. Upon the filing of the declaration and a deposit of the amount of compensation estimated to be due, title to the real property vests in the condemning agency and "such real property shall be deemed to be condemned and taken for the use of the condemning agency And then, without the necessity of awaiting the report of the commissioners and assessment of damages, the court is given the power "to fix the time within which and the terms upon which the parties in possession shall be required to surrender possession" to the condemning authority. The Court further concluded that [i]t apparently was not intended that the declaration of taking power should merely supplement the procedural aspects of the then existing statutory provisions on eminent domain. . . . The declaration of taking is a power of eminent domain, and not only a manner of exercising a power otherwise conferred. More than procedure is involved; substantive rights are affected. We take this opportunity to observe that changes in the language of the declaration of taking provisions since Bridges have been — at least for purposes of this review —minor, and we consequently recognize the applicability of the Bridges analysis to the case at hand. In Bridges, however, we were not called upon to consider the effect of the declaration of taking provisions in light of other statutes which govern eminent domain proceedings in general. It is this interrelationship which is at the crux of this review. The trial court, in holding that petitioners were obliged to demonstrate in convincing terms the necessity of selecting one route as opposed to other alternatives which might arguably minimize private injury, premised its ruling upon the conclusion that the petitioners' action was governed by the same rules which apply to any governmental exercise of the power of eminent domain. Obviously looking to such statutes as AS 09.55.260 through 09.55.-280, and 09.55.300, the court quite reasonably concluded that it was therefore the province of the court to require the condemnor to prove to the satisfaction of the court that the selected route is consistent with the greatest public benefit and to the least private injury. However, a consideration of the clear legislative intent that the prompt completion of the pipeline be facilitated under the Right-of-Way Leasing Act, our reading and analysis of certain critical provisions governing the effect of the use of a declaration of taking, and the continued recognition and validation of the approach we adopted in Bridges lead us to the conclusion that the court erred in concluding that in a proceeding for condemnation by way of a declaration of taking the court is empowered to require the condemnor to prove the necessity of a given taking. Our declaration of taking statutes were patterned upon the language of 40 U.S.C. § 258a which governs "quick take" eminent domain proceedings by the United States. Decisions interpreting this federal statute may consequently be considered persuasive for purposes of construing the analogous provisions of our own statutes. A review of such decision reveals that it has been consistently recognized that the effect of the language of § 258a is that once a declaration of taking is filed title to the property is transferred to the condemning authority subject only to the right of the property owner to challenge the validity of the taking as not being for an authorized public purpose or as having been made capriciously or in bad faith. It has, for example, been held that absent bad faith, if the use is a public one the necessity of a given taking is not a question for judicial determination; that once the declaration of taking is filed and the estimated compensation is deposited, neither the condemnee nor the court has the power to question the condemnor's determination of the necessity of a particular taking; and that as the judicial role in examining such condemnation proceedings does not extend to determining whether the land sought is actually necessary to the project, the court's review power is limited to those cases where there has been some clear abuse of administrative discretion — where the officials making the administrative decisions have acted in bad faith or so capriciously and arbitrarily that their action was without adequate determining principle or was unreasoned. Such an approach is in keeping with what would appear to be the general rule that the scope of review of any taking in eminent domain is extremely limited; that questions of necessity and expediency are largely beyond the reach of the court, which ought generally to limit its inquiry to the question of the existence of a proper public purpose and the absence of any abuse of the power of condemnation. It is consequently recognized that it is no defense in a condemnation proceeding that some other location for the taking might reasonably have been selected or some other suitable property obtained. As against this proposition, however, Alaska is among the minority of jurisdictions which statutorily call for judicial inquiry into the question of necessity in eminent domain proceedings. AS 09.-SS.270, for example, specifically requires for a showing that the taking "is necessary to the use" before property can be taken. The resultant conflict between this provision and the concept of judicial review developed under the language of 40 U.S.C. § 258a — which may be presumed to have been intended to apply to our declaration of taking provisions — seems clear. Recognizing our duty to construe statutes covering the same subject matter in pari materia, and to adopt where possible a reasonable construction of each which realizes legislative intent and avoids conflict or inconsistency with the other, we nev ertheless find the concept of judicial review embodied in our general eminent domain statutes to be inconsistent with and inappropriate to proceedings under a declaration of taking. The conclusion seems inescapable that there exists a clear functional distinction between proceedings in condemnation under a declaration of taking and those under a complaint seeking condemnation and an order for possession. Under the former title passes immediately upon filing and deposit — at which time, under AS 09.55.440, the property is deemed to be "condemned and taken for the use of the plaintiff." Under the latter no such vesting occurs; title does not vest, nor does "condemnation" actually occur until the final award is determined and an order and judgment of condemnation is entered by the court. As recognized in Bridges, as well as later cases, the difference in the nature of these two proceedings is not merely procedural; the almost summary quality of the former bespeaks the grant of an additional substantive power of condemnation which considerably reduces the rights of the landowner to contest the taking. Consequently, reading AS 09.55.420 to 09.-55.450 in this light, we are lead to the conclusion that the intent of these provisions was to bring, in summary fashion, statutory finality to the questions of title and right to possession even though litigation continues with respect to the ultimate amount of compensation to be paid. If such finality is to be given any meaningful effect, we conclude that such vesting must be subject only to the rather limited right of the owner to contest the validity of the taking as not being statutorily authorized or as having been capriciously or arbitrarily exercised. To permit the owner to challenge the necessity of the particular taking without an initial showing on his part that it is the result of some clear abuse of discretion is to give the concept of a declaration of taking no more effect than that of a complaint in any condemnation proceeding; such an interpretation would render the language of AS 09.55.440 noted above essentially meaningless. We would note at this juncture that although the enabling legislation under which petitioners are empowered to use a declaration of taking does not refer to or incorporate it — and we consequently do not find it wholly dispositive of the case at hand — AS 09.55.460(b) provides in part that [t]he plaintiff may not be divested of a title acquired except where the court finds that the property was not taken for a public use. We find that this express declaration of legislative intent as to the scope of judicial review in such proceedings lends considerable support for the conclusion we reach today. Our decision that the question of necessity under a declaration of taking is not one for initial judicial consideration as in the case of other condemnation proceedings is also buttressed by several other factors. There is evidence, for example, that the legislature was at least well aware of the substantive differences in the two types of proceedings when it considered the use of eminent domain powers for pipeline right-of-way acquisition. Prior to the adoption of the present AS 38.35.130 an amendment was offered to the bill which would have authorized for pipeline purposes the exercise of eminent domain powers only under AS 09.55.240-09.55.410, the general eminent domain provisions. Such an approach was rejected, however, and the present version allowing the use of a declaration of taking was adopted instead. It must next be recognized that the Montana case law upon which the trial court apparently founded at least part of its decision arises from a statutory scheme which does not recognize at all the concept of a declaration of taking or any other such "quick take" proceeding. Moreover, there is evidence that the courts of Montana have themselves not been entirely consistent on the subject of judicial review of administrative determinations of necessity. In State Highway Commission v. Crossen-Nissen Co., 145 Mont. 251, 400 P.2d 283, 285 (1965), for example, it was held that although (in a normal eminent domain action) the plaintiff has the initial burden of making some sort of prima facie showing of necessity, it is incumbent upon the defendant to show fraud, abuse of discretion or arbitrary action in order to defeat the action of the [plaintiff]. The court went on to hold that even when necessity has been challenged on the ground of arbitrariness or exces-siveness of the taking, there is left largely to the discretion of the condemnor the location, route, and area of the land to be taken. There rests upon the shoulders of one seeking to show that the taking has been excessive or arbitrary, a heavy burden of proof in the attempt to persuade the court to substitute its judgment for that of the condemnor. . "[Such] proof should be made clear and convincing; otherwise no location could ever be made." Assuming arguendo that such an eviden-tiary rule is wholly appropriate for proceedings under the same general eminent domain provisions in this state (a question we need not reach in this case), we find it difficult to square this analysis of burdens of proof with the ruling upon which the trial court based its decision — that the con-demnor is under a burden of demonstrating ab initio its consideration of alternative routes and of justifying the ultimate route selected. The mandate of a prima facie showing of "necessity," even in Montana, has been held to require only a showing that the particular property taken is "reasonably requisite and proper for the accomplishment of the purpose for which it is sought." Notwithstanding the difficulty involved in reconciling these positions, or Montana case law, we are persuaded that no such burden of proof as was imposed by the trial court was ever intended to apply to proceedings under a declaration of taking in this state. The final touchstone leading us to the conclusion that AS 09.55.420-09.55.450 were clearly intended to authorize a more summary and less judicially dependent exercise of the power of eminent domain is found in the original act under which the declaration of taking proceeding was authorized. Sections 1 through 8 of chapter 90, SLA 1953, authorized the use of a declaration of taking as a special supplemental proceeding "to provide for obtaining possession of lands taken for public highway purposes by eminent domain." Prior to 1953 no such proceeding was recognized under Alaskan law. Although now no longer limited to public highway purposes, the state being authorized to use the proceeding for any purpose for which the right of eminent domain may be exercised, the original 1953 Act is otherwise in almost every respect identical to the present provisions. The 1953 Act, however, contained a severability clause which specifically provided in addition that [a] 11 laws or portions of laws inconsistent with the policy and provisions of this Act are hereby repealed to the extent of such inconsistency in their application to the declaration of taking procedure authorized by this Act. This provision, though not incorporated in the original 1962 codification of the Alaska Code of Civil Procedure, not only clearly reflects a legislative recognition of the substantive difference between the use of this special power and that of eminent domain in general, but it also evidences in its express repealer language an intent that the exercise of this power should not be restricted by limitations, otherwise applicable to eminent domain, which are inconsistent with the policies of immediate vestiture of title and the limited power of the court to divest such title once acquired (as is reflected in the present AS 09.55.460 noted supra). A judicial recognition of these policies appears at least by implication in our opinion in Bridges. After consideration of the foregoing, we are of the opinion that in proceedings in eminent domain by way of a declaration of taking under AS 09.55.420-09.55.450, the court is without authority, either by virtue of the express mandate of AS 09.55.460(b) or by implication from the legislative history and policy evidenced in AS 09.55.440, to review the question of the necessity of a particular taking absent a clear showing of fraud, bad faith, arbitrariness or an abuse of discretion in exercise of the power of condemnation by the condemning authority. Once an authorized public use for the taking is established by the condemnor, and statutory and procedural requirements are otherwise satisfied, that the particular taking is reasonably requisite to the realization of that use shall be presumed. Notwithstanding such provisions as AS 09.55.270(2), judicial inquiry into such necessity or the condemnor's determinations with respect thereto is not appropriate unless and until the condemnee has presented clear and convincing evidence that the condemnor has acted in bad faith or so capriciously and arbitrarily as to indicate the absence of any reasonable determining principle. In this case it is clear that the use intended is public and statutorily authorized. Petitioners have, moreover, presented unrebutted evidence to the effect that the design and construction criteria for the pipeline are most feasibly satisfied by the route across the property of respondent. The fact that some other available routing might suffice or even be more desirable in some respects is not sufficient in this case to raise a proper defense to the declaration of taking. Consequently, it cannot be said that petitioner is under any duty to initially submit evidence that it has considered such alternate routing; nor can the failure to make such showing under the circumstances justify a finding of arbitrariness or an abuse of discretion. Only specific allegations of fraud, bad faith, or some gross abuse of discretion in locating the pipeline can raise issues sufficient to permit judicial review of the necessity of the taking. No such allegations have been made herein. The determination of the location of the pipeline must therefore be left to the agency charged with carrying out its completion. The order of the superior court is vacated and the case is remanded for further proceedings in conformity with this opinion. Vacated and remanded. BOOCHEVER, J., not participating. . AS 38.35.130 of the Right-of-Way Leasing Act provides in part: (a) The lessee may, if the commissioner delegates the function to it, condemn, by declaration of taking, under AS 09.55.420-09.55.450, real property and acquire leases of or easements or rights-of-way on lands in the state required for right-of-way purposes for a pipeline subject to the lease on behalf of and as agent for the state in which title to or interest in the land shall vest. . We note that the record reveals that on July 2, 1974, the Commissioner of the Department of Natural Resources executed a Delegation of Authority under the statute and specifically authorized thereby petitioners' use of a declaration of taking to condemn the Stewart property. . The pertinent provisions of these statutes read as follows: Sec. 09.55.420. Declaration of talcing by state or municipality, (a) Where a proceeding is instituted under § 240-460 of this chapter by the state, it may file a declaration of taking with the complaint or at any time after the filing of the complaint, but before judgment. . . Sec. 09.55.430. Contents of declaration of talcing. The declaration of taking shall contain (1) a statement of the authority under which the property or an interest in it is taken; (2) a statement of the public use for which the property or an interest in it is taken; (3) a description of the property sufficient for the identification of it; (4) a statement of the estate or interest in the property; (5) a map or plat showing the location of the property; (6) a statement of the amount of money estimated by the plaintiff to be just compensation for the property or the interest in it. Sec. 09.55.440. Vesting of title and compensation. (a) Upon the filing of the declaration of taking and the deposit with the court of the amount of the estimated compensation stated in the declaration, title to the estate as specified in the declaration vests in the plaintiff, and that property is condemned and taken for the use of the plaintiff, and the right to just compensation for it vests in the persons entitled to it. The compensation shall be ascertained and awarded in the proceeding and established by judgment. . . . Sec. 09.55.450. Right of entry and possession. (a) Upon the filing of the declaration of taking and the deposit of the estimated compensation, the court may, upon motion, fix the time during which and the terms upon which the parties in possession are required to surrender possession to the petitioner. However, the right of entry shall not be granted the plaintiff until after the running of the time for the defendant to file an objection to the declaration of taking. . (c) The right to take possession and title in advance of final judgment where a declaration of taking is filed is in addition to any other rights to take possession provided in § 249-460 of this chapter. . Note 1 supra. . 349 P.2d at 153-54 (footnote omitted). . Id. at 153. . These sections provide in pertinent part: See. 09.55.260. Private property subject to be taken. The private property which may be taken under § 240-460 of this chapter includes (5) all rights-of-way for any of the purposes mentioned in § 240 of this chapter, and the structures and improvements on the rights-of-way, and the lands held and used in connection with them shall be subject to be connected with, crossed, or intersected by another right-of-way or improvements or structures on them; they shall also be subject to a limited use, in common with the owner, when necessary; but the uses, crossings, intersections, and connections shall be made in the manner most compatible with the greatest public benefit and least private injury; See. 09.55.270. Prerequisites. Before property can be taken, it shall appear that (2) the taking is necessary to the use; Sec. 09.55.280. Entry upon land. In all cases where land is required for public use, the state, the public entity, or persons having the authority to condemn, or its agents in charge of the use may enter upon the land and make examination, surveys, and maps and locate the boundaries; but it shall be located in the manner which will be most compatible with the greatest public good and the least private injury, and subject to the provisions of § 300 of this chapter. . Sec. 09.55.300. Powers of court. (a) The court has power (1) to regulate and determine the place and manner of making the connections and crossings or of enjoying the common uses mentioned in § 260(5) of this chapter (2) to limit the amount of property sought to be condemned if, in its opinion, the quantity sought to be condemned is not necessary. . AS 38.35.010 et seq. See, for example, the October 17, 1973, letter from Governor William A. Egan to Hon. Terry Miller, President of the Senate, which accompanied the bill which (as later modified and adopted) substantially amended the original Right-Of-Way Leasing Act of 1972. With respect to the subject of condemnation, the Governor observed that . a modified form of eminent domain has been restored so that construction of pipelines may proceed promptly. House Journal and Senate Journal of Alaska, Special Session 1973, at 8. . There is, regrettably, a dearth of legislative history available concerning the adoption of our declaration of taking statutes. To the effect that they were originally taken almost word for word from 40 U.S.C. § 258a, however, see 1960 Op. Alaska Att'y Gen., No. 15. . See Russian, Orth. Greek Cath. Church of N. America v. Alaska State Sousing Auth., 498 P.2d 737 (Alaska 1972), where this Court looked to decisions under the federal act for guidance in construing the effect of AS 09.55.420 to 09.55.440. See also Alaska Transp. Comm'n v. Alaska Airlines, Inc., 431 P.2d 510, 512 (Alaska 1967). . Wilson v. United States, 350 F.2d 901, 906-07 (10th Cir. 1965) ; United States v. Threlkeld, 72 F.2d 464, 465 (10th Cir. 1934) ; see Berman v. Parker, 348 U.S. 26, 75 S.Ct. 98, 99 L.Ed. 27 (1954) ; United States ex rel. T.V.A. v. Welch, 327 U.S. 546, 66 S.Ct. 715, 90 L.Ed. 843 (1946) ; United States v. Carmack, 329 U.S. 230, 67 S.Ct. 252, 91 L.Ed. 209 (1946) ; United States v. New York, 160 F.2d 479 (2d Cir. 1947) ; United States v. 1,278.83 Acres of Land, 12 F.R.D. 320 (E.D.Va.1952). See also 6A J. Sackman, Nichols' The Law of Etainent Domain § 27.-26, at 27-80 (rev. 3d ed. 1974) where it is stated that [sjince the wisdom and expediency of a condemnation are not matters for judicial review, defenses relating to the necessity for acquisition of property, the necessity for resorting to eminent domain to acquire it, the extent or amount of property to be taken, the choice of the tract, the wisdom or feasibility of the project, the kind of property or the nature of the estate to be acquired, are not proper. (footnote omitted) . Wilson v. United States, 350 F.2d 901, 907 (10th Cir. 1965). . United States v. Misohke, 285 F.2d 628 (8th Cir. 1961) ; United States v. 6.74 Acres of Land, 148 F.2d 618 (5th Cir. 1945). . United States v. Certain Land in Borough of Manhattan, 233 F.Supp. 899 (S.D.N.Y.1964), aff'd, 336 F.2d 1021 (2 Cir.). See also United States v. 80.5 Acres of Land, 448 F.2d 980 (9th Cir. 1971) ; United States v. 2,606.84 Acres of Land, 432 F.2d 1286 (5th Cir. 1970), cert. denied, 402 U.S 916, 91 S.Ct. 1368, 28 L.Ed.2d 658, reh. denied, 403 U.S. 912, 91 S.Ct. 2203, 29 L.Ed.2d 690. . The overwhelming weight of authority makes clear beyond any possibility of doubt that the question of the necessity or expediency of a taking in eminent domain lies within the discretion of the legislature and is not a proper subject of judicial review, (footnote omitted) 1 X Sackman, Nichols' The Law of Eminent Domain § 4.11, at 4-138 (rev. 3d ed. 1974). . 6A id. § 27.26, at 27-80. . See Ariz.Rev.Stat. § 12-1112 (1956) ; Smith-Hurd Ill.Ann.Stat. ch. 47, § 2.2(c) (1969) ; 7 Rev.Codes Mont.1947, § 93-9905 (1964). We note that though we could find no explicit legislative recognition of this fact, the editors of our own Alaska Statutes 1962 have indicated in their annotations to AS 09.55.270 that this section was derived from an almost identical provision in the Montana Statutes. See 7 Rev.Codes Mont.1947, § 93-9905 (1964). This fact would appear to offer much in the way of explanation for the trial court's reliance upon Montana precedent when it concluded that "when the condemnor fails to consider the question of the least private injury between alternate routes, its action is arbitrary and amounts to an abuse of discretion." Citing Montana Power Co. v. Bokma, 153 Mont. 390, 457 P.2d 769, 775 (1969). . Of. Nicholson v. Sorensen, 517 P.2d 766, 770 (Alaska 1973) ; Cray v. State, 463 P.2d 897, 902 (Alaska 1970). See also p. 10 & note 10 supra. . See, e. g., Stewart & Grindle, Inc. v. State, 524 P.2d 1242 (Alaska 1974) ; Smalley v. Juneau Clinic Bldg. Corp., 493 P.2d 1296 (Alaska 1972) ; United States v. Hardcastle, 10 Alaska 254 (1942). . Gordon v. Burgess Const. Co., 425 P.2d 602 (Alaska 1967). . See note 3 supra. . See City of Anchorage v. Lot 1 in Block 68 of Orig. Town., 409 P.2d 609 (Alaska 1966). . See p. 6-7 & note 5 supra. . Cf. 6A J. Sackman, Nichols' The Law of Eminent Domain § 27.25, at 27-61 to -62 (rev. 3d ed. 1974). .See the amendment offered by Senator Croft to the committee substitute for the original senate bill amending AS 38.35.130 which would have inserted after "condemn" the words "by eminent domain under AS 09.55.240-09.55.410." House Journal and Senate Journal of Alaska, Special Session 1973, at 99. Although this amendment passed the senate, the failure of both houses to concur on this as well as other amendments to the Right-of-Way Leasing Act resulted in a Free Conference Committee substitute which, as finally approved, provided the present version. .See discussion, note 17 supra. . See 7 Rev. Codes Mont.1947, § 93-9901 et seq. (1964). . State Highway Comm'n v. Crossen-Nissen Co., 145 Mont. 251, 400 P.2d 283, 284 (1965) ; accord, State Highway Comm'n v. Yost Farm Co., 142 Mont. 239, 384 P.2d 277, 279 (1963) ; State ex rel. Livingston v. District Court, 90 Mont. 191, 300 P. 916 (1931). .We note that the historical development of these provisions reflects the adoption of increasingly less restrictive limitations on the use of this power. See § 1, ch. 90, SLA 1953 (use by the Territory for public highway purposes) ; § 1, ch. 138, SLA 1955 (use by the Territory "for any purpose for which the Territory is authorized the power of eminent domain") ; § 1-5, ch. 146, SLA 1959 (extending the use of the declaration to the state, public utility and school districts) ; § 13.19-13.23, eh. 101, SLA 1962 (extending the power to first-class cities) ; § 2, ch. 122, SLA 1966 (adopting the language presently appearing in AS 09.55.420). . Section 7, ch. 90, SLA 1953. . Sections 13.19-13.23, ch. 101, SLA 1962. . It is clear, for example, that the failure of a declaration of taking to satisfy the specific requirements of AS 09.55.430 would constitute a proper defense to the condemnation. See note 3 supra. It is also manifest that a taking may properly be challenged on the ground that the condemnor's action is not in compliance with such specific restrictions on the exercise of the power as may appear in the commissioner's delegation of authority or the lease itself. . No challenge on constitutional grounds has been raised in this case and we do not reach such issue in this review. . See Williams v. Transcontinental Gas Pipe Line Corp., 89 F.Supp. 485, 488-89 (W.D.S.C.1950).

6796184

In the Disciplinary Matter Involving Deborah IVY, Attorney

In the Disciplinary Matter Involving Ivy

2016-05-20

No. S-15450

374

394

374 P.3d 374

374

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T18:50:26.742216+00:00

CAP

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

In the Disciplinary Matter Involving Deborah IVY, Attorney.

In the Disciplinary Matter Involving Deborah IVY, Attorney. No. S-15450. Supreme Court of Alaska. May 20, 2016. Charles E. Cole, Law Offices of Charles E. Cole, Fairbanks, for Deborah Ivy. Kevin G. Clarkson, Brena, Bell & Clark-son, P.C., Anchorage, for Alaska Bar Association. Before: FABE, Chief Justice, WINFREE, STOWERS, and BOLGER, Justices.

11875

76037

OPINION BOLGER, Justice. I. INTRODUCTION After remand the Alaska Bar Association Disciplinary Board again recommends disbarring an attorney who testified falsely in private civil litigation and in these disciplinary proceedings. Previously we directed the Board to reconsider sanctions in light of our holding that the attorney violated Alaska Rule of Professional Conduct 8.4 and Alaska Bar Rule 15, but not Rules of Professional Conduct 3:3 and 3.4, because the misconduct did not arise in a representative capacity After independently reviewing the record, we now conclude that the severity of this misconduct warrants disbarment. II. FACTS AND PROCEEDINGS We set out the facts and proceedings relevant to this bar matter in In re Ivy. Here we recapitulate those facts most relevant to the imposition of sanctions. Deborah Ivy and her brother, David Kyzer, were involved for several years in now-settled litigation over the dissolution and unwinding of business organizations and joint property holdings of Ivy, Kyzer, their two sisters, and others. During that litigation, relations between Kyzer and Ivy grew so acrimonious that a no-contact order was issued in December 2007. This order prohibit, ed in-person or telephone contact between Ivy and Kyzer without an attorney present and prohibited each party from coming within 500 feet of the other's residence. Ivy subsequently testified that Kyzer made improper contact with her on three occasions after this order issued. In response Kyzer filed an ethics grievance with the Alaska Bar Association, claiming that Ivy fabricated these incidents, in violation of the Alaska Rules of Professional Conduct. Two of the alleged incidents bear on the sanctions inquiry. First, on January 7, 2008, Ivy provided a 80-minute statement to a police officer, claiming that Kyzer had stalked her at a women's clothing store about ten days earlier. Based on Ivy's statement and because Ivy claimed to be in hiding and did not want to come to the courthouse, the officer offered to request a telephonic hearing for a domestic violence restraining order. The day Ivy made the police report was the same day she was scheduled to give a deposition in the litigation with Kyzer, A few days before, on January 8, the superior court had denied Ivy's motion to stay the deposition, and on January 4 we denied Ivy's emergency motion to stay the superior court order denying her request. Ivy did not appear at the January 7 deposition despite having been ordered to do so. In response to a follow-up order to appear for the deposition, Ivy's attorney reported the alleged stalking incident to the superior court. Ivy ultimately was deposed on March 18. At that deposition, Ivy testified about the alleged stalking incident. She described in great detail her movements among the various racks of clothing and the dressing rooms, Kyzer's allegedly menacing use of his vehicle, and her response. The second incident occurred in July 2010 when Ivy claimed that Kyzer assaulted her in a courtroom and that his actions constituted criminal sexual assault. 'To support this claim, Ivy filed a Notice of Sexual Assault with the court accompanied by an affidavit describing the alleged incident. - In December 2010 Kyzer filed an ethics grievance with the Alaska Bar Association, alleging that Ivy violated several Alaska Rules of Professional Conduct by falsely testifying that Kyzer stalked her and assaulted her in the courtroom. After an investigation by a special bar counsel and a hearing, the Area Hearing Committee found that Ivy knowingly provided false testimony at the deposition, in her affidavit, and during_the disciplinary proceedings. Specifically the Committee found that Ivy's testimony about the stalking incident was "not credible," that her description of how Kyzer moved his vehicle in the clothing store parking lot was "not physically possible," and that when confronted 'with this physical impossibility during cross-examination, Ivy "fabricated a new story," continued to testify falsely, and did not acknowledge that her account was flawed. The Committee also found that courtroom video accurately depicted the alleged assault and largely contradicted Ivy's claims. It further found it "not reasonably possible for someone to have experienced the inadvertent and minor bump of a brother attempting to be excused . and then to honestly or mistakenly behave that they had been sexually assaulted." The Committee also noted that Ivy testified that she had not been mistaken and that she had not imagined or hallucinated the alleged courtroom assault. Based on clear and convincing evidence, the Committee concluded that Ivy violated Rules of Professional Conduct 8.8(a)(1) and (8); 8.4(b); 8.4(a), (b), and (c); and Bar Rule 15(a)(8). Applying this court's three-step attorney sanctions inquiry, the Committee recommended disbarment given the ethical violations, Ivy's intentional mental state, the serious actual or potential injury caused by her misconduct, the recommended sanction under the American Bar Association Standards for Imposing Lawyer Sanctions and the balance 'of aggravating and mitigating factors; 'The Committee also recommended awarding. $61,282.75 in attorney's fees and costs, about $26,000 less than bar counsel requested.: The Board adopted the Committee's findings and recommendations in full. Ivy appealed. In that initial appeal we agreed with the Board's findings about both the alleged stalking incident and the alleged courtroom assault. We also agreed that sufficient circumstantial evidence established that Ivy's testimony was objectively false and that Ivy knew her testimony was not true. Accordingly we concluded that Ivy violated Rule of Professional Conduct 84 and Bar. Rule 15, However because Ivy's misconduct arose in a purely personal capacity, we concluded that Ivy did not violate Rules of Professional Con duct 8.3 and 84. Therefore we remanded the matter to the Board: to reconsider sanc tions. Finally we no fault" with the attorney's fees and costs award. We indicated only that the Board "may revise the award if it determines that reconsideration .is warranted." Upon reconsideration, the Board again recommends disbarment and the same fee and cost award. Ivy again appeals, III, STANDARD OF REVIEW We independently review the entire record in attorney disciplinary proceedings, but we give "great weight" to findings of fact made by the Board. 'When an attorney appeals the Board's findings of fact, the attorney must demonstrate that such findings are erroneous. When reviewing questions of law and questions concerning the appropriate ness of sanctions, we apply our independent judgment. IV. DISCUSSION A, Ivy's Misconduct Warrants Disbarment, 'When sanctioning an attorney for misconduct, we seek to "ensure a level of consistency necessary for fairness to the pub-lie and the legal system." "Our paramount concern . must be the protection of the public, the courts, and the legal profession," The American Bar Association Standards for Imposing Lawyer Sanctions (ABA Standards) and our prior eases guide us. First we characterize the attorney's conduct in light of three variables: the ethical violation(s), the attorney's mental state at the time of the misconduct, and the actual or potential 'injury the attorney's misconduct caused. This three-variable characterization yields a presumptive sanction under the ABA Standards, which we then adjust in light of aggravating and mitigating factors and our prior cases. Throughout this in quiry we exercise our independent judgment, and we recognize the fact-specific nature of each case. Ivy contends that her misconduct ' warrants a two-year suspension rather than the Board's recommended sanction of disbarment, Applying our independent Judgment we agree with the Board. ~ 1. Step one: ethical violation(s), mental state, and injury a. Ethical violation(s) - Previously we concluded that Ivy violated Bar Rule 15 and Rule of Professional Conduct 84. Nonetheless the parties dispute which subsections of these rules Ivy violated, specifically whether Ivy violated Rule 8 4b). The nature of Ivy's violation, which determines the subsections of Rule 8.4 Ivy violated, bears on how we characterize Ivy's misconduct and accordmgly affects our analysis of sanctions. We conclude, as the Board did, that Ivy violated Rule 8.4(b)-as well as (a) and (c)because her false testimony constitutes a criminal act that reflects poorly on her integrity as an attorney. Under Rule 8:4(b) it is professional misconduct for an attorney to "commit a eriminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects." Ivy argues that the Board has no authority to conclude that she violated Rule 8.4(b) because she was never convicted of perjury. Neither the text of Rule 8.4(b) nor the commentary to it requires an underlying eriminal conviction. Rather, as In re Friedman demonstrates, Rule 84(b) contemplates the criminal nature of an attorney's misconduct. - In In re Friedman we concluded that an attorney violated former Disciplinary Rule 1-102(A)(8); that rule deemed it professional misconduct to "[elugage in illegal, conduct involving, moral turpitude." We explained that, though the attorney had not been convicted of a crime, the attorney's misconduct would have constituted eriminal misapplication of property under Alaska law if he had committed the underlying acts in Alaska rather than in California. But because the misconduct occurred elsewhere, it was beyond the reach of our penal laws. Like former Disciplinary Rule 1-102(A)@8), Rule 84(b) does not require an underlying criminal conviction. for a violation to occur,. Violating the rule requires only that an attorney engage in dishonest conduct that would be criminal under Alaska law. Under AS 11.56.200 a person commits criminal perjury, a class B felony, when "the person makes a false sworn statement which the person does not believe to be true." The statement must be objectively false, and the person must know that the statement is false. The statute encompasses all false sworn statements, not just those made in court. Under the Rules of Professional Conduct, the word "knowingly" "denotes actual knowledge of the fact in question," We already concluded that Ivy acted knowingly when she testified falsely, that Ivy's testimony was objectively false, that circumstantial evidence supported the finding that Ivy knew her testimony was untrue, and that Ivy "did not eredibly explain that she mistakenly believed it was true." Such conclusions satisfy the elements of eriminal perjury. Because perjury is a dishonest act, we conclude that Ivy violated Rule 8.4(b). We further conclude that Ivy violated Rules of Professional Conduct 8.4(a) and (c) and Bar Rule 15(a2)@8). Our previous decision supports these conclusions: Ivy breached the Rules of Professional Conduct, which constitutes a violation of Rule of Professional Conduct 8.4(a); she engaged in dishonest conduct, which violates Rule of Professional Conduct 8.4(c); and she knowingly misrepresented facts and cireumstances in this grievance proceeding, which violates Bar Rule 15(a)(8). b. Mental state The record supports the finding that Ivy acted intentionally when she testified falsely in the litigation with Kyzer and in these disciplinary proceedings. Neither the Rules of Professional Conduct nor the Bar Rules define "intentional" conduct, The ABA Standards, which we follow, define "intent" as "the conscious objective or purpose to accomplish a particular result." Intent does not require malfeasance, and cireum-stantial evidence can support a finding of intent. We previously concluded that Ivy acted, at minimum, knowingly when she testified falsely. We cited Ivy's motive to lie, the "incredibility of [her] testimony," the strong evidence contradicting her accounts, her persistence in asserting her claims despite such evidence, and her failure to demonstrate that her ability to perceive was compromised. These facts and others also support the finding that Ivy acted with intent: Ivy made a police report accusing Kyzer of stalking on the same day she was scheduled to give a deposition in the litigation with him-and after her requests to stay that deposition already had been denied. She subsequently testified about the alleged stalking in great detail, And, in this appeal, she admits acting with a selfish motive when giving that testimony. She also continues to rationalize her previous stories rather than acknowledge their incredibility. Such cireumstantial evidence supports the finding that Ivy sought to manipulate the litigation with Kyzer and these disciplinary proceedings. Therefore we agree with the Board that Ivy acted intentionally. c. Injury and potential injury We also conclude that Ivy's misconduct caused serious actual or potential injury to-Kyzer and to the legal system, but not to the public or to the legal profession. The ABA Standards define injury according to the type of duty violated and the extent of actual or potential harm. Harm ranges from "serious" to "little or no" injury. Potential injury is harm that is "reasonably foreseeable at the time of the lawyer's misconduct, and which, but for some intervening factor or event, would probably have resulted from the lawyer's misconduct." Ivy contends that she did not cause serious harm to Kyzer, citing a lack of "clear and convincing evidence" in the record. She further contends that whatever potential injury she caused to him was "limited." As an initial matter, evidence of injury and potential injury need not reach the clear and convincing evidentiary threshold. The ABA Standards, which guide us in assessing sanctions, "are designed for use in imposing a sanction or sanctions following a determination by clear and convincing evidence" of an ethical violation. Accordingly we engage in a two-part inquiry, First we ask if clear and convincing evidence supports concluding that an attorney violated the ethical rules. If we answer in the affirmative, we then consider what level of discipline to impose. We have never before applied the clear and convincing evidentiary threshold to this latter inquiry. The extreme nature of Ivy's accusations supports our conclusion that Ivy caused Kyzer serious actual or potential injury. Ivy accused Kyzer of criminal sexual assault, a class B felony, and filed an affidavit with the court supporting the allegation. Ivy also enlisted the justice system by making a police report accusing Kyzer of stalking, a class A misdemeanor. She subsequently testified about the alleged stalking incident in detail. However - incredible, such - accusations threaten to impose a considerable toll on the accused. A class B felony conviction for criminal sexual assault in the second degree carries a presumptive sentence of 5 to 15 years with a maximum sentence of 99 years. A class A misdemeanor conviction for eriminal stalking could result in 'a one-year prison sentence. Threats of criminal sanctions stand to tarnish the reputation of the accused and to cause emotional distress for the accused and his or her loved ones. For protection a person might reasonably seek legal advice, as Kyzer apparently did here, ' Moreover Ivy's false accusation about the stalking delayed the litigation; her deposition scheduled for January was conducted in March, This delay could have caused Kyzer to incur substantial, and unnecessary, legalicosts. We also conclude that Ivy's mlsconduct caused serious injury or serious potential injury to the legal system. An attorney's duties to the legal system include abiding by the substantive and procedural rules that "shape the administration of justice," not using or creating false evidence, and generally refraining from illegal and other improper conduct. Ivy argues that neither the deposition nor the affidavit caused serious harm to the legal system because the litigation settled "[sloon after" she testified falsely at the deposition, But Ivy misconstrues the timeline of the litigation. After she testified falsely about the alleged stalking incident at the deposition, the litigation continued for at least.another two years; in mid-2010 she falsely alleged that Kyzer assaulted her in a courtroom. And as explained, Ivy's false testimony about the stalking incident delayed the lltlgatlon w1th Kyzer. This delay, at minimum, threatened to 1mpose a substanhal and unnecessary burden on the judicial system. We recognize that "lengthy and duplicative filings," similar to those here, can impose significant costs. And failing to timely comply with discovery requests, as Ivy did, can' seriously interfere with proceedmgs Further, as the Board concluded, Ivy's false testimony about Kyzer could have led the court to reach false conclusions about the credibility of witnesses. Such a msk also poses serious injury to the legal system. However the record does not support concluding that Ivy caused serious sctual or potential injury to either the public or the legal profession. Duties that attorneys owe to the public emphasize the public's right "to trust lawyers to protect their property, liberty, and lives" and the expectation that lawyers act honestly and refrain from conduct that interferes with the administration of justice. Duties to the legal profession similarly include mamtalmng the mtegmty of the profession. We recognize that actions falling below the ABA's standard of conduct diminish the public's confidence in attorneys. Such conduct also threatens the integrity of the legal profession. But here there was little risk of such harm. The record does not suggest that the public was aware of Ivy's misconduct, And Ivy claims that she has not practiced law in 15 years. If this is true, then she has no current clients who would become aware of this disciplinary action. Therefore the record does not support serious actual or potential injury to the public or to the legal profession. i 2. Step two: presumptive sanction If there are multiple instances of misconduct, "(tlhe ultimate sanction imposed should at least be consistent with the sanction for the most serious instance of misconduct . and generally should be greater than the sanction for the most serious misconduct." The ABA Standards favor disbarment in this case. For example, Standard 5.11(b) recommends disbarment 'when an attorney intentionally engages in dishonest conduct that "geriously adversely reflects on the lawyer's fitness to practice [lawl," as Ivy did here. Similarly Standard 6.11 recommends disbarment when an attorney acts "with the intent to deceive the court, makes a false statement, [or] submits a false document . [that] causes serious or potentially serious injury," as Ivy also did. Therefore disbarment, the most severe sanction under the ABA Standards, is the baseline against which we weigh aggravating and mitigating factors - starting point which the dissent does not appear to dispute. 3. Step threé: aggravating and mitigating factors The ABA Standards provide a nonexclusive list of aggravating and mitigating factors that, on, balance, may counsel in favor of modifying the presumptive sanction. When the ABA Standards recommend disbarment, aggravating factors are relevant "only to the extent that they neutralize the mltlgatmg factors." The Bar Association and Ivy dispute Which aggravating and mitigating factors exist and how the factors affect the appropriate sanction. The Board cited several aggravating factors but only one mitigating factor and accordingly concluded that the aggravating factors outweighed the single mitigating factor. "We 1ndependently review the entire record in attorney disciplinary proceedmgs, though findings of fact made by the Board are entitled to great weight." We agree with the Board's ultimate conclusion: The aggravating factors outweigh the single mitigating factor. However we disagree with some of the Board's analysis. Like the Board, we conclude that the record supports several aggravating factors. As explained, the record establishes that. Ivy acted selfishly, Ivy admits that she acted selfishly in her briefing; her persistent pattern of behavior, the timing of her false accusations, and her failure to acknowledge past wrongs further support the conclusion. These same facts and cireumstances also support several other aggravating factors; a pattern of misconduct, multiple offenses, repeatedly making false statements in the disciplinary proceedings,, refusing to acknowledge past wrongs, and illegal conduct. But the record does not support the Board's conclusion that psychological issues made Kyzer vulnerable. Rather the Committee noted that the Committee prevented Ivy from discovering her brother's "personal information." And we find no evidence that might otherwise support the finding. "[Tlhe Bar has the burden of. demonstrating its initial charges against a respondent attorney." Ivy's experience practicing law also should not be considered an aggravating factor. The mere facts that Ivy was admitted to practice in 1984 and onee worked .at a law firm bear little weight, particularly when nothing in the record refutes Ivy's claim that she has not practiced in 15 years. As for mitigating factors the Board found one, no prior disciplinary offenses, And it explained why it gave little weight to Ivy's claims that she suffered personal or emotional problems: Ivy "unequivocally denied any past delusional thinking or hallucinatory episodes"; she "offered no evidence from any mental health professional"; and given her conduct in the proceedings, the validity of her claims about the "past altercations she had been subject to at the hands of her brother" could not be ascertained-"her testimony . standing alone . was not eredi-ble." Accordingly the Board determined it was "not qualified to assess how[the alleged] problems may (or may not) have contributed to Ms. Ivy's wrongful actions." We agree with the Board's conclusions on mitigating factors. The record lacks evidence of a disciplinary history; this absence qualifies as a mitigating factor. But, as the Board found, the record also lacks evidence of personal or emotional problems. Ivy affirmatively denied such problems, and she produced no evidence supporting how her alleged fear of her brother might support the finding. We give "great weight" to the Board's factual findings; on appeal the respondent attorney "bears the burden of proof in demonstrating that such findings are erroneous. The record supports the Board's findings, and Ivy does not demonstrate how the Board's findings are erroneous. Accordingly we conclude, like the Board, that this mitigating factor is entitled to little, if any, weight, Finally, Ivy's pattern of dishonesty also does not support her claim to good character, an available mitigating factor under the ABA Standards. We now weigh these aggravating and mitigating factors against the ABA-recommended sanction of disbarment. "[TJhere is no 'magic formula' " for balancing aggravating and mitigating factors. Each case demands an independent inquiry in light of the "nature and gravity of the lawyer's misconduct." In balancing the factors, we are sensitive to the risk of double counting. This double-counting risk can arise between the factors themselves; it also can arise when the ABA-recommended sanction or underlying ethical violation turns on the same facts as an aggravating or mitigating factor. We account for this double-counting risk by weighing the factors in light of the cireum-stances. We conclude, similar to the dissent, that several of the aggravating factors are repetitious under the cireumstances here. For example, Ivy's misconduct-repeatedly lying under oath-supports several aggravating factors: a pattern of misconduct, multiple offenses, a dishonest motive, deceptive practices during the disciplinary proceedings, a refusal to acknowledge misconduct, and ille gal conduct. To avoid doubly aggravating the sanction for precisely the same acts, we consider the repetitious nature of these factors and weigh them accordingly. Here because Ivy's pattern of misconduct and multiple offenses (both aggravating factors) turn on precisely the same conduct, we give only Ivy's pattern of misconduct-but not multiple offenses-weight at the balancing stage. By contrast, we give some weight to factors that do not turn on exactly the same facts; here this includes Ivy's pattern of misconduct, her dishonest motive, the fllegal nature of her misconduct, deceptive practices in the disciplinary process, and her refusal to acknowledge the wrongfulness of her conduct. We also account for repetition between the facts supporting an aggravating factor and the facts supporting an element of the presumptive sanction or the underlying ethical violation. But the mere existence of repetition does not mean we ignore the aggravating factor at the balancing stage. "[P Jresumptive terms are intended to be applicable in typical cases, and not in aggravated or mitigated cases." When an attorney's misconduct exceeds the typical case, we give some weight to the aggravating factor. Ivy's misconduct exceeds the typical case: She lied in a complex lawsuit involving multiple parties, she falsely reported that her brother had committed criminal acts against her, and she lied in these proceedings to evade discipline for that misconduct. Thus though repetition exists between the aggravating factors and the elements of the presumptive sanction (e.g., Ivy's selfish motive) and between the aggravating factors and the elements of the underlying ethical violations (e.g., Ivy's dishonest conduct), we give some weight to these aggravating factors at the balancing stage. But in doing so we account for the double-counting risk, which arises from the similarity of the factual cireumstances, by appropriately weighing the factors. Acknowledging the risk of double counting, we conclude that the five aggravating factors-Ivy's pattern of misconduct, its illegal nature, her dishonest motive, deceptive practices during the disciplinary process, and refusal to acknowledge the wrongfuiness of her actions-outweigh the single mitigating factor, Ivy's lack of disciplinary record. Therefore we do not reduce the presumptive sanetion of disbarment. 4. Our case law Our prior cases also support disbarment. Previously we have reduced an ABA-recommended sanction given the presence of several compelling mitigating factors, such as evident remorse, active efforts to remedy the problems caused, and voluntarily notifying authorities about the misconduct soon after it occurred. Such compelling mitigating fac tors are entirely absent here. Instead Ivy continues her fabrications, and she actively denies any misconduct. Further the only factor counseling against disbarment is Ivy's lack of disciplinary record. Even for a practicing attorney this factor is not particularly compelling, Yet here Ivy apparently has not practiced for 15 years; accordingly the fact that she has not faced any discipline during this period is unremarkable. And though we have explained that we "place a great deal of weight on the absence of dishonest and selfish motives," such cireumstances are not present here. By contrast, when aggravating factors outweigh mitigating factors 'we impose the more severe sanction, including disbarment. A "lack of cooperation" in the disciplinary proceedings-or deliberate interference, as © here-merits "additional disciplinary action." We also have found disbarment warranted when the attorney's misconduct threatens significant injury and when it is part of a larger scheme to defraud, as we did in In re Buckalew. Under such cireumstances, disbarment may be warranted even if compelling mitigating factors might otherwise favor a lesser sanction. Ivy's misconduct threatened substantial injury, it was calculated to influence the litigation with Kyzer and these disciplinary proceedings, 'and the record lacks evidence of any compelling mitigating factors,. To conclude that disbarment is too severe, the dissent analogizes to our brief order in In re Purdy approving a stipulated five-year suspension. But simply because we approved the stipulation does not mean we agree with all of its analysis, Contrary to the stipulation's conclusion, the non-representative context does not constitute a mitigating factor,. Like aggravating factors, we do not mitigate a presumptive sanction when the presumptive sanction and the mitigating factor turn on exactly the same facts. Under the ABA Standards the presumptive sanction accounts for the non-representative context. - Similar to the Alaska Rules of Professional Conduct, the Standards categorize recommended sanctions based on the context in which an attorney's misconduct arises. For example, ABA Standards 4.0 to 4.6 guide the presumptive sanction'"when an attorney's misconduct implicates duties owed to clients; the more severe the conduct with respect to a client, the more severe the sanction. By contrast, and as here, ABA Standards 5.0 to 5.2 guide the presumptive sanction when the misconduct implicates duties owed to the public, and ABA Standards 6.0 to 6.3 guide the presumptive sanction when the 'misconduct violates duties owed to the legal system. Sanctions for such violations may include disbarment regardless of whether the misconduct relates to client riaatters. The context in which an attorney's misconduct arises also might affect our evaluation of the severity of harm, as it did here; this variable may affect the presumptive sanction. Under . our framework, we account for the context before we arrive at the presumptlve sanc-131011 Further the severity, of Ivy's misconduct and the lack of compelling mitigating factors distinguishes In re Purdy,. Purdy lied in an administrative matter involving only herself in an effort to get a personal advantage visA-vis the government. Ivy lied in a complex lawsuit involving multiple parties, including her brother; she lied to the police, in a deposition, and to the court in an affide-Vlt-all in an effort to get her brother in trouble and to obtain an unfair advantage over her brother in that litigation. Given the seriousness of and risk of harm from Ivy's lies about her brother, Purdy's- lies pale in comparison. The important distinction is that without discussing Purdy's stipulated facts and the three- step ABA analysis for Purdy's suspension, meludmg aggravating and mitigating factors, drawing useful. comparisons is difficult, Only if the analytlc framework—mcludmg the ABA starting point and the aggravating and mitigating factors-is irrelevant does In re Purdy's outcome become relevant to the result here. We demand that attorneys act with integrity whether or not they are representing a client: Onee admitted [to the bar], the requirement of good moral cHaracter does not cease to exist.... Society allows the legal profession the privilege of self-regulation. Thus, it is of the utmost importance that the public have confidence in the profession's ability to discipline itself . . . . [ ] Under the ABA Standards and our case law, Ivy's lack of integrity, self-interested motives, and evident disregard for how her misconduct gravely threatened others and the legal system warrants disbarment. | j B. The Record Supports The Board's Attorney's Fees And Costs Award. Ivy contends that, at minimum, the Board's attorney's fees and costs award should be "dramatically reduced." Previously we found "no fault with the attorney's fees award." We determined that the Board complied with Alaska Bar Rule 16(c)@8), which authorizes disciplinary boards to award attorney's fees and costs upon consideration of ten statutorily enumerated factors. And we explained that even if Ivy had properly raised the issue of attorney's fees and costs, it was "not apparent from thie] record how the Bar Association's fees and costs would have been different had it based its investigation and proceeding solely on Ivy's violation of Rule 8.4." We accordingly acknowledged that the Board "may revise the award," but we did not require the Board to do so. As before Ivy does not demonstrate why the Board's award is flawed. Under Bar Rule 16(c)(@8), the amount of an award does not turn on who prevailed on a given issue. Instead the Rule requires the Board to consider, among, other factors, "the reasonableness of the number of hours expended by Bar Counsel and the reasonableness of the costs incurred" as well as "the relationship between the amount of work performed by Bar Counsel and the significance of the matters at stake." The Bar Association made sound arguments that related to an issue of first impression: Never before had we considered whether Rules of Professional Conduct 8.8 and 3.4 apply in the non-representative context, neither rule refers to a client relationship, and neither necessarily implies a representative context. Simply because Ivy prevailed in her argument that Rules 8.8 and 8.4 did not apply does not render the attorney's fee and cost award too high. Moreover, under Bar Rule 16(c)@8), the Board also shall consider "the duration of the case," "the reasonableness of the defenses raised by the Respondent, and the respondent's "vexatious or bad faith conduct." We give "great weight" to the Board's findings of fact; such findings include facts related to the attorney's conduct in the disciplinary proceedings. Here the Board found that the disciplinary matter had lasted for more than two years and that Ivy had acted unreasonably, including by refusing "to admit the falsity of her affidavit and deposition testimony" and by asserting a "defense of not 'knowingly' . offer[ing] false testimony"-despite presenting no credible evidence in that regard. Such actions, as the Board found, undoubtedly increased Bar Counsel's expenses and made the proceedings unnecessarily complex. ° Therefore, as before, we'uphold the fee and cost award. V. CONCLUSION .Deborah Ivy is DISBARRED from the practice of law effective 80 days from today. Ivy must also comply with the Board's fee and cost award. MAASSEN, Justice, not participating,. . 350 P.3d 758 (Alaska 2015). . See In re Shea, 273 P.3d 612, 622 (Alaska 2012). . - Stanparps rog Imposing Lawyer Sanctions, Am. Bar Ass'n (1992) [hereinafter ABA Sramparos], httpy// www.americanbar.org/content/dam/aba/ administrative/professionaLresponsibility/ corrected..standards..sanctions_may20 12... wfootnotes.authcheckdam.pdf. . In re Ivy, 350 P.3d at 761-62. . Id. at 762. . Id. at 759. . Id. at 762-65. . Id. at 766. . 1d. . Id. . In re Miles, 339 P.3d 1009, 1018 (Alaska 2014) (quoting In re Shea, 273 P.3d 612 619 (Alaska 2012)). . Id. . 14. . In re Buckalew, 731 P.2d 48, 52 (Alaska 1986). . Id. at 56 (citing In re Preston, 616 P.2d 1, 6 (Alaska 1980); ABA Standards, supra note 3, at § III.A.1.1). . In re Shea, 273 P.3d at 622. . Id. (citing In re Cyrus, 241 P.3d 890, 893 (Alaska 2010)). . Id. (citing In re Cyrus, 241 P.3d at 893). . See In re Wiederholt, 877 P.2d 765, 769 (Alaska 1994) ("[SJanctions in other cases can be no more than indicators of appropriate sanctions in a given case because of inevitable factual differ ences concerning not only the offense but the offender." (first citing In re Buckalew, 731 P.2d at 57 nn. 10-11; then citing In re Minor, 658 P.2d 781, 784 (Alaska 1983))). . In re Shea, 273 P.3d at 623 (cmng In re Cyrus, 241 P.3d at 892-93). . In re Wiederholt, 877 P.2d at 769 (first citing In re Buckalew, 731 P.2d at 57 nn. 10-11; then citing Minor, 658 P.2d at 784). . - In re Ivy, 350 P.3d 758, 759 (Alaska 2015). . - As relevant here, Rule of Professional Conduct 8.4 provides: It is professional misconduct for a lawyer to: (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; (b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects; (c) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. . Alaska R. Prof. Conduct 8.4(b). . 23 P.3d 620 (Alaska 2001). . Id. at 629 n. 32 (alteration in original) (quoting former Disciplinary Rule 1-102(A)). . Id. at 629 n. 33. . Id. . See Alaska R. Prof. Conduct 8.4(b) ("It is professional misconduct for a lawyer to . commit a criminal act that reflects adversely, on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects. ."); In re Friedman, 23 P.3d at 629 & nn. 32-33. . AS 11.56.200(c). . AS 11.56.200(a). . LaParle v. State, 957 P.2d 330, 335 (Alaska App.1998); Alaska Criminal Pattern Jury Instruction 11.56.200 (2009). Pattern Jury Instruction 11.56.200 provides: To prove that the defendant committed [the] crime [of perjury], the state must prove beyond a reasonable doubt each of the following elements: (1) the defendant knowingly made a sworn statement; (2) the statement was false; and (3) the defendant did not believe the sworn statement to be true. . AS 11.56.240(2) (defining "sworn statement"); Joseph v. State, 315 P.3d 678, 686 (Alaska App.2013). AS 11.56.240 broadly defines statements to include "representation(s] of fact[,] . opinion, belief, [and] other state[s] of mind" when the statement "clearly relates to state of rind apart from or in addition to any facts that are the subject of the representation." AS 11.56.240(1). Sworn statements include statements "knowingly given under oath ., including a notarized statement" and statements "knowingly given under penalty of perjury under AS 09.63,.020." AS 11.56.240(2). AS 09.63.020 governs certified documents. . Alaska R. Prof. Conduct 9.1(h); see also In re Ivy, 350 P.3d 758, 762. (Alaska 2015) (explaining that " 'knowingly' making false statement for purposes of Rules [of Professional Conduct] requires both that statement be false and that speaker know so"). . In re Ivy, 350 P.3d at 762. . See id. at 761-62, 766. . ABA Stanparps, supra note 3, at § III (definitions). . In re West, 805 P.2d 351, 356 (Alaska 1991) (citing the ABA Standards). . In re Ivy, 350 P.3d at 762 & n. 11 (citing Adams v. Adams, 131 P.3d 464, 466-67 (Alaska 2006)); In re Friedman, 23 P.3d 620, 626 (Alaska 2001) ("[It is permissible to infer that an accused intends the natural and probable consequences of his or her knowing actions." (quoting In re Triem, 929 P.2d 634, 648 (Alaska 1996))). . In re Ivy, 350 P.3d at 762. . Id. . - ABA Stanparps, supra note 3, at § II, III. . Id. . Id. at § HIL . In re Friedman, 23 P.3d 620, 625 (Alaska 2001). . ABA Stamparps, supra note 3, at § IILA.1.3 (emphasis added). . Alaska Bar R. 22(e) ("Bar Counsel will have the burden at any hearing of demonstratirig by clear and convincing evidence that the Respondent has . committed misconduct as provided in [Bar] Rule 15."). . See Alaska Bar R, 15 (defining grounds for attorney discipline); see also In re Buckalew, 731 P.2d 48, 52 (Alaska 1986) (adopting ABA framework for imposing attorney discipline sanctions). . AS 11.41.420(b). . AS 11.41.270(c). . AS 12.55.125(i)(3). . AS 12.55.135(a). . ABA Stamparps, supra note 3, at § II (theoretical framework) . In re Shea, 273 P.3d 612 622 (Alaska 2012). . In re Rice, 260 P.3d 1020, 1032 (Alaska 2011). . ABA Standarps, supra note 3, at § IL . Id. . | In re Hanlon, 110 P.3d 937, 947 (Alaska 2005) ("[Elven minor violations of law by a lawyer may tend to lessen public confidence in the legal profession." (quoting In re West, 805 P.2d 351, 355 (Alaska 1991))). . Id. . - The Bar Association did not refute Ivy's claim, and no evidence in the record suggests otherwise. . ABA Stanparps, supra note 3, at § II (theoretical framework). . The parties dispute whether ABA Standard 5.11(a) also favors disbarment. This dispute is not material to our analysis; the ABA Standards already point to the most severe sanction, See In re Schuler, 818 P.2d 138, 142 (Alaska 1991) (concluding that it made "no difference" whether misconduct violated ABA Standard 5.11(a) or 5.11(b) because both standards recommend disbarment); ABA Stanparps, supra note 3, at § II ('The ultimate sanction imposed should at least be consistent with the sanction for the most serious instance of misconduct."). . - See Dissent at 389-94. . See ABA - Stampamos, § 1ILC.9.0. supra note 3, at . In re Friedman, 23 P.3d 620, 632 (Alaska 2001). . The Board found aggravating factors including a dishonest and selfish motive; a pattern of misconduct; multiple offenses; Ivy's repeated false statements in the disciplinary hearing; Ivy's failure to acknowledge any wrongful conduct; Ivy's expenence as an attorney (noting her admission in 1984 and her work at a law firm); a failure to make any restitution efforts until Kyzer's motion for them in the disciplinary proceedings; and Kyzer's potential vulnerability as a result of psychological issues. On appeal the . Bar Association claims many of the same factors except it does not claim Ivy's apparent failure to make restitution or Kyzer's vulnerability. . In re Miles, 339 P.3d 1009, 1018 (Alaska 2014) (quoting In re Shea, 273 P.3d 612, 619 (Alaska 2012)). . - See supra Part IV.A.1 b. . See ABA - Stamparps, § 111.0.9.22. supra note 3, at . In re Rice, 260 P.3d 1020, 1033 (Alaska 2011). . See ABA - Standards, supra note 3, at § III.C.9.32(a). . In re Miles, 339 P.3d at 1018 (quoting In re Rice, 260 P.3d at 1027); see also In re Triem, 929 P.2d 634, 640 (Alaska 1996) ("As a general rule . we ordinarily will not disturb findings of fact made upon conflicting evidence." (quoting In re West, 805 P.2d 351, 353 n. 3 (Alaska 1991))); id. at 643 & n. 12 ("'The committee's finding of dishonesty by Triem during the disciplinary process is adequately supported by the record and we do not find it to be clearly erroneous."). . In re Miles, 339 P.3d at 1018 (quoting In re Rice, 260 P.3d at 1027). . See ABA Stamparps supra note 3, at § 1IILC.9.32(g). Ivy also claims several other mitigating factors such as an apparent delay in the filing of the grievance, the attorney's fees and cost award, the fact she likely will not commit similar misconduct again, and the non-representative context in which her misconduct arose. We find no support under our prior cases or in the record for Ivy's claims. . In re Hanlon, 110 P.3d 937, 942 (Alaska 2005) (quoting In re Friedman, 23 P.3d 620, 633 (Alaska 2001)). . Id. at 943. . In re Buckalew, 731 P.2d 48, 54 (Alaska 1986). . Cf. Juneby v. State (Juneby II), 665 P.2d 30, 36 (Alaska App.1983) ("[P]resumptive terms are intended to be applicable in typical cases, and not in aggravated or mitigated cases...."); Juneby v. State (Juneby I), 641 P.2d 823, 838-39 (Alaska App.1982), opinion modified and superseded on reh'g on other grounds, 665 P.2d 30 (Alaska App.1983) (explaining how to apply aggravating and mitigating factors when imposing criminal sanctions). . See Dissent at 389-91. . See ABA - Stawpamps, supra note 3, at § III.C.9.22. . Cf. Juneby I, 641 P.2d at 842 ("precisely the same acts" should not be used to "doubly aggravate[ ]" offense). . Juneby II, 665 P.2d at 36. . For example, ABA Standards 5.11(b) and 6.11 apply only when an attorney acts intentionally. We concluded that Ivy acted intentionally in part because we found she acted selfishly; Ivy's selfish motive is also an aggravating factor. If Ivy's misconduct reflected the typical case, we would not give Ivy's selfish motive any weight at the balancing stage. . For example, Alaska Rule of Professional Conduct 8.4(c) and Bar Rule 15(a)(3) are violated only when an attorney engages in dishonest conduct. Here such dishonest conduct also supports several aggravating factors, including a pattern of misconduct, multiple offenses, and obstruction of the disciplinary process. But because Ivy's misconduct exceeds the typical case, we give these factors some weight at the balancing stage. . See In re Friedman, 23 P.3d 620, 632 (Alaska 2001) (when ABA Standards recommend disbarment, aggravating factors are relevant "only to the extent that they neutralize the mitigating factors."}. . See In re Buckalew, 731 P.2d 48, 52 (Alaska 1986) (We consider our precedents to "ensure a level of consistency necessary for fairness to the public and the legal system."). . See, e.g., In re Friedman, 23 P.3d at 632-34 (suspending attorney for three years, despite ABA-recommended disbarment, for mismanaging client funds and felony conduct given compelling mitigating factors including remorse, evidence that attorney had taken "significant measures" to remedy the problems caused, and good character); In re Mann, 853 P.2d 1115, 1117-20 (Alaska 1993) (suspending attorney for three years, despite ABA-recommended disbar'ment, for misappropriating cliént funds given compelling mitigating factofs including strong evidence of remorse, well-established personal and emotional problems, and voluntarily turning himself in to police within one month of misconduct when misconduct likely would have gone undiscovered). . In re Rice, 260 P.3d 1020, 1033 (Alaska 2011). . Given the absence of compelling mitigating factors, we find the dissent's reliance on cases like In re Schuler and In re Stump misplaced, Dissent at 392-93. In re Schuler reduced the presumptive sanction of disbarment for a conviction of misdemeanor theft because of the absence of any aggravating factors and the presence of several compelling mitigating factors, including the lack of a prior disciplinary record, personal and emotional problems for which the attorney was treated by a psychiatrist, criminal sanctions that imposed a 1.5-year probation and 100 hours of community service, the attorney's evident remorse, and fact the attorney's misconduct arose from a self-destructive motive-not from a desire for personal gain, as here. 818 P.2d 138, 139-45 (Alaska 1991). Similarly in In re Stump the attorney admitted to the alleged acts of professional misconduct, and he presented evidence of several mitigating factors, , including emotional concerns arising from his wife's health and notification to counsel of his misconduct, 621 P.2d 263, 263-66 (Alaska 1980). Moreover, though In re Stump cited a preliminary draft of the ABA Standards, as the dissent. notes, dissent at 393 n. 30, the court's reliance on the draft standards was minimal. It . cited. the draft only to frame the respondent attorneys argument zd at 265 & n. 6, and to support the rather fundamental assertion that we consider the facts of each case, Id. at 265-66 & n. 10. We adopted the ABA Standards six years after In re Stump; that 1986 version recommended sanctions based on cases decided between 1980 and 1984, data which post-dates our decision in In re Stump. In re Buckalew, 731 P.2d 48, 51 & n. 10 (Alaska 1986). . See, e.g. In re Miles, 339 P.3d 1009, 1018-20 (Alaska 2014) (disbarring attorney for defrauding client and' committing criminal theft, per ABA recommendation, when several aggravating factors neutralized the single mitigating factor, cooperation in disciplinary proceedings). . In re Rice, 260 P.3d at 1036. . 731 P.2d 48, 53-56 (Alaska 1987) (rejecting five-year suspension as insufficient for knowing conversion of client funds and forging of a judge's signature despite compelling mitigating factors, including mental and emotional problems, given significant risk 'of serious injury to client and legal system); see also In re Rice, 260 P.3d at 1036 (explaning In re Buckalew, 731 P.2d 48). . See, e.g., In re Buckalew, 731 P.2d at 53-56 (identifying as mitigating factors mental and emotional problems, cooperation and disclosure after law partner discovered misconduct, and no record of prior misconduct). The dissent distinguishes In re Buckalew and other cases in which : we have imposed disbarment on the grounds that the attorneys' conduct in those cases -was far more culpable, Dissent at 393-94, While this may be true, extreme cases do not establish the minimum threshold for imposing a sanction, Rather our case law guides us in evaluatmg the ABA-recommended baseline. . Dissent at 392-93 (citing In re Purdy, No. S-08996 (Alaska Supreme Court Order, Mar. 26, 1999)). . See supra Part IV.A.3. . See In re Ivy, 350 P.3d 758, 762-65 (Alaska 2015) (holding that Rules 3.3 and 3.4 did not apply to Ivy's misconduct "because these rules are intended to govern attorneys 'when they are acting as advocates and not in thelr personal capacities"). . See supra Part IV.A.2. . See, eg., ABA Stanparns, supra note 3, at § IILC.5.11(b)(recommending disbarnient when attorney engages in "intentional conduct involving dishonesty . that seriously adversely reflects on the lawyer's fitness to practice"); id. § IILC.6.11 (recommending disbarment when attorney, "with the intent to deceive the court, makes a false statement . and causes serious or potentially serious injury to a party, or causes a significant or potentially significant adverse effect on the legal proceeding"). o . See supra Part IV.A.1.c. . Compare ABA Stawparps supra note 3, at § IILC,.5.11(b) (recommending disbarment regardless of whether misconduct presents risk of ~ serious harm), with id. § TII.C.6.11 (recommending disbarment only if mlsconduct presents I'lSk of serious harm). . - At most, In re Purdy presents another example of mitigating factors outweighing aggravating factors. The stipulation in In re Purdy, unlike here, found evidence of several mitigating fac» tors, which we prev1ously have found compelling: cooperation in the disciplinary proceedings (assisting bar counsel in its investigation, consenting to discipline), .a good reputation for sound judgment, honesty, and public service (as evidenced by letters of public. support), other sanctions (criminal sentence, extended probation at place of employment, harmful publicity), and evident remorse. - In re Purdy, No. S-08996 (Stipulation for Suspension, filed Mar. 8, 1999, at 10-11). The stipulation cited only three aggravating factors, two of which overlap with the presumptive sanction and the ethical violation: a dishonest/selfish motive, a pattern of misconduct, and a prior private admonition for misconduct. Id. . In re Purdy, No. S-08156 at 1-4 (Alaska Supreme Court Order, Nov. 18, 1998). . In re Purdy, No. S-08996. The dissent also points to In re Stepovich, 143 P.3d 963 (Alaska 2006). Dissent at 393-94. But like In re Purdy, the brief decision in In re Stepovich does not provide insight into the court's rationale; thus that case also does not facilitate meaningful comparison. . In re Buckalew, 731 P.2d at 56. , In re Ivy, 350 P.3d 758, 766 (Alaska 2015). . Td. at 765-66 & n. 35. . Id. at 765-66 & n. 34 (issue of attorney's fees waived because it was not addressed in opening brief). . Id. at 766. . Alaska Bar R. 16(c)(3)(C) fiemphases added). . Id. (H). . Id. (B). . Id. (F). . Id. (G). . In re Miles, 339 P.3d 1009, 1018 (Alaska 2014) (quoting In re Shea, 273 P.3d 612, 619 (Alaska 2012)).

11887140

Wendy G. BROWN, n/k/a Wendy G. Audette, Appellant and Cross-Appellee, v. Kevin M. BROWN, Appellee and Cross-Appellant

Brown v. Brown

1997-10-31

Nos. S-7340, S-7440

307

314

947 P.2d 307

947

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:49:14.956391+00:00

CAP

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

Wendy G. BROWN, n/k/a Wendy G. Audette, Appellant and Cross-Appellee, v. Kevin M. BROWN, Appellee and Cross-Appellant.

Wendy G. BROWN, n/k/a Wendy G. Audette, Appellant and Cross-Appellee, v. Kevin M. BROWN, Appellee and Cross-Appellant. Nos. S-7340, S-7440. Supreme Court of Alaska. Oct. 31, 1997. Gary Foster, Law Office of Gary Foster, Fairbanks, for Appellant and Cross-Appel-lee. Fleur L. Roberts, Law Offices of Fleur L. Roberts, Fairbanks, for Appellee and Cross-Appellant. Before COMPTON, C.J;, and MATTHEWS, EASTAUGH, FABE and BRYNER, JJ.

4399

27114

OPINION MATTHEWS, Justice. Each party in this matter appeals aspects of the trial court's second attempt at dividing property in a divorce proceeding. Regrettably, we conclude that a third attempt is necessary. I. BACKGROUND Wendy and Kevin Brown married in 1980 and separated in 1990. They had two children during their marriage. We have already decided some issues relating to the division of the parties'.property in this case. On July 6, 1994, we issued a memorandum opinion and judgment, Brown v. Brown, No. 0730 (Brown I). In that appeal, we considered the superior court's disposition of two parcels of raw land, one referred to as the Derby tract located in Fairbanks, and one located in Gig Harbor, Washington. Also in dispute is a series of cash transfers allegedly made as gifts to Wendy by her father, Vernon H. Boyles . $250,000 in October 1988; $50,000 and $85,000 in May 1989; and $100,000 in July 1989. We reversed in part, vacated in part, and remanded the case with the following instructions: The [superior] court shall hold a supplementary evidentiary hearing and make findings and conclusions concerning the marital or separate character of the Derby tract and the Gig Harbor property. The court should also address whether any or all of the monetary gifts were transmuted from separate to marital property prior to the dissolution of the marriage. Once these issues are decided the court should decide whether the marital property of the parties should be divided differently and whether the equities of the case require invasion of Wendy's separate property. In response to our mandate, the superior court held additional proceedings and issued new factual and legal conclusions, which will be discussed below. Both Kevin and Wendy appeal. II. ANALYSIS TO BE APPLIED BY SUPERIOR COURT IN DIVIDING PROPERTY IN DIVORCE CASES AND THE APPLICABLE STANDARD OF REVIEW Our decision in Wanberg v. Wanberg, 664 P.2d 568, 570 (Alaska 1983), requires a trial court dividing a couple's property to follow three steps. Step one — determining what property is available for distribution — is reviewed under the abuse of discretion standard, although it may involve legal determinations to which this court applies its independent legal judgment. The second step — placing a value on the property — is "a factual determination that will be upset only if there is clear error. Alaska R. Civ. P. 52(a). Step three — allocating the property equitably— is reviewed purely under the abuse of discretion standard and "will not be disturbed unless it is clearly unjust." Lewis v. Lewis, 785 P.2d 550, 552 (Alaska 1990) (citations omitted). This appeal involves challenges to the trial court's decisions at "step one" and "step three." III. DISCUSSION OF CHALLENGES TO THE SUPERIOR COURT'S "STEP ONE" ANALYSIS A. In View of Kevin's Post-Trial Agreement with Wendy, the Superior Court Was Correct to Treat Trade Construction as Wendy's Separate Property. Trade Construction is a corporation of which Wendy is the sole shareholder. On this appeal Kevin argues that Trade Construction should be considered marital property. Wendy represented at the original trial that, as a result of pending litigation against it, Trade Construction faced significant actual and potential liabilities. At the conclusion of the original trial, the trial court ruled that Trade Construction was marital property. Accordingly, the trial court ruled that Kevin and Wendy were to share equally in Trade's assets and liabilities. Kevin wished to avoid exposure to Trade's potential liabilities. He therefore sought to convince the trial court to award him half of Trade's assets without requiring him to bear any of its liabilities. The trial court's response to Kevin's proposal was as follows: And I'll say it for a third time on [t]he record, he can't have it both ways. If they're marital assets, the debts and the assets are marital assets. Well, if [Kevin] wants Trade to not be a marital asset, we can take care of that problem. We'll make Trade not a marital asset, but then he doesn't get any of the proceeds that came from Trade either. In order to avoid any exposure for Trade's obligations, on November 1, 1991, Kevin made the following offer regarding Trade Construction: I [Kevin's attorney] am willing to pass on to Kevin any offers of settlement concerning this issue of Trade Construction. Kevin would be willing to allow Wendy to have the $150,000 [in accounts owned by Trade Construction] without an accounting and in return, not be liable for the costs of litigation of the Mapco Counterclaim and potential liability for this counterclaim and also allow Wendy to retain the monies awarded to Trade Construction in this suit. On November 25, 1991, Wendy replied to Kevin's offer as follows: - Kevin's offer to relinquish any rights in Trade Construction (past, present, and future) in exchange for being relieved of any liabilities (litigation costs or liability to Mapco) is accepted. Let me know if you think any additional paperwork, other than your letter offer and my acceptance above, is necessary. Trade Construction prevailed in the litigation against it. At the remand hearing, Kevin argued that Trade Construction should be characterized as a marital asset. In response, the trial court noted the agreement regarding Trade Construction: at the end of the trial I said Trade was a marital asset and that gave Kevin the liabilities as well as the assets. He chose, post-trial, to opt out of that and not have it be a marital asset for which he was responsibility — responsible for the liabilities. That's something that came after trial. It doesn't have anything to do really with [the remand issues] here. Parties to a divorce may stipulate to the characterization of property. "In general, the construction of stipulations is governed by the rules of contract" law. Godfrey v. Hemenway, 617 P.2d 3, 8 (Alaska 1980). "Absent a cognizable contract defense, such as fraud," stipulations should be enforced. See Dewey v. Dewey, 886 P.2d 623, 625-26 (Alaska 1994). On this appeal, Kevin appears to raise two points relating to the Trade Construction stipulation. First, Kevin disputes the meaning of his agreement with Wendy. In particular, he seems to suggest that he did not agree that Trade Construction would be treated as Wendy's separate property. According to Kevin, he simply agreed "to allow Wendy to have the inventory, including the cash on hand and accounts receivable in exchange for being relieved from any of Trade Construction's debt." Although Kevin's argument is somewhat opaque, the implication seems to be that the superior court should have treated Trade Construction as marital property which was distributed to Wendy. Kevin's proffered interpretation of his agreement with Wendy is untenable. As indicated by the portions of the record quoted above, Kevin wished to avoid responsibility for Trade Construction's obligations and liabilities, but the trial court was unwilling to permit him to do so unless he agreed that Trade Construction would be considered Wendy's separate property. Accordingly, Kevin stipulated that Trade Construction would be Wendy's separate property. Kevin's interpretation of the agreement — that, essentially without receiving any benefit in return, Wendy agreed to allow Kevin to avoid responsibility for Trade's potential liabilities — is unreasonable. Accordingly, we reject Kevin's argument. Kevin's second argument concerning Trade Construction is that he relinquished his claims to Trade Construction based on misrepresentations by Wendy. The trial court expressly refused to consider this argument at the remand hearing and suggested that Kevin raise the point in a separate motion. It appears, however, that Kevin failed to raise the point below as suggested by the trial court. Kevin therefore may not assert the point on appeal. Tommy's Elbow Room, Inc. v. Kavorkian, 754 P.2d 243, 245 n. 7 (Alaska 1988). B. The Trial Court Did Not Err in Concluding that the Gifts from Wendy's Father to Wendy Were Not Transmuted into Marital Property. We next consider Kevin's claim that the trial court erred in concluding that the cash gifts from Wendy's father to Wendy had not been transmuted into marital property. In Brown I, we stated: Also in dispute is a series of cash transfers allegedly made as gifts to Wendy by her father.... Wendy claims that she received a total of $485,000 in cash gifts from her father.... Wendy used these monies for a series of loans and other transactions, with the proceeds eventually invested in a high-yield New Zealand money market account. At the original trial, the superior court found that "Wendy had not demonstrated that these transfers were gifts to her alone" (i.e., that the transfers were properly regarded as marital property). As mentioned above, we reversed the conclusion of the superior court on this point. We held that all of the cash transfers were Wendy's separate property at the time of transfer and remanded the case to the superior court with instructions to "address whether any or all of the monetary gifts were transmuted from separate to marital property prior to the dissolution of the marriage." On remand, the superior court determined that all of the cash transfers are properly regarded as "separate property" because the transfers "were definitely not co-mingled. In fact, since Wendy never told Kevin about . [the transfers] it is hard for the court to find any basis for Kevin's assertion of co-mingling." We affirm the trial court's conclusion on this point. In essence, Kevin makes two arguments in support of his contention that the trial court erred in concluding that the cash transfers had not been transmuted into marital property. First, Kevin argues that the trial court's determination that the cash gifts were not transmuted into marital property should be reversed because, according to Kevin, the cash gifts were co-mingled with marital assets. This argument warrants only brief discussion. Under Alaska law, the co-mingling of separate property with marital assets does not necessarily mean that separate property has been transmuted into marital property. "Placing separate property in joint ownership is rebuttable evidence that the owner intended the property to be marital." Chotiner v. Chotiner, 829 P.2d 829, 833 (Alaska 1992). However, there was evidence sufficient to overcome this presumption and to support the trial court's decision that the transfers retained their character as separate property. Wendy's father made the gifts to Wendy shortly prior to the end of the marriage between Wendy and Kevin, Wendy essentially exercised unilateral control of the funds, and Wendy presented evidence to the trial court tracing the flow of the cash gifts from her father to the New Zealand account and into the court registry. Second, Kevin makes a number of arguments which are all to the same effect: that by characterizing the money from the New Zealand account as Wendy's separate property, the superior court bestowed upon her a double recovery. Kevin, however, adduces no meaningful record support for these arguments. As a result, none of the arguments warrants reversing the trial court's conclusion that the proceeds from the New Zealand account are properly classified as Wendy's separate property. C. The Superior Court Erred by Directing Wendy to Place $100,000 in Trusts for Her Children. We next consider Wendy's argument that the superior court erred by directing her to place $100,000 in trusts for her children. At the original trial, the superior court found that the $250,000 transfer from Wendy's father created a trust with Wendy as the trustee and the children as the beneficiaries. As trustee, Wendy would possess only bare legal title to the income and corpus of the trust, while the children possessed the beneficial interest. The superior court concluded that Wendy's bare legal title was marital property to be divided between the parties. Brown I, at 3. In Brown I, we reversed "the superior court's determination that the $250,000 was marital property." We also vacated the superior court's order "to the extent that it granted Kevin one-half of this money and subjected the entire sum to trusts for the benefit of the children." As mentioned above, we remanded this case to the superior court with specific instructions. We nowhere indicated in those instructions that the superior court should revisit the issue of whether the gift proceeds from Wendy's father should be placed in trusts for the children. Moreover, we stated that "[gjiven that the gift is the separate property of Wendy, it is unnecessary in this [divorce] proceeding to determine whether or not she holds it in trust for her children." Notwithstanding our statements in Brown I, on remand, the superior court made the following order: [T]he $50,000.00 each, previously put in the children's savings accounts, and then taken out by Wendy to invest in Trade, shall be re-deposited in accounts for the children, with both parents' names on it. In so ruling, the superior court exceeded the mandate of this court and acted in a manner contrary to the law of this case. We therefore reverse the superior court's order that $100,000 of Wendy's separate property must be placed in trusts for her two children. IV. DISCUSSION OF CHALLENGES TO THE SUPERIOR COURT'S "STEP THREE" ANALYSIS: THE SUPERIOR COURT'S FINDINGS DO NOT ADEQUATELY SUPPORT ITS DECISION TO AWARD KEVIN 100% OF THE MARITAL PROPERTY AND $81,000 OF WENDY'S SEPARATE PROPERTY Finally, we consider Wendy's argument that the superior court's allocation of property in this ease was an abuse of discretion. As mentioned above, in Brown I, we directed the superior court to "decide whether the marital property of the parties should be divided differently and whether the equities of the case require invasion of Wendy's separate property." On remand, the superior court concluded that the total value of the marital estate at the conclusion of the original trial was $159,-512.89. The total value of Wendy's separate property at the conclusion of the original trial was $404,289. The superior court then ordered a division of property. The effect of the court's division would be to award Kevin (1) 100% of the marital estate as valued at the time of the original trial plus (2) approximately $81,000 of Wendy's separate property. Although, as indicated above, the superior court has "broad discretion" in determining when the equities of the case require invasion of premarital assets, Julsen v. Julsen, 741 P.2d 642, 646 n. 4 (Alaska 1987), whether the trial court applied the appropriate legal standard in exercising its broad discretion is a question of law. Bays v. Bays, 807 P.2d 482, 485 n. 4 (Alaska 1991). In performing the Wanberg "step three" analysis, the trial court generally should begin with the presumption that an equal division of marital property is most equitable. Lowdermilk v. Lowdermilk, 825 P.2d 874, 877 (Alaska 1992). However: If at the third step the court finds that an equitable division is not possible using the marital property alone, then the court must determine whether invasion of separate property is necessary to balance the equities. AS 25.24.160(a)(4). If invasion is necessary, then the court must determine what separate property the parties own, value it, and adjust the initial division as needed. Murray v. Murray, 856 P.2d 463, 466 (Alaska 1993) (citation omitted). In determining whether an imbalanced award of the marital assets is appropriate, the trial court should consider the Merrill factors as codified and expanded in AS 25.24.160(a)(4). Moreover, in considering whether the invasion of separate property is necessary to balance the equities the trial court should: particularly consider factors such as the duration of the marriage, the conduct of the parties during the marriage, the manner of acquisition of the property, its value at the time of acquisition and at the time of the property division, and any other factors bearing on whether the equities dictate that the other spouse is entitled to share in that property. Vanover v. Vanover, 496 P.2d 644, 648 (Alaska 1972). Against this backdrop, for three reasons, we vacate the superior court's property division in this case and remand for a new property division. First, an examination of the superior court opinion on remand indicates that the trial court clearly failed to begin with the presumption that an equal division of marital property is the most equitable. Instead, the trial court appears to have begun with the presumption that an equal division of the marital property and of Wendy's separate property would be the most equitable. Second, the trial court failed to address in any detail the factors set forth in Vanover and Merrill. Indeed, an examination of the remand opinion and the remand transcript suggests that the trial court was unaware of the existence of any standards regulating the exercise of its discretion. Given the record in this case, the trial court's failure to make detailed Merrill/Vanover findings in support of its property division cannot be excused: it is not obvious from the record that Kevin's earning capacity is significantly lower than Wendy's; Kevin currently is thirty-eight years old and apparently is in good health, and it appears that Kevin brought little property into the marriage. Third, we have previously criticized as overbroad one of the trial court's primary stated justifications for its property division — that Wendy was "benefitted by Kevin having a regular salaried position with health benefits." See Chotiner v. Chotiner, 829 P.2d 829, 833 (Alaska 1992) ("Though Jennifer's financial contributions to the marriage were significant, they do not make Andrew's separate property marital. Such a result would mean that a non-working spouse would never be able to keep his or her inherited property separate."). V. CONCLUSION AFFIRMED in part, REVERSED in part, VACATED in part, and REMANDED for additional proceedings in conformity with this opinion. . See Laing v. Laing, 741 P.2d 649, 652 (Alaska 1987) (noting without objection that "the parties in this case stipulated to the characterization of the divided assets as marital property"). . See Godfrey v. Hemenway, 617 P.2d 3, 8 (Alaska 1980) (stating that "[t]he courts look with favor on stipulations designed to simplify, shorten or settle litigation, or to save costs and will not give such stipulations a forced construction"). . See, e.g., Carlson v. Carlson, 722 P.2d 222, 224 (Alaska 1986) (stating that "the act of comin-gling, in itself, does not automatically establish intent to jointly hold property, and a court always should consider the property's source when determining what assets are available for distribution"); see also Gardner v. Harris, 923 P.2d 96 (Alaska 1996); Miles v. Miles, 816 P.2d 129 (Alaska 1991). . In particular, Kevin argues that a look at each of the gifts demonstrates that they were either spent during the marriage; remained in accounts which Wendy ultimately received, and/or were invested in Trade Construction, Inc. and co-mingled with the profits. . If the claim that Wendy holds the gifts in trust for her children were valid, it presumably could be brought in a separate action by a representative of the children or by Wendy's father. . At the original trial, the superior court concluded that the value less the mortgage of one of the marital assets — the Snowy Owl property — was $40,000. Wendy submits that, as a result of market appreciation, mortgage payments, and renovations paid for in cash or accomplished as a result of Wendy's labor — all of which occurred after the divorce — she and her second husband currently have $100,000 of equity in the house. There are some indications in the trial court's opinion on remand that the superior court may have implicitly adjusted upward the valuation of the marital estate by the amount of the post-trial appreciation in the Snowy Owl property. (The superior court there stated that, "one solution is to re-divide the marital assets and give Kevin more of those assets, which primarily is the [Snowy Owl] house.") There is no indication that the superior court adjusted the valuation of any of the other assets comprising the marital estate to account for any post-trial appreciation. To the extent that the appreciation of the Snowy Owl property is attributable to Wendy's post-trial expenditures of effort or money, it would be error to increase the valuation of the marital estate. See, e.g., Bousquet v. Bousquet, 731 P.2d 1211, 1214 (Alaska 1987) (holding that assets acquired subsequent to separation are not considered marital property, absent evidence that spouse used marital property to obtain them); Foster v. Foster 883 P.2d 397, 399 (Alaska 1994) ("The date that the marriage has ceased to function as a single economic unit, often the date of separation, is the date after which newly acquired property should be considered non-marital property."). To the extent that the appreciation of the property is attributable to post-trial market appreciation it would be, as Wendy argues, inappropriate to "single out one marital asset, the Snowy Owl Lane house, and value it alone six years after separation and five years after the trial." See Moffitt v. Moffitt, 813 P.2d 674, 678 (Alaska 1991) ("In some circumstances, it might be unjust to revalue only one asset at the date of the new trial while maintaining old values on all other assets which have been distributed."). . The basis for this figure is as follows: $359,289 currently is impounded in the court registry. The superior court concluded that the entire amount is Wendy's separate property. The superior court also determined that the Derby Tract lot is Wendy's separate property. At the time of the original trial, the value of the Derby Tract property was $45,000. . The superior court explained its allocation of property in this case as follows: Wendy was able to run her own business, in large part, due to the generous loans and gifts from her father. However, she was also bene-fitted by Kevin having a regular salaried position with health benefits. Whether or not Trade made or lost money at a given point in time, Wendy had the security of Kevin being regularly employed. Wendy did not have to work at a job with a stable income to ensure she would have money for the family, because Kevin held a salaried position. When Trade was profitable, Wendy would pay herself a generous salary, and the family had additional money for new cars, trips, and so forth. Wendy was able to invest her father's gifts in Trade, local investment accounts, and New Zealand accounts, because she did not need the money to live on. Had Kevin not been working, some of this money may have been used for the support of the family, and not available for savings accounts in New Zealand. This Court does not find that it would be an equitable division to divide the property as suggested by Wendy, where she has all the money, and Kevin has none. On the other hand, Kevin's solution is for this Court to simply ignore the Supreme Court's decision and leave him with half of everything. Unfortunately, this proposed solution does not lend much guidance as to what would be a fair and equitable division, in light of the appellate mandates. The Court is faced with the problem of determining what would be a fair and equitable distribution and sees two options to equalize the distribution. Either the marital property is re-divided and Kevin gets a greater share, or some of Wendy's separate property needs to be invaded.... The Court finds that it is not equitable now to leave Kevin with very little separate assets, and Wendy with over $300,-000.00, plus the family home. The children are shared equally, and this would lead to widely disparate lifestyles. . The basis for this figure is as follows: At the conclusion of the original trial, Wendy paid Kevin $54,674.44 of her separate property. The trial judge did not reduce Kevin's award on remand to reflect this. Kevin was also awarded $67,787 of marital property. The superior court, on remand, ordered Wendy to convey to Kevin the Snowy Owl property or to pay him its "current value." On the assumption that, by its use of the term "current value," the superior court meant "current equity," Wendy has represented that her current equity in the house is approximately $100,000. The superior court also ordered Wendy to pay Kevin half the value of the Gig Harbor property ($5,500), and an additional $12,000. This awards Kevin $239,961.44. The marital estate is valued at $159,512.89. . See also Hayes v. Hayes, 756 P.2d 298 (Alaska 1988) ("While 50/50 division of marital property is presumptively just, an unequal division can be condoned when it is justified by relevant factors identified in the findings of the court."); Bousquet v. Bousquet, 731 P.2d 1211, 1217 n. 14 (Alaska 1987) ("Moreover, there is a presumption that the most equitable division of the [marital] property is an equal division."). . The Merrill factors include: the ages of the parties, their earning capacity, the duration of the jnarriage, the conduct of the parties during marriage, their "station in life," the circumstances and necessities of each, their health, their financial condition, the time and manner of acquisition of the property in question, the value of the property at the time of division, and the income-producing capacity of the property. Miller v. Miller, 739 P.2d 163, 166 n. 3 (Alaska 1987). . Wendy has asked the court to vacate the property division ordered by the superior court and to order a 50/50 division of the marital property. We think that such a course of action would be inappropriate in view of the absence of detailed Merrill/Vanover findings by the trial court. See Merrill v. Merrill, 368 P.2d 546, 548 (Alaska 1962) ("As the case stands now we would have to assume the role of the trial court, weigh the evidence, draw reasonable inferences, make findings and determine the result. That is not our function or obligation."). . During the remand hearing, the superior court made the following two statements: "I wish I'd had more guidance from [the Supreme Court] as to what they wanted me to look at when I decide whether the equities require invasion of the separate property." "I mean [the Supreme Court] didn't set forth what criteria I'm supposed to use, but presumably you have some idea of what criteria I'm supposed to be looking at in deciding whether I should invade the marital . the nonmarital property."

10402355

FAIRBANKS NORTH STAR BOROUGH and Scott Wetzel Services, Appellants, v. ROGERS AND BABLER and Alpac/INA, Northland Maintenance, Wausau Insurance Company, and Alex Odom, Appellees

Fairbanks North Star Borough v. Rogers

1987-12-18

No. S-1596

528

535

747 P.2d 528

747

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:50:40.035891+00:00

CAP

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

FAIRBANKS NORTH STAR BOROUGH and Scott Wetzel Services, Appellants, v. ROGERS AND BABLER and Alpac/INA, Northland Maintenance, Wausau Insurance Company, and Alex Odom, Appellees.

FAIRBANKS NORTH STAR BOROUGH and Scott Wetzel Services, Appellants, v. ROGERS AND BABLER and Alpac/INA, Northland Maintenance, Wausau Insurance Company, and Alex Odom, Appellees. No. S-1596. Supreme Court of Alaska. Dec. 18, 1987. Ralph R. Beistline, James Klassen, Ann Stoloff Brown, Hughes, Thorsness, Gantz, Powell & Brundin, Fairbanks, for appellants. Chancy Croft, Fairbanks, for appellee Odom. Robert L. Eastaugh, Delaney, Wiles, Hayes, Reitman & Brubaker, Anchorage, for appellees Rogers & Babler and INA. Dennis E. Cook, Schaible, Staley, DeLisio & Cook, Fairbanks, for appellees Northland Maintenance and Wausau Ins.

3751

23491

OPINION Before RABINOWITZ, C.J., and BURKE, MATTHEWS and COMPTON, JJ. BURKE, Justice. In this appeal we are asked to determine which employer should be held liable for the payment of workers' compensation benefits when employment with successive employers may have contributed to the worker's resulting disability. The Workers' Compensation Board applied Alaska's last injurious exposure rule to the case and determined that the worker's disability was causally related to the worker's most recent employment. Accordingly, the Board held employer, Rogers and Babler, liable for payment of the worker's disability benefits. On appeal, the superior court reversed and remanded on the grounds that the Board had failed to make certain required findings and that the determination lacked substantial evidentiary support. We now affirm the Board's determination. I In March, 1984, Alex Odom filed a disability claim with the Workers' Compensation Board. At the hearing on this claim, Odom showed that he first injured his right knee in 1976 while employed with Perini Arctic Associates. He reinjured the same knee in 1977 while employed with Alaska International Constructors. In 1981, Odom injured his left knee while working for Northland Maintenance (Northland). Odom then consulted Dr. Francis Kelly concerning his various injuries and was advised that he was suffering from torn cartilage in both knees. At the time, Dr. Kelly recommended only rest. Odom, however, did not follow the doctor's advice and went back to work. Upon his return, Northland initially gave Odom light duty, but he was eventually laid off because he "couldn't do the other work." At Dr. Kelly's suggestion, and because both knees were bothering him, Odom did not work the following year. Evidence showed that during this year Odom was in frequent pain and that his knees were subject to occasional "lockups" and swelling. Dr. Kelly prescribed medication for these conditions and recommended surgery. Odom declined to follow the latter advice. Odom returned to work as a laborer with Rogers & Babler in 1982. His knees continued to bother him, but the work did not appear to worsen his condition. After some time on this job, he quit because of his knee problems. Odom then went to work for the Fairbanks North Star Borough School District (Borough) as a substitute janitor. Although Odom felt at the time that this work would be easier on his knees than was the Rogers & Babler work, he later found that this was not the case. Odom's duties with the Borough required him to climb stairs, to be on his feet for extended periods, and to engage in some heavy labor, including some lifting, heaving, and pushing. During this period of employment, Odom's knees continued to bother him and Dr. Kelly continued to recommend surgery. In December of 1982, Odom had fluid drained from his right knee. Despite this procedure, Odom worked continuously for the Borough until he was laid off at the end of the school year. Odom felt that this layoff was due to his knee problems. Shortly thereafter, Dr. Kelly scheduled surgery to repair Odom's knees. The scheduled surgery was later cancelled at Odom's request. Odom's final employment started in June 1983 and was again with Rogers & Babler. Odom operated an asphalt machine, worked 12-14 hour days, and was required to stand while working with the machine. Odom's knees continued to bother him and were again subject to "lock-ups" and swelling. During this employment, Odom again had fluid drained from his knees. Finally, Odom's pain led him to quit this job and submit to surgery. In finding Rogers & Babler liable for the payment of Odom's disability benefits, the Board initially determined that the evidence presented was sufficient to establish the presumption of compensability under AS 23.30.120(1), but that such presumption had been overcome by "substantial evidence" to the contrary introduced by Rogers & Ba-bler. Even though the statutory presumption had been rebutted, however, the Board concluded that Odom's evidence was sufficient to prove that the second Rogers & Babler employment aggravated Odom's preexisting knee condition and that this aggravation was a substantial factor in causing Odom's ultimate disability. On appeal, the superior court disagreed. The court first concluded that since the Board did not make certain required findings with regard to the causal connection between the employment and Odom's disability, the presumption of compensability was not properly raised. The court then concluded that absent the presumption, there was insufficient evidence to support the Board's decision. Consequently, the superior court vacated the Board's decision, ordered the Borough to continue Odom's disability payments until liability could ultimately be determined, and remanded the matter so that the Board could determine which prior employment was the legal cause of Odom's disability. This appeal followed. II We first consider the superior court's finding that the Board improperly raised the statutory presumption of compensabili ty and rule that the superior court s reversal on this ground was improper. Even if a finding of fact or conclusion of law is erroneous, the mistake is not grounds for reversal if the finding or conclusion is not necessary to the court's ultimate decision. Branco Eastern Co. v. Leffler, 173 Colo. 428, 482 P.2d 364, 368 (1971); Wright v. Wright, 1 Haw.App. 581, 623 P.2d 97, 100 (1981); Newcum v. Lawson, 1 N.M. 448, 684 P.2d 534, 541 (App.1984); City of Village v. McCown, 446 P.2d 380, 383 (Okl.1968); State ex rel. Carriger v. Campbell Food Markets, 65 Wash.2d 600, 398 P.2d 1016, 1020 (1965). Similarly, an administrative agency ruling, even if mistaken, will not be reversed unless substantial rights of a party have been prejudiced. Mattingly v. Charnes, 700 P.2d 927, 929 (Colo.App.1985); Survivors of Medeiros v. Maui Land and Pineapple Co., 66 Haw. 290, 660 P.2d 1316, 1319 (1983); Excepticon Midwest, Inc. v. Kansas Department of Health, 234 Kan. 802, 676 P.2d 107, 110 (1984). While the Board in this action did discuss the presumption and found it properly raised, it also specifically determined that Rogers & Babler had presented substantial evidence rebutting the presumption. The presumption thus "dropped out," placing the burden of persuasion upon Odom to prove all elements of his claim by a preponderance of the evidence. Raab v. Parker Drilling, 710 P.2d 423, 426 (Alaska 1985); Burgess Construction v. Smallwood, 698 P.2d 1206, 1210 (Alaska 1985). The Board subsequently found that Odom had satisfied that burden and imposed liability upon Rogers & Babler. Because the Board thus rested its final ruling not upon the presumption, but upon its conclusion that Odom had satisfied his burden of persuasion, any finding regarding the presumption was unnecessary to the Board's ultimate ruling. Even assuming, therefore, that the Board's ruling on the presumption issue was error, it was harmless error and is not a ground for reversal. Ill A major purpose of Alaska's workers' compensation scheme is to provide injured workers with a simple, speedy remedy whereby they may be compensated for losses occasioned by work related injuries. Hewing v. Peter Kiewit & Sons, 586 P.2d 182, 187 (Alaska 1978). In this spirit, the last injurious exposure rule provides a reasonably equitable approach to compensation problems in the multi-employer context which is simple, easy to administer, and avoids the difficulties associated with apportionment. Ketchikan Gateway Borough v. Saling, 604 P.2d 590, 595 (Alaska 1979). The rule is not designed, however, to inequitably impose liability upon employers having no connection with the employee's disability. To ensure that the rule is not so utilized, we have indicated that liability may be imposed on a subsequent employer only after the claimant has proved by a preponderance of the evidence that the employment aggravated, accelerated, or combined with a preexisting condition and that this aggravation, acceleration or combination was a substantial factor contributing to the ultimate disability. United Asphalt Paving v. Smith, 660 P.2d 445, 447 (Alaska 1983); Fluor Alaska, Inc. v. Peter Kiewit Sons' Co., 614 P.2d 310, 313 (Alaska 1980); Saling, 604 P.2d at 595. Although we have never before explicitly discussed the factors to be considered when determining whether an aggravation, acceleration or combination is a substantial factor in the resulting disability, in other contexts we have indicated that the substantial factor test may normally be satisfied only by a showing of both cause-in-fact and proximate cause: that the injury would not have happened "but for" an act, omission or force and that reasonable persons would regard this act, omission or force as a cause and attach responsibility to it. E.g., Division of Corrections v. Neakok, 721 P.2d 1121, 1135 (Alaska 1986); State v. Abbott, 498 P.2d 712, 726-27 (Alaska 1972). In imposing liability upon Rogers & Ba-bler, the Board employed the traditional cause-in-fact "but for" test to determine that the Rogers & Babler employment was a substantial factor in Odom's disability. The superior court applied this same test to come to an opposite conclusion. Both Odom and the Borough, however, now argue that the utilization of a "but for" test in the present context is contrary to precedent and hostile to the policy behind the last injurious exposure rule. We disagree. Initially, the Borough argues that the "but for" cause-in-fact test is inapplicable in the present context because there are several forces operating to bring about Odom's disability: the original injury and the subsequent aggravations. We have on many occasions recognized that when two or more forces operate to bring about an injury and each of them, operating alone, would be sufficient to cause the harm, the "but for" test is inapplicable because it would tend to absolve all forces from liability. Yukon Equipment v. Gordon, 660 P.2d 428, 433 (Alaska 1983); Wilson v. City of Kotzebue, 627 P.2d 623, 630 (Alaska 1981); Sharp v. Fairbanks North Star Borough, 569 P.2d 178, 181 n. 7 (Alaska 1977); Abbott, 498 P.2d at 726-27. The difficulty with the Borough's argument, however, is that it fails to recognize that we are not here dealing with two independent causes each of which could have brought about Odom's disability. Rather, we are confronted with a preexisting condition and an aggravation. The exception noted above is thus inapplicable to this case because application of the "but for" test will not tend to relieve all forces from liability. In a similar vein, Odom argues that application of the "but for" test ignores the distinction between an aggravation being a legal cause and an aggravation being the legal cause of the disability, thus nullifying the effect of the last injurious exposure rule and violating Saling's mandates. Contrary to Odom's assertion, however, application of the "but for" test does not indicate the legal cause, but merely indicates the range of causes which may be considered legal causes. As Professors Prosser and Keeton state: As a rule regarding legal responsibility, [the "but for" rule] at most . must be a rule of exclusion: if the event would not have occurred "but for" the [employment], it still does not follow that there is liability, since other considerations remain to be discussed and may prevent liability. It should be quite obvious that, once events are set in motion, there is, in terms of causation alone, no place to stop. The event without millions of causes is simply inconceivable. W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser and Keeton on the Law of Torts § 41, at 266 (5th ed. 1984). Thus, to say that the worker's disability would not have occurred "but for" a particular period of employment is merely to say that the period of employment was a substantial factor in the resulting disability. The Borough also argues that application of the "but for" test would make the last injurious exposure rule a nullity, because it would be "almost impossible for an employ ee to prove that 'but for' an aggravation or acceleration of a preexisting condition, he would not be disabled." Where, as here, a claimant has a degenerative injury, the claimant can be expected to experience some degree of disability regardless of any subsequent trauma. It can thus never be said that "but for" the subsequent trauma the claimant would not be disabled. The proof required, however, is not so difficult. Rather, the claimant need only prove that "but for" the subsequent trauma the claimant would not have suffered disability at this time, or in this way, or to this degree. In other words, to satisfy the "but for" test, the claimant need only prove, as indicated above, that the aggravation, acceleration or combination was a substantial factor in the resulting disability. We perceive no conceptual basis for supposing that the employee would have any greater difficulty in proving this element of his claim than in proving any other. Finally, it is argued that it would be inequitable to apply the "but for" test in this context because a disabled worker could be left uncompensated for procedural reasons. We reject this argument for several reasons, most importantly because it depends for its force upon the assumption that a subsequent employment which aggravates, accelerates or combines with a preexisting condition can never satisfy the "but for" cause-in-fact test. As demonstrated above, this assumption is unsupported. Furthermore, it is not clear why it would be inequitable to deny compensation to an employee who has failed to adhere to the filing requirements of AS 23.30.-105(a). We perceive no compelling reason to reward an employee who has failed to adhere to these requirements by imposing liability upon a subsequent employer having absolutely no connection with the employee's disability. We thus embrace utilization of the "but for" cause-in-fact test in this context. We find that it provides a useful method of shielding the employer from unwarranted liability while supporting the basic precepts of Alaska's workers' compensation scheme and the last injurious exposure rule. IV Finally, we must determine whether the Board's finding that Odom had carried his burden of persuasion was error. In this regard, we note that the court's task when reviewing a Board determination is not to reweigh the evidence presented to the Board, but to determine whether there is substantial evidence in light of the whole record that a reasonable mind might accept as adequate to support the Board's conclusion. Delaney v. Alaska Airlines, 693 P.2d 859, 863 (Alaska 1985); Burgess Construction v. Smallwood, 623 P.2d 312, 317 (Alaska 1981); Miller v. ITT Arctic Services, 577 P.2d 1044, 1046 (Alaska 1978). The Board may base its decision not only on direct testimony, medical findings, and other tangible evidence, but also on the Board's experience, judgment, observations, unique or peculiar facts of the case, and inferences drawn from all of the above. Wilson v. Erickson, 477 P.2d 998, 1001 (Alaska 1970); Beauchamp v. Employers Liability Assurance, 477 P.2d 993, 996 (Alaska 1970). The Board's factual findings, however, may be set aside if the reviewing court cannot conscientiously find that the evidence supporting the decision is substantial when viewed in light of the entire record, including the evidence opposed to the Board's decision. Delaney, 693 P.2d at 863-64 n. 2. With these principles in mind, we find that there was substantial evidence supporting the Board's determination. The evidence specifically relied upon by the Board included: (1) Odom's testimony that he was required to work 12-14 hours per day for Rogers & Babler; (2) Dr. Kelly's testimony that virtually any physical activity could aggravate Odom's knee condition; (3) Odom's testimony that his knee condition did in fact worsen while employed by Rogers & Babler; (4) the fact that Odom had fluid drained from his knee while employed by Rogers & Babler; and (5) the fact that it was only after his second Rogers & Babler employment that Odom finally submitted to surgery. In determining that this was not substantial evidence, in light of the whole record, to support the Board's decision, the superior court noted (1) that Odom had a preexisting knee injury which could have resulted in disability even without any further aggravation; (2) that Dr. Kelly's testimony was inconclusive as to whether the employment aggravated the knee injury; (3) that Odom's knee condition progressively degenerated from the date of the original injuries; and (4) that Odom had been urged, prior to the Rogers & Babler employment, to submit to surgery. The evidence cited by the superior court does nothing to detract from the substan-tiality of the evidence relied upon by the Board. There is no question but that Odom was suffering from a preexisting condition and that this condition was serious and potentially debilitating. An employee's preexisting condition will not, however, relieve an employer from liability in a proper case. Saling, 604 P.2d at 596. Indeed, this is the very purpose of the last injurious exposure rule. Thus, the question before the Board was not whether Odom had such a condition, but whether his most recent employment aggravated this knee condition and, if so, whether that aggravation was a substantial factor in his resulting disability. Id. Although Dr. Kelly's testimony was inconclusive, it should be remembered that uncontroverted, yet inconclusive, medical evidence is to be interpreted in the employee's favor. Land & Marine Rental v. Rawls, 686 P.2d 1187, 1190 (Alaska 1984); Kessick v. Alyeska Pipeline Service Co., 617 P.2d 755, 758 (Alaska 1980). In addition, aggravation of a preexisting condition may be found absent any specific traumatic event. Providence Washington Insurance v. Bonner, 680 P.2d 96, 99 (Alaska 1984). The Board's finding of aggravation was thus supported by both Dr. Kelly's and Odom's testimony and inferentially by the nature of Odom's work with Rogers & Babler. This evidence was un-contradicted. The Board's finding that the disability would not have occurred "but for" the employment is supported not only by Dr. Kelly's testimony, but inferentially from the fact that Odom had been able to continue working despite pain prior to the Rogers & Babler employment but required surgery after that employment. The Board's finding that reasonable persons would find that the Rogers & Babler employment was a cause of Odom's disability and impose liability is, as are all subjective determinations, the most difficult to support. We have no reason for supposing, however, that the members of the Board who found it so are either irrational or arbitrary. The fact that some reasonable persons may disagree with a subjective conclusion does not necessarily make that conclusion unreasonable and we cannot say that it is so in this case. V For the reasons outlined above, the decision of the superior court is REVERSED and that of the Workers' Compensation Board imposing liability upon Rogers & Babler for Alex Odom's disability payments is AFFIRMED. MOORE, J., not participating. . The "last injurious exposure" rule imposes full liability for the payment of compensation benefits on the employer at the time of the worker's most recent injury which bears a causal relation to the disability. Ketchikan Gateway Borough v. Saling, 604 P.2d 590, 595 (Alaska 1979). . The superior court decision ordered the Fairbanks North Star. Borough, one of the worker's previous employers, to pay disability benefits. . Both Perini Arctic Associates and Alaska International Constructors were later dismissed from the claim for Odom's failure to file as to these two employers in a timely manner. The Board decision to dismiss as to these two employers is not here at issue. . AS 23.30.120(1) provides: In a proceeding for the enforcement of a claim for compensation under this chapter it is presumed, in the absence of substantial evidence to the contrary, that (1) the claim comes within the provisions of this chapter!.] . Cf. Loof v. Sanders, 686 P.2d 1205, 1209 (Alaska 1984) (to prevail on appeal the appellant "must demonstrate that the error, if any, had 'substantial influence' on the outcome of the case"); State v. Alaska Continental Development, 630 P.2d 977, 985 n. 9 (Alaska 1980) (a legal error not based on a constitutional claim is harmless if the factfinder is not substantially swayed or affected by the error); Martinez v. Bullock, 535 P.2d 1200, 1206-07 (Alaska 1975) (an error which does not affect substantial rights is harmless); see also Alaska R.Civ.P. 61. . We do not, of course, express any opinion as to whether the Board's treatment of this issue was in fact in error. . We assume, for the purposes of this discussion, that the employer has successfully rebutted the presumption of compensability provided in AS 23.30.120(1). . Because the parties do not contest the applicability of the second aspect of the substantial factor test, that reasonable persons would regard the act as a cause and attach responsibility to it, we do not discuss it here. The parties' contention is only that the "but for" aspect of the test is inapplicable. . In Alaska, a disability resulting from gradual wear and tear and activity which is in no sense unusual may be compensable. Fox v. Alascom, 718 P.2d 977 (Alaska 1986). Thus, our use of the term "trauma" should be understood in this broad sense. . The Borough uses this case as an illustration. See supra note 2 and accompanying text. Even if the argument has merit in an abstract sense, however, the argument is not applicable here because Odom suffered a primary injury while employed with Northland. The claim as to the Northland employment was timely filed. . AS 23.30.105(a) provides: The right to compensation for disability under this chapter is barred unless a claim for it is filed within two years after the employee has knowledge of the nature of the employee's disability and its relation to the employment and after disablement. However, the maximum time for filing the claim in any event other than arising out of an occupational disease shall be four years from the date of injury, and the right to compensation for death is barred unless a claim therefor is filed within one year after the death, except that if payment of compensation has been made without an award on account of the injury or death, a claim may be filed within two years after the date of the last payment. It is additionally provided that, in the case of latent defects pertinent to and causing compensable disability, the injured employee has full right to claim as shall be determined by the board, time limitations notwithstanding.

10545493

Gary L. SPEAS, Appellant, v. STATE of Alaska, Appellee

Speas v. State

1973-06-15

No. 1555

130

134

511 P.2d 130

511

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

Gary L. SPEAS, Appellant, v. STATE of Alaska, Appellee.

Gary L. SPEAS, Appellant, v. STATE of Alaska, Appellee. No. 1555. Supreme Court of Alaska. June 15, 1973. Dick L. Madson, Asst. Public Defender, Fairbanks, Herbert D. Soli, Public Defender, Anchorage, for appellant. Monroe N. Clayton, Dist. Atty., Fairbanks, John E. Havelock, Atty. Gen., Juneau, for appellee. Before RABINOWITZ, C. J., and CONNOR, ERWIN and BOOCHEVER, JJ-

2372

14743

CONNOR, Justice. The instant sentence appeal reaches this Court in the context of appellant's tragic personal history. Speas was sent to Fairbanks in July, 1969, by the Lutheran Hospital and Homes Society to be Administrator of the Society's Fairbanks hospital. His duties included improving the hospital's operating performance and professional standards to the level of accreditation standards and assisting in developing plans for a new hospital. These substantial responsibilities were made additionally difficult by a series of confrontations with doctors, members of the hospital medical staff, and administrative employees. Complicating the situation even further, Speas began to experience severe health problems. During the latter months of 1970 he began having recurring headaches. These became worse by January, 1971, and in addition his eyes began to trouble him, and he began having chronic stomach ulcer and hernia problems. He was hospitalized three times between May, 1970, and February, 1971, and a veritable cornucopia of medications were prescribed in an effort to relieve his symptoms. Agonized by job pressures and pain and receiving no relief from the prescribed medications, Speas sought relief by appropriating for self-administration narcotics from the hospital stores. In his account to the probation officer he mentioned two incidents, one in November, 1970, and one in March, 1971. On April 5, 1971, a college pharmacist discovered that drugs were missing and his suspicions indicted Speas. A police search of the Speas residence ensued, and Speas was ultimately indicted on May 4, 1971, for two counts of illegal use of narcotics in violation of AS 17.10.-040(e). Speas pleaded guilty to Count II of the indictment (illegal use of morphine), Count I (illegal use of meperidine), being dismissed pursuant to a motion made by the District Attorney. Based on an extensive investigation into the case, the probation officer recommended that imposition of sentence be suspended for two years and that Speas received minimal supervision while on probation during the period of suspension. This recommendation notwithstanding, the judge in pronouncing sentence, held himself bound by the provisions of AS 17.10.200 establishing a two-year mandatory minimum sentence. He rejected the argument that the provisions of AS 12.55.080 and AS 12.55.085(a) governing suspended imposition of sentence and probation were applicable to violations of AS Title 17. Rather, he viewed the provisions of AS Title 12 as pertaining only to crimes defined in AS Title 11. Accordingly, he sentenced Speas to two years imprisonment. In support of the trial judge's ruling the State observes that AS 12.85.010 affords blanket application of AS Title 12 (the Code of Criminal Procedure) ". . .to all criminal actions and proceedings in all courts except where specific provision is otherwise made . . , ," (Emphasis added.) It contends that specific provision is indeed otherwise made in AS 17.10.-200(d). It reads this section as requiring that a minimum of two years imprisonment be served before sentence may be suspended or probation or parole be granted. We find this argument unpersuasive and we hold that the court erred in concluding that the suspended imposition of sentence and probation provisions of AS 12.55.080 and AS 12.55.085(a) do not apply to violations of AS Title 17 in general and to the Uniform Narcotic Drug Act in particular. Our legislature enacted the language of AS 17.10.200(d) into law in substantially its present form in 1961. In the decade since that enactment, much study and discussion has been devoted to the wisdom and efficacy of mandatory minimum sentences. The American Bar Association, has concluded that "it is inappropriate for the legislature to prescribe minimum terms which must be imposed by the court irrespective of the circumstances." The Model Penal Code and the Model Sentencing Act are in substantial agreement with this conclusion. In the area of sentencing procedures our Alaska legislature has occupied a position on the vanguard of responsible reform. AS 12.55.085 was added to AS Title 12, Chapter 55, on April 3, 1965, under the heading "An Act Relating to suspension of imposition of sentence." Less than two weeks later, AS 12.55.080 was repealed and reenacted in its present form as part of "An Act Relating to sentencing, probation, and parole of persons convicted in criminal actions." We note in passing that AS 12.55.080 and AS 12.55.085 postdate both the mandatory minimum sentence provision of AS 17.10.200 and the "except where specific provision is otherwise made" language of AS 12.85.010. In determining whether the mandatory sentence provision or the 1965 enactments control, we are assisted by more recent action of the legislature. In 1968 the legislature amended AS Title 17 by adding a new chapter dealing with depressant, hallucinogenic and stimulant drugs. In its Declaration of Intent preceding the new chapter, the legislature stated: "The legislature further finds that the distribution and sale of certain drugs are more serious offenses against society than the mere use of the drugs and that distribution to a minor is a graver offense than distribution to an adult. It is the intent of the legislature that this latter factor be considered by the courts in exercising their discretion in imposing the sentences prescribed in this Act for the distribution and sale of the named drugs." (Emphasis added.) We read this passage as clearly indicative of the legislature's intent to vest, and recognition that it has in fact vested, broad discretion in the courts in imposing sentence for violations of the drug laws set forth in Title 17, Chapter 12. Our reading is strengthened by the omission from AS Title 17, Chapter 12 of mandatory minimum sentences. Furthermore, AS 17.12.-120 makes specific provision for rehabilitative treatment in lieu of imprisonment in cases of the kind before us: "A person convicted of violating a provision of this chapter relating to the possession or control of depressant, hallucinogenic and stimulant drugs, when his possession or control is for his own use may, in place of a fine or imprisonment, be committed to the custody of the department for rehabilitative treatment for not more than one year." It remains to relate the effect of this program of legislative development to the mandatory minimum sentence requirement of AS 17.10.200. According to Sutherland, "On the basis of analogy a number of decisions hold that a doubtful application of a statute will be controlled by the express language of one or several other statutes which are wholly unrelated, but apply to similar persons, things, or relationships. Primarily, the rule is based upon public policy. By referring to other similar legislation the court is able to learn the purpose and course of legislation in general, and by transposing the clear intent expressed in one or several statutes to a similar statute of doubtful meaning, the court not only is able to give effect to the probable intent of the legislature, but also to establish a more uniform and logical system of law." (Footnotes omitted, emphasis added.) A considerable overlap exists between the set of drugs covered by AS Title 17, Chapter 10, and that covered by AS Title 17, Chapter 12. Were we to affirm the trial court's ruling we would be sanctioning a host of anomalous situations. For instance, one individual charged with possession of cannabis under AS 17.10.010 would be required to serve a two-year minimum sentence while another individual, having engaged in identical conduct but charged under AS 17.12.010 would be eligible for rehabilitative treatment. In terms of the facts of the case before us, an individual manifestly in need of and clearly deserving rehabilitative treatment would be denied such treatment because the indictment was issued under Chapter 10, while that same individual would receive rehabilitative treatment were the indictment issued under Chapter 12. Not only are we unwilling to lend our imprimatur to such capricious distinctions, we are satisfied from our review of the legislature's activities in the area that the legislature's manifest intent is to invest the courts with discretion in imposing sentence not only under AS Title 17, Chapter 12, but also, by analogy therewith, under AS Title 17, Chapter 10. In short, we hold that the provisions of AS 12.55.080 and AS 12.55.085(a) do apply to violations of AS Title 17, Chapters 10 and 12, and that the two-year minimum sentence requirement of AS 17.10.200(d) has thus been implicitly repealed as contrary to more recent expressions of legislative intent. In light of our holding and the recommendations of the probation officer's report, we are satisfied that the sentence imposed in this case was excessive. Accordingly we remand to the trial court for a review of the sentence imposed. Remanded for further proceedings consistent with this opinion. FITZGERALD, J., not participating. . Speas has been plagued by medical difficulties throughout his life. At age 11 he was diagnosed as having severe Diabetes Mellitus. At about this same time he developed serious sinus problems and underwent several major operations. In the Dali of 1964, a chronic knee pain was diagnosed as bone cancer. X-ray treatment proved successful, but the possibility of recurrence remains. . AS 17.10.200 establishes the penalties for violations of chapter 10 of AS Title 17 (the Uniform Narcotic Drug Act). AS 17.10.200(a) provides in relevant part: "A person who violates any provision of this chapter except a provision relating to the keeping of records, upon conviction, is punishable by a fine of not more than $5,000 and by imprisonment for not less than two nor more than 10 years." AS 17.10.200(d) provides: "The imposition or execution of sentence shall not be suspended and probation or parole shall not be granted until the minimum imprisonment provided in this section for the offense is served." . AS 12.55.080 provides: "Upon entering a judgment of conviction of a crime, or at any time within 60 days from the date of entry of that judgment of conviction, a court, when satisfied that the ends of justice and the best interest of the public as well as the defendant will be served thereby, may suspend the imposition or execution or balance of the sentence or a portion thereof, and place the defendant on probation for a period and upon the terms and conditions as the court considers best." . AS 12.55.085(a) provides: "If it appears that there are circumstances in mitigation of the punishment, or that the ends of justice will be served, the court may, in its discretion, suspend the imposition of sentence and may direct that the suspension continue for a period of time, not exceeding the maximum term of sentence which may be imposed, and upon the terms and conditions which the court determines, and shall place the person on probation, under the charge and supervision of the probation officer of the court during the suspension." . AS 17.10.200(a);, note 2 stepra. . Ch. 145 § 1(3) SLA 1961. The history of the evolution of what is now AS 17.-10.200(d) predates statehood. The original penalty section for narcotics offenses, § 40-3-20, ACLA 1949, contained no minimum sentence before probation or parole provision for first offenders. In 1951 the legislature amended that section, adding the following language: "Except in the case of conviction for a first offense for violation of the provisions of this Act, the imposition or execution of sentence shall not be suspended and probation or parole shall not be granted until the minimum imprisonment herein provided for the offense shall have been served." Ch. 26 § 1 SLA 1951. This 1951 emendation was itself amended in 1953, when the legislature altered it to provide for imprisonment without parole, probation, or suspension of sentence "except in the case of conviction for a first offense for violation of the provisions of this Act, where such first offense was other than the illegal sale of narcotic drugs. ." Ch. 106 § 2 SLA 1953. In this form, what is now AS 17.10.200 (d) became the law of the newly admitted State of Alaska. Alaska Const. Art. XV § 1. It was maintained in this form until the 1961 change noted in the text. .American Bar Association Project on Minimum Standards for Criminal Justice, Standards Relating to Sentencing Alternatives and Procedures (Approved Draft, 1968) at 147. See generally id. at 144-53. . See, Advisory Council of Judges of the National Council on Crime and Delinquency. Model Sentencing Act (1963) ; Model Penal Code § 6.01 et seq. (P.O.D.1962). While the Model Penal Code does impose a short minimum sentence of one year, the reasoning is distinguishable and the requirement is questionable. See, American Bar Association Project on Minimum Standards for Criminal Justice, Standards Relating to Sentencing Alternatives and Procedures (Approved Draft, 1968) at 151-53. . Ch. 50 SLA 1965. . Ch. 68 § 8 SLA 1965. Also included in this Act was AS 33.15.230, an addition to AS Title 33, Chapter 15, investing sentencing courts with increased flexibility to determine parole eligibility for defendants sentenced to imprisonment for terms exceeding one year "when in its opinion the ends of justice and the best interests of the public require. . . . " Ch. 68 § 10 SLA 1965. . Ch. 225, § 2, SLA 1968. The addition is now Chapter 12 of AS Title 17, entitled "Depressant, Hallucinogenic and Stimulant Drugs." . Ch. 225 § 1(c) SLA 1968. . AS 17.12.110 defines only maximum penalties. . 3 Sutherland, Statutory Construction § 6102, 157-59, (3d Ed. 1943), and eases cited therein. . Compare AS 17.10.230(10)-(13) with AS 17.12.150(3)-(4). It should be noted that Speas was convicted of illegal use of morphine, which is not included in the definition of depressant, hallucinogenic and stimulant drugs set forth in AS 17.-12.150. (The commissioner, of course, may so designate it by regulation under Subparagraph (3) (D).), Accordingly, the indictment against Speas could not have been issued at the option of the district attorney under Chapter 12, and we are not to be misconstrued as suggesting otherwise. To reiterate the text, the rehabilitation provisions of Chapter 12 are applied to this case on the basis of analogy only.

10554123

STATE of Alaska, Appellant, v. Marvin James GEORGE, Appellee

State v. George

1973-07-16

No. 1786

1293

1295

511 P.2d 1293

511

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

STATE of Alaska, Appellant, v. Marvin James GEORGE, Appellee.

STATE of Alaska, Appellant, v. Marvin James GEORGE, Appellee. No. 1786. Supreme Court of Alaska. July 16, 1973. Harold M. Brown, Dist. Atty., Ketchi-kan, John E. Havelock, Atty. Gen., Juneau, for appellant. William Council, Asst. Public Defender, Ketchikan, Susan Burke, Asst. Public Defender, Herbert D. Soil, Public Defender, Anchorage, for appellee. Before RABINOWITZ, C. J., and CONNOR, BOOCHEVER, and FITZGERALD, JJ.

1185

7029

OPINION PER CURIAM. The State of Alaska appeals from the superior court's dismissal of an indictment in which appellee Marvin George was charged with the crime of burglary not in a dwelling. In the superior court George moved to dismiss the indictment on the ground that it was based on insufficient evidence. At the time the motion came before the court for hearing, counsel for the state requested a two-day continuance in order to permit the filing of a memorandum in opposition to appellee's dismissal motion. The state's motion for a two-day continuance was denied and appellee's motion to dismiss the indictment was granted. This appeal followed. We turn initially to the question of the sufficiency of the evidence which the state presented to the grand jury. Review of the record of the grand jury proceedings persuades us that the evidence was sufficient to sustain the indictment under the standards first articulated by this court in State v. Parks, 437 P.2d 642 (Alaska 1968), and later elaborated upon in Burkholder v. State, 491 P.2d 754 (Alaska 1971), and Taggard v. State, 500 P.2d 238 (Alaska 1972). In Parks, this court said that an indictment would be insufficient and subject to dismissal "if it appeared that no evidence was presented to the grand jury that rationally established the facts." We also stated that under this test the question is one of sufficiency of the evidence — whether it is adequate to persuade reasonable minded persons that if unexplained or uncontradicted it would warrant a conviction of the person charged with an offense by the judge or jury trying the offense. . . . It is not required that the evidence be the kind that would not fall within one of the exclusionary rules of evidence and therefore would be admissible at the trial even though objected to by a defendant. The grand jurors heard the testimony of the officer who conducted an on-the-scene investigation at the burglary situs. They also heard the incriminating statement given to this officer by appellee George, and had before them independent evidence corroborating this statement. We thus con- elude that the state's evidence met the criteria in Parks and it was therefore error on the trial court's part to have dismissed the indictment in this case. We turn next to the question of the superior court's denial of the state's motion for a two-day continuance for the purpose of filing a memorandum in opposition to appellee's motion to dismiss. On the facts appearing in this record, we fail to see how appellee could have been prejudiced by allowing the requested continuance. On the other hand, the denial prejudiced the state in that the ruling precluded the state from filing any opposition going to the merits of appellee's dismissal motion. We therefore conclude that the superior court, on the particular facts of this case, abused its discretion in denying the state's request for a continuance. Reversed and remanded with instructions to reinstate the indictment. ERWIN, J., not participating. . Rule 5, Rules of Appellate Procedure, provides in part that: [T]he State shall have a right to appeal in criminal cases only to test the sufficiency of the indictment . At this same proceeding the state requested the opportunity to be permitted to orally argue the matter. This request was denied by the trial court. . State v. Parks, 437 P.2d 642, 644 (Alaska 1968) (footnotes omitted). .The evidence before the grand jury showed that there was a burglary of the Craig Inn in Craig, Alaska. In his statement, appellee George indicated that Dewey Skan had burglarized the Craig Inn, and that he had entered the building at the same time Skan had and took a knife off the top of the safe and threw it in the bag; that he had received $400 of the money taken and had given some of the money to Floyd Roberts; that subsequently he, appellee George, had returned $214.35 of the stolen money to the owner of the Craig Inn. The investigating officer testified he found the door to the office of the Craig Inn had been broken open and approximately $1200 in cash removed from the safe. This officer further testified that the wife of the owner stated to him that George had been standing outside the Inn at the time the burglary was discovered and had said words to the effect, "We'd better get out of here or let's get out of here." . Regarding the statement which was obtained from him and testified to at the grand jury proceedings by the investigating officer, appellee argues in part that: There was no evidence before the grand jury to indicate that [he] had knowingly or intelligently waived his right to remain silent before making the statement that was presented to the grand jury. Since the state did not demonstrate that there had been a valid waiver, the statement at this point must be presumed to have been procured in violation of the privilege. We find nothing in the record showing whether or not George was given a proper Miranda warning before making the questioned statement, or whether he was in custody at the time it was given. Thus, appellee George has failed to meet his burden of proof in regard to showing that the indictment was not grounded on sufficient evidence. State v. Shelton, 368 P.2d 817, 819 (Alaska 1962). In light of this failure, we do not reach the difficult question as to whether an indictment is subject to dismissal if based on illegally obtained evidence. See United States v. Blue, 384 U.S. 251, 86 S.Ct. 1416, 16 L.Ed.2d 510 (1966), and the discussion found in 1 C. Wright, Federal Practice and Procedure — Criminal § 111, pp. 201-07 (1969). . The state showed adequate justification for its requested continuance. The record discloses that the state did not receive notice of the revised hearing date for the dismissal motion until just prior to the hearing. In Spight v. State, 450 P.2d 157, 159 (Alaska 1969), we held that the trial court is vested with broad discretion to grant or deny continuances. In the past we have found abuse of discretion when a party has been deprived of a substantial right or seriously prejudiced by the court's ruling. John Doe v. State, 487 P.2d 47 (Alaska 1971) ; Klockenbrink v. State, 472 P.2d 958 (Alaska 1970). Inherent in our disposition of the continuance issue is the conclusion that the matter of the propriety of the trial court's denial of a continuance is so inextricably tied to the sufficiency of the indictment issue as to be properly before this court, pursuant to the right of the state to appeal in criminal matters provided for in Rule 5, Rules of Appellate Procedure. See note 1, supra.

10554107

Verna Louise HOFHINES, Appellant, v. STATE of Alaska, Appellee

Hofhines v. State

1973-07-16

No. 1845

1292

1293

511 P.2d 1292

511

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

Verna Louise HOFHINES, Appellant, v. STATE of Alaska, Appellee.

Verna Louise HOFHINES, Appellant, v. STATE of Alaska, Appellee. No. 1845. Supreme Court of Alaska. July 16, 1973. Herbert D. Soli, Public Defender, Anchorage, Dick L. Madson, Asst. Public Defender, Fairbanks, for appellant. • John E. Havelock, Atty. Gen., Juneau, Monroe N. Clayton, Dist. Atty., Fairbanks, for appellee. Before RABINOWITZ, C. J., and CON-NOR, ERWIN, BOOCHEVER and FITZGERALD, JJ.

762

4821

OPINION PER CURIAM. In this sentence appeal Verna Hofhines contends that the superior court's imposition of a 20-year sentence upon her plea of guilty to the crime of first degree murder was excessive. The record in the case at bar indicates that appellant Verna Hofhines hired Dennis Ray Anthony to kill her husband La-Wayne Hofhines. Appellant and Anthony agreed that the latter was to be paid $5,-000 for the killing. Subsequently, appellant's husband was killed. Appellant and Anthony were jointly indicted for the crime of first degree murder. After trial commenced, appellant entered a guilty plea and testified against her codefendant Anthony. Sentencing proceedings were held after a probation officer conducted a presentence investigation and filed a report which contained both psychiatric and psychological evaluations of appellant. At these proceedings the district attorney recommended a sentence of six years incarceration. Appellant's counsel concurred in this recommendation. On the other hand, the author of the presentence report had recommended imprisonment for a period of 20 years with eligibility for parole at the discretion of the parole board. The superior court committed appellant to the custody of the Commissioner of the Department of Health and Social Services for a period of 20 years, and further ordered that appellant's eligibility for parole was to be determined by the parole board in its discretion. Appellant's primary contention in this appeal is that the sentence imposed was excessive "in light of the aid and assistance, given by her to promote the administration of justice." More particularly, appellant argues that the sentencing court overlooked, or gave insufficient weight to, her assistance in bringing about Anthony's conviction of first degree murder. The state does not dispute the fact that appellant substantially assisted it in the prosecution of appellant's codefendant Anthony but contends that in view of all the relevant circumstances the sentence was not excessive. We have carefully reviewed the record in light of appellant's arguments and have determined that we are unable to conclude that the superior court was clearly mistaken in imposing the sentence it did. Given the gravity of the offense, appellant's primary role in the homicide, and other factors appearing in the presentence report, we think the superior court did give weight to appellant's cooperation in the Anthony prosecution in determining that a 20-year sentence was appropriate. The sentence imposed is affirmed. . AS 11.15.010 in part provides that: A person who, being of sound memory and discretion, purposely, and [with] deliberate and premeditated malice . kills another, is guilty of murder in the first degree, and shall be sentenced to imprisonment for not less than 20 years to life. . Dennis Ray Anthony was found guilty of first degree murder and received a sentence of life imprisonment. . State v. Chaney, 477 P.2d 441 (Alaska 1970). Appellant recognizes that AS 11.15.010 fixes a minimum of 20-years imprisonment for first degree murder, and that under AS 11.05.150 the sentencing court may not impose a lesser sentence than is prescribed for first degree murder. AS 11.05.150 provides: Except in a case of murder or rape, the court, may, upon conviction, when in its opinion the facts and circumstances make the minimum penalty provided in this title manifestly too severe, impose a lesser penalty, either of a fine or imprisonment or both. When less than the minimum penalty is imposed, the court shall set out the reasons for its action on the record in the ease. Nevertheless, appellant argues that under AS 12.55.080 a portion of the minimum sentence could still be suspended and appellant placed on probation. AS 12.55.080 provides: Upon entering a judgment of conviction of a crime, or at any time within 60 days from the date of entry of that judgment of conviction, a court, when satisfied that the ends of justice and the best interest of the public as well as the defendant will be served thereby, may suspend the imposition or execution or balance of the sentence or a portion thereof, and place the defendant on probation for a period and upon the terms and conditions as the court considers best. Assuming, without deciding, that appellant's statutory analysis is correct, we still conclude that in the case at bar the 20-year sentence was not clearly excessive.

10545515

Norman Frank CALL, Jr., Appellant, v. STATE of Alaska, Appellee

Call v. State

1973-06-15

No. 1844

135

136

511 P.2d 135

511

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

Norman Frank CALL, Jr., Appellant, v. STATE of Alaska, Appellee.

Norman Frank CALL, Jr., Appellant, v. STATE of Alaska, Appellee. No. 1844. Supreme Court of Alaska. June 15, 1973. Herbert D. Soli, Public Defender, Anchorage, David C. Backstrom, Asst. Public Defender, Fairbanks, for appellant. John E. Havelock, Atty. Gen., Juneau, Monroe N. Clayton, Dist. Atty., James M. Hackett, Asst. Dist. Atty., Fairbanks, for appellee. Before RABINOWITZ, C. J., and CON-NOR, ERWIN, BOOCHEVER and FITZGERALD, JJ.

632

3767

PER CURIAM. Norman Call was indicted for the sale of heroin and pled guilty. There is no indication that he was an addict. A sentencing hearing was held on October 13, 1972. At that hearing the probation officer recommended a four year suspended sentence for Call. The officer indicated that the reformation of Call could best be accomplished by his immediate return to employment in New York, and that society's need for protection could be secured through supervised probation. The State, on the other hand, argued that AS 17.10.200(d) required the court to impose two years imprisonment without probation or parole. The court, while aware of the sentencing criteria set forth in State v. Chaney, 477 P.2d 441 (Alaska 1970), felt that it was bound by the legislative mandate of AS 17.10.200(d) and sentenced Call to four years incarceration. The court was of the opinion that parole could not be granted for two years but said that if the parole board did not feel bound by the statute, then the court would recommend that Call be eligible for parole at the discretion of the board. In Speas v. State, 511 P.2d 130 Op. No. 889 (Alaska, 1973) this court held that the provisions of AS 12.55.080 and AS 12.55.085 (a) governing suspended imposition of sentence and probation were applicable to violations of As Title 17, Chapters 10 and 12, and that the two year minimum sentence requirement of AS 17.10.200(d) has thus been implicitly repealed as contrary to more recent expressions of legislative intent. Accordingly, we remand to the trial court for a review of the sentence imposed. Remanded for further proceedings consistent with Speas v. State, supra. . AS 17.10.200 establishes the penalties for violations of Chapter 10 of AS Title 17 (the Uniform Narcotic Drug Act). AS 17.10.200(a) provides in relevant part: (a) A person who violates any provision of this chapter except a provision relating to the keeping of records, upon conviction, is punishable by a fine of not more than $5,000 and by imprisonment for not less than two nor more than 10 years. . . . AS 17.10.200(d) provides: (d) The imposition or execution of sentence shall not be suspended and probation or parole shall not be granted until the minimum imprisonment provided in this section for the offense is served. . AS 12.55.080 provides: Upon entering a judgment of conviction of a crime, or at any time within 60 days from the date of entry of that judgment of conviction, a court, when satisfied that the ends of justice and the best interest of the public as well as the defendant will be served thereby, may suspend the imposition or execution or balance of the sentence or a portion thereof, and place the defendant on probation for a period and upon the terms and conditions as the court considers best. AS 12.55.085 (a) provides : If it appears that there are circumstances in mitigation of the punishment, or that the ends of justice will be served, the court may, in its discretion, suspend the imposition of sentence and may direct that the suspension continue for a period of time, not exceeding the maximum term of sentence which may be imposed, and upon the terms and conditions which the court determines, and shall place the person on probation, under the charge and supervision of the probation officer of the court during the suspension.

11441600

JOSEPH M. JACKOVICH REVOCABLE TRUST, Dolores M. Jackovich Revocable Trust, Gavora, Inc., John J. Lounsbury, Geraldine S. Lounsbury, and Haman Family Limited Partnership, Appellants, v. STATE of Alaska, DEPARTMENT OF TRANSPORTATION, Appellee

Joseph M. Jackovich Revocable Trust v. State, Department of Transportation

2002-09-06

No. S-9686

294

304

54 P.3d 294

54

Pacific Reporter 3d

Alaska Supreme Court

Alaska

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

CAP

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

JOSEPH M. JACKOVICH REVOCABLE TRUST, Dolores M. Jackovich Revocable Trust, Gavora, Inc., John J. Lounsbury, Geraldine S. Lounsbury, and Haman Family Limited Partnership, Appellants, v. STATE of Alaska, DEPARTMENT OF TRANSPORTATION, Appellee.

JOSEPH M. JACKOVICH REVOCABLE TRUST, Dolores M. Jackovich Revocable Trust, Gavora, Inc., John J. Lounsbury, Geraldine S. Lounsbury, and Haman Family Limited Partnership, Appellants, v. STATE of Alaska, DEPARTMENT OF TRANSPORTATION, Appellee. No. S-9686. Supreme Court of Alaska. Sept. 6, 2002. Edward R. Niewohner, Niewohner & Associates, P.C., Fairbanks, for Appellants. Mason Damrau, Assistant Attorney General, Fairbanks, and Bruce M. Botelho, Attorney General, Juneau, for Appellee. Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.

5953

38707

OPINION EASTAUGH, Justice. I. INTRODUCTION Owners of improved real properties asserted inverse condemnation claims against the State of Alaska, complaining that information the state published about its intentions to acquire land needed for a projected road project deprived them of the full use and enjoyment of their properties, reduced the value of their properties, and constituted de facto takings. The superior court dismissed their claims on summary judgment. We affirm. Taking all permissible factual inferences in favor of the landowners, we conclude that the state did not publicly announce a concrete intention to use or condemn specific parcels of the owners' properties or engage in activity that substantially interfered with the use and enjoyment of their properties. II. FACTS AND PROCEEDINGS A. The Ilinois Street Project The Illinois Street project is a component of a major highway construction project called the Geist Road Extension Project, begun in Fairbanks in the mid 1970s. The Illinois Street component, if it is to be built at all, will be the final segment built in the Geist Road Extension Project. The landowners involved in this appeal own parcels of improved commercial property along Illinois Street in downtown Fairbanks. We sometimes refer to them collectively as the Jacko-vich landowners. In 1977 the Federal Highway Administration authorized the Alaska Department of Transportation (DOT) to begin the location phase of the Geist Road Extension Project. Initial engineering and environmental impact studies were completed in 1983. Public hearings concerning the location of the project were held in 1988. DOT received federal location approval by 1985. The project was undertaken in segments, several of which were completed in the late 1980s and early 1990s. The design for the Illinois Street portion of the project was revised several times between 1985 and 2000. The plans have contemplated a range of three-, four-, and six-lane highway designs. The initial location approval contemplated that the IlHi-nois Street connector would be constructed as part of the Aurora Subdivision-to-Lemen-ta Subdivision segment; but this segment was completed in 1991 without the Illinois Street connector. Unforeseen design complications caused DOT to abandon this plan and ultimately to adopt the plan, known as the Tilinois Street/Minnie Street connector plan, that is involved in this dispute. No final design had been approved as of February 1, 2000, when the superior court heard argument on eross-motions for summary judgment in this lawsuit. Throughout the phases of the Geist Road and Illinois Street projects, DOT made efforts to notify the landowners and the public of the progress of the projects, as federal law required. These efforts included issuing notices of public hearings, workshops, and local government hearings and meetings, and publishing the Statewide Transportation Improvement Program. DOT also developed a mailing list which included individuals and businesses who owned or occupied property near the highway corridor. The landowners in this case were on this mailing list and received several installments of DOT's "Ili-nois Street Newsletter." For example, the January 1998 Newsletter stated: Right-of-Way Begins Soon The Federal funds are set aside and will be obligated this year for the right-of-way acquisition along Illinois Street. The right-of-way phase should take approximately two years to complete. One of the landowners, John Lounsbury, wrote DOT in April 1997 asking the state to execute an advance acquisition of his property. DOT declined, even though in 1998 it had acquired the Rose Building, which was located in the vicinity and was projected to be within the scope of the Illinois Street right-of-way. B. The Inverse Condemnation Suit In November 1997 the landowners filed their inverse condemnation complaint against the state, alleging de facto takings of and damage to their properties. They moved for partial summary judgment, arguing that no material facts were in dispute as to their claim that DOT's pre-condemnation publicity had reduced the economic value of their properties and required just compensation. In support of their motion, the landowners submitted evidence of lost property value, public announcements of the Illinois Street project, and the state's acquisition of the Rose Building. DOT opposed the motion and eross-moved for summary judgment. In support of DOT's opposition and motion, John Miller, DOT's Chief Right-of-Way agent in Fairbanks at relevant times, swore in an affidavit that "DOT has never announced an unequivocal intention to acquire any of the particular real properties along Tilinois Street." DOT argued that the landowners' claims failed because the landowners did not provide evidence of DOT's intent to condemn their specific properties and did not rebut Miller's statement. At oral argument on the motions, the landowners attempted to supplement their exhibits with copies of letters DOT wrote the landowners addressing the future acquisition of their specific properties. The state objected to introducing these supplemental exhibits. The superior court ruled that it would not consider the exhibits unless an appropriate motion were filed. The landowners never filed a motion asking the court to accept the exhibits. In March 2000 the superior court denied the landowners' motion for summary judgment and granted the state's cross-motion for summary judgment. The court first reasoned that the publicity complained of could not be considered a "de facto" taking because it did not amount to either a physical invasion of property or a direct legal restraint on its use. The court further reasoned that the "condemnation blight" doctrine did not apply because the property was never actually condemned. The superior court then ruled that the claim was properly evaluated under precedents establishing an inverse condemnation cause of action based solely on pre-condem-nation publicity. The court concluded that the Jackoviech landowners could not establish an essential element of this cause of action: proof of a public statement of the state's "concrete" intention to acquire specific property. The court determined that the landowners' claims "contain no allegation of any public expression of intent to use a specific piece of property." The court concluded by reasoning that this requirement properly accommodated the public interest in community planning while protecting the landowners' constitutional right to just compensation. The landowners moved for reconsideration and attached the disputed supplemental exhibits to their reconsideration motion. The superior court denied their reconsideration motion. It appears that as of April 4, 2000, when the superior court entered final judgment, the state had commenced no condemnation proceedings for any of these particular properties. The landowners appeal. III DISCUSSION The landowners advance alternative theories of recovery. First, they argue that existing Alaska law requires that property owners be compensated when government publication of an "unequivocal intent" to appropriate their property damages them, even when their property is not ultimately condemned. They further argue that the publicity in this ease satisfies this intent standard. Second, they argue that they should recover under the case-specific analysis we use to decide whether government action that does not constitute a "per se" taking is nonetheless a compensable taking. As to the first issue, we conclude that the superior court correctly determined that the publicity in this case does not satisfy the "concrete intention" test. As to the second, we conclude that the case-specific approach is inapplicable because the existing pre-con-demnation publicity cause of action adequately addresses the problems at hand. We further conclude that the case-specific approach is inapplicable where the challenged government action does not directly limit the property owner's use or exclusive control of her property. A. Standard of Review We review grants of summary judgment de novo. Summary judgment should be affirmed if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. We read the record in the light most favorable to the non-moving party and draw all reasonable factual inferences in his or her favor. We review questions of constitutional law, such as whether a taking has occurred, de novo. We will adopt the rule of law that is most persuasive in light of precedent, reason, and policy. Thus, in reviewing the superior court's conclusion that the state had no concrete intention to condemn the landowners' properties, we draw all reasonably permissible factual inferences in favor of the landowners, the opponents of the state's cross-motion for summary judgment. B. It Was Not Error To Dismiss the Landowners' Inverse Condemnation Claim on Summary Judgment. 1. Landowners' Ehrlan-der/Lange/Homeward Bound theory The landowners' main argument on appeal is that under existing Alaska law, the state is constitutionally required to compensate them because, by publishing an "unequivocal" pre-condemnation intent to appropriate their properties, it deprived them of the economic advantages of ownership. They rely on two Alaska cases—Ehrlander v. State, Department of Transportation, and Homeward Bound, Inc. v. Anchorage School District -—as well as a Washington case— Lange v. State —which we approvingly discussed in Ehrlander: Before discussing the legal issues presented, we note the factual posture of this case. It involves the state's pre-condemnation publication of notices, information, plans, and proposals pertaining to a road improvement project component that, as of the time the parties sought summary judgment, might or might not be built. This component of the overall project had not became final, and its scope was uncertain. Its impact on the landowners' parcels was consequently uncertain, and the publications attributed to the state reflect this uncertainty. Likewise, there was uncertainty about what specific parcels or portions thereof might be acquired. We also note that these properties were improved with commercial buildings and that there is no evidence the state actively interfered with the beneficial use of these properties by (1) limiting their development, improvement, or occupancy; (2) denying the landowners any permits needed to develop, improve, or use these properties; (8) notifying tenants they would have to vacate or would be compensated for vacating; or (4) informing the owners that in event of condemnation, they would not be compensated for maintaining or improving their properties. Instead, the common thread in the landowners' superior court affidavits is that they are unable to sell their properties and that they lost rental income because pre-condemnation announcements discouraged buyers and renters and made improvements infeasible or economically imprudent. The Alaska Constitution provides that "private property shall not be taken or damaged for public use without just compensation. "Private property is taken or damaged for constitutional purposes if the government deprives the owner of the economic advantages of ownership." "Once private property is taken or damaged, the owner is entitled to be placed in the same position as he would have occupied absent the governmental interference." We have held that under some circumstances landowners may be entitled to compensation from government entities whose activities diminish the value of their properties even though the government never actually condemns the properties. Thus, in Homeward Bound, we stated: [IIn cases such as this one where the alleged taking is based on precondemnation decisions concerning the subject property, the objective manifestations of the government's intention to take the property are critical to the decision whether there was a taking. This is because the government's indications of its intention to condemn the property are the source of the owner's claimed damages.[ ] Homeward Bound claimed that the municipality and the school district had inversely condemned its unimproved property by designating it as a potential school site, temporarily diminishing its value. In discussing cases "where the alleged taking is based on precondemnation decisions concerning the subject property," we referred in Homeward Bound to California law, originating in Klopping v. City of Whittier, that allows landowners to recover for loss in the value of their properties due to governmental pre-condemnation activity. The California Supreme Court held in Klopping: [A] condemnee must be provided with the opportunity to demonstrate that (1) the public authority acted improperly either by unreasonably delaying eminent domain action following an announcement of intent to condemn or by other unreasonable conduct prior to condemnation; and (2) as a result of such action the property in question suffered a diminution in market value.[ ] We then held in Homeward Bound that to recover for damages caused by pre-condem-nation governmental activities that do not otherwise amount to a de facto taking, an Alaska plaintiff must show a concrete indication that the state intended to condemn the property. Approvingly citing one of Klop-ping's early progeny, we explained: Later, in Selby Realty, Co. v. City of San Buenaventura [10 Cal.3d 110, 109 Cal.Rptr. 799, 514 P.2d 111 (1978)], the [California Supreme Court] held that the mere enactment of a general plan showing proposed streets extending through private property did not constitute a taking because there was "no present concrete indication that the county either intends to use plaintiff's property for the proposed streets or that it intends to acquire the property by condemnation." The court distinguished Klopping on the ground that "the adoption of a general plan is several leagues short of a firm declaration of an intention to condemn property." [ ] In considering the claims of the Jackovich landowners, the superior court characterized Alaska takings law as requiring "a public statement of 'concrete' intention to acquire specific property before a Klopping claim will He." Applying this rule, the superior court dismissed the landowners' claim on summary judgment. It concluded that "even Klopping-the most expansive holding this court has been able to identify in terms of affording compensation to disadvantaged property owners-does not reach the facts of the present case, which contain no allegation of any public expression of intent to use a specific piece of property." The Jackovich landowners do not ask us to adopt Klopping, which they say may have adopted a requirement-that the government have acted improperly-that is foreign to established inverse condemnation law in Alaska. They instead assert that in Ehri-ander we adopted a broad doctrine of com-pensability by relying on principles discussed by the Washington Supreme Court in Lange v. State Our Ehrlander opinion approvingly discussed as follows the reasoning of the Washington court in Lange: In our view this reasoning should be applicable not merely when a condemnation action is formally begun, but whenever a property owner is, by reason of an impending condemnation, deprived of the economic advantage of ownership. That was the rationale of the Washington court in Lange: Onee the state manifested its unequivocal intent to appropriate the Lange property, appellants were precluded from exercising their business judgment and selling the property before the market fell further. Moreover, appellants were precluded from taking any steps to counteract the market decline by making improvements on the land or otherwise changing its use. Thus appellants were deprived of the most important incidents of ownership, the rights to use and alienate property. 547 P.2d at 288. We thus agree with Lange and believe that its holding should be applicable here. As the Lange test does not require either extraordinary delay or a bad faith motive to depress land prices, the state's argument that the absence of these factors means that Ehrlan-der has not made a prima facie case of an imputed taking must fail.[ ] Ehrlander, like Lange, asserted claims that the government engaged in pre-condem-nation activity that caused his unimproved real property to decline in value before the state began condemnation proceedings to acquire the land. Ehrlander claimed that the state's unreasonable delay in bringing the condemnation proceedings after it announced its intention to use his property for a highway project resulted in an imputed taking. The superior court granted summary judg ment to the state because the state did not unreasonably delay or have a bad faith motive to depress land prices. Holding that those were not requirements for a claim under Lange, we reversed and remanded for consideration of Ehrlander's imputed taking claim and for application of the four-element test set out in Lange. Lange filed his inverse condemnation claim about one year before the state filed an eminent domain action to acquire land he had purchased to develop and sell. The Washington Supreme Court applied a four-element test to decide in the formal condemnation proceeding whether to advance the date of valuation. Lange is properly regarded, like Ehrliander, as an example of an early valuation eminent domain case. The four-element Lange test does not expressly apply to or encompass the claims of the Jackoviech landowners. Rather than trying to advance the date of taking for valuation purposes where it is undisputed that the state has taken the property, they are trying to establish that there was a taking; it is the taking that is disputed, not the date when it occurred. And the Jackovich landowners do not hold unimproved property which they had acquired to develop and sell; their property was income producing and continued to produce at least some income at pertinent times. If the state cancels the Illinois Street part of the project without acquiring their properties, the prospect of condemnation will no longer arguably affect the income their properties generate. On its face, the Lange test does not appear to apply to an inverse condemnation claim where the state never acquires the property. Nonetheless, we recognized in Homeward Bound that pre-condemnation governmental activity could in theory amount to a temporary taking that would entitle an owner to compensation even if the plan to condemn were abandoned. One can imagine that pre-condemnation publicity could depress income actually realized from improved commercial property, leading to a temporary taking that requires compensation. But it is not so obvious what standards should be applied to such a claim. How long must an owner endure such publicity before it becomes a compensable temporary taking? What decline in value is large enough to be cognizable? Our decisions do not answer those questions. We do not need to explore those issues here, nor others that may arise from permitting an inverse condemnation claim based on pre-condemnation publicity where no eminent domain condemnation has yet occurred and may never occur. We think that at a minimum in such a case, the government must have publicly announced a present intention to condemn specific properties, and it must have done something that substantially interferes with the landowners' use and enjoyment of their properties. These minimal requirements present two insurmountable obstacles to the claims of the Jackovich landowners in this case as it is presented to us. a. DOT has not expressed a present concrete intention to acquire any specific property. First, the public announcements attributable to the state, even taking all permissible factual inferences in the landowners' favor, fall short of permitting a finding that DOT expressed a present concrete intention to condemn specific property. The landowners argue that the superior court erred in reaching this conclusion. They point to maps and newsletters identifying their properties as land to be condemned under the Illinois Street project. They refer to the January 1998 DOT Newsletter passage we quoted above in Part ILA. The landowners also point to correspondence, contained in supplemental exhibits, discussing the possibility of condemnation. The supplemental exhibits included letters from DOT to the landowners addressing future acquisition of their specific properties. One letter stated that "a portion of your property will be required for additional right-of-way for the referenced highway project," and another purported to announce "our current schedule and expectations for this project-specifically the acquisition of your property at 224 to 226 Illinois Street." As previously mentioned, the superior court refused to consider these letters at oral argument on the cross-motions for summary judgment pending an appropriate motion, and no such motion was ever brought. Read in the light most favorable to the landowners, the evidence (including the rejected supplemental exhibits) does not reasonably permit an inference that DOT had expressed a present concrete intention to condemn specific portions of the landowners' properties in the near future. First, the maps, newsletters, and any other general publicity produced by DOT indicating that the Illinois Street Extension would pass through certain private properties are insufficient to constitute the requisite "present concrete intention" to acquire specific property. In Selby Realty, the California Supreme Court held that "adoption of a general plan is several leagues short of a firm declaration of an intention to condemn property. The court explained that imposing liability on the basis of such publicity would either cause the process of community planning "to grind to a halt," or else reduce such planning to "vacuous generalizations regarding the future use of land." This reasoning applies to all of the general publicity at issue in this case. DOT should be encouraged to provide meaningful notice to the public of major projects that will affect private development; imposing liability on the basis of such publicity would have exactly the opposite effect. Second, the specific letters from DOT to the landowners concerning future acquisition of their properties are likewise insufficient. Read in the light most favorable to the landowners, a fact-finder could reasonably conclude that DOT intended to acquire their property at some unspecified future time. But our intent test requires a present concrete intention to acquire property, and the letters cannot be fairly read to satisfy this test. None of the letters expresses an intent to initiate acquisition proceedings immediately. Indeed, the three letters that most clearly express DOT's intent to acquire specific properties all indicate that hazardous substances investigations must be performed before fair market valuations for the properties can be determined. One of the letters indicates that the "right of way acquisition process for this project" would not even begin for a full year from the date of the letter, and another letter advised the property owner to undertake planned improvements despite DOT's intention to acquire the property in the future due to anticipated complications with site contamination and obtaining approval to acquire the property via the "advanced acquisition" process. The Jackoviech landowners have not pointed to any case supporting their claim that the letters in this case are sufficiently definite to satisfy the "present concrete intention" requirement, and we are aware of none. In Klopping, the California Supreme Court held that the city demonstrated a sufficiently specific intent to condemn property when it initiated condemnation proceedings, dismissed the action, but declared its intention to take the property in the future. But in this case the state had not initiated condemnation actions regarding any of the properties at the time the superior court entered its final order. Conversely, in Homeward Bound we held there was no "concrete indication" to acquire specific land despite the fact that the Anchorage municipal assembly had passed two resolutions designating the owner's property as a school site, because the school district, which had final authority to approve the site, had not done so. DOT's intention to acquire the Jackovich landowners' properties is at least as indefinite. The Illinois Street Project has gone through numerous changes, and there was no finalized plan at the time the superior court entered judgment in this case. b. DOT has not substantially interfered with the Jackovich landowners' property rights. There is no indication the state did anything more than make announcements, prepare and publish plans, and provide publicity concerning the project. As noted above, there is no evidence that the state actively interfered with the landowners' beneficial use of their properties, such as by prohibiting them from using their properties beneficially or denying needed permits. c. Ehrlander and Lange are inapplicable because the Jackovich landowners' properties have not been condemned. ' The Jackovich landowners seem to imply that they have stated a legally sufficient claim under the rule of Lange which we applied in Ehrlander. But in those cases the state ultimately condemned the claimant's property. Lange and Ehrlander are therefore properly regarded as early valuation eminent domain cases; they do not establish the appropriate standard for reviewing the state's pre-condemnation conduct where condemnation proceedings are either abandoned or never initiated. 2. Landowners case-specific Sandberg theory The landowners briefly advance an alternative inverse condemnation theory. They assert that we should consider their claim under the case-specific analysis we apply in deciding whether government action has effected a compensable taking even though it does not fall into the two recognized classes of per se takings. Apparently in support of this alternative theory, their reply brief argues that the evidence demonstrates that the state engaged in "unreasonable and negligent conduct." The state neither physically invaded these properties nor by regulation denied the owners all economically feasible use of their properties. The state's alleged acts here consequently do not fall within either recognized class of per se takings. But that does not mean, as the Jackovich landowners may assume, that we must consider the state's alleged acts in light of the case-specific analysis we apply to non-per se, or ad hoc, alleged takings. We have never applied the case-specific analysis to a case involving pre-condemnation governmental activity. We have applied it to date only to cases in which the government has, in its governmental capacity, allegedly restricted landowners from using their property or deprived them of the exclusive use of their property. We are reluctant to apply this doctrine to a pre-condemnation case. Doing so would seem to needlessly parallel or muddy the remedy discussed in Part III.B.1 above; The landowners' relatively terse arguments provide no compelling reason to do so in this case. Moreover, it is not clear how the case-specific factors we have identified might apply in such a case. The fourth factor-the legitimacy of the interest advanced by "the regulation or land-use decision"-implicitly recognizes that an ad hoe takings claim turns on an action having the purpose of affecting the landowner's property rights. But there is no indication here the actions attributed to the state had any purpose of affecting or limiting the owners' rights or use of the affected properties. The complained-of actions were taken to give the owners and the community notice of the project's potential scope and progress. Likewise, the state correctly argues that the landowners' opening brief does not substantively discuss any factor other than economic impact, and observes that the state's actions were federally required. The landowners simply argue in their reply that the legitimacy of the state's interest is lost when the state's conduct "becomes negligent and unreasonable." Not only did they not discuss this factor in their opening brief, they do not support this assertion with authority. If we were to accept this proposition, it would seem to require an inquiry about the reasonableness of the government's actions in every case involving a proposed public works project in which no de jure acquisition oceurs. At first glance, this would seem to demote takings law from the realm of constitutional protection to the land of ordinary negligence. We consequently decline to decide whether to apply the case-specific analysis in this case. IV. CONCLUSION For these reasons, we AFFIRM the grant of summary judgment to the state. . The landowners are the Joseph M. Jackovich Revocable Trust, the Dolores M. Jackovich Revocable Trust, Gavora, Inc., John J. Lounsbury, Geraldine S. Lounsbury, and the Haman Family Limited Partnership. The Jackovich trusts own two parcels containing four lots; Gavora, Inc. owns three parcels containing three lots; the Haman partnership owns five lots; and the Lounsberrys own two lots. . The landowners filed their First Amended Complaint in November 1999. . The court explained that the condemnation blight doctrine is effectively a rule of evidence for setting the proper valuation date in the just compensation phase of an eminent domain proceeding. See 8A NicHots on Eminent Domam § 18.04[3] (3d ed.1998). . Under this theory, the fact that the property is never actually condemned does not bar the conclusion that a taking has occurred. . Homeward Bound, Inc. v. Anchorage Sch. Dist., 791 P.2d 610, 614 (Alaska 1990). . Balough v. Fairbanks N. Star Borough, 995 P.2d 245, 254 (Alaska 2000). . Id. . Id. . Anchorage v. Sandberg, 861 P.2d 554, 557 (Alaska 1993); Triangle, Inc. v. State, 632 P.2d 965, 968 (Alaska 1981) ("It is only when a trial court concludes that the landowner has presented a valid claim that the case is submitted to the jury for a determination of the extent of the taking and the amount of compensation that must be paid by the state.") (citations omitted). . Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979). . 797 P.2d 629 (Alaska 1990). . 791 P.2d 610 (Alaska 1990). . 86 Wash.2d 585, 547 P.2d 282 (1976). . 797 P.2d at 633-35. . Alaska Const. art. I, § 18. "The requirement that the condemner pay just compensation when property is damaged provides broader protection for private property rights than the fifth amendment to the United States Constitution." Homeward Bound, 791 P.2d at 614 (citations omitted). . Homeward Bound, 791 P.2d at 614 (citations omitted). . Id. (citations omitted). . Id. . Id. at 613-14. . 8 Cal.3d 39, 104 Cal.Rptr. 1, 500 P.2d 1345 (1972). . Id. at 1355. . Homeward Bound, 791 P.2d at 614. . Id. (citation omitted). . E.g., City of Kenai v. Burnett, 860 P.2d 1233, 1240 (Alaska 1993) (holding that city did not demonstrate "unequivocal intention" to take easement); Homeward Bound, 791 P.2d at 614 (holding that no taking occurred because municipality's "mere designation" of property as school site was not a "concrete indication" that municipality intended to conderan property). . As we will see, this case does not turn on application of the Klopping requirements. The superior court appears to have relied on the case only to demonstrate that under the "most expansive" doctrine, i.e., the doctrine most favorable to the landowners, the state was still entitled to summary judgment. We have not expressly adopted Klopping as a statement of law governing an inverse condemnation claim for a government's precondemnation activities. Because the landowners do not urge us to apply Klopping in this case, it is not necessary to decide here whether Alaska would recognize a Klopping claim. . 86 Wash.2d 585, 547 P.2d 282 (1976). . Ehrlander, 797 P.2d at 635. . Id. at 633. . Id. at 635. . Lange, 547 P.2d at 283. . Id. at 288. . Id. at 283, 288 (characterizing issue as whether valuation date in condemnation trial should be advanced due to pre-condemnation conduct and concluding that it should). The Washington appellate courts have not addressed the question whether the Lange test would apply to a case in which the property in question was not ultimately condemned, but it is highly doubtful that Lange would be applied in such a case. The Washington Supreme Court's discussion of Lange in subsequent cases suggests that the Lange rule is only applicable to cases in which property is actually condemned. E.g., State v. McDonald, 98 Wash.2d 521, 656 P.2d 1043, 1050 (1983) (stating that Lange merely modifies time of valuation in certain cases where doing so is necessary to award just compensation); Brazil v. City of Auburn, 93 Wash.2d 484, 610 P.2d 909, 916 (1980) (citing Lange for the proposition that "[the measure of damages is the fair market value of the property at the date of trial, unless fairness to the owner requires the value to be set as of some other date"). . Homeward Bound, 791 P.2d at 613-15 (considering whether temporary designation of property as school site constitutes taking); see also Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l Planning Agency, 535 U.S. 302, -, 122 S.Ct. 1465, 1470, 152 L.Ed.2d 517 (2002) (considering whether imposing "temporary" moratoria on development constitutes per se taking). . Selby Realty Co. v. City of San Buenaventura, 10 Cal.3d 110, 109 Cal.Rptr. 799, 514 P.2d 111, 116 (1973) (holding that no actual controversy existed between property owner and county where general plan showed streets running through owner's property because plan could not be read to constitute "present concrete indication that the county either intends to use [the owner's] property for the proposed streets or that it intends to acquire the property by condemnation"). . E.g., Barthelemy v. Orange County Flood Control Dist., 65 Cal.App.4th 558, 76 Cal.Rptr.2d 575, 582 (1998) (collecting cases regarding required level of state interference to make out Klopping inverse condemnation claim and holding that public entity's conduct must have significantly invaded or appropriated use or enjoyment of claimant's property). . 109 Cal.Rptr. 799, 514 P.2d at 117. . Id. . 104 Cal.Rptr. 1, 500 P.2d at 1348. . 791 P.2d at 614. . -The court in Selby Realty stated: The county has not placed any obstacles in the path of plaintiff in the use of its land. Plaintiff has not been refused permission by the county to build on or subdivide its county land, and its posture is no different than that of any other landowner along the streets identified in the plan. Furthermore, the plan is subject to alteration, modification or ultimate abandonment, so that there is no assurance that any public use will eventually be made of plaintiff's property. 109 Cal.Rptr. 799, 514 P.2d at 119. See also Jones v. City of Los Angeles, 88 Cal.App.3d 965, 152 Cal.Rptr. 256, 261 (1979) ("[A] showing that the [entity's] conduct went beyond mere general planning may not in itself be sufficient to state a cause of action. The claimant must show that obstacles were placed in plaintiffs' path in the use of this land."). . 547 P.2d at 288. . 797 P.2d at 634. . Id. at 632; Lange, 547 P.2d at 283. . R & Y, Inc. v. Municipality of Anchorage, 34 P.3d 289, 293 (Alaska 2001) (stating that per se taking can result through physical invasion of land or application of regulation that deprives landowner of all economically valuable use of land); Beluga Mining Co. v. State, Dep't of Natural Res., 973 P.2d 570, 575 (Alaska 1999); Anchorage v. Sandberg, 861 P.2d 554, 557 (Alaska 1993); see generally Palazzolo v. Rhode Island, 533 U.S. 606, 121 S.Ct. 2448, 150 L.Ed.2d 592 (2001) (affirming state court rejection of Lucas takings claim where state regulated wetlands but did not deprive owner of all economic use of property, and remanding for consideration of owner's claims under Penn Central analysis); Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992). . The case-specific takings clause analysis originates in the Supreme Court's decisions. See, e.g., PruneYard Shopping Ctr. v. Robins, 447 U.S. 74, 83, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1980) (identifying several factors to determine whether ' governmental action has gone beyond mere regulation, including "the character of the governmental action, its economic impact, and its interference with reasonable investment-backed expectations") (citation omitted); see also Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 124, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978) (explaining that courts must "engagle] in . essentially ad hoc, factual inquiries" to determine when "justice and fairness" require public as whole rather than small number of disproportionately burdened landowners bear costs of regulation). . E.g., R & Y, Inc., 34 P.3d 289 (Alaska 2001) (where municipality imposed improvement setback restriction in wetland area); Balough v. Fairbanks N. Star Borough, 995 P.2d 245 (Alaska 2000) (where junkyard was no longer permissible use following rezoning); Cannone v. Noey, 867 P.2d 797 (Alaska 1994) (where state imposed restrictions on subdivision); Anchorage v. Sandberg, 861 P.2d 554 (Alaska 1993) (where municipality's decisions in opposing improvement district prevented landowner from creating improvement district); State, Dep't of Natural Res. v. Arctic Slope Reg'l Corp., 834 P.2d 134 (Alaska 1992) (where state law required well operators to disclose their drilling results to state, thus denying them exclusive use of their data). . The factors are: "(I) the character of the governmental action; (2) its economic impact; (3) its interference with reasonable investment-backed expectations; and (4) the legitimacy of the interest advanced by the regulation or land-use decision." R & Y, 34 P.3d at 293.

11627558

Daniel A. NICHOLSON, Appellant, v. Deborah K. WOLFE, Appellee

Nicholson v. Wolfe

1999-03-26

No. S-8130

417

427

974 P.2d 417

974

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T18:22:12.382875+00:00

CAP

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

Daniel A. NICHOLSON, Appellant, v. Deborah K. WOLFE, Appellee.

Daniel A. NICHOLSON, Appellant, v. Deborah K. WOLFE, Appellee. No. S-8130. Supreme Court of Alaska. March 26, 1999. Steven Pradell, Steven Pradell & Associates, Anchorage, for Appellant. David R. Edgren, Robertson, Edgren & Christensen, LLC, Anchorage, for Appellee. Before MATTHEWS, Chief Justice, and COMPTON, EASTAUGH, FABE, and BRYNER, Justices.

4907

30158

OPINION BRYNER, Justice. Daniel A. Nicholson appeals the trial court's division of property. We affirm in part, reverse in part, and remand for further consideration. I. FACTS AND PROCEEDINGS Deborah K. Wolfe, now in her early forties, and Daniel A. Nicholson, in his late fifties, began living together in 1985 and were married in 1989. They separated in June 1994 and divorced in June 1996. Throughout their cohabitation, the parties lived in a house owned by Nicholson. Wolfe has been a teacher in Anchorage for over twelve years and earns about $58,600 per year. For the first five years of their cohabitation, Nicholson was in active duty in the Air Force. He retired three days before the wedding and has since received a $2,013 net monthly pension and medical benefits from the federal government. Since his retirement, Nicholson has held various temporary jobs. In 1993 Nicholson inherited about $32,000 from his mother's estate, and between $145,-000 and $147,000 from his father's estate. Nicholson testified that he spent virtually all of the money on personal expenses and on acquiring business assets, in particular by the purchase and improvement of an empty lot on Tudor Road ("the Tudor property"). In June 1995 Nicholson invested $65,000 from his remaining inheritance funds in the Tudor property. He stated that he had intended to operate a trailer park on the property, but discovered after he made the purchase that the parcel was no longer zoned for that use. Wolfe makes no claim to this parcel. Nicholson started a snowplowing and landscaping business, Northstar, in 1986 and ran the business out of the family home. He purchased much of the equipment for the business with his separate property before and during the marriage. Nicholson stated that he abandoned the business in the fall of 1994, just after the parties separated. In addition, during the marriage, the parties began a wedding consulting and supply company, Perfect Impressions, which they operated out of their home. Although Nicholson performed most of the day-to-day work of these businesses, Wolfe helped out from time to time. Neither business was especially profitable. The parties agree that Perfect Impressions is a non-marital asset belonging to Nicholson, but they contest the ownership of Northstar's significant assets, which the trial court valued at $73,440. In the divorce proceedings, the court identified as marital property some of the contents of the marital residence, the Northstar business and its assets, a motor home, Wolfe's retirement benefits, and an ATV (all-terrain vehicle); the cost of storage for the Northstar assets that had accrued as of separation — $12,756.11—was the sole marital debt. On appeal, Nicholson challenges numerous aspects of the property division. II. DISCUSSION A. The Trial Court Did Not Err in Choosing Not to Use Rescission Principles as the Proper Method of Property Division. Alaska has adopted an equitable distribution system for dividing marital property in divorce actions. This court has created a limited exception to this general rule, however, in Rose v. Rose. In that case, we held that after a relatively brief marriage, in which the parties have "maintained completely separate economic identities," the trial court may "treat the property division as an action in the nature of rescission." Nicholson asks us to extend that rule and hold that in circumstances where the Rose criteria are met, the court must apply Rose rescission principles. Nicholson argues that in his case the trial court should have applied the Rose recission principles rather than the equitable principles employed in most property divisions. We have often recognized the trial court's broad discretion in determining a just disposition of property based upon the facts in the particular case before it, and have repeatedly held that we will reverse the trial court's determination only where it is clearly unjust. In Rose, we held that it was not clearly unjust to apply recission principles where there was no significant commingling of assets: [I]n marriages of short duration, where there has been no significant commingling of assets between the parties, the trial court may, without abusing its discretion, treat the property division 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 placel[ ] Thus, in Rose, we held that the trial court had discretion to apply rescission principles under the circumstances presented; we neither held nor implied that the court was required to apply recission principles. Since Rose, we never have held that it would be clearly unjust to adopt equitable rather than rescission principles, and we decline to do so today. Rose stands for the limited proposition that trial courts have discretion to apply rescission principles in certain circumstances. But since equitable division is the prevailing rule, we decline to hold that a trial court would ever be required to adopt rescission. B. The Trial Court's Property Distribution Order Must Be. Remanded in Part for Reconsideration. 1. The trial court's equal allocation of the marital property was not clearly unjust. Nicholson contends that although the trial court claimed to be applying the Merrill factors in allocating the marital property . equally between the parties, it "did not prop erly consider" the Merrill factors. Specifically, he argues that the trial court did not appropriately consider the parties' ages, earning capacities, and financial conditions. The trial court has broad discretion in fashioning an equitable property distribution. We will reverse an allocation only if it is clearly unjust. In exercising its discretion, the trial court must consider the duration of the marriage, the stations in life of the parties, their ages, physical conditions, earning capacities, conduct of financial affairs during the marriage, and circumstances and needs. With regard to specific property, it should also consider when and how the parties acquired the property, its value at the time of the division, and its income-producing capacity, if any. This enumeration is not exhaustive, and the trial court need not make findings pertaining to each factor, but its findings must be sufficient to indicate the factual basis for the conclusion reached. We will not reevaluate the merits of the trial court's property division in most cases in which it makes these threshold findings. An equal division of the marital property is presumed to be equitable. The trial court began with this presumption and concluded that "[a] preponderance of the evidence fails to establish [relevant facts suggesting] that the Merrill /statutory factors should result in less than equal division of marital property in this case." The trial court supported its conclusions with adequate findings. In support of its conclusion, the court noted that "[b]oth parties are in good health, have education, multiple skills, training, and job experiences that make them viable employees in several job markets." Wolfe has a steady job as a teacher. After separation, she earned a master's degree. Nicholson, who retired from the military as a lieutenant colonel just days before the marriage, also has a master's degree in public administration. Implicitly rejecting Nicholson's poorly substantiated claims of financial ruin, the court went on to note that although Nicholson was older than Wolfe, he had a steady retirement income and substantial inheritances. It commented that "although he has been less than careful about maintaining the Northstar Landscaping assets," he had the potential to reactivate that business as well as the Perfect Impressions business. Nicholson argues that the court erred when it considered as a factor the possibility of reactivating Northstar. But the court properly considered "the income-producing capacity" of Northstar and, in any case, did not appear to give much weight to this factor. It noted the "potential" for Nicholson to restart Northstar but recognized that the assets were not well maintained. This was not error. In examining the factors considered, we cannot conclude that the trial court's allocation was clearly unjust. Contrary to Nicholson's contentions, the trial court did consider the parties' ages, earning capacities, and financial conditions: It noted that Nicholson was older, but also took note of his retirement income and inheritances; it compared their respective educations and experiences; and it put their financial circumstances into the balance, which we have discussed above. Although the trial court could have reached another result without abusing its discretion, we cannot conclude that the result it reached was clearly unjust. 2. The trial court failed to make an adequate finding that the 'parties intended to treat the Northstar business as marital property. The trial court may only divide property characterized as marital. "Separate property becomes marital only upon a showing that the parties intended to treat the property as marital," and that "there is an act or acts which demonstrate that intent." Separate property may be invaded in the overall property distribution only when the court finds that the equities demand an invasion. The trial court found that Nicholson started the Northstar business prior to the parties' marriage. Wolfe admits that Nicholson established Northstar's assets with his separate property. The trial court did not find that the Northstar assets were marital because the parties intended to treat them as such. Instead, it found that it would be unfair to treat the property as separate, since both parties had contributed significant efforts to the business during the marriage. Nicholson argues that the trial court erred in focusing solely on the parties' acts and disregarding their intentions. We agree. Without finding that the parties intended to convert Northstar to marital property, the trial court could not properly consider the business to be a marital asset. In determining the existence of this intent, the court could look to the parties' conduct. "It is true that parties may, by their actions during marriage, demonstrate intent to treat specific [separate] properties as joint holdings ." We have previously described a variety of ways in which conduct may evince an intent to transmute separate property: [S]eparate real estate can become marital where the owner permits the non-owner spouse to lend her credit to improve the property, or to devote substantial efforts to its management, maintenance or improvement, or where the parties use the premises as their personal residence. Similarly, placing separate property in joint ownership is rebuttable evidence that the owner intended the property to be marital. Like- wise, agreements oral or written, may demonstrate the owner's intent, or lack of intent, to convert separate property to marital property.[ ] In the present case, we recognize that the trial court might have believed that the parties' conduct demonstrated their intent to treat Northstar as marital property. But the court did not make this finding expressly; nor does the record convince us that it made this finding implicitly. In fact, much of the evidence would seem to indicate a contrary intent. The record indicates that Nicholson maintained title to the Northstar assets in his name alone; he meticulously kept separate records, so that Wolfe was unaware of the assets and debts of the business, and exerted minimal control over them; Wolfe never assumed any liability for the business, nor did she co-sign any business loans; Nicholson spent little or no marital monies on the business. According to Wolfe, she helped set up Northstar's books (although she apparently did not maintain them), answered the business phone, and occasionally accompanied Nicholson "on his business activities" (emphasis added). Given these facts, we cannot overlook the absence of an express finding of intent to treat the Northstar assets as marital property. Without expressly finding an intent to transmute, the trial court could not properly designate Northstar as marital property. Accordingly, we must vacate the court's decision on this point and remand for reconsideration. On remand, the court should treat Northstar as Nicholson's separate property, and revise the property division accordingly, unless it expressly finds an act or acts that demonstrate the parties' intent to treat the property as marital. Because we remand for further findings on this point, we need not address Nicholson's related arguments challenging the adequacy of the court's findings and conclusions valuing and dividing the Northstar property. 3. Other property issues Nicholson also challenges numerous specific aspects of the trial court's property division. The court awarded the motor home to Wolfe, credited her with $1,300 she spent in repairing it, and did not offset Nicholson's costs in storing and insuring it. Nicholson asserts that the court abused its discretion in failing to award the motor home to him because he asked for and needed it. The needs of the parties are relevant considerations in the allocation of the marital property. Nicholson testified that he needed the motor home to live in and would place the motor home on the Tudor Road property. But he also testified that the Tudor Road property was not connected to water or electrical services. On this basis, the court could have reasonably concluded that Nicholson's claimed need for the motor home was unrealistic. We cannot conclude that the court's failure to award Nicholson the motor home was clearly unjust. Nicholson also argues that the court erred in crediting Wolfe for her repair payments. But a court may properly consider post-separation payments made from separate income in order to preserve marital property and has the discretion to give the paying party credit for these payments. Wolfe testified that while storing the motor home, she spent $1,300 on cleaning, registering and titling the vehicle, and changing the oil, filter, plugs and tires. Nicholson also testified that he incurred costs to insure the motor home. But because Nicholson failed to submit any evidence specifying the costs he incurred, we conclude that the court did not abuse its discretion in failing to credit them. Nicholson next contends that the trial court erred in concluding that his ATV was a marital asset, not a separate business asset. Nicholson argues that he paid for the ATV with separate funds in order to use it in the Northstar business. Wolfe and Nicholson both testified — and the trial court found— that the ATV "was used on hunting and fishing trips; it was not used in the businesses." The court evidently relied on this finding in treating the ATV as marital property. But Nicholson's use of the ATV for his own pleasure does not imply an intent to make it an asset belonging to both parties. And unless Nicholson intended the ATV to become marital property, it retained its char- aeter as separate property. Accordingly, on remand, unless the court expressly finds the requisite intent, it should treat the ATV as Nicholson's separate asset. Nicholson argues that the trial court erred when it awarded Wolfe a Johnny Johnson print depicting musk oxen. Wolfe testified that she purchased the print during the marriage and hung it in the family home. Nicholson admitted that the print was purchased with "joint funds." The trial court found that the Johnny Johnson print was marital property. Nicholson now claims that it was a gift to him and is his separate property, but points to no evidence to support this assertion. We conclude that the trial court did not err when it identified the piiint as marital and allocated it to Wolfe. Nicholson also vaguely refers to other prints and photographs, but points to no error of the trial court with regard to these items. We deem these claims waived for inadequate briefing. 4. The trial court erred in failing to make findings on certain alleged debts owed to Nicholson by Wolfe. Nicholson argues that the trial court erred in failing to honor an agreement between Wolfe and Nicholson whereby she would pay him $300 for his computer so that she could donate it to the Civil Air Patrol and receive tax benefits. Apparently, Wolfe never paid Nicholson. The court found that this agreement and debt were not supported by sufficient evidence to make an award. The evidence supporting this debt was purely testimonial. The court found that the testimony was less than reliable and seemed to be motivated by pettiness. The weight accorded to testimony should be determined by the trier of fact. It was not clearly erroneous to find the testimony incredible. Nicholson also argues that he was entitled to payment for damage that Wolfe's dog caused to his house. Nicholson estimated at trial that it would cost about $500 to repair the damage but did not get an appraisal to support his claim. Wolfe admitted that her dog did some damage that was not repaired. She claimed that she offered to repair the damage many times, but that Nicholson declined the offers. Again, the weight accorded to testimony should be determined by the trier of fact. It was not clearly erroneous to find that Nicholson presented insufficient evidence to merit an award. Nicholson further maintains that the trial court failed to credit him for certain insurance reimbursements that Wolfe improperly retained. In addition, he complains that Wolfe should not have been allowed to keep the money remaining in the parties' joint bank accounts. Both of these complaints are meritless. The court reduced Wolfe's share of the business assets to account for the insurance debt and awarded the contents of the joint bank accounts to Wolfe as part of the overall property settlement. As explained above, the overall property settlement was not clearly unjust. Last, Nicholson argues that the parties verbally agreed that Wolfe would pay half of his mortgage each month while she lived there. He contends that she failed to honor the agreement for the last three months prior to separation. He was not sure of the exact amount of the debt, but estimated that it was about $950 per month for a total of $2,850. Wolfe admitted to no formal contract but did admit that they had an informal agreement to share the household expenses and that she did not pay half of the mortgage for the month prior to separation. The trial court made no express findings on this point. Given Wolfe's admission, the trial court should address this issue on remand and make appropriate findings. 5. The trial court did not abuse its discretion in awarding Nicholson his portion of Wolfe's retirement benefits in the form of a QDRO. Trial courts have discretion to distribute retirement benefits to a non-employ ee spouse through either a qualified domestic relations order (QDRO) or through a lump sum payout. In this case, Wolfe accrued significant retirement benefits during the marriage. Nicholson argues that the trial court erred in failing to award him his present interest in the marital portion of Wolfe's retirement in a lump sum rather than in a QDRO. He points out that Wolfe is much younger than he is and argues that he will probably live to see little, if any, of the benefits if paid out in a QDRO. Wolfe counters that the trial court had the discretion to award the benefits either in a lump sum or in a QDRO and properly exercised its discretion in awarding the benefits in a QDRO. It is true that the payment of Nicholson's share of Wolfe's benefits through a QDRO entails some risk that he may not live to enjoy them. The court considered this in its findings and conclusions. But the court also heard evidence that Nicholson was not careful with his money. He testified that he had managed to run through over $200,000 in savings and inheritance in just a few years. The court was also aware that Nicholson's own military pension already provided him with a regular and dependable stream of income. Given Nicholson's fiscal irresponsibility, the trial court could have reasonably found it more appropriate to award his share of Wolfe's retirement in the form of a QDRO, so that he would be assured a reliable stream of income in the future. Moreover, although an immediate payout would certainly have ensured that Nicholson would actually recover his share of Wolfe's retirement, a postponed payout through a QDRO did not increase the risk of non-recovery that Nicholson had faced while still married. Nicholson chose to marry a woman many years his junior. As a married man, he had no assurance that he would live until his wife retired; the QDRO did not enhance this pre-existing uncertainty. Finally, Wolfe's ability to pay out Nicholson's share of her retirement in a lump sum was a relevant consideration. Generally, courts have approved of lump sum payouts when there are "marital assets sufficient to satisfy the non-employee spouse's claim without undue hardship on the employee spouse." In this case, Wolfe does not appear to have had any ready source of funds from which she could have made a lump sum payment without undue hardship. Wolfe took from the marriage certain personal property and her share of her retirement benefits. The personal property is illiquid (and may cause hardship to liquidate), and the retirement benefits are unavailable. Therefore, a payout from her share of the marital assets would not be realistic. For these reasons, we conclude that the trial court did not abuse its discretion in awarding Nicholson his retirement benefits in the form of a QDRO rather than a lump sum payment. 6. The trial court did not abuse its discretion in declining to award Nicholson rehabilitative alimony. Nicholson contends that the trial court erred in concluding that no credible evidence supported his unrebutted claim for alimony. He claims on appeal, as he did below, that he needs extensive training to become qualified as a commercial pilot, which would take two and a half years and cost about $21,400. We review the trial court's decision regarding rehabilitative • alimony for abuse of discretion. The purpose of rehabilitative alimony is to allow a recipient spouse who exits a marriage with few job skills and little earning capacity to secure a means of earned income. The trial court found that Nicholson had significant education, skills, and experiences that would make him employable in several job markets. The record supports this finding. We conclude that the trial court did not abuse its discretion in refusing to award Nicholson rehabilitative alimony. 7. The trial court did not abuse its discretion in declining to award Nicholson attorney's fees and costs. Nicholson argues that it was an abuse of discretion for the court to decline to order Wolfe to pay a portion of Nicholson's legal fees, including expert witness fees, and costs. The award of attorney's fees in divorce actions is within the broad discretion of the trial court. "Alaska Statute 25.24.140 provides that the court may order one spouse to pay an amount of fees and costs necessary to enable the other spouse to prosecute or defend the action.... The purpose of this statute is to 'assure that both spouses have the proper means to litigate the divorce action on a fairly equal plane.' " The general rule with regard to fees in a divorce case is that the court should consider the economic situation and earning power of each party. If the parties are in comparable economic situations, they should bear their own costs and fees. Generally, a court will award costs and fees only to the economically disadvantaged divorce litigant. The court rejected the factual predicate for Nicholson's claim — abject poverty — and found the parties to be in roughly similar economic circumstances. There is no reason here to stray from the general rule that equally situated parties should bear their own costs and fees. We conclude that the trial court did not abuse its discretion when it directed each party to pay its own costs and fees. Nicholson claims that Wolfe was guilty of vexatious conduct, thus justifying an award of costs and fees that might not otherwise be warranted. But the trial court made no finding of vexatious conduct by either party, and Nicholson fails to demonstrate that this amounted to error. III. CONCLUSION Because we hold that the trial court erred in treating the Northstar assets as marital, we REVERSE and REMAND for reconsideration of this aspect of the property division. Additionally, we REMAND for specific findings concerning the alleged mortgage payments that Wolfe owes to Nicholson. We AFFIRM the trial court's decision in all other respects. . See AS 25.24.160. . 755 P.2d 1121 (Alaska 1988). . Id. at 1125. . Id. . See, e.g., Wanberg v. Wanberg, 664 P.2d 568, 570 (Alaska 1983). . See, e.g., Morris v. Morris, 724 P.2d 527, 529-30 (Alaska 1986); Vanover v. Vanover, 496 P.2d 644, 645 (Alaska 1972). . Rose, 755 P.2d at 1125 (emphasis added). . See McCoy v. McCoy, 926 P.2d 460, 462 (Alaska 1996) ("The decision to apply Rose when there is no significant commingling of assets is a matter of discretion."); Zimin v. Zimin, 837 P.2d 118, 121 (Alaska 1992) (holding it was not abuse of discretion for court to decline to apply Rose where the parties "did not maintain completely separate economic identities" during marriage); cf. Cox v. Cox, 882 P.2d 909, 915 (Alaska 1994) ("It is one thing to hold that use of the source of funds rule in limited circumstances is not an abuse of discretion; it would be quite a leap . to hold that it must be applied in a given set of circumstances as a matter of law."). .See Merrill v. Merrill, 368 P.2d 546, 547-48 & n. 4 (Alaska 1962). . See Cox, 882 P.2d at 913; see also McCoy, 926 P.2d at 463 ("The superior court's distribution will not be disturbed unless it is so clearly unjust as to constitute an abuse of discretion."). . See Compton v. Compton, 902 P.2d 805, 808 n. 2 (Alaska 1995). . See AS 25.24.160(a)(2); Merrill, 368 P.2d at 547-48 & n. 4. . See AS 25.24.160(a)(4). . See Brooks v. Brooks, 677 P.2d 1230, 1233 (Alaska 1984) (citing Merrill, 368 P.2d at 548 n. 10). . See Merrill, 368 P.2d at 548 n. 10; see also Burcell v. Burcell, 713 P.2d 802, 805 (Alaska 1986) (finding that trial court's application of Merrill factors was clearly erroneous). . See Wanberg v. Wanberg, 664 P.2d 568, 574 n. 20 (Alaska 1983) ("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."); Merrill, 368 P.2d at 547-48. . See Miles v. Miles, 816 P.2d 129, 131 (Alaska 1991); Wanberg, 664 P.2d at 574-75. . See AS 25.24.160(a)(4)(I); see also Lang v. Lang, 741 P.2d 1193, 1196 (Alaska 1987) (requiring trial court finding on income-producing potential of marital property). . See Johns v. Johns, 945 P.2d 1222, 1225 (Alaska 1997). . Dunn v. Dunn, 952 P.2d 268, 273 (Alaska 1998) (citing Chotiner v. Chotiner, 829 P.2d 829, 832 (Alaska 1992)). . Chotiner, 829 P.2d at 832. . See AS 25.24.160(a)(4), construed in Carlson v. Carlson, 722 P.2d 222, 223-24 (Alaska 1986); see also Matson v. Lewis, 755 P.2d 1126, 1127 n. 2 (Alaska 1988) (reporting that one of the primary justifications for discretionary invasion is where the non-owning spouse makes contributions to the marital community that benefit the premarital property). . See Bellanich v. Bellanich, 936 P.2d 141, 144 (Alaska 1997) (vacating trial court's treatment of property as marital because it made no findings regarding spousal intent). . Carlson, 722 P.2d at 224. . Chotiner, 829 P.2d at 833 (citations omitted); see also Dunn, 952 P.2d at 273-74 (upholding court's determination that van was marital asset where parties commingled funds to purchase the vehicle, it was held solely in husband's name, husband encouraged wife to sell her car and use van, and wife was primary driver of van for a while and controlled its use); Johns v. Johns, 945 P.2d 1222, 1225 (Alaska 1997) (upholding court's finding that boat was marital property where the parties took joint title to the boat and co-signed on the purchase loan). . In the absence of such a finding, the trial court would be justified in dividing the Northstar assets only if it "specifically found that a 'balancing of the equities between the parties' required invasion of the pre-marital holding." Carlson, 722 P.2d at 224; see. also Chotiner, 829 P.2d at 831. The circumstances here do not appear to require invasion of separate property. . See AS 25.24.160(a)(4)(G). . See Rodriguez v. Rodriguez, 908 P.2d 1007, 1013 (Alaska 1995); Ramsey v. Ramsey, 834 P.2d 807, 809 (Alaska 1992). . See Cox v. Cox, 931 P.2d 1041, 1043 (Alaska 1997). . See A.H. v. W.P., 896 P.2d 240, 243 (Alaska 1995) ("Where a point is given only cursory statement in the argument portion of a brief, the point will not be considered on appeal."). . See Evans v. Evans, 869 P.2d 478, 480-81 (Alaska 1994). . See Laing v. Laing, 741 P.2d 649, 655-58 (Alaska 1987). . Id. at 657. . See Ulsher v. Ulsher, 867 P.2d 819, 821 (Alaska 1994). . See Myers v. Myers, 927 P.2d 326, 329 (Alaska 1996). . See Kowalski v. Kowalski, 806 P.2d 1368, 1372 (Alaska 1991). . Id. (quoting Lone Wolf v. Lone Wolf, 741 P.2d 1187, 1192 (Alaska 1987)). . See Doyle v. Doyle, 815 P.2d 366, 373 (Alaska 1991). . See Hilliker v. Hilliker, 828 P.2d 1205, 1206 (Alaska 1992). . See Horton v. Hansen, 722 P.2d 211, 218 (Alaska 1986) (noting that vexatious conduct by one party that leads to increased attorney's fees will justify a fee award to the burdened spouse).

11627630

Steven A. MANGIAPANE, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee

Mangiapane v. Municipality of Anchorage

1999-03-19

No. A-6888

427

430

974 P.2d 427

974

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T18:22:12.382875+00:00

CAP

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

Steven A. MANGIAPANE, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee.

Steven A. MANGIAPANE, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee. No. A-6888. Court of Appeals of Alaska. March 19, 1999. Rehearing Denied April 23, 1999. William Dennie Cook, Eagle River, for Appellant. Carmen E. ClarkWeeks, Assistant Municipal Prosecutor, and Mary K. Hughes, Municipal Attorney, Anchorage, for Appellee. Before COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.

1335

8709

OPINION MANNHEIMER, Judge. Steven A. Mangiapane appeals his conviction for driving while intoxicated. He contends that the police denied him a fair opportunity to consult privately with an attorney before deciding whether to take an Intoxime-ter test. Mangiapane also contends that the trial judge should have instructed his jury that Intoximeters, even when functioning properly, can yield results that vary as much as .01 percent from a person's true blood- or breath-alcohol level. For the reasons explained here, we reject both of Mangiapane's arguments and we affirm his conviction. Shortly after Mangiapane was arrested, he was taken to the Anchorage Police Department's Fifth Avenue substation for a breath test. While the police waited for the expiration of the 15-minute observation period mandated by 13 AAC 63.040(a)(1), Mangia-pane asked to make a telephone call. Officer John Richtarcsik brought a telephone to Mangiapane but, under department policy, the officer did not release Mangiapane from his handcuffs. Instead, the officer gave Mangiapane the choice of having the telephone receiver propped between his ear and his shoulder or, instead, using the speaker feature of the telephone. Mangiapane chose the speaker phone. Mangiapane called an attorney. While Mangiapane was on the phone, Richtarcsik backed away ten or fifteen feet and he turned off his tape recorder. Richtarcsik testified that he wished to give Mangiapane as much privacy as possible, consistent with continuing the observation period required by the breath test regulation. After speaking with the attorney, Mangia-pane decided that he would take the breath test. Mangiapane's breath test result was .112 percent blood alcohol. Mangiapane also exercised his right to an independent blood test. His blood was drawn approximately 40 minutes later, and the result was .10 percent blood alcohol. Before trial, Mangiapane asked the district court to suppress the result of the Intoxime-ter test. Mangiapane claimed that, because Officer Richtarcsik remained within ten to fifteen feet of him during the telephone call, the officer had denied Mangiapane a fair opportunity to consult with the attorney before deciding whether to take the breath test. District Court Judge Gregory J. Motyka held a hearing to resolve this issue. Officer Richtarcsik was the sole witness at this hearing; we have already summarized his testi mony. Based on Riehtarcsik's testimony, Judge Motyka concluded that the police had not intruded improperly into Mangiapane's conversation with his attorney. The judge therefore denied Mangiapane's request to suppress the Intoximeter result. In a series of cases , this court has held that "[e]ven though police officers have a duty to maintain custodial observation of [an arrestee] before administration of the breath test, [the arrestee] must be given a reasonable opportunity to hold a private conversation with his or her attorney." But an arrestee's right to confer with counsel "is not violated merely because the arresting officer maintains physical proximity to the [arrestee]". This court has suppressed In-toximeter results only when, in addition to maintaining physical proximity, "the police engaged in additional intrusive measures, intrusions that convinced [arrestees] that the officers were intent on overhearing and reporting [the arrestees'] conversations with their attorneys." In the present case, Officer Richtarc-sik maintained observation of Mangiapane but he did not engage in additional intrusive conduct to deter Mangiapane from conferring with his attorney or intrude into the privacy of the attorney-client conversation. We agree with Judge Motyka that the officer's actions did not violate Mangiapane's right to confer with counsel. We also uphold Judge Motyka's ruling for a second reason: Mangiapane offered no evidence that Officer Richtarcsik's actions deterred him from communicating with his attorney. This is a necessary element of Mangiapane's suppression argument. For instance, in Kiehl v. State we upheld the admissibility of the defendant's breath test because, even though the police officer surreptitiously recorded Kiehl's conversation with his attorney, "Kiehl remained oblivious [to] the recording" and thus "the surreptitious recording resulted in no discernible impairment of Kiehl's consultation with counsel". Mangiapane's remaining contention is that District Court Judge Peter G. Ashman should have instructed the jury that the In-toximeter machine (even when properly calibrated and functioning normally) can yield results that vary as much as .01 percent from the subject's true blood-alcohol level. In Haynes v. Alaska Department of Public Safety , the supreme court recognized this intrinsic margin of error and ruled that defendants must be given the benefit of this potential error when determining whether they had driven a motor vehicle with a blood-alcohol level of .10 percent or greater. In essence, the Haynes decision required the State to introduce an Intoximeter result of .11 percent or higher in order to prove a defendant guilty of driving while intoxicated under AS 28.35.030(a)(2) or the equivalent Anchorage municipal ordinance, AMC 9.28.020(B)(2). The Alaska Legislature reacted to the Haynes decision by enacting AS 28.40.060. Under this statute, if an offense described [in Title 28] requires that a chemical test of a person's breath produce a particular result, and [if] the chemical test is administered by a properly calibrated instrument approved by the Department of Public Safety, the result described by statute is not affected by the instrument's working tolerance. The practical effect of this statute is to modify the definition of driving while intoxicated under AS 28.35.030(a)(2). As written, AS 28.35.030(a)(2) declares that a person is guilty of driving while intoxicated "if the person operates or drives a motor vehicle . when, as determined by a chemical test taken within four hours after the alleged offense was committed, there is 0.10 percent or more by weight of alcohol in the person's blood . or when there is 0.10 grams or more of alcohol per 210 liters of the person's breath". In Haynes, the supreme court interpreted this language as meaning that the State had to prove, by means of a chemical test, that the driver's blood actually contained at least .10 percent alcohol by weight, or that the person's breath actually contained at least .10 grams of alcohol per 210 liters. The newly enacted statute rejects this interpretation of the offense. AS 28.40.060 effectively declares that a driver violates AS 28.35.030(a)(2) if, within four hours of driving, the driver is tested on a properly calibrated, properly functioning In-toximeter and the driver's test result is at least .10 percent blood-alcohol or the equivalent .10 grams of alcohol per 210 liters of breath. The fact that the driver's true blood-alcohol or breath-alcohol level may be slightly lower (due to the Intoximeter's acknowledged margin of error) is no longer relevant to the driver's guilt under AS 28.35.030(a)(2). Mangiapane was not charged under AS 28.35.030(a)(2) but rather under the corresponding Anchorage ordinance, AMC 9.28.020(B)(2). But as we noted in Anchorage v. Ray , AS 28.01.010(a) "prohibits municipalities from promulgating traffic laws that diverge from state law." We therefore "presume that the drafters of the municipal ordinances intended that the ordinances be interpreted in the same manner as the corresponding statutes." For this reason, Judge Ashman properly declined to instruct the jury concerning the Intoximeter's inherent margin of error. This margin of error (the machine's "working tolerance") had no relevance to the jury's decision. We thus conclude that neither of Mangia-pane's appellate claims has merit. Accordingly, the judgement of the district court is AFFIRMED. . Anchorage Municipal Code 9.28.020(B). . See Kiehl v. State, 901 P.2d 445 (Alaska App.1995); Reekie v. Anchorage, 803 P.2d 412 (Alaska App.1990); Anchorage v. Marrs, 694 P.2d 1163 (Alaska App.1985); Farrell v. Anchorage, 682 P.2d 1128 (Alaska App.1984). . Kiehl, 901 P.2d at 446. . Id. at 447. . Id. . Id., 901 P.2d at 447. . 865 P.2d 753 (Alaska 1993). . See id. at 755-56. . 854 P.2d 740 (Alaska App.1993). . Id. at 743.

11441560

William H. MILLER and Barbara J. Miller, Appellants, v. MATANUSKA-SUSITNA BOROUGH, Appellee

Miller v. Matanuska-Susitna Borough

2002-09-06

No. S-9735

285

293

54 P.3d 285

54

Pacific Reporter 3d

Alaska Supreme Court

Alaska

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

CAP

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

William H. MILLER and Barbara J. Miller, Appellants, v. MATANUSKA-SUSITNA BOROUGH, Appellee.

William H. MILLER and Barbara J. Miller, Appellants, v. MATANUSKA-SUSITNA BOROUGH, Appellee. No. S-9735. Supreme Court of Alaska. Sept. 6, 2002. Kenneth D. Albertsen, Palmer, for Appellants. Max D. Garner, Birch, Horton, Bittner and Cherot, Anchorage, for Appellee. Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.

3961

25702

OPINION EASTAUGH, Justice. I. INTRODUCTION The Borough imposed a road improvement special assessment against each of nine lots William and Barbara Miller own in a newly formed local improvement district. The superior court rejected the Millers' administrative appeal challenging the assessment. We affirm, because we conclude that (1) the borough ordinance allocating paving special assessments to residential lots on a per-lot basis does not conflict with state law, and (2) a borough ordinance limiting special assessments to twenty-five percent of the lots' tax-appraised value does not apply to this local improvement district. We also reject the Millers' argument that they were public interest litigants who could not be held liable for part of the borough's appellate attorney's fees. II. FACTS AND PROCEEDINGS The Matanuska-Susitna Borough Assembly created Suburban Country Estates Road Paving Local Improvement District No. 245 by enacting Ordinance 97-139 in 1997. That ordinance provided that the cost of the improvement "shall be assessed equally against each property within the road paving local improvement district." The Millers own nine lots in this local improvement district. The Millers' lots had been zoned and platted for single-family residential development, but are undeveloped. Each of their lots had a 1997 tax-assessed value of $2,000 and a 1999 tax-assessed value of $4,000. When the final cost of the road paving project was calculated, the borough assessed $1,735.35 to property owners for each parcel of property they owned within the local improvement district; it assessed that amount for each of the Millers' nine lots. At the public hearing on Ordinance 97-139 before it was enacted, the Millers objected to the borough's proposed per-lot method of assessment. They argued that each lot owner should pay a percentage of the paving costs commensurate with the proportional value of each lot to the total value of all lots in the local development district. After the assembly enacted the ordinance notwithstanding their objections, the Millers filed a superior court complaint seeking a declaratory judgment. Their complaint, filed in 1998, alleged that the borough had acted contrary to law when it assessed the costs on a per-lot basis and had acted arbitrarily and unreasonably when it assessed each lot equally even after it had acknowledged that the paving would not equally benefit each lot in the local improvement district. In 1999 the Millers filed in the superior court an administrative appeal from the borough's assessment, asserting that the borough had erred in assessing the costs of the improvement equally among lot owners and that this method of assessment was contrary to law. The superior court consolidated the Millers' declaratory judgment action with their administrative appeal. At oral argument on cross-motions for summary judgment, the parties represented to the superior court that they had agreed to proceed with the action under the Alaska Rules of Civil Procedure. But the court, concerned that the agreement "effectively jettison[ed] the limited appeal from a final assessment afforded by state law," decided to treat the case as an appeal of an administrative decision. The superior court confined its review to the evidence in the record created below plus Robert Ameen's affidavit submitted by the Millers to show that the assessed properties were unequally benefited. The superior court affirmed the borough's assessment against the Millers and awarded the borough attorney's fees and costs totaling $2,716.03. The Millers appeal the denial of their administrative appeal and the award of attorney's fees against them. III. DISCUSSION A. Standard of Review Because the superior court acted as an intermediate court of appeal, we independently review the borough's decision. We employ the rational basis standard when reviewing questions of law that involve the borough's expertise, and when reviewing the borough's application of law to facts when that application implicates administrative expertise or involves fundamental policy determinations. Under the rational basis standard, we defer to the borough's determination as long as it is supported by the facts and has a reasonable basis in law. The borough's assessment determinations are presumed to be correct, and are reversed only upon a showing "of fraud or conduct so arbitrary as to be the equivalent of fraud, or so manifestly arbitrary and unreasonable as to be palpably unjust and oppressive." When the superior court acts as an intermediate appellate court, it has broad discretion to award reasonable attorney's fees under Appellate Rule 508(e). The superior court's decision should not be disturbed unless it is "manifestly unreasonable." B. Was the Borough's Allocation Method Contrary to State Law? The Millers argue that the borough's per-lot assessment method violates state law because AS 29.46.060(a) mandates that improvement costs be assessed against property in proportion to the benefit received. In reply to the borough's argument that it adopted, in accordance with state law, a different but permissible method of allocating costs for road improvements in local improvement districts like the one at issue here, the Millers contend that there is no rational basis for the borough's per-lot assessment method given disparities in the size of the lots in their local improvement district. Matanuska-Susitua Borough (MSB) Code § 03.28.140(A)(2) controls road paving special assessments like the Millers'. It allocates road improvement costs "on a per lot basis"-thus equally per lot-to residential lots in road special assessment districts: ALLOCATION OF COSTS IN ROAD SPECIAL ASSESSMENT DISTRICTS. (A) Assessments for costs of road and drainage construction and improvements shall be allocated among the parcels within the road special assessment district as follows: (2) Areas zoned residential or restricted to residential use. For areas zoned residential or within subdivisions where a majority of the lots within the subdivision are restricted to residential uses under recorded conditions, covenants and restrictions, the allocation of costs shall be assessed on a per lot basis so that each lot is assessed the same amount. Subsection .140(A)(2) is one of the borough code provisions describing the borough's procedures for assessing improvement costs and creating local improvement districts within the borough. Subsection .140(A)(2) governs road improvement special assessments and therefore encompasses road paving assessments. Accordingly, we must decide whether subsection .140(A)(2) contravenes state law governing special assessments. Alaska Statutes 29.46.010 and .020 respectively permit municipalities to assess private property benefited by improvements and to adopt procedures for creating local special assessment districts. Alaska Statute 29.46.020(c) requires municipalities such as the borough to comply with the special assessment procedures set out in AS 29.46.030-29,46.100 if the municipality does not pre-seribe a procedure for special assessments as permitted by section .020. The borough chose to prescribe such procedures. By enacting MSB Code § 08.28.140(A)(2), the borough exercised the authority AS 29.46.020(a) granted to it. It consequently substituted its per-lot method of assessing a specific class of improvement costs-for road improvements benefiting residential lots-for the proportional benefit assessment method the legislature generally adopted in AS 29.46.060(a). It therefore "prescribed a procedure for special assessments as permitted by this section," exempting itself from having to comply with AS 29.46.060(a) with respect to road improvement special assessment districts. Although there are other possible ways to assess landowners in a local improvement district, the per-lot method the borough chose for road improvements benefiting residential lots is presumptively valid. Accordingly, MSB Code § 08.28.140(A)(2) does not violate AS 29.46.020 or .060. C. Did the Millers Show that the Per-Lot Method Is Irrational? The Millers argue that the factual record does not support the borough's implicit conclusion that each lot benefited equally; they consequently argue that this court should overturn the assessments. To prevail, the Millers had to overcome the presumption of correctness that attaches to the borough's conclusion that the paving project has conferred an equal benefit on their land. To do so, the Millers had to show that the benefit to their property was grossly disproportionately low compared with the benefit conferred upon the other assessed properties. In Kissane v. City of Anchorage, a territorial district court held before statehood that benefit to property is not limited to the immediate increase in property value to the landowner. The district court held that costs could be assessed to a landowner for increased public parking even though his land was zoned for business but used only for residential purposes. In City of Wasilla v. Wilsonoff, we held that property benefited from installation of a water main because it provided a near-by fire hydrant, even though the landowner testified that it would be difficult to hoist a fire hose up an embankment to reach her house and that fire insurance rates would not decrease for twenty years. Similarly, in Weber v. Kenai Peninsula Borough, we concluded that property benefited from installation of a gas line even though the landowner had no intention of connecting to it. Here, the superior court concluded that the record from the October 27, 1996 public hearing on the local improvement district contained ample testimony by residents identifying the benefits from the paving project. For example, residents testified that reduced vehicle wear and tear and health benefits from reduced dust would outweigh the cost of the project. In addition, tax-assessment records indicate that the value of each of the Millers' lots increased by $2,000 during the two years following the approval of the local improvement district. Furthermore, the superior court correctly observed that "[if the [Millers] ever developed their lots, they or their successors in interest would enjoy the benefit of cleaner air, smoother travel, and increased value on par with all of the other landowners in the [local improvement dis-triet]." The Millers supplemented the agency record with the affidavit of real estate appraiser Robert Ameen. He stated: 4. Unless the various properties within a paving local improvement district are each valued identically, they usually do not benefit equally from the road being paved. 5. A higher-valued property receives a greater benefit from the paving than does a lesser-valued property. The larger the difference between the values of the various properties within the local improving district, the greater the disparity between the benefit received by each property. Accordingly, if the cost of paving is to be allocated among the properties in accordance with the benefit received, the cost should be allocated proportionately based upon the value of each individual property. 6. It is my understanding that the Borough in this case allocated the costs of paving on a pro-rata basis, assessing each lot an identical portion of the total cost irrespective of the value of the individual property. Such an assessment is disproportionate. This evidence does not rebut the presumption of correctness that attaches to the borough's decision or the record evidence that paving substantially benefited the Millers' parcels. Ameen's affidavit merely concludes that paving will cause the market value of properties of greater value to increase more than the market value of lower valued properties. It does not rebut the conclusion that the Millers' lots will receive a substantial benefit because paving will reduce dust and vehicle wear and tear and will increase the monetary value of each lot. Neither the evidence before the borough nor the Ameen affidavit undermines the borough's conclusion that the Millers have benefited from the paving and that when and if they develop their property they will benefit on par with the other property owners in the local improvement district. The Millers argue that the superior court could not properly deny their cross-motion for summary judgment in reliance upon the $2,000 increase in the post-improvement tax-assessed value of their property. They contend that the borough was required to submit additional evidence proving that the increased tax valuation of their lots reflects a corresponding increase in their fair market value. They also argue that the borough has not shown that any increase in value is attributable to the paving. But this argument misconstrues the procedural posture of the Millers' superior court case. Relying on our decision in Balough v. Fairbanks N. Star Borough, the superior court treated their case as if it were an appeal of an agency decision. The court analogized the borough's assessment determination to an agency decision and the Millers' lawsuit to an appeal from that decision. Because the superior court treated the Millers' action as an administrative appeal, the civil rules did not require the borough to introduce additional evidence to demonstrate equal benefit to the properties. The relevant evidentiary record in the superior court was the borough record and the supplemental affidavit of Ameen. The superior court did not err in concluding that the Millers did not overcome the borough's presumptively correct finding of equal benefit. D. Did the Twenty-Five Percent Limit Imposed by MSB Code § 03.28.080(B) Apply to these Assessments? The Millers argue in their opening brief that their assessments were illegal because they exceeded the twenty-five percent limit imposed by MSB Code § 03.28.080(B). Citing AS 29.46.020(c), the Millers contend that state law requires a borough to either follow state procedure for special assessments or create its own procedure. They argue that because the borough, by enacting subsection .080(B), adopted a procedure that proscribes special assessments exceeding twenty-five percent of the property tax value, the borough had to adhere to this limitation. The borough argues in response that it permissibly adopted a different procedure when the assembly enacted Ordinance 99-084. That ordinance confirmed the Suburban Country Estates Road Paving Local Improvement District and exempted that local improvement district from the twenty-five percent cap. The Millers' reply brief does not address the cap issue. The superior court agreed with the borough. It held that Ordinance 99-084, which specifically permitted assessments exceeding the limit set by subsection .080(B), was "a subsequent legislative act" that released the borough "from the constraints of a prior legislative act." The superior court was correct. Boroughs act as legislative bodies when they enact ordinances or code provisions. In its legislative capacity, the borough assembly enacted procedures for special assessments. One such enactment was MSB Code § 03.28.080(B), which imposed the twenty-five percent assessment limitation. But another was Ordinance 99-034, which superseded the existing procedure with respect to this local improvement district. In Jefferson v. City of Anchorage, the Anchorage City Council enacted an ordinance increasing the mayoral salary at the beginning of the next mayoral term. This new ordinance contravened an existing ordinance that only permitted a salary increase within thirty days after a mayoral term began. We concluded that there is no illegality when a new legislative provision of equal dignity and authority supplants prior legislation. That holding controls here. These assessments were not subject to the twenty-five percent limitation imposed by subsection .080(B). E. Are the Millers Public Interest Plaintiffs Who Should Not Be As- - sessed Attorney's Fees? A superior court sitting as an intermediate appellate court considers an award of appellate attorney's fees under Alaska Rule of Appellate Procedure 508(e) This rule gives courts broad discretion in awarding fees. Such fee awards must be justified and reasonable. The Millers argue that the superior court erred in awarding attorney's fees to the borough because the Millers were public interest litigants, who were therefore exempt from attorney's fees. "It is an abuse of discretion to award attorney's fees against an unsuccessful public interest plaintiff who raises a claim in good faith." A four-part test determines public interest litigant status: (1) Is the case designed to effectuate strong public policies? (2) If the plaintiff succeeds, will numerous people receive benefits from the lawsuit? (8) Can only a private party have been expected to bring this suit? (4) Would the purported public interest litigant have sufficient economic incentive to file suit even if the action involves only narrow issues lacking general importance? "We review a trial court's determination of a litigant's public interest status under the abuse of discretion standard. Such an abuse is regarded as present only where the trial court's decision appears to be manifestly unreasonable or motivated by an inappropriate purpose." The superior court concluded that the Millers did not qualify as public interest plaintiffs because they "had a significant financial stake in this action that would only have accrued to them." The Millers do not argue persuasively to the contrary. Only they would have directly benefited had they persuaded the superior court to impose their preferred assessment scheme on the borough. Had they succeeded, other landowners in the local improvement district would have been forced to shoulder greater costs. The Millers' appeal was in their private interest. The Millers also briefly argue that the award was excessive because it gave the borough thirty percent of its actual fees. The Millers do not adequately brief this argument, and it is unavailing in any event. The superior court gave a well-reasoned explanation for its attorney's fees award. It explained that the Millers' "procedural approach to the case and their dual filings took this matter over unnecessary ground raising both parties' fees in the process." The court also found that the Millers' appeal was "knowingly risky" in that they attempted to have "their assessment preference legislated by the court" with "almost no legal claim" to do so. There is no reason to think the superior court abused its discretion in awarding attorney's fees against the Millers. IV. CONCLUSION We AFFIRM the superior court order denying the Millers' appeal from the borough's final assessment. We also AFFIRM the Judgment awarding attorney's fees and costs to the borough. . Matanuska-Susitna Borough Ordinance No. 97-139 (1997). . The Millers also submitted a second motion for summary judgment on January 10, 2000, the morning of oral argument on their first motion. Their second motion asserted a new substantive ground for summary judgment. The superior court treated their second motion as an appeal of the administrative agency decision, permitted the borough to respond, and disposed of it in the same "Memorandum and Order on Cross Motions for Summary Judgment" that the Millers are appealing to this court. The superior court concluded that the argument in the second motion had not been raised at the administrative level and therefore had been waived. The Millers do not appeal the denial of their second motion, and their briefs in our court do not raise the substantive ground they argued in their second motion. . Weber v. Kenai Peninsula Borough, 990 P.2d 611, 613 (Alaska 1999) (citation omitted). . Id. (citation omitted). . Id. (citation omitted). . City of Wasilla v. Wilsonoff, 698 P.2d 656, 658 (Alaska 1985) (quoting Kissane v. City of Anchorage, 159 F.Supp. 733, 737 (D.Alaska 1958)). . Rosen v. State Bd. of Pub. Accountancy, 689 P.2d 478, 482 (Alaska 1984). . Cook Inlet Pipeline v. Alaska Pub. Util. Comm'n, 836 P.2d 343, 354 (Alaska 1992). . AS 29.46.060 reads in pertinent part: "(a) At any time after approval of an improvement plan, the governing body shall assess the authorized percentage of the cost against property in the district included in the plan in proportion to the benefit received...." . See MSB Code § 03.28.010-.180. . AS 29.46.010 reads in pertinent part: "(a) A municipality may assess against . private real property to be benefited by an improvement all or a portion of the cost of acquiring, installing, or constructing capital improvements." . AS 29.46.020 reads in pertinent part: (a) A municipality may prescribe by ordinance the procedures relating to creating special assessment districts, making local improvements, levying and collecting assessment, and financing improvements (c) To the extent that a municipality does not prescribe a procedure for special assessments as permitted by this section, the municipality shall comply with the special assessment procedures set out in AS 29.46.030-29.46.100. . AS 29.46.020(c). . MSB Code § 03.28.140(A) reads in pertinent part: "(2) . For areas zoned residential or within subdivisions where a majority of the lots within the subdivision are restricted to residential uses under recorded conditions, covenanis and restrictions, the allocation of costs shall be assessed on a per lot basis so that each lot is assessed the same amount." . AS 29.46.060 reads in pertinent part: "(a) At any time after approval of an improvement plan, the governing body shall assess the authorized percentage of the cost against property in the district included in the plan in proportion to the benefit received...." . AS 29.46.020(c). . The borough itself generally follows the proportional benefit method for assessing costs other than costs in road special assessment districts. See MSB § 03.28.080(A) (providing generally for imposition of special assessment costs "in proportion to the benefit received"). If MSB § 03.28.140(A)(2) does not apply, per MSB § 03.28.140(A)(1), the borough assesses road improvement costs in special assessment districts either by lot size or frontage length. . City of Wasilla v. Wilsonoff, 698 P.2d 656, 657, 658 (Alaska 1985) ("We agree with the city that its special assessment determination carries with it a 'presumption of correctness." 'If the apportionment of special assessments and the question of benefits are matters upon which reasonable men may differ, the determination by the municipal authorities will be sustained by the courts.' ") (quoting in part 2 Cmarues Antreay, Municirar Corporation Law § 14.46 (1985)); see also Weber v. Kenai Peninsula Borough, 990 P.2d 611, 614 (Alaska 1999) (reiterating presumption that municipal legislative assessment decisions are valid and applying presumption to creation of assessment districts). . See Wilsonoff, 698 P.2d at 657. . We stated in Wilsonoff that "[this presumption favoring a city council's assessment determination concomitantly places a heavy burden of proof on the challenging party." Id. at 658. We then approvingly quoted Professor Antieau: "[A] property owner seeking to overturn a special assessment against his property has the burden of proving that the assessment was grossly beyond benefit, disproportionate or otherwise illegal." Id. (quoting 2 Cmartes Awtiray, Muntcrpat Corporation Law § 14.46 (1985) (emphasis added in Wilsonoff ). . 159 F.Supp. 733, 738 (D.Alaska 1958). . 698 P.2d 656, 658 (Alaska 1985). . 990 P.2d 611, 616 (Alaska 1999). . 995 P.2d 245, 256 (Alaska 2000). . MSB Code § 03.28.080(B) provides: "The total amount of assessments for an improvement may not exceed the allowable cost of the improvement under A.S. 29.46.110. An assessment may not exceed 25 percent of the assessed value for real property taxation of the property assessed." . Matanuska-Susitna Borough Code Ordinance No. 99-034 (1999). . Griswold v. City of Homer, 925 P.2d 1015, 1019 & n. 3 (Alaska 1996) (citing Concerned Citizens of S. Kenai Peninsula v. Kenai Peninsula Borough, 527 P.2d 447, 452 (Alaska 1974)). . 513 P.2d 1099, 1101 (Alaska 1973). . Id. at 1102. . Appellate Rule 508(e) states: Attorney's Fees. Attorney's fees may be allowed in an amount to be determined by the court. If such an allowance is made, the clerk shall issue an appropriate order awarding fees at the same time that an opinion or an order under Rule 214 is filed. If the court determines that an appeal or cross-appeal is frivolous or that it has been brought simply for purposes of delay, actual attorney's fees may be awarded to the appellee or cross-appellee. . Agen v. State, Dep't of Revenue, 945 P.2d 1215, 1221 (Alaska 1997). . Carr-Gottstein Props. v. State, 899 P.2d 136, 148 (Alaska 1995). . The Millers mistakenly cite Civil Rule 82 rather than Appellate Rule 508. . Carr-Gottstein Props., 899 P.2d at 147 (citations omitted). . Id. (citations omitted). . Valley Hosp. Ass'n, Inc. v. Mat Su Coalition for Choice, 948 P.2d 963, 972 (Alaska 1997). . See Wirum & Cash, Architects v. Cash, 837 P.2d 692, 713-14 (Alaska 1992) ("Where a point is not given more than a cursory statement in the argument portion of a brief, the point will not be considered on appeal.") (citations omitted).

10554167

Jack COGHILL et al., Appellants, v. H. A. BOUCHER, Lieutenant Governor of the State of Alaska, Appellee

Coghill v. Boucher

1973-07-13

No. 1798

1297

1305

511 P.2d 1297

511

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

Jack COGHILL et al., Appellants, v. H. A. BOUCHER, Lieutenant Governor of the State of Alaska, Appellee.

Jack COGHILL et al., Appellants, v. H. A. BOUCHER, Lieutenant Governor of the State of Alaska, Appellee. No. 1798. Supreme Court of Alaska. July 13, 1973. Douglas B. Baily, Matthews, Dunn & Baily, Anchorage, for appellants. John E. Havelock, Atty. Gen., Juneau, Timothy G. Middleton, Asst. Atty. Gen., Anchorage, for appellee. Before RABINOWITZ, C. J., and CONNOR, ERWIN and BOOCHEVER, JJ-

4099

26582

OPINION RABINOWITZ, Chief Justice. The validity of the manner in which the lieutenant governor of Alaska promulgated certain regulations pertaining to the counting of ballots prior to the closing of polls in statewide elections is questioned in this appeal. The Alaska legislature enacted the so-called "early count" statute in 1972. This enactment permits the commencement of the counting of ballots in certain designated precincts prior to the closing of the polls in statewide elections. The lieutenant governor is statutorily charged with the general responsibility of supervising statewide elections and is given specific discretion under AS 15.15.330 to designate the qualified precincts which will use the "early count" procedures. In the instant case, appellants are residents and registered voters of the state of Alaska. Additionally, one of the appellants is a duly-appointed poll watcher .in Precinct 118 of Anchorage: a precinct which has in excess of 300 voters and which therefore qualifies for the so-called "early count" vote-tallying procedures under AS 15.15.330. Appellants commenced this action by filing a complaint for injunction, together with a motion for a preliminary injunction, in the superior court. In their motions for preliminary and permanent injunctive relief, appellants sought to enjoin the lieutenant governor from authorizing procedures for the then-upcoming November 7, 1972 general election as well as all future statewide elections which would: allow the removal of ballot boxes from the polls or the counting of ballots prior to the closing of the polls; deny any poll watcher the right to be present at both the polling and counting places; infringe upon their constitutional right to vote in secrecy; or allow changes in ballot counting techniques pursuant to rules not promulgated in conformity with the requirements of the Alaska Administrative Procedure Act, (A.P. A.). After hearing, the superior court denied appellants' motion for preliminary injunction, holding that appellants had failed to demonstrate how their constitutional right to vote in secrecy or their statutory rights as poll watchers would be impaired. The court further held that the lieutenant governor was not obliged to promulgate the "early count" regulations in accordance with the requirements of the A.P.A., and that therefore, appellants lacked standing under that statute to challenge such regulations. The superior court also concluded that appellants lacked standing under other election code provisions but possessed standing with which to raise their constitutional claim of impairment of the right to vote in secrecy. Thus the court dismissed all but their constitutional claim. Subsequently, by virtue of entering a final order embodying findings of fact and conclusions of law, as prepared by appellee, the superi- or court went beyond its initial order and dismissed all of appellants' claims for relief, including their constitutional claim. Appellants now appeal from the superior court's final order. At the outset we are confronted with a question of appellants' standing to challenge the validity of the regulations promulgated by the lieutenant governor under the "early count" statute. A determination of the standing issue, however, depends at least in part upon the resolution of the question of the applicability of the A.P.A. to the lieutenant governor's regulations now questioned. If the A.P.A. is inapplicable then appellants cannot rely upon the standing provisions of the A.P.A. to contest the regulations. If, however, the A. P.A. is applicable then a further question arises as to whether appellants possess standing as "interested persons" within the meaning of that act. Thus, our threshold inquiry must focus upon the question of the applicability of the A.P.A. to the challenged regulations. The applicability of the A.P.A. to the lieutenant governor's regulations in question depends upon construction of AS 15.-15.010, which provides in relevant part: The lieutenant governor shall provide general administrative supervision over the conduct of state elections, and may issue any regulations under the Administrative Procedure Act (AS 44.62) necessary for the administration of elections to protect the interest of the voter and assure administrative efficiency . (Emphasis added.) Appellants construe the statute to mean that the lieutenant governor has "the option of issuing certain regulations for the administration of elections or, in the alternative, to decline to issue such regulations." They contend, however, that if the lieutenant governor elects to issue regulations under the enactment, then such regulations must be promulgated under the procedural safeguards afforded by the Administrative Procedure Act. Appellee, on the other hand, interprets AS 15.15.010 to mean that he may, in his discretion, issue regulations under the A.P.A., but that he is not compelled to do so by the terms of the statute. Appellee further argues that he is exempt from the A.P.A. by the provisions of that act since his regulations pertain to a specific group of people and concern only the "internal management of a state agency." Finally, appellee argues that even if the A.P.A. applies to him, appellants still lack standing thereunder because they are not "interested persons" within the meaning of the A.P.A. The legislative history of Alaska's election code tends to support appellants' interpretation of AS 15.15.010. While there appears to be no legislative history pertaining particularly to AS 15.15.010, the development of AS 15.10.020 is illuminating. More precisely, that provision currently provides: The lieutenant governor shall have the exclusive power to modify the boundary of a precinct and to establish or abolish a precinct and polling place in the state by rules adopted under the Administrative Procedure Act . The history of AS 15.10.020 suggests that the legislature's reference to "rules adopted under the Administrative Procedure Act" was intentional. That is, the election code was originally known as House Bill No. 252 during the 1960 legislative session. The bill was replaced by the Committee Substitute for House Bill No. 252 and referred to the Senate State Affairs Committee. The Senate Affairs Committee favorably reported the bill out to the Senate with the following proposed amendment, among others: Page 4, line 1: Add a new sentence as follows: 'The secretary of state may establish or change any precinct polling place in the state by rules or order which may he promulgated without compliance with the Administrative Procedure Act.' 1960 Sen. Journal at 634. (Emphasis added.) The bill then went to the Conference Committee with Powers of Free Conference, which deleted the proposed amendment. Accordingly, the final version of the enacted provision, which was essentially the same as the current provision, contained the specific reference to the A.P.A. More importantly, had the legislature intended to empower the executive branch of government to alter precinct boundary lines by promulgating regulations without complying with the A.P.A. it would have adopted the proposed amendment and expressly said so. Thus, the reference to the A.P.A. was intentional and reflected the legislature's desire to make the A.P.A. requirements mandatory. A related provision with a similar reference to the A.P.A. is AS 15.10.030, which provides: The precinct boundaries established by the lieutenant governor shall be the boundaries for both state and local elections. The lieutenant governor by regulation pursuant to the provisions of the Administrative Procedure Act may authorize the combining, consolidation, or altering. of precinct boundaries for local elections. No attempt was made by the Senate Affairs Committee to delete the reference to the A.P.A. in this provision. Again, the legislature demonstrated its intention that executive regulations pertaining to state elections be subjected to the safeguards of the A.P.A. Significantly, the wording of the reference to the A.P.A. in AS 15.10.030 is quite similar to that used in AS 15.15.010: the provision in question in the case at bar. The former section provides in part that, "The lieutenant governor by regulation pursuant to the provisions of the Administrative Procedure Act (AS 44.62) may authorize . . ." certain changes. The latter section provides that, "The lieutenant governor shall provide general administrative supervision over the conduct of state elections, and may issue any regulations under the Alaska Administrative Procedure Act (AS 44.62) . . . . " The only difference between the operational portions of these two sections is that in the former, the verb "may" follows the A.P.A. clause while in the latter, it precedes the A.P.A. clause. From the foregoing we are convinced that the legislature intended that certain regulations pertaining to statewide elections and promulgated by the lieutenant governor should be subjected to the safeguard requirements of the A.P.A. To construe AS 15.15.010 as appellee urges would be to render the A.P.A. clause in that enactment mere surplusage. The presence of the A.P.A. clause in AS 15.15.010 reflects the legislature's intention that the A.P.A. be mandatorily applied to regulations promulgated in accordance with that provision. Moreover, as the history of AS 15.-10.020 suggests, the 1960 Alaska legislature would have expressly indicated that the A.P.A. was not mandatory in AS 15.-15.010, had it intended to do so. Since it did not, and since the A.P.A. clause was expressly included in AS 15.15.010, we are persuaded that appellants' statutory construction is correct. AS 15.15.330, the "early count" enactment, must then be read in conjunction with the requirements of AS 15.15.010. Regulations promulgated under the latter provision concerning the early tallying of ballots in selected precincts qualify as "regulations . . . necessary for the administration of elections to protect the interest of the voter and assure administrative efficiency . . ." within the meaning of AS 15.15.010. Thus, we hold that the provisions of the A.P.A. apply to the questioned regulations promulgated by the lieutenant governor under the authority of AS 15.15.330, the "early count" statute. Strong considerations of public policy are embodied in our conclusion. Specifically, the public's faith in the electoral process is vital to the proper functioning of our democratic system of government. Popular confidence in the efficacy of public elections depends upon the maintenance of integrity throughout the ballot counting procedures. One means of assuring the preservation of such integrity in these vote-tallying procedures is to subject executive regulations pertaining thereto to public scrutiny under the provisions of the A. P.A. Executive control of this sensitive aspect of the political process is precisely the type of issue upon which public examination and debate should be invited. Voters are entitled to know well in advance of a statewide election, exactly how and where their ballots will be counted, in what manner and under what type of supervision their ballots will be transported from polling places to counting places, what security precautions will be established and implemented, and other similar procedures. Appellee, however, further contends that regulations promulgated under AS 15.15.-330 are exempt from the requirements of the A.P.A. by operation of AS 44.62.040 and AS 44.62.640, since such regulations are not of "general application" but pertain only to the "internal management of a state agency." We disagree. Assuming that the lieutenant governor's office qualifies as a "state agency" within the meaning of the A.P.A., we cannot agree that the supervision of personnel and activities relating to the conduct of a statewide election is the same as the management of employees and internal affairs of a state agency. Executive organization of the election machinery goes well beyond the lieutenant governor's control of his own staff and their actions. As acknowledged by counsel for appellee during oral argument, some of the challenged election regulations in the case at bar extended to poll watchers, ballot counters, security guards and others: persons who were not members of the lieutenant governor's staff, who were not a part of the internal regulation of a state agency. In short, we decline to construe the phrase "internal management of a state agency" to encompass all individuals and activities affected by regulations promulgated by the lieutenant governor during a statewide election. Our holding today, however, does not emasculate the "internal management" exception to the A.P.A. We recognize, of course, that some mundane instructions issued by the lieutenant governor to his staff members need not be subjected to the requirements of the A.P.A. Application of the "internal management" exception to all of appellee's instructions, directives and orders issued in regard to a statewide election presents "line-drawing" problems which may have to be resolved on a case-by-case basis. Yet, the provisions of that exception to the A.P.A. offer some guidance to appellee in determining which regulations fall within the requirements of the A.P.A. AS 44.62.640(a)(2) provides in part: whether a regulation, regardless of name, is covered by this chapter depends in part on whether it affects the public or is used by the agency in dealing with the public; . . . (Emphasis added.) In the instant case, we hold only that the "early count" regulations which have been questioned clearly "affect the public" and fall outside the scope of the "internal management" exception to the A.P.A. Nor is a contrary conclusion compelled by San Joaquin v. State Board of Equalization, cited by appellee for the proposition that "courts do recognize that there are procedures used by administrative agencies which are exceptions to the Administrative Procedure Act . . . . " The fact that some administrative procedures may be exceptions to the A.P.A. does not mean that the regulations in question in the case at bar are also exempt from the requirements of that statute. For the reasons set forth earlier in this opinion, we have concluded that the instant regulations are not exempt from the A.P.A. Since we have determined that the A.P.A. applies to appellee and the regulations issued by him under AS 15.15.330, we turn now to the question of whether appellants have standing, under the A.P.A., to assert their claims for relief in the case at bar. Appellee contends that even if the A.P.A. applies to him and the regulations in question, appellants still lack standing since they are not "interested persons" within the meaning of that statute. The trend of federal and state authorities on the question of standing over recent years has been toward the emasculation of restrictive, exclusionary requirements and increased accessibility to judicial forms. In federal courts particularly, standing as a constitutional limitation on jurisdiction has been significantly attenuated. As the United States Supreme Court stated in Association of Data Processing Service Organizations, Inc. v. Camp : "[I]n terms of Article III limitations on federal court jurisdiction, the question of standing is related only to whether the dispute sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable of judicial resolution." Similarly, courts have been increasingly willing to find that litigants possessed standing to sue under statutes. As the Supreme Court of the United States in Data Processing observed: Where statutes are concerned, the trend is toward enlargement of the class of people who may protest administrative action. The whole drive for enlarging the category of aggrieved "persons" is symptomatic of that trend. The construction of the concept of "interested persons" under the A.P.A. is a question of first impression in Alaska. In the past, however, this court has departed from a restrictive interpretation of the standing requirement. Specifically, we found that parties possessed standing to challenge administrative action in K & L Distributors, Inc. v. Murkowski. There, writing for this court, Justice Erwin observed : The need for review in certain cases may make it desirable to allow standing to one whose primary interest is not in the direct outcome of the administrative action, but in its competitive effect on his economic interest. Further, in that case we embraced Professor Jaffe's progressive conception of the standing requirement: "But standing, as is true of the other criteria, should not be conceived as furnishing a clear-cut test of jurisdiction. In cases where the authority of Froth-ingham v. Mellon does not exclude jurisdiction, the attenuated character of the particular impact on the plaintiff should be relevant but not conclusive against jurisdiction. In such a case the standing criterion should be assessed together with the other criteria of jurisdiction. Particularly relevant to the exercise of jurisdiction is the presence of a clear-cut issue apt for judicial determination — an issue for the resolution of which the authoritative legal norms can provide an adequate rule. Such a case is, in my opinion, one in which under our system of expectations, judicial intervention is warranted. Neither the competences of the judicial power nor its dangers can be strictly related to a standing requirement. The lack of conventional standing may, indeed, signal the absence of a desirable maturity or of an issue capable of effective judicial resolution. (Footnotes omitted.)" And in Boucher v. Bomhoff, we impliedly found that registered voters had standing to contest the wording of a referendum ballot. In the case at bar, we conclude that a retreat to restrictive notions of standing, as urged by appellee, would not advance the public's vital interest in maintenance of the integrity of vote-tallying procedures during statewide elections. Denial of standing to appellants in the instant case would have the effect of unduly limiting the possibility of a popular check upon executive control of the election process. If registered voters and poll watchers are foreclosed from seeking judicial review of administrative regulation of this sensitive aspect of our governmental system, then it may well be that any review of executive activity in this area would be completely foreclosed, particularly in the event that candidates or political parties were unwilling to challenge such administrative actions. We decline to restrict the public's access to Alaska's courts in such a manner. Rather, we hold that appellants possessed standing as "interested persons" under the A.P.A. in the case at bar to challenge the regulations promulgated by the lieutenant governor under AS 15.15.-330. ° In accordance with our conclusions that the A.P.A. applies to regulations promulgated by the lieutenant governor pursuant to the "early count" statute, and that appellants possess standing under the A.P. A. to challenge the manner in which such regulations were issued, we reverse the final order of the superior court which dismissed all of appellants' claims for relief. In fashioning appropriate relief for appellants, however, we are not obliged to invalidate the November 7, 1972 statewide election in which ballots were tallied in accordance with "early count" procedures not promulgated in conformity with the A.P. A. Rather, we reverse and remand the instant case to the superior court with instructions to enter a judgment declaring that the challenged "early count" regulations are invalid and prohibiting the lieutenant governor from conducting any future statewide elections in which "early count" regulations are promulgated not in conformity with the applicable provisions of the A.P.A. ' Reversed and remanded. FITZGERALD, J., not participating. . AS 15.15.330 provides: Counting of paper ballots may begin before the polls are closed in precincts having 300 or more voters and designated by the lieutenant governor; however, counting shall not in any event begin before 2:00 p. m. prevailing time and unless at least 100 votes have been cast. In all other precincts, when the polls are closed and the last vote has been cast, the election board and clerks or counters shall immediately proceed to open the ballot box and to count and canvass the votes cast. In all cases the election board shall cause the canvass to be continued without adjournment until the canvass is complete. . AS 15.15.010. . AS 44.62.010 et seq. . Appellants initially sought review only of the superior court's original order denying their motion for preliminary injunction. This court, however, elected to treat their petition for review as an appeal from the superior court's final order and granted appellate jurisdiction in this case. App.R. 46; Mallonee v. Grow, 502 P.2d 432, 435 (Alaska 1972). The parties were then afforded an opportunity to rewrite their appellate briefs and oral argument was held. At oral argument, counsel for appellants indicated that appellants had abandoned their constitutional claim. . In concluding that the A.P.A. was inapplicable, the superior court was apparently willing to interpret appellants' request for injunctive relief as an application for declaratory relief as required by that statute. AS 44.62.300. Specifically, the lower court stated: Nor am I concerned with the form of the action so much as the substance of the contentions made by the parties. .AS 44.62.300 provides: An interested person may get a judicial declaration on the validity of a regulation by bringing an action for declaratory relief in the superior court. In addition to any other ground the court may declare the regulation invalid (1) for a substantial failure to comply with § 10-320 of this chapter, or (2) in the ease of an emergency regulation or order of repeal, upon the ground that the facts recited in the statement do not constitute an emergency under § 250 of this chapter. . Ch. 83, § 2.02, S.L.A.1960 provided: The secretary of state shall have the exclusive power to modify the boundary of any precinct and to establish or abolish any precinct and polling place in the state by rules adopted pursuant to the Administrative Procedure Act. . AS 44.62.040(a) (3) concerns the submission, filing and publication of regulations and provides: (a) Every state agency which by statute possesses regulation-making authority shall submit to the lieutenant governor for filing a certified original and one duplicate copy of every regulation or order of repeal adopted by it, except one which (3) is directed to a specifically named person or to a group of persons and does not apply generally throughout the state. . AS 44.62.640(a) (2) defines "regulation" ns follows : (2) "regulation" means every rule, regulation, order, or standard of general application or the amendment, supplement or revision of a rule, regulation, order or standard adopted by a state agency to implement, interpz-et, or make specific the law enforced or administered by it, or to govern its procedure, except one which relates only to the internal management of a state agency; . . . . AS 44.62.640(a) (3) and (4) provide: (3) "lieutenant governor" means the office of the lieutenant governor in the executive branch of the state government, or another agency designated by executive order under the constitution ; (4) "state agency" means a department, office, agency, or other organizational unit of the executive branch, except one expressly excluded by law, but does not include an agency in the judicial or legislative branches of the state government. . 9 Cal.App.3d 365, 88 Cal.Rptr. 12 (1970). . 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed. 2d 184 (1970). . Id. at 151-152, 90 S.Ct. at 829, 25 L. Ed .2d at 187. . Id. at 154, 90 S.Ct. at 830, 25 L.Ed.2d at 189; hut compare Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972). . 486 P.2d 351 (Alaska 1971). . Id. at 353. . Id. at 353-354; see also Jaffe, Standing to Secure Judicial Review: Private Actions, 75 Harv.L.Rev. 255, 304-05 (1961). . 495 P.2d 77 (Alaska 1972). . As noted in a somewhat related context in Brookhaven Housing Coalition v. Kunzig, 341 F.Supp. 1026 (E.D.N.Y.1972) : Private citizens have a right to review compliance with both statutes and regulations relating to the provision of publicly assisted housing. This is a specific application of the general principle that government agencies may be required to live up to their own rules. 341 F.Supp. at 1029-1030. (Citations omitted.) . Compare the unique approach to the standing doctrine for public-spirited parties urged by Justice Blackmun, dissenting in Sierra Club v. Morton, supra: . . . I would permit an imaginative expansion of our traditional concepts of standing in order to enable an organization such as the Sierra Club, possessed, as it is, of pertinent, bona fide and well-recognized attributes and purposes in the area of environment, to litigate environmental issues. This incursion upon tradition need not be very extensive. Certainly, it should be no cause for alarm. 405 U.S. at 747, 92 S.Ct. at 1377, 31 L.Ed.2d at 655. .At oral argument, counsel for appellants reformulated the latters' requested remedy and indicated that appellants now seek only prospective declaratory relief. . Appellee has expressed the concern that "[i]f the early count procedure must be enacted by the promulgation of regulations pursuant to the Administrative Procedures Act, then the remainder of the Lieutenant Governor's instructions are also subject to attack on the same basis." Since only the regulations implementing the "early count" statute were challenged in the instant action, we decline to consider the validity of other election regulations which may not have been promulgated in conformity with the A.P.A. We note, however, that the promulgation of such latter election regulations in compliance with the A.P.A. could easily be accomplished by the lieutenant governor prior to the next general election.

10552738

Thomas Michael ELIASON and Michael Lane Burns, Appellants, v. STATE of Alaska, Appellee

Eliason v. State

1973-07-09

No. 1750

1066

1074

511 P.2d 1066

511

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

Thomas Michael ELIASON and Michael Lane Burns, Appellants, v. STATE of Alaska, Appellee.

Thomas Michael ELIASON and Michael Lane Burns, Appellants, v. STATE of Alaska, Appellee. No. 1750. Supreme Court of Alaska. July 9, 1973. Susan Burke, Asst. Public Defender, Herbert D. Soil, Public Defender, Anchorage, for appellants. Ivan Lawner, Asst. Atty. Gen., John E. Havelock, Atty. Gen., Juneau, for appellee. Before RABINOWITZ, C. J., and CONNOR, ERWIN, BOOCHEVER and FITZGERALD, JJ.

4117

25585

OPINION RABINOWITZ, Chief Justice. This appeal raises questions concerning the adequacy of a search warrant affidavit and the sufficiency of the prosecution's evidence. During the late evening of January 25, 1972, or early morning of January 26, 1972, George's Laundromat at 701 College Road, Fairbanks, was burglarized. Pursuant to an inventory, George Craft, the owner of the laundromat, determined that numerous items left at the establishment to be cleaned or mended were missing, including "an army blanket . a blue ve-lour shirt and a red bedspread." Mary Ann Jeppsen, an employee, noticed that the blue velour shirt was missing, and further observed that her son's "gold wool plaid jacket," which she had just completed mending, was also gone. Based upon information tending to connect appellants Thomas Michael Eliason and Michael Lane Burns, as well as one David Alexander Gilbert, to the instant and other burglaries, the Fairbanks City Police obtained a warrant to search their apartment which was located at 707 College Road, Fairbanks, immediately adjacent to George's Laundromat. In executing the warrant, the police entered the apartment, and conducted a search. During the search a police detective seized a blue shirt from the bedroom clothes closet, and a plaid jacket, identified at the time of the search by Mary Ann Jeppsen as belonging to her son, from the back of a couch. An army blanket was also seized off the bed in the bedroom during the same search. Eliason, Burns, and Gilbert were then arrested and subsequently indicted under AS 11.20.350 for the crime of concealing stolen property. Prior to trial, Eliason, Burns, and Gilbert were unsuccessful in their efforts to suppress as evidence the army blanket, blue shirt and gold plaid jacket. At trial appellants' timely objections to the admission into evidence of the jacket, shirt and blanket were overruled. At the conclusion of the state's case, appellants moved for a judgment of acquittal on the theory that the state had failed to prove they possessed knowledge and control of the stolen property. The superior court granted the motion with respect to Gilbert, but denied the motion with respect to Eliason and Burns. Thereafter the jury returned guilty verdicts against both Eliason and Burns. This appeal followed. Initially, we are presented with a question concerning the adequacy of the affidavit used by ,the police to procure the search warrant An question, pursuant to which certain incriminating evidence was seized and introduced at trial. In particular, Eliason and Burns object to the use in the affidavit of an unsigned and unsworn to statement given to the police by one Debbie Torkelson, a 15-year-old runaway who briefly resided at appellants' residence around the time of the burglary of George's Laundromat. In a portion of her statement, Torkelson stated that she observed appellants bring into the apartment "a bunch of clothes" in plastic bags, including a "red bedspread," a brown shirt and two green suits. Appellants contend that the Torkelson statement was fatally "tainted" by evidence seized during other allegedly illegal police conduct, and as such, must be excluded from the affidavit under the famous "fruits of the poisonous tree" doctrine of Wong Sun v. United States. We disagree. The record fails to disclose that Torkelson was in any way identified, taken into custody, questioned, or connected to appellants as a result of the purportedly unlawful police behavior. Thus, we conclude that the Torkelson statement was acquired by Officer Strick-faden in a manner sufficiently independent of any other evidence contained in the affidavit. Nor was the statement obtained through any coercive means. Rather, we are convinced that the statement was independently procured by police investigative activities and freely given by Torkelson. Appellants also attack the sufficiency of the affidavit in the case at bar by contending that the affidavit fails to disclose that the hearsay evidence, in the form of the Torkelson statement, was provided by an informant who was credible and reliable. The state, on the other hand, argues that the district judge possessed a sufficient basis for determining that Torkelson was a reliable and credible informant since her statement was based upon personal observations and was internally consistent as well as externally corroborated by other information. In Morris v. State, and more recently in State v. Davenport, we acknowledged the constitutional requirement that an affidavit containing hearsay evidence must include an explanation of some of the underlying circumstances as well as a reference to the informant's credibility and reliability. Specifically, we quoted approvingly from Aguilar v. Texas, An affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant [but] the magistrate must be informed of some of the underlying circumstances from which the officer [the affiant] concluded that the informant . was credible or his information reliable. The affidavit in the present case is not flawless. It omits any explicit assertion that Debbie Torkelson is a credible and reliable informant; Torkelson's statement is unsigned and unsworn to; and Torkelson's statement was apparently taken before Officer Strickfaden, while a copy thereof was later presented to the affiant, Officer Vogt. Yet, the informant was identified; the hearsay evidence provided by the informant commendably appeared before the judge in the form of a complete transcript, rather than a summary thereof by the af-fiant; the statement was based upon Tor-kelson's personal observations; and the statement was corroborated by other facts in the affidavit. More precisely, with regard to the latter point, the property described by Torkelson tended to match the descriptions of some of the stolen articles itemized in other paragraphs of the affidavits. We recently had the opportunity to consider a search warrant affidavit with similar deficiencies in State v. Davenport. There we considered the sufficiency of an affidavit which failed to assert that the informant was credible or reliable, and stated: Since the hearsay in the instant case was based on the information of an identified informant, and that information was acquired by the informant's own observation, and furthermore, since the independent discovery of the handgun at the time of Davenport's arrest tended to corroborate Harris' story, we believe that there was a substantial basis for credit ing the hearsay. We are therefore unable to agree that Gray's affidavit failed to establish sufficient probable cause for the issuance of a search warrant. Since the informant in the case at bar was identified, had based her information on personal observations, and corroborated her story by other facts, we conclude that the affiant's failure to assert that Torkel-son was reliable and credible does not render the affidavit fatally defective. Eliason and Burns also urge that the affidavit is defective insofar as it fails to clearly set forth the sources of and circumstances surrounding the hearsay information used in the affidavit concerning the commission of several other burglaries and itemizing property which had been stolen therein. Appellants argue that the state is required to specifically identify such sources and circumstances in its affidavit under Aguilar v. Texas and Giordenello v. United States. The state contends that it is not constitutionally required to establish probable cause for each factual allegation in the affidavit, but that the judge is to examine the affidavit as a whole in an attempt to determine the existence of probable cause. The state further argues that it is unnecessary to identify the sources of the questioned information in the affidavit since such information concerned burglaries — crimes with victims —and the district judge could have reasonably inferred that the information "most probably came from on-the-scene police investigation or from the victims." In State v. Davenport, we said that an affidavit for a search warrant must be examined common-sensically, as a whole, and rejected any requirement that each assertion of fact must be traced to its ultimate source. Specifically, we stated: We simply note that Davenport's argument that Gray's failure to name the source of his information (a) that Howard's Gun Shop had been burglarized, and (b) that a gun had been discovered at Davenport's residence following his arrest does not invalidate the warrant. It is not necessary that every assertion of fact be traced to its ultimate source. The Fourth Amendment's requirements are practical and not abstract, and affidavits 'must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. Technical requirements of elaborate specificity . . . have no proper place in this area.' (Citation omitted.) In the case at bar, as in Davenport, we conclude that the affiant's failure to name the sources of the fact that various establishments had been burglarized as well as information concerning particular items which had been stolen does not constitute a fatal error. Accordingly, we hold that the questioned affidavit, taken as a whole, was constitutionally sufficient to establish probable cause for the issuance of the search warrant. Appellants also assert as error the superior court's denial of their motion for jugment of acquittal. In support of this assertion, appellants have advanced several bases for reversal of the trial court's ruling. To begin with, they challenge the requisite elements of the crime of concealment as set forth by the trial court in its charge to the jury. Specifically, appellants urge that "AS 11.20.350 must be construed as applying only to a person other than the one who stole the property," and that the state in prosecutions for concealing stolen property should be compelled "to establish as part of its case in chief that the stolen property was in fact stolen by one other than the defendant." Since the state did not establish the foregoing element in the instant case, appellants argue that the trial court erred in denying their motion for judgment of acquittal. The state contends that under at least two lines of authority, it is not obliged to establish in a prosecution for concealment that the defendant was not the thief. The state further argues that under the appropriate standard of review, the trial court's denial of appellants' motion for judgment of acquittal must be affirmed. Finally, the state maintains that appellants' proposed construction of AS 11.20.350 may not be considered in this appeal since they did not object to the trial court's instruction regarding the elements of the crime of concealing stolen property. We think the state's last contention is dispositive of this assertion of error. Though appellants have through their motion for judgment of acquittal properly preserved for appeal the general question of the sufficiency of the state's evidence, it does not follow that the more precise issue of the requisite elements of the crime of concealing stolen property was preserved for appeal purposes. No objection was made below to the trial court's instructions. In particular, appellants did not object to the instructions which set forth the "essential elements of the crime of concealing stolen property." Criminal Rule 30(a), however, requires parties to specifically object to a proposed charge in order to subsequently assign such instruction as error on appeal. Since no such specific objection was made below, and since we decline to interpret a motion for judgment of acquittal as a specific objection to a proposed instruction within the meaning of Criminal Rule 30(a), we conclude that appellants may not now raise under the denial of the motion for judgment of acquittal issue the question as to the requisite elements of the crime of concealment. Eliason and Burns next object to the trial court's construction of the guilty knowledge requirement for the crime of concealment in AS 11.20.350. Appellants argue that the state failed to prove that they possessed the requisite knowledge of the stolen nature of the property. They urge us to follow a line of authorities which holds that mere "naked possession" of recently stolen goods does not, by itself, give rise to an inference of guilty knowledge. The state argues that we need not reach this question, "since there was other evidence . . . from which the jury could have concluded that appellants knew that the items were stolen." We decline to consider the merits of appellants' contention since they again failed at trial to object to any of the trial court's instructions which treated the guilty knowledge requirement for the crime of concealment, and further failed to offer any proposed instruction encompassing the rule they now urge this court to adopt. In Howard v. State, the appellant properly preserved the question of the correct construction of the guilty knowledge requirement by specifying as error the trial court's refusal to give the following proposed instruction: The court instructs the jury that the recent possession of stolen property alone is not evidence of knowledge that the property was stolen. Here, no such instruction was proposed Appellants will not now be allowed to rely upon an interpretation of the knowledge requirement which they did not urge upon the trial court below. Thus, we conclude that their motion for judgment of acquittal, with respect to the question of guilty knowledge, was properly denied. Finally, appellants challenge the sufficiency of the evidence adduced at trial tending to show that they possessed the stolen property. That is, they contend that the state failed to prove that they "(either individually or jointly) exercised a personal distinct and conscious ownership" over the shirt, jacket and blanket. The state argues that there was sufficient evidence from which the jury could have reasonably inferred that appellants were in possession of the stolen property. The establishment of physical or actual possession of the stolen property by the accused is not essential, but "constructive" possession or control is sufficient. Here, study of the record supports the state's contention that it produced sufficient evidence from which the jury could have reasonably inferred that appellants were in possession, constructively or otherwise, of the stolen property. More specifically, the blanket was found in appellants' bedroom, the shirt in their closet, and the jacket on the back of the couch in their living room. Torkelson's testimony indicates that she observed appellants carrying a red bedspread, clothing and plastic bags into the house; articles which matched the description of some of the property stolen from George's Laundromat. Finally, Elia-son and Burns testified at trial during cross-examination that they could not explain how the blanket, shirt and jacket happened to be in their apartment. While the state did not specifically prove which of the appellants personally handled which of the stolen articles, it was not obliged to do so under the well-established rule of law. Under the appropriate standard of review, we are to view the evidence and inferences to be drawn therefrom "in a light most favorable to the state." In so doing, we conclude that there was sufficient evidence introduced at trial on the question of the possession of the shirt, blanket and jacket, such that "fair-minded men in the exercise of reasonable judgment could differ" as to whether appellants possessed the stolen property. In short, the issue was properly submitted to the jury. Thus, we hold that the motion for judgment of acquittal was properly denied by the superior court on this, as well as the other contested points previously discussed. In view of our holdings that the affidavit sufficiently established probable cause for the issuance of the search warrant and that appellants' motion for judgment of acquittal was properly denied, the judgments and commitments of the superior court are affirmed. Affirmed. . AS 11.20.350 provides: A person who buys, receives, or conceals money, goods, bank notes, or other thing which may be the subject of larceny and which has been taken, embezzled, or stolen from another person, knowing it to have been taken, embezzled, or stolen, is punishable by a fine of not more than $1,000 and by imprisonment for not less than one year nor more than three years. . Appellant Eliason was sentenced to two years imprisonment with this period of incarceration suspended and Eliason placed on probation for two years. Burns received two years' imprisonment with one year suspended with probation. . The alleged illegal behavior of which Eliason and Burns complain was a war-rantless search of appellants' trash bags and the seizure of certain items therefrom. In view of our conclusion regarding the independent manner in which the Torkel-son statement was procured, we find it unnecessary to reach the merits of appellants' contentions concerning the constitutionality of the garbage search. Even if we were to agree with appellants that the warrantless search was unconstitutional, we would be forced to hold that the statement was obtained " 'by means sufficiently distinguishable to be purged of the primary taint' ", for we fail to discern any nexus between the trash search and the Torkelson statement. Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441, 455 (1963) ; see also Smith v. State, 510 P.2d 793 (Alaska, 1973) ; Erickson v. State, 507 P.2d 508 (Alaska 1973). . 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). . Ms. Torkelson was aware of her right to remain silent and acknowledged "that I don't have to tell you [Officer Strick-faden] nothing if I don't want to." . 473 P.2d 603, 605 (Alaska 1970). . 510 P.2d 78 (Alaska, 1973). . 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed. 2d 723 (1964). . Id. at 114-115, 84 S.Ct. at 1514, 12 L.Ed.2d at 729. See also Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969) ; Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). . 510 P.2d 78, 83 (Alaska, 1973). . Appellants do not contend that the search warrant was issued pursuant to a "false affidavit": an affidavit containing untruthful statements or misrepresentations of material facts. For a discussion of that question, see State v. Davenport, 510 P.2d 78 (Alaska, 1973) ; see also "The Outwardly Sufficient Search Warrant Affidavit: What If It Is False," 19 U.S.L.A.L.Rev. 96 (1971). . 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed. 2d 723 (1964). . 357 U.S. 480, 486, 78 S.Ct. 1245, 2 L.Ed.2d 1503, 1509-1510 (1958). . United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965). . State v. Davenport, 510 P.2d 78, n. 8 (Alaska, 1973). . We find it unnecessary to reach appellants' contention that the reference to their juvenile records in the affidavit violates Rule 23 of the Alaska Rules of Children's Procedure and AS 47.10.080 (g), since they failed to object to the use of such records at trial. As we previously held in Sidney v. State, 408 P.2d 858, 862 (Alaska 1965), "we will not consider on appeal any objection which was not raised at the trial level." See also McBride v. State, 368 P.2d 925, 928 (Alaska 1962). Nor do we find that the reference to appellants' alleged reputations as "petty thieves and burglars" in the affidavit, by itself, constitutes reversible error. We note, without adopting, the position of three justices of the United States Supreme Court condoning the use of reputation evidence in search warrant affidavits. United States v. Harris, 403 U.S. 573, 583, 91 S.Ct. 2075, 29 L.Ed.2d 723, 733 (1971). Bee also Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 4 L.Ed.2d 697, 708 (1960). . For a general discussion of the adequacy of affidavits used for obtaining search warrants, see Abrahams, Spinelli v. United States: Searching for Probable Cause, 30 U.Pitt.L.Rev. 735 (1969); Kipperman, Inaccurate Search Warrant Affidavits As a Ground For Suppressing Evidence, 84 Harv.L.Rev. 825 (1971) ; Mas-cólo, Impeaching the Credibility of Affidavits For Search Warrants : Piercing tlie Presumption of Validity, 44 Conn.B. J. 9 (1970) ; Testing the Factual Basis For a Search Warrant, 67 Colum.L.Rev. 1529 (1967) ; Evidence of Prior Credibility Not Necessary Under "Totality of Circumstances" Test, 40 Fordham L.Rev. 687 (1972) ; Note, 15 Buffalo L.Rev. 712 (1966) ; 51 Cornell L.Q. 822 (1966) ; Note, 34 Fordham L.Rev. 740 (1966) ; Note, 21 S.C.L.Rev. 246 (1969) ; Note, 10 Wm. & Mary L.Rev. 1004 (1969). . See, e. g., People v. Daghita, 301 N.Y. 223, 93 N.E.2d 649 (1950). . See, e. g., People v. Colon, 28 N.Y.2d 1, 318 N.Y.S.2d 929, 267 N.E.2d 577 (1971) ; State v. Carlton, 233 Or. 296, 378 P.2d 557 (1963) ; State v. Carden, 50 Wash.2d 15, 308 P.2d 675 (1957). . Instruction 4 provides : The material allegations and essential elements of the crime of concealing stolen property as charged in the Indictment are: 1. That on or about the 27th day of January, 1972, at or near Fairbanks, Alaska, David Alexander Gilbert, Thomas Michael Eliason and Michael Lane Burns did unlawfully conceal one (1) men's, light blue, Pacific Enro shirt, one (1) brown U.S. Army type blanket and one (1) men's, wool, long-sleeved, plaid jacket; 2. That at the time said defendants concealed said articles, they had been stolen from their rightful owner; 3. That at the time the said articles were concealed, the said defendant knew they had been stolen ; and 4, That the property concealed had some intrinsic value. . Crim.R. 30(a) provides in relevant part: No party may assign as error any portion of the charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly the manner to which he objects and the grounds of his objections. Opportunity shall be given to make the objection out of the hearing of the jury by excusing the jury or hearing objections in chambers. . Nor do we think that the superior court's failure to give appellants' proposed instruction on the elements of the crime of concealing stolen property was an omission of such seriousness that it rises to the level of "plain error," that the final judgment was " 'substantially swayed by the error . . . " Love v. State, 457 P.2d 622, 633 (Alaska 1969). For if appellants had properly preserved for appeal the question of the requisite elements of the crime of concealing stolen property, we would be disinclined to adopt their construction of AS 11.20.350. . See, e. g., Commonwealth v. Owens, 441 Pa. 318, 271 A.2d 230 (1970) ; State v. Long, 243 Or. 561, 415 P.2d 171 (1966) ; People v. Grizzle, 381 Ill. 278, 44 N.E.2d 917 (1942) ; State v. Richmond, 186 Mo. 71, 84 S.W. 880 (1904). But see Caudill v. Commonwealth, 256 S.W.2d 8 (Ky.1953) ; see generally Annot. 68 A.L.R. 187. . See Howard v. State, 491 P.2d 154, 156 (Alaska 1971). . Instruction 4 provides in part: The material allegations and essential elements of the crime of concealing stolen property as charged in the Indictment are: 3. That at the time the said articles were concealed, the said defendants knew that they had been stolen; Instruction 7 provides : You will note that the act charged in the Indictment must have been done knowingly. No one can be convicted of an act done through mistake or inadvertence. An act is done knowingly if done purposely and with an intent to do that which the law forbids. Instruction 8 provides in part: Intent may be proved by circumstantial evidence. It rarely can be established by any other means. While witnesses may see and hear and thus be able to give direct evidence of what a defendant does or fails to do, there can be no eye-witness account of the state of mind with which the acts were done or omitted. But what a defendant does or fails to do may indicate intent or lack of intent to commit the offense charged. In determining the issue as to intent, the jury is entitled to consider any statements made and acts done or omitted by the accused, and all facts and circumstances in evidence which may aid determination of state of mind. . See Crim.R. 30(a), supra note 21. . 491 P.2d 154 (Alaska 1971). . Id. at 155. . United States v. Cousins, 427 F.2d 382, 384 (9th Cir. 1970) ; Feinstein v. United States, 390 F.2d 50, 54 (8th Cir.), cert. denied, 392 U.S. 943, 88 S.Ct. 2327, 20 L.Ed.2d 1405 (1968) ; State v. Ashby, 77 Wash.2d 33, 459 P.2d 403, 405 (1969). . In the instant case, we have considered appellants' failure to explain the presence of the stolen items in their apartment because appellants took the stand at trial and testified in their own behalf. Had they exercised their constitutional right to remain silent and declined to testify in their own defense, consideration of and comment upon their failure to advance an explanation would be improper. . Beavers v. State, 492 P.2d 88, 97-98 (Alaska 1971) ; DeSacia v. State, 469 P.2d 369, 371 (Alaska 1970). . Beavers v. State, 492 P.2d 88, 97 (Alaska 1971).

9024427

Velma M. DAWSON, Appellant, v. Angela TEMANSON and Ken Garrison, Appellees

Dawson v. Temanson

2005-02-25

No. S-10774

892

899

107 P.3d 892

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.

Velma M. DAWSON, Appellant, v. Angela TEMANSON and Ken Garrison, Appellees.

Velma M. DAWSON, Appellant, v. Angela TEMANSON and Ken Garrison, Appellees. No. S-10774. Supreme Court of Alaska. Feb. 25, 2005. Z. Kent Sullivan, Baxter Bruce Sullivan P.C., Juneau, for Appellant. J. Kate Burkhart and Mark Regan, Juneau, and Andrew Harrington, Fairbanks, Alaska Legal Services Corporation, for Ap-pellees. Before: BRYNER, Chief Justice, MATTHEWS, EASTAUGH, FABE, and CARPENETI, Justices.

3830

24068

OPINION EASTAUGH, Justice. I. INTRODUCTION After prolonged litigation in two lawsuits, a residential landlord successfully evicted tenants from the basement apartment in her home and was awarded damages against them. When she moved for attorney's fees, the superior court adopted the full, reasonable attorney's fees standard, but awarded her fees of only $750. We conclude that the court correctly adopted the full, reasonable attorney's fees standard for awards under AS 34.03.350. But because the reasons given for the award do not adequately explain why awarding less than fifteen percent of the fees the landlord incurred in the second lawsuit satisfied the full, reasonable standard under the circumstances, we hold that it was an abuse of discretion to award the prevailing party only $750. We therefore vacate the award and remand. II. FACTS AND PROCEEDINGS Velma Dawson owned and lived in a home on Glacier Highway in Juneau. Angela Te-manson and Ken Garrison rented a basement apartment in her home, beginning with a lease starting on or about July 3, 2000. After the lease period ended, the tenancy became month-to-month. Dawson decided to renovate and sell her home. On September 27, 2001 she sent Te-manson and Garrison a "Notice to Quit and Termination of Rental Agreement" by certified mail. The "Notice to Quit and Termination of Rental Agreement" was prepared by Dawson's attorney and informed Teman-son and Garrison that Dawson had elected to terminate the month-to-month tenancy and that the tenants were required to quit and surrender possession on or before November 5, 2001. Temanson and Garrison denied ever receiving the notice. The postal service marked the certified envelope as "unclaimed." Dawson alleged that, in addition to sending the notice by certified mail, she delivered a handwritten notice of termination of tenancy (advising the tenants that they had until November 4, 2001 to vacate the premises) to Garrison on October 5, 2001. Garrison denied that Dawson delivered that notice. The tenants did not move out. On November 8, 2001 Dawson filed a complaint for possession and damages against the tenants. This was Case No. 1JU-01-1567 CL Temanson and Garrison answered through counsel, denying that Dawson was entitled to possession, raising affirmative defenses alleging retaliation and breach of good faith, and asserting counterclaims alleging retaliation, unlawful ouster, unlawful diminution of services, abuse of access, and violation of the Alaska Human Rights Act. The forcible entry and detainer (FED) hearing took place November 16 before Magistrate J.W. Sivertsen, Jr. Both sides had counsel. Magistrate Sivertsen concluded that eviction could not proceed "at this time" because neither the unclaimed certified envelope nor the hand-delivered, handwritten notice satisfied the notice requirements of AS 34.03.290 and AS 09.45.100. He nonetheless retained jurisdiction to decide the eviction and damages claims at a future date. Dawson commenced an appeal in the superior court from the magistrate's ruling on possession and at about the same time sent the tenants another notice of termination of tenancy and notice to quit. Her appeal was Case No. 1JU-01-1619 Cl. Dawson also filed motions seeking expedited consideration of her appeal and consideration of new evidence regarding service of the notice. On January 7, 2002 Dawson commenced a new proceeding, Case No. 1JU-02-0008 Cl, by filing another complaint for possession and damages. A trial for possession in this case took place on January 18, 2002. Following trial, Superior Court Judge Patricia A. Collins entered partial judgment for Dawson, awarding her sole possession of the property, requiring appellees to vacate the apartment, and reserving damages and attorney's fees issues for the future. The superior court also entered an order dismissing the interlocutory appeal of the possession issue in Case No. 1JU-01-1567 Cl as moot. The court later held that given the "chain of proceedings and notices" between the first FED action and the January hearing, any alleged defects in the notice to the tenants had been cured. On May 24, 2002 the superior court conducted the damages trial. The tenants had withdrawn their counterclaims before trial. Following trial, the superior court awarded Dawson damages of $1,112.45. Dawson moved for an award of attorney's fees totaling $15,417. Her attorney's supporting affidavit and billing statements described the fees she had incurred. On August 11, 2002, the superior court awarded Dawson attorney's fees of $750. The judgment for Dawson incorporated that award. Dawson appeals the attorney's fees award, arguing that the superior court improperly limited the award to only $750. III. DISCUSSION A. Standard of Review We ordinarily review awards of attorney's fees for an abuse of discretion, but we review underlying legal determinations using our independent judgment. We review factual findings for clear error. We apply our independent judgment to issues of statutory construction and will adopt the rule of law most persuasive in light of precedent, reason, and policy. B. Number of Cases As a preliminary matter, Dawson argues that the superior court erred in construing her action as "three separate and independent cases" instead of only one. She describes the facts and proceedings below as "inexorably intertwined." Temanson and Garrison argue that the superior court was correct to characterize the litigation as three separate proceedings. They argue that Dawson filed a complaint for possession and damages on November 8, 2001; that she commenced an appeal in November from the decision in that matter; that she commenced a third proceeding after serving a "second" notice of termination of tenancy and a "second" notice to quit; and that the first appeal and second action were ultimately both in front of the same superior court judge. The tenants and the superior court appear to have counted the proceedings commenced by each complaint and the appeal as separate cases. Whether there were two cases or three would seem to be irrelevant, were it not for some question about how the fees award was calculated, and how it might be calculated on remand. Because the award was meant to exclude services performed before commencement of the new proceeding on January 7, the issue is immaterial if the court on remand adheres to that exclusion. But if the award on remand covers any services performed before January 7, the issue might matter. We therefore briefly address the question. In our view, the first complaint and the November appeal relating to it should be considered one case, and the second complaint, filed January 7, should be considered to have commenced a second case. Dawson's first complaint for possession and damages involved the legal and factual issues relating to her September 27, 2001 notice sent by certified mail and the October 5, 2001 notice. Her November appeal (or petition for review) from the November order also related to those efforts to terminate. Her second complaint for possession and damages, filed January 7, involved legal and factual issues that largely related to her November 19, 2001 notice of termination and notice to quit. Some issues were in common. For example, the tenants argued in both cases that a separate notice to quit was required. Because Dawson prevailed on the possession issue in her second case, the superior court dismissed as moot Dawson's interlocutory appeal of her first case. We therefore consider the litigation below to have constituted two cases' — corresponding to the first and second complaints. C. The Merits of Dawson's First Case In discussing the landlord's attorney's fees motion, the superior court reasoned that Dawson "lost and/or would have lost two of the three separate cases that she filed," and therefore declined to award fees with respect to the first action and the associated interlocutory appeal. This conclusion was based in part on the court's agreement with the magistrate and the tenants that the unclaimed notice of termination and notice to quit that Dawson sent by certified mail in September did not satisfy AS 34.03.290(c). The superior court also reasoned that AS 34.03.290(c) requires a separate notice to quit following termination of the tenancy. Dawson argues that because the notice issues had been mooted, the superior court erred when awarding fees by considering the mooted issues. She also addresses the merits of the notice issues, and argues that under Alaska law a landlord can send a notice of termination and a notice to quit together by certified mail and that the notices satisfy AS 34.03.290 and AS 09.45.100 even though they are sent simultaneously. Alaska Statute 34.03.290(b) specifies that a landlord may terminate a month-to-month tenancy "by a written notice given to the [tenant] at least 30 days before the rental due date specified in the notice." Alaska Statute 34.03.290(c) states that if a tenant remains in possession after the termination, the landlord may, after serving a notice to quit, bring an action for possession. Finally, AS 09.45.100(c)(3) provides for service on the tenant of a notice to quit "sent by registered or certified mail." Both Dawson and the tenants rely on AS 09.45.100(c) in arguing how notice to quit must be effected under AS 34.03.290(e). Dawson argues that the plain meaning of "sent" in AS 09.45.100(c) and the lack of contrary legislative history establish that sending notice by certified mail is sufficient. The tenants respond that the purpose of the statute and basic fairness require that a landlord must establish the tenants' actual receipt or refusal to accept the notice. Although the notice issues are potentially important to other landlords and tenants, we choose not to decide them in this appeal. The only issues squarely before us concern the attorney's fees award. The court declined to award Dawson fees with respect to legal services concerning the first FED action. Whatever the merits of the notice issues in that case, Dawson was not in fact the prevailing party in that case as to those issues because the superior court dismissed her appeal in that case for mootness and Dawson has not appealed from that dismissal. Nor has she appealed from the judgment that awarded her unpaid rent "for January 1-19, 2002," but no rent for the period November 5 through December 31. We have sometimes chosen to consider the merits of mooted issues when, to resolve an attorney's fees dispute, it is necessary to determine who was, or would have been, the "prevailing party." But here there is no genuine dispute about whether Dawson was ultimately the prevailing party in proceedings that she describes on appeal as "inexorably intertwined." The court treated Dawson as the prevailing party who regained possession and recovered damages, and consequently awarded fees to her. The prevailing-party issue is therefore of little or no importance because the important issue here is whether the award was too small. For reasons we discuss in Part III.D, the main question is whether it was an abuse of discretion to award about fifteen percent of the fees incurred from January 7 forward. We therefore see little need to address the merits of the mooted notice issues in this case, and decline to do so. D. Reasonableness of Attorney's Fees Award Dawson argued below that AS 34.03.350 entitled her to an award of full, reasonable attorney's fees from the tenants. The tenants responded that the statute should not be interpreted to call for full, reasonable fees. The superior court held that AS 34.03.350 provides for an award of full, reasonable attorney's fees to the prevailing party in an action under the Alaska Uniform Residential Landlord and Tenant Act (AURLTA), but awarded Dawson fees of $750 although her attorney had asserted that Dawson had incurred fees exceeding $15,000. Dawson argues on appeal that it was error to fail to award her full, reasonable fees. Garrison and Temanson argue that AS 34.03.350 does not require an award of full, reasonable fees. They did not cross-appeal this legal issue, but they permissibly raise it as an alternative basis for affirming the superior court's fees award. We therefore first consider the standard that applies to Dawson's attorney's fees award. Alaska Statute 34.03.350 provides: "Attorney fees shall be allowed to the prevailing party in any proceeding arising out of this chapter, or a rental agreement." Although we have not previously construed AS 34.03.350, we have interpreted other provisions calling for an award of "reasonable fees" to mean an award of "full reasonable fees." Had the legislature intended that a prevailing party in a landlord-tenant dispute receive only partial fees, there would have been no reason for the statute to address the topic of awarding fees, because Civil Rule 82 would have been an adequate basis for routine recovery of partial fees by prevailing parties. We therefore read AS 34.03.350 as providing for an award of full, reasonable attorney's fees to the prevailing party. The superior court did not err in so holding. We next consider whether, as Dawson contends, it was an abuse of discretion to award Dawson fees of $750. It is not clear how the superior court calculated the $750 award. It apparently reasoned in part that fees Dawson incurred while litigating possession during the first case were not recoverable from the tenants in the second case, because Dawson was not, or would not have been, the prevailing party. We express no opinion about whether she would have been the prevailing party if her second case had not mooted the first. Dawson's procedural difficulties in the first case and her vigorous efforts to defend those steps apparently also contributed to the court's decision to base the fee award exclusively on services performed during the second case. Under the circumstances, we think that was a permissible choice. After the failure of the first proceeding, Dawson chose to attempt an Appellate Rule 204 direct appeal of the interlocutory decision even though the more direct and immediate route to eviction would have been to serve a new notice and initiate a new proceeding. Indeed, that is what Dawson ultimately did when she re-served the tenants in November 2001 and filed a new complaint in January 2002. But in the meantime, she continued to litigate the first case. She asked for expedited appellate review of the FED ruling, moved for consideration of newly discovered evidence under Alaska Civil Rule 60(b) relating to notice issues, gathered and submitted affidavits addressing the notice issues, and briefed the notice issues for the reviewing court. The appeal and the associated motion practice contributed to circuitous and inefficient litigation of the eviction dispute. Dawson thus proceeded on duplicative paths by vigorously attacking the November order at the same time she was initiating a new eviction case. When a party files duplicative cases, one of.which renders the other moot, we cannot say that it is an abuse of discretion to deny attorney's fees incurred in prosecuting the mooted case. Having reviewed the time sheets detailing the services performed by Dawson's attorney, we conclude that the superior court did not err in concluding that Dawson excessively litigated what should have been a routine forced eviction. Nonetheless, the rationale for the $750 award is not obvious, even if the award was permissibly based on fees incurred only in the second case. After the tenants were evicted and she was awarded damages, Dawson requested $15,417 in attorney's fees. The supporting affidavit of her attorney, Z. Kent Sullivan, asserted that fees were billed at the hourly rate of $150 and that Dawson's attorneys had "reasonably" expended "in excess of 102 hours in review, document preparation, hearing attendance and trial with regard to the present action." The affidavit attached billing statements specifying the services performed and the dates of service. The statements reflect numerous pre-January 7 entries that pertain only to the first case and the associated appeal and motion practice. The superior court found that Sullivan's hourly rate of $150 was reasonable, but that the hours expended were not reasonable because "remarkable amounts of time were spent on matters that were not complex." The court also noted "the lack of complex fact or law issues, the lack of significant pretrial discovery or motion practice, and the brief length of trial(s)." We cannot say that a substantial reduction was inappropriate. Nor are we convinced that the court's findings that the issues were not complex and that the services were excessive were clearly erroneous. But several circumstances nonetheless convince us that the $750 award was inadequate. At the $150 hourly rate approved by the superior court, the award compensated Dawson for only five hours of work by her lawyers. But the January 2002 possession trial and the May 2002 damages trial lasted a total of about 4.5 hours, and additional post-January 7 hearings took about another half an hour of actual court time. It appears from the billing statements that Dawson's attorney spent significantly more than five hours just preparing for and attending the two trials. Because the trials and hearings themselves required nearly five hours of actual court time, the award failed to compensate Dawson for any necessary preparation before these appearances. Further, Sullivan's statements describe about thirty-seven billed hours of attorney time for services between January 7, 2002 (when Sullivan drafted and filed the second complaint) and May 24, 2002 (when the damages trial took place). At $150 per hour, the billings reflect about $5,550 attributable to the second case. The $750 award is less than fifteen percent of $5,550. In prosecuting the second case, Sullivan also had to draft and file a number of documents (including the complaint and proposed orders). The tenants were represented by very able attorneys who vigorously advocated the tenants' position even though the ultimate outcome on the issue of possession, assuming the alleged service and procedural deficiencies were cured, was never in realistic doubt. They raised numerous affirmative defenses. They asserted counterclaims for damages. It was not until shortly before the May 24, 2002 damages trial that they dismissed their counterclaims. Given the need to draft the complaint and the other documents, litigate significant legal issues raised by the tenants, prepare to respond to the counterclaims, prepare for and attend the possession and damages trials, and communicate with court and opposing counsel, the findings do not adequately support the award. They do not demonstrate how, under these circumstances, a reasonable attorney could have successfully litigated the disputed possession and damages issues in the second case without billing more than five hours of attorney time. It is not evident from the findings how $750 could, under the circumstances of this case, be considered a full and reasonable amount. IV. CONCLUSION We therefore VACATE the award of $750 and REMAND for determination of the foil, reasonable attorney's fees. . The remaining aspects of Dawson's original proceeding (Case No. 1JU-01-1567 Cl) were later transferred to the superior court and consolidated with Dawson's second proceeding (Case No. 1JU-02-0008 Cl). . Because the November order did not finally resolve all claims raised in the complaint and answer and because it apparently did not comply with Alaska Civil Rule 54(b), Dawson's November 2001 appeal was premature. The superior court treated the appeal as seeking interlocutory review and gave it expedited consideration. Dawson's appellate brief to us refers to the appeal as a petition for review. Had the judgment been final and disposed of all her claims, Dawson would have been required to appeal to prevent res judicata from barring subsequent litigation of her damages claim. . The tenants' counterclaims had been consolidated with Case No. 1JU-02-0008 Cl for trial. Before the tenants dropped their claims, Dawson's attorney appears to have spent billable time preparing to respond to the cpunterclaims. . City of Kodiak v. Samaniego, 83 P.3d 1077, 1082 (Alaska 2004); Sisters of Providence in Washington v. A.A. Pain Clinic, Inc., 81 P.3d 989, 1007 n. 61 (Alaska 2003); Feichtinger v. Conant, 893 P.2d 1266, 1268 (Alaska 1995). . Samaniego, 83 P.3d at 1082; Matanuska Elec. Ass'n v. Rewire the Bd., 36 P.3d 685, 689-90 (Alaska 2001). . Silvers v. Silvers, 999 P.2d 786, 792 (Alaska 2000). . Coughlin v. Gov't Employees Ins. Co. (GEICO), 69 P.3d 986, 988 (Alaska 2003). . These were the third notices by Dawson's count. . Jerue v. Millett, 66 P.3d 736, 742 (Alaska 2003) (evaluating success of mooted shareholder derivative suit for purposes of awarding attorney's fees); State v. Niedermeyer, 14 P.3d 264, 267 (Alaska 2000) ("[W]e will review an otherwise moot issue to determine who the prevailing party is if such a determination is necessary for purposes of awarding attorney's fees.") (internal quotation marks and citation omitted). . See, e.g., Zaverl v. Hanley, 64 P.3d 809, 819 n. 25 (Alaska 2003) ("We can affirm on alternative grounds apparent from the record."); Spindle v. Sisters of Providence in Washington, 61 P.3d 431, 436 (Alaska 2002) ("We are not bound by the trial court's articulated reasoning and can affirm a grant of summary judgment on alternative grounds, considering any matter appearing in the record, even if not considered by the trial court."); Cabana v. Kenai Peninsula Borough, 50 P.3d 798, 801 (Alaska 2002) ("When ruling on a motion for summaiy judgment, we may consider any argument ascertainable from the record, even if the superior court did not rule on it. We are not bound by the reasoning articulated by the superior court and can affirm a grant of summary judgment on alternative grounds, including grounds not advanced by the superior court or the parties.") (internal quotation marks and citations omitted). . See Bobich v. Stewart, 843 P.2d 1232, 1237 (Alaska 1992) ("[Wjhen interpreting a state statute that expressly calls for an award of reasonable attorney's fees to successful plaintiffs, we have held that full fees should be awarded to claimants as long as those fees are reasonable."); Jackson v. Barbero, 776 P.2d 786, 788 (Alaska 1989) (construing clause in lease authorizing "reasonable attorney's fees" to mean full reasonable fees); Boyd v. Rosson, 713 P.2d 800, 802 (Alaska 1986), modified on reh'g, 727 P.2d 765 (Alaska 1986) (interpreting statute authorizing "a reasonable attorney fee" for foreclosure of liens to provide for full reasonable fees). . The direct appeal was also arguably premature, because it appears the November 16 ruling was not a final judgment. We recognize that Dawson potentially faced a procedural quandary. If the November order had been final, an appeal would have been appropriate to preserve her damages claim and to obtain attorney's fees as the prevailing party, and possibly to avoid prejudicing her defense to the tenants' counterclaims, asserted on November 15. Ultimately her unresolved damages claim was transferred to the superior court, and consolidated with the second case. The damages award covered unpaid rent "for January 1-19, 2002" and damage to the apartment. . Sullivan apparently billed over eighteen hours for preparing for and attending these hearings and proceedings; a small portion of that time was for other legal services, such as telephone calls.

9019914

GOVERNMENT EMPLOYEES INSURANCE COMPANY and Michael J. Lina, Jr., Petitioners/Cross-Respondents, v. Sandra GRAHAM-GONZALEZ, Respondent/Cross-Petitioner; State Farm Mutual Automobile Insurance Company, Petitioner, v. Maurita Rene Bozinoff, for herself and as the Natural Mother and Next Best Friend of Hannah Nicole Bozinoff, a minor, Respondents

Government Employees Insurance Co. v. Graham-Gonzalez

2005-02-18

Nos. S-10666, S-10755, S-10691

279

290

107 P.3d 279

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.

GOVERNMENT EMPLOYEES INSURANCE COMPANY and Michael J. Lina, Jr., Petitioners/Cross-Respondents, v. Sandra GRAHAM-GONZALEZ, Respondent/Cross-Petitioner. State Farm Mutual Automobile Insurance Company, Petitioner, v. Maurita Rene Bozinoff, for herself and as the Natural Mother and Next Best Friend of Hannah Nicole Bozinoff, a minor, Respondents.

GOVERNMENT EMPLOYEES INSURANCE COMPANY and Michael J. Lina, Jr., Petitioners/Cross-Respondents, v. Sandra GRAHAM-GONZALEZ, Respondent/Cross-Petitioner. State Farm Mutual Automobile Insurance Company, Petitioner, v. Maurita Rene Bozinoff, for herself and as the Natural Mother and Next Best Friend of Hannah Nicole Bozinoff, a minor, Respondents. Nos. S-10666, S-10755, S-10691. Supreme Court of Alaska. Feb. 18, 2005. Mark E. Wilkerson, Wilkerson & Associates, and Gary A. Zipkin, Guess & Rudd, P.C., Anchorage, for Petitioners/Cross-Respondents GEICO. Mark A. Sandberg, Sandberg, Wuestenfeld & Corey, and Dennis M. Mestas, Anchorage, for RespondenVCross-Petitioner Graham-Gonzalez. Kimberlee A. Colbo, Hughes Thorsness Powell Huddleston & Bauman LLC, Anchorage, for Petitioner State Farm. W. David Weed and LeRoy E. DeVeaux, Anchorage, for Respondent Bozinoff. Alfred Clayton, Jr., Bliss, Wilkens & Clayton, Anchorage, for Amicus Curiae The National Association of Independent Insurers. Neil T. O’Donnell and W. Michael Moody, Atkinson, Conway & Gagnon, Anchorage, for Amicus Curiae Cheryl Hensel. David W. Pease, Burr, Pease & Kurtz, Anchorage, for Amicus Curiae Integon Indemnity Corporation. Before: BRYNER, Chief Justice, MATTHEWS, EASTAUGH, FABE, and CARPENETI, Justices.

6534

40863

OPINION MATTHEWS, Justice. I. INTRODUCTION Alaska Statute 21.89.020(c) states that insurers "shall . offer coverage" for protection against uninsured and underinsured motorists (UIM) ranging from $50,000 to $1,000,000 for injury or death of one person. The question presented in these cases is whether application forms which set out the various levels of coverage that are available but do not state the amount of the premium that must be paid violate this statute. We answer "no"- for reasons based on our case law, the common meaning of "offer," indications of what the statute requires in another subsection and in the legislative history, and the approval of similar application forms by the Division of Insurance. II.STATEMENT OF FACTS A. GEICO v. Graham-Gonzalez The superior court in its order granting partial summary judgment to Graham-Gonzalez set forth the underlying facts as follows: On June 20, 1996 Sandra Graham-Gonzalez was a passenger in a car driven by her sister, Christine Ivanoff. At the intersection of Abbott Road and Lake Otis Parkway, Ivanoff turned into the path of an oncoming van. As a result of the collision, Graham-Gonzalez sustained serious injuries. The ear that Ivanoff was driving at the time of the accident was owned and insured by her mother, Judith Martin; GEICO insured the vehicle. Graham-Gonzalez settled her liability claim for the policy limits, and then presented a claim for underinsured motorist benefits under the GEICO policy. GEICO thereafter tendered to Graham-Gonzalez what the insurer considered to be the full UIM policy limits, with interest and attorney's fees. GEICO agreed that by accepting the check, Graham-Gonzalez was not waiving her right to assert that the coverage was greater than the amount stated in Martin's insurance policy. Graham-Gonzalez then filed this lawsuit. After reviewing the pleadings submitted by the parties, the court makes the following factual findings. 1. Judith Martin applied for an automobile liability insurance policy from GEICO Indemnity in February 1993. At that time GEICO recommended to Martin that she carry UIM coverage limits equal to the limits of her bodily injury liability coverage. 2. The Selection Form gave Martin the opportunity to reject UIM coverage, or to select from a range of coverage limits up to $l,000,000/$2,000,000. 3. At that time Martin selected UIM coverage equal to her bodily injury liability coverage, which was $50,000/ $100,000. 4. During the time between July 1993 and January 1995, GEICO sent Martin a policy renewal package that included a Premium Statement, Declaration Pages, and Vehicle Page. 5. The information Martin received during this time showed that she was paying for certain coverages, including the UIM coverage. 6. During this time Martin consistently selected $50,000/$100,000 UIM coverage. 7. To save her money on premiums, Martin's coverage was changed to GEICO in March 1995; at that time she received a new policy number. The new number was 719-39-03. 8. In March 1995 Martin received a Selection Form that, like previous forms she had received, presented the option of selecting limits higher than $50,000/$100,000. The Selection Form was M-316 AK. 9. In April 1995 Martin received a packet from GEICO that set forth her coverage limits and the cost for each coverage; this included the price she would pay for her UIM insurance. 10. Between April 1995 and May 1996 Martin received information and renewal packets from GEICO. Martin was routinely informed that she had $50,000/$100,000 UIM coverage, and was informed of the cost of that coverage. 11. During the time that she was insured by GEICO, Martin did not make any changes to her UIM limits. 12. Policy number 719-39-03 was the policy in effect on the day of the accident involving Graham-Gonzalez. 13. Martin understood that if she selected higher limits for UIM coverage, she would have to pay more to GEICO. 14. None of the forms or papers GEICO provided to Martin prior to the acci dent contained the cost of the optional limits for UIM coverage. 15. None of the forms or papers GEICO provided to Martin prior to the accident advised Martin that the optional limits for UIM coverage could be obtained by paying relatively modest premium increases. 16. Neither Martin nor her insurance agent, Win Fowler, can recall discussing the cost of optional UIM coverage. 17. There is no evidence that Fowler or any other GEICO representative verbally furnished Martin the cost of the optional higher limits set forth in Form M-316 AK. 18. GEICO did not orally present to Martin the cost of the optional limits for UIM coverage prior to June 20, 1996. 19. The premium for automobile liability coverage is set based upon the insurance risk. As a consequence, insurance companies in Alaska cannot, and do not, establish a rate for all policyholders who want certain coverage. For example, a young driver with numerous speeding tickets and accidents would pay more for liability coverage than a fifty-year-old driver with a spotless record. 20. Unlike liability insurance, insurance companies can establish a premium for all policyholders who seeks [sic] the same UIM coverage. 21. GEICO now provides its policyholders in Alaska with a form that indicates the premium price for optional limits of UIM coverage. 22. The GEICO UIM coverage form that provides information concerning cost of coverage now states: Uninsured and Underinsured Motorist Bodily Injury Coverage Coverage Limit Premium Premium Per Person/Per Accident 1st Vehicle 2nd Vehicle () $50,000/$100,000 $31.20 $24.90 () $100,000/$200,000 $40.20 $32.20 () $100,000/$300,000 $44.90 $35.90 () $300,000/$300,000 $55.80 $44.60 () $250,000/$500,000 $58.30 $46.60 () $300,000/$500,000 $59.20 $47.40 () $500,000/$500,000 $64.20 $51.30 () $500,000/$750,000 $67.60 $54.10 () $500,000/$! MIL $72.30 $57.80 () $1MIL/$1MIL $83.80 $67.00 () $1MIL/$2MIL $91.70 $75.70 □ I do not want Uninsured and Underinsured Motorist Bodily Injury coverage for my vehicles. Rejection of this coverage must be in writing. (Footnote omitted.) B. State Farm v. Bozinoff Kenneth Bozinoff purchased automobile insurance from State Farm Mutual Automobile Insurance Company (State Farm) in August 1997. State Farm presented him with a UIM application form similar to that used by GEICO. The form listed the six optional levels of coverage required by AS 21.89.020(c). The form did not list the premium for each level of coverage. Kenneth Bozinoff checked the box opposite coverage limits of $100,000/$300,000. Shortly before February 11, 1998, State Farm sent renewal forms to Kenneth Bozi-noff. The renewal forms contained an insert that included a chart indicating the premiums for the various levels of UIM coverage. According to Kenneth Bozinoff, he did not receive the renewal information because it was sent to his tax adviser's address. Kenneth Bozinoff renewed his policy on February 11, 1998, for the same levels of coverage that he had purchased previously, $100,000/ $300,000. On June 13, 1998, Kenneth Bozi-noffs daughter, Maurita Bozinoff (Bozinoff), was involved in a serious automobile accident in which the other driver, an underinsured motorist, was negligent. Bozinoff brought suit in superior court against State Farm for the maximum amount of UIM coverage mandated under AS 21.89.020(c), less what she had already received from the negligent driver. III. COURSE OF PROCEEDINGS In Graham-Gonzalez v. GEICO, both parties moved for partial summary judgment on the issue of whether GEICO's procedures complied with AS 21.89.020(e). GEICO argued that the word "offer" in the statute meant "notify as to availability." Graham-Gonzalez argued that "offer" as used in the statute was a term of art and should be understood to mean what the word means when contract formation is described. She relied on Spenard Plumbing & Heating Co. v. Wright, in which we stated: Professor Corbin defines an offer as "an expression by one party of his assent to certain definite terms, provided that the other party involved in the bargaining transaction will likewise express his assent to the identically same terms." The making of the offer, he points out, "creates a power of acceptance in the offeree," and once the offer has been made there is nothing left for the offeror to do but to wait for the offeree to close the contract.[ ] Using this approach Graham-Gonzalez argued that "offer" required communication of the price for each of the levels of coverage. The superior court held that insurers are required to include the cost of coverage at each level in the initial application forms because "the offer must be presented in a manner reasonably calculated to permit the customer to make an informed decision of whether to purchase UIM coverage at the mandated levels...." The court ruled that the remedy for GEICO's noneompliance with the offer requirement was that the policyholder (Judith Martin) would have the opportunity to choose any level of mandated coverage and that the coverage so chosen would apply retroactively to the accident. We granted GEICO's petition for review from these rulings. In Bozinoff v. State Farm, State Farm moved for summary judgment, seeking a declaration that it had complied with AS 21.89.020(c). Bozinoff opposed the motion. The superior court denied State Farm's motion for summary judgment, concluding that the initial application forms presented to Kenneth Bozinoff in August of 1997 did not comply with the statute. The court also ruled that the renewal forms that State Farm sent to Kenneth Bozinoff in 1998 did comply with the statute but that there was a question of fact as to whether Kenneth Bozi-noff received these forms prior to the accident. State Farm petitioned for review from these rulings. We granted its petition and consolidated its case with that of GEICO. IY. DISCUSSION The dispute in these cases centers on the meaning of the requirement in AS 21.89.020(c) that an insurance company "shall . offer" UIM coverage at various specified limits as part of an automobile liability insurance policy. We set out the full text of AS 21.89.020(c), and (e) — because it bears on the meaning of (c) — in the margin. The insurers argue that the statutory offer requirement has two components: (1) insurers must make the mandated coverage available; and (2) they must notify their prospective customers of its availability. The insureds argue that the statute also requires insurers to provide price information in their initial application forms. The question before the court is one of statutory interpretation. We have summarized the approach we take on questions of statutory interpretation as follows: In construing the meaning of a statute, we look to the meaning of the language, the legislative history, and the purpose of the statute in question. "The goal of statutory construction is to give effect to the legislature's intent, with due regard for the meaning the statutory language conveys to others." "Because this is a case of first impression in this state, '[o]ur duty is to adopt the rule of law that is most persuasive in light of precedent, reason, and policy."' We have rejected a mechanical application of the plain meaning rule in matters of statutory interpretation, and have adopted a sliding scale approach instead. The plainer the statutory language is, the more convincing the evidence of contrary legislative purpose or intent must be. In assessing statutory language, "unless words have acquired a peculiar meaning, by virtue of statutory definition or judicial construction, they are to be construed in accordance with their common usage."[ ] In our view the "shall offer" language of AS 21.89.020(c) requires that each insurer must make available to its prospective customers the mandated levels of UIM coverage. This means that insurers must notify prospective customers that they will sell such coverage. And since coverage would not truly be made available if an insurer refused to quote a price for it, the statute requires at least that prices be furnished upon request. But does the statute require that the initial form notifying customers of the availability of coverage include the price for each level? We conclude that it does not for the reasons that follow. Alaska Statute 21.89.020(c) does not prescribe how insurers should notify their prospective customers of available coverage or direct any particular form for such notice. In Peter v. Schumacher Enterprises, Inc., we held that offers required to be made under .020(c) did not have to be in writing: Alaska Statute 21.89.020(c) clearly requires that policy purchasers be offered the sets of optional limits described in subsection .020(c)(2). But Peter contends that such offers must be in writing. Finding no textual basis for this argument, we reject it. But there is an unresolved factual question as to whether the availability of the optional limits prescribed by subsection .020(c) was communicated in any form to [the insured].[ ] Since the methods by which coverage is to be offered are not dictated by the statute — not even to the extent that offers must be in writing — it follows that the statute does not require that insurers quote premium prices when they first mention that multiple levels of coverage are available. Here, as in Peter, there is no textual basis for the argument that the statute imposes the particular formal requirement that the price be stated at the outset of the process leading to the sale. The meaning of the verb "offer" in common usage in the context of the sale of a product is "to make available or accessible." The general "to make available" usage was illustrated in Peter. With reference to the requirements of subsection .020(c), we noted that there were fact questions "as to whether the availability of the optional limits . was communicated in any form...." This usage does not connote that the price of the item made available for sale must necessarily be stated in the initial communication of the availability of the item. The media are replete with advertisements announcing the availability of goods and services that do not state prices. Subsection (e) of .020 also indicates that "offer" in subsection (c) was meant to describe a process of making coverage available and giving notice of availability. The second sentence of (e) exempts insurers from the offer requirement of (c) on policy renewals once the insured has either waived UIM coverage altogether or selected a level of coverage. In the process it describes what (c) requires. The second sentence provides in relevant part: "After selection of the limits by the insured or the exercise of the option to waive the coverage . the insurer is not required to notify any policyholder in any renewal . policy, as to the availability of the coverage or optional limits_" (Emphasis added.) It follows from this language that before limits are selected or waived the insurer is required "to notify" customers "as to the availability of the coverage and optional limits." Thus it seems that in (e) the legislature described the acts that it contemplated insurers must fulfill under (c), when the exempting conditions of (e) axe not present. The legislative history of AS 21.89.020(c) also indicates that the legislature contemplated that "offer" would mean "make available and give notice of availability." Subsections (c) and (e) were enacted in 1984. Subsection (e) has remained unchanged. But subsection (e) originally only required that insurers "shall offer [UIM coverage] with limits equal [to the liability limits selected by the insured]." This was changed in 1990 when the requirement that at least six levels of UIM coverage be offered was added. According to the minutes of the House Labor and Commerce Committee, this was done to "ensure that members of the public would have the option to purchase at least one million dollars coverage of underinsured and uninsured motorist coverage." During a committee meeting considering this amendment, an insurance company lobbyist suggested amending the "shall offer" language in .020(c) to "shall make available" in order to "alleviate vagueness as to when to make the offer." Representative Donley, the prime sponsor of the bill, rejected this suggested change. According to the minutes: Chairman Donley told Mr. Frank that regarding his recommendation to change "shall offer" to "shall make available," the wording "shall offer" compels the insurer to offer the insurance to the insured whereas if the insurer only has to "make it available" it may not get mentioned. Rep. Gruenberg concurred.[ ] Thus Representative Donley recognized that the offer requirement had two components: the coverage had to be made available and it had to be "mentioned." This is what subsection (e) implies that the offer requirement in subsection (e) means. To change "offer" in (c) to "make available" would potentially eliminate the notice component described in (e). This history therefore supports the view that the legislature intended that the offer language of subsection (c) would mean what subsection (e) implies that it means. Insurers must not only make each level of mandated coverage available, they must also notify insureds as to the availability of each level of coverage. But absent from the legislative history is any suggestion that the legislature intended that the premium for each optional level of coverage would have to be quoted as part of the offer. Although AS 21.89.020(c) does not purport to regulate the forms insurers may use in soliciting coverage, such forms are subject to state regulation. Alaska Statute 21.42.120(a) requires that application forms that are to become part of a policy must be filed with and approved by the director of the Division of Insurance. Alaska Statute 21.42.130(1) requires that the director disapprove a form that is filed that is "in any respect in violation of or does not comply with [Title 21 of the Alaska Statutes]." At the request of GEICO we have taken judicial notice that the Division of Insurance has approved application forms submitted by insurers and by agencies serving insurers that, like the applications at issue in this case, list the various levels of coverage required but do not state the premium that will be charged for each level of coverage. The parties differ as to the weight that this court should give to the division's approvals. GEICO argues that we should give substantial deference to the approvals since the legislature has delegated to the division the duty of enforcing and administering the statutes concerning insurance. Graham-Gonzalez, on the other hand, argues that the approvals have no legal effect and that the court must exercise its independent judgment to decide what AS 21.89.020(c) requires. Typically we use the independent judgment standard on questions of law unless the "issue involves agency expertise or the determination of fundamental policy questions on subjects committed to the agency." This court has not ruled on whether Division of Insurance approvals of forms under AS 21.42.120 and .130 should be reviewed deferentially under the reasonable basis standard or whether the court should substitute its judgment for that of the division on the question whether forms comply with the applicable statute. At least one other jurisdiction has suggested that the more deferential standard is appropriate. If we were to adopt the more deferential standard, the question presented in this case would be readily resolved in favor of the insurers, for it is plainly reasonable to interpret the statute as not requiring that initial application forms contain premium information. But even if the independent judgment standard were applied, the division's approval of forms like those used in the present case would be entitled to some deference. In such cases this court gives "some weight to what the agency has done, especially where the agency interpretation is longstanding." In the present case it is unnecessary to determine which standard of review should be applied because even if only some weight is given to the approvals they are consistent with this court's view as to what .020(e) requires. The purpose of .020(c) is to give insureds various options with respect to UIM coverage: to select coverage with limits mirroring their liability limits, or with different limits, or to waive coverage altogether. This purpose is not frustrated by interpreting the subsection as not requiring premium quotes to be included in application forms. Insureds can be expected to ask for the prices of coverage they are interested in. Application'forms would be more informative if they contained premium information, and this is a factor that favors the respondents' position in these cases. But it is the only factor. It is outweighed, in our judgment, by the reasons pointing to the opposite conclusion outlined above. To summarize, these are (1) that .020(e) does not impose formal requirements as to the content of application forms and, as we have previously held, does not require that the notification of levels of coverage be in writing; (2) the common, nontechnical, meaning of the word "offer" in a sales context is, in short, "to make available," a definition that does not require that the price of the item to be sold be communicated in the initial solicitation; (3) subsection .020(e) describes what is meant by the offer requirement in subsection (c) eonsistent with the common meaning — coverage must be made available and notice of its availability must be given; (4) the legislative history indicates that the intended meaning of "offer" is the meaning reflected in subsection (e) requiring both availability and notice of availability of required levels of coverage; and (5) the Division of Insurance in the exercise of its delegated authority to regulate insurance company forms has with apparent consistency approved of forms that do not set out the premiums for the mandated levels of UIM coverage. For these reasons we conclude that AS 21.89.020(c) does not require that application forms state the premiums that would be charged for each level of UIM coverage mandated by that subsection. We thus REVERSE the decisions of the superior court in these cases and REMAND for further proceedings consistent with this opinion. FABE, Justice, with whom BRYNER, Chief Justice, joins, dissenting. . 370 P.2d 519, 524-25 (Alaska 1962) (footnotes omitted). . We also granted Graham-Gonzalez's cross-petition for review from the court's rejection of her suggested remedy for violation of subsection .020(c). She contended that the highest statutorily mandated optional limits ($l,000,000/$2,000, 000) should be automatically imposed. The cross-petition is mooted by our conclusion that subsection .020(c) was not violated. . AS 21.89.020(c) and (e) provide: (c) An insurance company offering automobile liability insurance in this state for bodily injury or death shall, initially and at each renewal, offer coverage prescribed in AS 28.20.440 and 28.20.445 or AS 28.22 for the protection of the persons insured under the policy who are legally entitled to recover damages for bodily injury or death from owners or operators of uninsured or underinsured motor vehicles. The limit written may not be less than the limit in AS 28.20.440 or AS 28.22.101. Coverage required to be offered under this section must include the following options: (1) policy limits equal to the limits voluntarily purchased to cover the liability of the person insured for bodily injury or death; . (2) except when the coverage consists of motorcycle liability insurance, and except for a named insured required to file proof of financial responsibility under AS 28.20 or an applicant required to file proof of financial responsibility under AS 28.20, policy limits in the following amounts when these limits are greater than those offered under (1) of this subsection: (A) $100,000 because of bodily injury to or death of one person in one accident, and, subject to the same limit for one person, $300,000 because of bodily injury to or death of two or more persons in one accident; (B) $300,000 because of bodily injury to or death of one person in one accident, and, subject to the same limit for one person, $500,000 because of bodily injury to or death of two or more persons in one accident; (C) $500,000 because of bodily injury to or death of one person in one accident, and, subject to the same limit for one person, $500,000 because of bodily injury to or death of two or more persons in one accident; (D) $500,000 because of bodily injury to or death of one person in one accident, and, subject to the same limit for one person, $1,000,000 because of bodily injury to or death of two or more persons in one accident; (E)$1,000,000 because of bodily injury to or death of one person in one accident, and, subject to the same limit for one person, $2,000,000 because of bodily injury to or death of two or more persons in one accident; (3)other policy limits at the option of the insurer. (e) The coverage required under (c) and (d) of this section may be waived in writing by the insured in whole or in part. After selection of the limits by the insured or the exercise of the option to waive the coverage in whole or in part, the insurer is not required to notify any policy holder in any renewal, supplemental, or replacement policy, as to the availability of the coverage or optional limits, and the waived coverage may not be included in any renewal, supplemental, or replacement policy. The insured may, at any time, make a written request for additional coverage or coverage more extensive than that provided on a prior policy. . Muller v. BP Exploration (Alaska) Inc., 923 P.2d 783, 787-88 (Alaska 1996) (citations omitted). . 22 P.3d 481, 491 (Alaska 2001). . See Webster's Third New International Dictionary 1566 (1969). Following the quoted definition the dictionary states: "esp: to place (merchandise) on sale <~s a range of cameras at reasonable prices >". . Peter, 22 P.3d at 491 (emphasis added). . Minutes, House Judiciaiy Comm. Hearings on HB 429 (April 9, 1990) (testimony of Stan Dar-lington). . Minutes, House Labor and Comm. Hearings on HB 429 (February 6, 1990) (testimony of Jay Frank). . Id. . The approvals were issued in 2002. GEICO also submitted similar forms that were approved by the Division of Insurance for Progressive Insurance Company in 1995, 1999, and 2002. . DeNuptiis v. Unocal Corp., 63 P.3d 272, 277 (Alaska 2003). See also Lakosh v. Alaska Dep't of Envtl. Conservation, 49 P.3d 1111, 1114 (Alaska 2002). . See McTaggart v. Liberty Mut. Ins., 267 Kan. 641, 983 P.2d 853, 857-58 (1999). . Diaz v. Silver Bay Logging, Inc., 55 P.3d 732, 741 (Alaska 2002) (quoting Fairbanks N. Star Borough Sch. Dist. v. NEA-Alaska. Inc., 817 P.2d 923, 925 (Alaska 1991)). . The question presented is one that has received considerable attention, both in Alaska and in other jurisdictions. In addition to superior court rulings in the cases now before us, another Alaska superior court judge has ruled that the use of a selection form similar to that used by GEICO and State Farm constituted a proper offer as required by AS 21.89.020(c). Moore v. Progressive Specialty Ins. Co., No. 3AN-99-11321 Ci. (Alaska Super., March 4, 2002). The United States District Court for the District of Alaska has ruled that "nothing in the statutory language" nor in "Alaska case law require[s] that an insurer state the corresponding premiums to fulfill its obligation to 'offer' UIM coverage." Cruz v. Progressive Northwestern Ins. Co., No. A-01-40 Cv. (U.S.Dist.Ct., May 16, 2002). In other jurisdictions there are similar differences of opinion. The lead case for inclusion of premium information is Hastings v. United Pacific Ins. Co., 318 N.W.2d 849, 853 (Minn.1982) (in order to .comply with státutory offer requirement the insurer must communicate to the insured that optional coverages are available for a relatively modest increase in premiums). Notwithstanding that the Minnesota legislature repealed Minn.Stat. § 65B.49, subd. 6(e), upon which Hastings relies, some other jurisdictions have followed Hastings. See Mollena v. Fireman's Fund Ins. Co. of Hawaii, Inc., 72 Haw. 314, 816 P.2d 968, 971-72 (1991); Linko v. Indemn. Ins. Co. of N. Am., 90 Ohio St.3d 445, 739 N.E.2d 338, 342 (Ohio 2000); State Farm Mut. Auto. Ins. Co. v. Wannamaker, 291 S.C. 518, 354 S.E.2d 555, 556-57 (1987). Other jurisdictions have ruled that premium information need not be stated. See Tallent v, Nat'l Gen. Ins. Co., 185 Ariz. 266, 915 P.2d 665, 667 (1996); Libby v. Gov't Employees Ins. Co., 79 Md.App. 717, 558 A.2d 1236, 1240 (1989); and Beck v. Powell, 113 Or.App. 318, 832 P.2d 1254, 1257 (1992).

10473506

Irma R. SCAVENIUS, Appellant, v. CITY OF ANCHORAGE, a Municipal Corporation, Appellee

Scavenius v. City of Anchorage

1975-08-21

No. 2193

1161

1169

539 P.2d 1161

539

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

Irma R. SCAVENIUS, Appellant, v. CITY OF ANCHORAGE, a Municipal Corporation, Appellee.

Irma R. SCAVENIUS, Appellant, v. CITY OF ANCHORAGE, a Municipal Corporation, Appellee. No. 2193. Supreme Court of Alaska. Aug. 21, 1975. Helen L. Simpson, Anchorage, for appellant. David G. Shaftel, Asst. City Atty., John R. Spencer, City Atty., Anchorage, for ap-pellee. Before RABINOWITZ, C. J., CON-NOR and BOOCHEVER, JJ., and DIMOND, Justice Pro Tern.

5061

29836

OPINION BOOCHEVER, Justice. We are confronted on this appeal with the unusual issue of whether a jury's award of $0.00 as just compensation to a property owner for the taking of an easement is patently inadequate or violative of constitutional provisions pertaining to eminent domain. The City of Anchorage brought an action to condemn easements for the construction, ,use and maintenance of a sanitary sewer line upon two non-adjacent parcels owned by the appellant, Irma R. Scav-enius. The City filed a declaration of taking and deposited $2.00 as the estimated just compensation for the taking of these two easements. Subsequently, a master's hearing was held, and the master's report indicated that a total of $516.00 should be paid as just compensation for the taking of the two easements. This award consisted of $336.00 for the first easement and $180.-00 for the second. The property owner filed a notice of appeal from that decision pursuant to Alaska R.Civ.P. 72(h)(5), and a jury trial was scheduled. After presentation by the parties of conflicting testimony concerning valuation, the jury concluded that $0.00 was the amount of just compensation to which the property owner was entitled. The two parcels involved in this condemnation proceeding are located on the west bluff area of what is now the Westchester Lagoon. Parcel No. 1 consists of about 2.-19 acres of undeveloped land. Parcel No. 2 is a rectangular lot measuring about 100 by 4S0 feet. Both lots are zoned R-1A for single family residences. The parcels are separated by a third, separately-owned parcel. The easement area on Parcel No. 1 is located where the generally downward grade toward the lagoon increases to about 25 percent. Parcel No. 2 has a residence located on the level portion near the street, but the easement area is located on the back of the parcel which drops off steeply into the lagoon. The sewer line has been installed at a depth of between seven and eight feet on Parcel No. 1 and between five and six feet on Parcel No. 2. When the property owner appealed the master's award of $516.00 as compensation for the easements, the City, aware of the owner's fear that she would be prevented from constructing houses on the areas subject to the easement which, in turn, would interfere with the proper subdivision of that property in the future, moved to amend its complaint. The amendment provided that at the City's expense the easements would be subject to either rerouting or replacement with material not likely to require maintenance should the property owner decide to build in the easement area. The property owner did not oppose the motion, file any objection to the amended pleadings nor at any time during the trial object to evidence offered by the City relating to the definition of the easement as contained in the amended pleadings. At the jury trial, the City called George Mies, a real estate appraiser, as a witness to testify concerning the value of the taking. Mr. Mies testified that, in view of the limited scope of the easement, it was his view that the fair market value of the parcels had not been lessened. He stated: " . . . she hasn't lost anything, and it's a nominal value loss — maybe $1.00". In reaching this conclusion, he took into consideration the fact that several trees along the sewer line easement had been cut down. He believed that this also had a negligible impact on the fair market value of the property. Further, he observed that the tree removal operation had been quite selective, that the trees had been dug out and the area recovered with soil. The appellant owner asserts that the jury's award of no compensation is entirely inadequate and that it violates her constitutional rights under both the fifth amendment to the United States Constitution and art. I, § 18 of the Alaska Constitution which prohibit the taking of private property for public use without just compensation. Specifically, the owner makes three arguments in support of her general allegation that the award is inadequate. First, the owner contends that an award of zero compensation is per se unconstitutional; second, that she is entitled to be compensated in money, not in promises to adjust or relocate the sewer line easement in the future and, third, that she is entitled to treble damages pursuant to AS 09.45.730 or, at least, just compensation for the trees which were removed from the easement area during the course of the sewer line construction. The constitutional argument is based on scant authority as only one case cited by the owner provides any support for that proposition of law. Lake Erie & W. R. Co. v. Commissioners of Hancock Co., the Supreme Court of Ohio considered the propriety of a jury award of zero compensation after the jury was instructed that "it will be your duty to determine the value of the land so appropriated, and to return the amount in your verdict as compensation due the appellant for the land so appropriated". In reversing and remanding the case, the court stated: Notwithstanding this instruction, the jury failed to award the plaintiff in error any amount as compensation for its land over or through which the ditch was to be located and constructed. This, apparently, resulted from the theory on which that action of the jury is sought to be justified in the brief of counsel for the defendant in error, which is that, as the ditch, when constructed across the railroad right of way, will consist only of a pipe or tile placed entirely beneath the surface, there will be no appropriation of the company's land, and therefore no compensation should be allowed the company. That position, we think, cannot be maintained. It seems evident, that any direct encroachment on land, which subjects it to a public use that excludes or restricts the dominion and con trol of the owner over it, is a taking of his property for a public use, within the meaning of that provision of the constitution which guarantees to the owner a right of compensation without deduction for benefits. Contrary to the facts of the Lake Erie case where the jury was instructed to award some compensation, in the case before us the owner did not object to instructions to the jury which expressly permitted the entry of an award of no compensation. Had there been an objection to the instruction or had the owner requested an instruction mandating an award of some compensation, albeit nominal, we would have squarely before us the issue of whether some compensation should have been awarded. We believe that the constitutional prohibition against taking private property "without just compensation" would under such circumstances require the award of some amount, as the taking of the easement does constitute an appropriation of the owner's property regardless of its minuscule effect. But in view of that failure to object and the fact that the difference between an award of $0.00 compensation and a nominal sum is de minimus, we do not believe that the failure to award compensation per se requires reversal in this case. We nevertheless must examine the owner's arguments as to the inadequacy of the award. In State v. 45,621 Square Feet of Land, we discussed the standard to be used in reviewing a trial court's refusal to grant a new trial after a jury's determination of just compensation in a condemnation case. We quoted from our earlier discussion in Ahlstrom v. Cummings, as follows: The matter of granting or refusing a new trial rests in the sound discretion of the trial judge. We shall not interfere with the exercise of his discretion except in the most exceptional circumstances and to prevent a miscarriage of justice. The circumstances which would require our intervention do not exist here. From a review of the record we cannot say that evidence to support the verdict was completely lacking or was so slight and unconvincing as to make the verdict plainly unreasonable and unjust, (emphasis added) In reviewing the jury's determination of just compensation, we adopted the standard of scrutinizing the record to insure that the verdict is "within the range of the testimony" and "not reflective of any passion or prejudice". Applying that standard to the evidence presented, we cannot find that the trial court erred in denying the motion for new trial. The case was submitted to the jury, without objection, under instructions which specifically permitted the entry of verdicts of no compensation in the event that there was no difference in the fair market value of the property before the taking of the easement and its value thereafter. A similar instruction to which no objection was taken permitted the jury to determine the fair market value of the property before tree damage occurred and the value thereafter, and to award damages if the former exceeded the latter. If, however, the value of the land after the damage to the trees equaled or exceeded its prior value, the jury was instructed that no compensation was to be awarded with respect to tree damage. There was competent evidence presented from which the jury could determine that the value of the property was not decreased by the taking of the easement and removal of the unspecified number of trees. Thus, the verdict was within the range of the testimony. Nor is there any indication that the failure to enter an award was the result of any passion or prejudice on the jury's part. The owner further contends that pursuant to AS 09.55.260(6) trees are a form of private property which must be compensated for when taken and that, since some trees were removed in the course of the construction along the sewer easement line, some amount of compensation is in order. The cases cited by the owner support the general rule that trees are a type of private property which cannot be taken without just compensation. In this case, the jury viewed the premises and must have believed the testimony that the selective removal of some trees without leaving stumps on the steeply sloping area did not detract from the value of the parcels. Nor was there any testimony that the trees had value as timber. The jury was properly instructed to consider any enhancement in the value of the land attributable to the trees and any reduction in the value of the land resulting from their removal. The instructions given the jury, without objection, further allowed an award of no compensation, and thus there was no error in the jury's failure to award compensation for the trees. The owner further contends that she is entitled to treble damages for the unlawful cutting of the trees pursuant to AS 09.45.730. This statute, however, is clearly inapplicable since it provides that an owner be awarded treble damages only when the cutting is unlawful. Here, the tree removal was lawfully accomplished pursuant to the court's order authorizing the City to take possession of the easement areas to install the sewer lines. Doubtlessly, the jury was influenced in rendering its verdict by the fact that the amended complaint permitted the owner to build in the easement area and required the City, in that event, either to reroute the sewer line or replace it with material not likely to require maintenance. The amended complaint required that the City pay any additional construction costs incurred by the owner due to the presence of the sewer line. The property owner argues that the City's stipulation in the complaint defining the extent of the easement to be taken constitutes a mere promise of future compensation violating her right to be compensated in money at the time of the taking. The City, on the other hand, contends that the stipulations merely limit the nature of the taking, i. e. it is acquiring less than a permanent easement in the parcel which might otherwise preclude construction by the fee owner. Instead, it has acquired a limited easement in the land, and the amount of damages should be reduced proportionately. As the owner observes, once it is determined that what is really involved is only promissory, such promises cannot be used to mitigate the amount of compensation due the owner. The problem rests in distinguishing between mere promises and binding contractual stipulations. While the formalization of the stipulations in the amended complaint and the final decree would appear to constitute a limitation on the taking, we decline to rule on this issue for the following reasons. First, the owner did not file an objection after the City filed its amended complaint and amended declaration of taking. Second, the owner did not object to any of the evidence introduced by the City relating to the definition of the scope of easement being taken as contained in the amended pleadings. This court has frequently held that it will not consider an issue on appeal that has not been raised at the trial court level.* Third, even though Instruction 6A contained the definition of the taking found in the amended complaint, the owner failed to object to the instruction as required by Alaska R.Civ.P. 51(a).* Finally, the issue was not set forth in the appellant's statement of points on appeal. Alaska R.App.P. 9(e) warns the parties that the "court will consider nothing but the points so stated". The appellant's statement of points merely repeated her general contention that the award of no compensation was constitutionally inadequate.* Although the court in the interests of justice might relax its rule in a situation where the issue was of some merit,* and was raised at the trial court level and only inadvertently excluded from the party's statement of points on appeal, this is not such a case. We have repeatedly enforced Appellate Rule 9(e) in situations where an issue was neither raised at the trial court level nor included in the statement of points on appeal. In all likelihood, the owner did not object to the amended complaint because she was desirous of having the advantage of the City's stipulations. After awaiting the outcome of the trial, she is in no position to raise the issue now. Thus, for all of these reasons, we refuse to consider this issue first presented to us in appellant's brief on appeal. The judgment below is affirmed. Affirmed. ERWIN, J., not participating. . The City filed a cross-appeal from the trial court's denial of the City's motion for allowance of attorney's fees and from the court's refusal to award costs to the City. Those issues had been consolidated on appeal with similar issues raised in the case of City of Anchorage v. Park Lanes, Inc., Alaska, 539 P.2d 1169 and will be the subject of á separate opinion. . Alaska R.Civ.P. 72(h)(5) provides in part: A party or other interested person may appeal from the master's report by filing with the clerk a notice of appeal in duplicate, with sufficient additional copies for all parties who have appeared or answered. . The relevant portions of the amended complaint read as follows: IV. The legal interests to be taken are easements in perpetuity for the construction, use and maintenance of a sanitary sewer line. If the owners of the properties satisfy the prerequisites labeled (1), (2) and (3), below, then these easements will not prevent otherwise legally permissible construction in the easement areas, and prior to or concurrent with the construction the Oity of Anchorage will at its own expense replace the portion of the sewer line which will be under or within a structure with a sewer line made of a material (e. g., ductile iron) which will not require maintenance during the foreseeable life of the structure, and prior to or concurrent with the construction the City will at its own expense protect the sewer line from the stresses caused by the construction and the structures, and the City will pay reasonable, additional construction costs which are incurred because of the presence of the sewer line; (1) It is shown that commitments have been made which reasonably establish that construction will commence at a certain date, and (2) The City is given a reasonable period of advance notice of such construction, and (3) The City is given permission to, at its option, relocate the sewer line to a location on or off the properties where the sewer line will not conflict with the construction, with the understanding that the City will pay for any damages which the relocation causes to existing improvements. . The property owner testified in her own behalf — inconclusively for the most part. She offered no estimate as to the decrease in the fair market value of her property, which might have been brought about either due to the imposition of the easement per se or due to the removal of the trees. She did guess that at least 30 trees would be necessary to fill up the "bare space" left by the construction. (A jury view of the parcels was con ducted so that the jury had ample opportunity to assess the impact of the tree removal operation on the property.) The appellant's valuation evidence was presented by Mr. Poe, a real estate appraiser. He refused to conform his opinion to the relevant issue — the reduction in fair market value, if any, caused by the imposition of the easements — but rather, testified as to the full fee value of the easement areas. He concluded that $12,-400.00 would be just compensation for the taking, and that $500.00 per tree was a fair replacement cost for an unknown number of trees removed. . The fifth amendment to the United States Constitution provides in part: . . . nor shall private property be taken for public use, without just compensation. . Art. I, § 18 of the Alaska Constitution provides : Private property shall not be taken or damaged for public use without just compensation. . Neither of the other two cases relied on by the owner — Payson, v. People, 175 Ill. 267, 51 N.E. 588 (1898), and Wabash R. Co. v. Coon Run Drainage & Levee District, 194 Ill. 310, 62 N.E. 679 (1901) — provides any authority bearing on the constitutionality of an award of zero damages in condemnation cases. Both the cases involve the taking of drainage ditches across the owners' property. In the former, the Supreme Court of Illinois, reversing a jury award of no compensation, held that there had been inadequate notice to the out-of-state property owner, that the benefits accruing to the owner as a result of the ditch could not be used to offset the compensation for the taking itself, and, finally, that the relevant constitutional provision authorizing the taking of drainage ditches (which was silent as to compensation) required compensation in accordance with the superseding taking provision of the state constitution. The same court in Wabash Co. v. Coon Run Drainage District, also involving the taking of a drainage ditch, reversed a jury award of $10.50 on the ground that the condemnation procedure authorized by statute grossly violated the owner's right to a jury trial. . 63 Ohio St. 23, 57 N.E. 1009 (1900). . Id. at 1011. . Instruction No. 7 provides: You are instructed that, based upon the evidence which has been offered in this proceeding, you are to determine the just compensation for each parcel by the following method: (a) determine the fair market value of the parcel before the taking of the easement and the construction of the improvements; (b) determine the fair market value of the parcel after the taking of the easement and the construction of the improvements ; If (b) is less than (a), then the difference is the amount to be awarded as just compensation with respect to that parcel. If (b) is equal to or greater than (a), then no compensation is to be awarded with respect to that parcel. Instruction No. 10 provides: You are instructed that in determining the amount of just compensation to be paid for any tree damage which might have occurred, you are to use the following method: a. Determine the fair market value of the parcel before the tree damage occurred; b. Determine the fair market value of the parcel after the tree damage occurred; If (b) is less than (a), then the difference is the amount of just compensation to be awarded for tree damage on that parcel. If (b) is equal to or greater than (a), then no compensation is to be awarded with respect to tree damage on that parcel. Alaska K.Civ.P. 51(a) provides in part: No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection. . We are not confronted in this case with an issue as to offsetting special benefits conferred upon the remaining property by the construction of the easement. See AS 09.55.810(a)(3). . See Martinez v. Bullock, 535 P.2d 1200 (Alaska, 1975), in which a majority of this court, with Justice Boochever dissenting, held that the giving of jury instructions permitting an award of no damages in a negligence action did not constitute prejudicial error. In Martinez, counsel had objected to the instructions and moved for a directed verdict instructing that plaintiffs were entitled to some damages. See note 13. . The issue of whether a constitutional right to nominal compensation may be waived by failing to object to jury instructions was not raised either in the briefs or arguments on appeal. Since all that is at stake here is the difference between nominal damages and no damages, we refuse to consider the issue sua sponte. It has been held that failure to comply with a state procedural rule regarding the proper manner in which to raise a federal constitutional challenge will foreclose consideration of that issue. Henry v. Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965) ; Michel v. Louisiana, 350 U.S. 91, 76 S.Ct. 158, 100 L.Ed. 83 (1955) ; Williams v. Georgia, 349 U.S. 375, 75 S.Ct. 814, 99 L.Ed. 1161 (1955). See also Hensley v. United States, 406 F.2d 481 (10th Cir. 1968) ; United States ex rel. Long v. Pate, 418 F.2d 1028 (7th Cir. 1967), cert. denied, 398 U.S. 952, 90 S.Ct. 1877, 26 L.Ed.2d 294 (1970) . (suit for writ of habeas corpus). It is also important to note that those United States Supreme Court decisions which discuss waiver of constitutional rights in the civil context and in which the court indulged every reason able presumption against their waiver involve fundamental constitutional rights. Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972) (basic procedural due process rights of notice and hearing prior to deprivation of property) ; Ohio Bell Teleph. Co. v. Public Vtilities Comm., 301 U.S. 292, 57 S.Ct. 724, 81 L.Ed. 1093, 1103 (1937) (procedural due process) ; Aetna Ins. Co. v. Kennedy, 301 U.S. 389, 393, 57 S.Ct. 809, 81 L.Ed. 1177, 1180 (1937) (right to trial by jury). We, therefore, do not consider it appropriate to consider whether we have authority to amend the judgment so as to award nominal damages of $1.00. See 5 Nichols, The Law of Eminent Domain, § 17.2 (Rev. 3rd ed. Sackman 1974), as to authority of courts to alter a jury's verdict in a condemnation case. . 475 P.2d 553 (Alaska 1970). . 388 P.2d 261, 262 (Alaska 1964) (footnotes omitted). . 475 P.2d at 558. This standard is also entirely consistent with that set forth in Nichol's treatise, The Law of Eminent Domain : The legal criteria for a determination of whether an award is inadequate or excessive so as to warrant adverse action by the court, are said to be similar to those which govern in common-law actions. Even in the face of conflicting evidence, the court will generally refuse to set aside the award or verdict if there is evidence to sustain the amount awarded and such amount is not palpably inadequate or excessive. A reversal or modification must be based upon a showing of improper influences, erroneous principles of damage, or evidence, or a complete disregard of the evidence adduced below. The award may not be in excess of the amount claimed by the owner, nor should it be less than the lowest estimate of value testified to by a witness. It has been held, however, that the awarding of such lesser sum, or other difference of opinion between the trier of facts and the witnesses, does not necessarily dictate the setting aside of the award. 5 Nichols, The Law of Eminent Domain, § 17.3 at 17-35, 17-40 — 17-42 (Rev. 3rd ed. Sackman 1974) (footnotes omitted). Thus, the proper standard for review of condemnation awards is virtually identical to that utilized in review of jury verdicts in common law actions. An award will not be set aside on a claim of inadequacy unless it strikes us as being manifestly unjust, such as being the result of passion or prejudice or a disregard of the evidence or rules of law. See City of Fairbanks v. Smith, 525 P.2d 1095, 1098 (Alaska 1974), in which no damage verdict was returned in relation to a loss of consortium claim for relief. . See Instruction No. 7 quoted supra, note 10. . See Instruction No. 10 quoted supra, note 10. . AS 09.55.260 provides: The private property which may be taken under § 240-460 of this chapter includes (6) all classes of private property not enumerated may be taken for public use when the taking is authorized by law. . Moore v. Carolina Power & Light Co., 168 N.C. 300, 79 S.E. 596 (1913) ; Donough v. Mansfield Tel. Co., 32 N.E.2d 480 (1937). . Instruction No. 10 quoted supra, note 10. See 4 Nichols, The Law of Eminent Domain, § 13.2, 13.21 (Rev. 3rd ed. Sackman 1974), asserting that the removal of vegetable growth should be considered solely as it affects the valuation of the land as a whole. . AS 09.45.730 provides in part: A person who cuts down . a tree, timber, or shrub on the land of another person . . . without lawful authority, is liable to the owner of that land . . . for treble the amount of damages which may be assessed in a civil action. .The case relied on by the owner is inap-posite. In Mall v. C & W Rural Meotion Co-Op Assoc., 168 Kan. 518, 213 P.2d 993 (1950), the Kansas court held that an owner was entitled to treble damages for the destruction of his trees by the utility company. There, even though the trees were located within the utility's right-of-way, the trial court had found that the cutting of trees was unnecessary for the maintenance of the power line. The utility's easement had given it the authority to cut only those trees that were dead, weak, or leaning and in danger of striking its wires. Therefore, the Mall case is distinguishable from the instant case in at lease two respects: (1) it involved an easement with a specific limitation on the utility's authority to remove trees, and (2) the trial court found that the cutting there had been totally unnecessary. See Kansas statute quoted at 213 P.2d at 997 of the Mall opinion. .State v. Superior Court, 11 Wash.2d 545, 119 P.2d 694, 706 (1941), wherein it was held: The damages occasioned by the taking are estimated as of the time of taking. In the absence of agreement between the parties the condemnor must take the rights which he seeks to appropriate absolutely and unconditionally and he must make full compensation for what he takes. An unaccepted promise to do something in the future in case certain emergencies arise can not affect the character or the extent of the rights acquired and can not be considered as affecting the amount of damages to be awarded. When property is acquired by virtue of the power of eminent domain the compensation of the owner is to be estimated by the actual legal rights acquired by the condemnor and not by the use that he may make of the right. See Little v. Loup River Public Power Dist., 150 Neb. 864, 36 N.W.2d 261 (1949). See also Annot., 7 A.L.R.2d 364 (1949). . See McCarrey v. Commissioner of Natural Resources, 526 P.2d 1353, 1355 (Alaska 1974) ; State v. McCracken, 520 P.2d 787, 790 (Alaska 1973) ; Jefferson v. City of Anchorage, 513 P.2d 1099 (Alaska 1973). . Quoted in part in note 10 supra. . The statement of points on appeal reads in its entirety: 1. Defendant's right to receive compensa-sation for her property acquired by eminent domain as guaranteed by the State and Federal constitutions was violated by a jury verdict awarding no compensation for a sewer easement taken by the City of Anchorage. . See Jefferson v. State, 527 P.2d 37, 39 n. 4 (Alaska 1974), where the court refused to consider issues raised in the party's brief "because they were not specified [in his points on appeal] and because they have no merit". . See Burford v. State, 515 P.2d 382 (Alaska 1973) ; Moran v. Holman, 501 P.2d 769 (Alaska 1972). It could be contended that really the only issue raised at this trial was that of just compensation. Therefore, since the adequacy of the "just award" was always in dispute (and was challenged in the owner's points on appeal), the question of whether the redefinition of the take was a mere promise of future compensation cannot properly be considered a new issue raised for the first time on appeal. Such a construction, however, does not constitute a specific reference to the point eventually sought to be raised and, strictly speaking, cannot be considered to be in compliance with Appellate Rule 9(e) which states in part: "The appellant shall serve and file with his designation a concise statement of the points on which he intends to rely on the appeal." Otherwise, a statement that the trial court erred would be sufficient. See Lewis v. Anchorage Asphalt Paving Corp., 535 P.2d 1188, 1195 (Alaska 1975).

10459283

Lionel KIMBLE, Appellant, v. STATE of Alaska, Appellee

Kimble v. State

1975-08-22

No. 2287

73

80

539 P.2d 73

539

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

Lionel KIMBLE, Appellant, v. STATE of Alaska, Appellee.

Lionel KIMBLE, Appellant, v. STATE of Alaska, Appellee. No. 2287. Supreme Court of Alaska. Aug. 22, 1975. Millard F. Ingraham, Rice, Hoppner & Hedland, Fairbanks, for appellant. Peter A. Michalski, Asst. Dist. Atty., Fairbanks, Avrum Gross, Atty. Gen., Ju- neau, Harry L. Davis, Dist. Atty., Fairbanks, for appellee. Before RABINOWITZ, C. J., and CONNOR, ERWIN, BOOCHEVER, and BURKE, J.

4011

23982

OPINION RABINOWITZ, Chief Justice. This is an appeal from a conviction for armed robbery. Kimble contends that the indictment by which he was charged should have been dismissed as duplicitous; that the victim's identification of him should have been suppressed as the product of tainted pretrial contacts; that an identification of his photograph should have been suppressed because counsel was not present at the photo display; that it was error for the trial judge to refuse to call additional veniremen when none of the venire was of the same race as Kimble; and that it was a denial of due process to allow the jury to deliberate almost twenty-four hours without access to rest facilities. We shall address each of these points in turn. In February of 1974, Danny and Nancy Bernhardt attended a party at the Fairbanks Inn. As they were leaving they were approached just inside the door way by a man who asked for help in starting his car. Danny Bernhardt later identified the appellant, Lionel Kimble, as this man. Bernhardt indicated he had no jumper cables and so could not help. The Bern-hardts then proceeded to their own car. As they began backing out, they heard a tapping on the driver's window. The same man who had spoken to them inside the Inn then demanded Bernhardt's money. Another man stood nearby with a rifle pointed at Bernhardt. After taking Bernhardt's wallet and his wife's purse and car keys, the robbers told Bernhardt to proceed with them toward the rear of the Inn. The man identified as Kimble said "shoot him, shoot him"; the other robber told Bernhardt to run. As Bernhardt ducked behind a nearby truck, the two robbers fled. Kimble was arrested shortly after the robbery and was subsequently indicted. A jury found him guilty of armed robbery and this appeal followed. Kimble's first specification of error is that the indictment by which he was charged was duplicitous. The indictment refers to two separate statutory provisions, AS 11.15.240 (robbery) and AS 11.15.-295 (use of firearms during the commission of certain crimes). Kimble points out that Criminal Rule 8(a) provides for the charging of two or more offenses in the same indictment but in separate counts. He contends that the indictment was duplicitous in this respect, permitting, for instance, conviction of one offense (robbery) without proof of all elements of the other offense (armed robbery). The rationale underlying the rule prohibiting duplicitous indictments is to give notice to the defendant of exactly what charges he must defend against and to avoid the consequences of the inability of the jury to indicate which way they are voting on each of the charges. These consequences include the possibility of a guilty verdict despite lack of unanimity of the jury on either charge alone; the possibility of prejudice to the defendant in sentencing; in obtaining appellate review; and in protecting himself against double jeopardy. We have previously dealt with the issue of duplicitousness in Drahosh v. State, in which the separate crimes of failure to remain at the scene of an accident and failure to render aid were charged in a single count. There the jury was instructed in a manner which failed to distinguish between the two offenses, leaving the possibility that some jurors found Drahosh guilty on one charge and some on the other, with no unanimity on either one. We therefore reversed the conviction. Subsequently, in Trounce v. State, we affirmed a conviction based on an indictment which charged in a single count assault with a dangerous weapon on two different persons. We noted that the rule against duplicitous indictments is essentially a pleading rule, and is not necessarily a fatal defect. In Trounce this court was unable to find any significant basis for the possibility that the jury verdict lacked unanimity, as in Drahosh, because the jury was instructed that they must find that Trounce aided and abetted in the assaults upon both persons named in the single count. As to the specific charges in the case at bar, we have previously considered the manner in which AS 11:15.240 and AS 11.- 15.295 operate in relation to each other. In Whitton v. State the defendant was found guilty of robbery and of using a firearm during commission of that robbery. On appeal Whitton claimed the two charges were really for one offense, armed robbery, and so to be sentenced for both amounted to double jeopardy. We held that for purposes of double jeopardy, the crimes of robbery and use of a firearm during robbery were the same offense, and therefore we reversed. Here, however, the two charges were considered as one throughout Kim-ble's trial. The Superior Court's instructions to the jury repeatedly characterize the trial as one for the single offense of robbery by use of firearms. At no point in the record is there any indication that the jury was informed that it could find Kimble guilty of robbery, as opposed to robbery by use of firearms. It is improbable that the jury thought it was empowered to convict for a violation of AS 11.15.240 alone. Under the court's instructions, if they failed to find that the prosecution had proven beyond a reasonable doubt the element of use of a firearm, or any other elements of the crime of armed robbery, they would have had to return a verdict of not guilty. Since the trial court's instructions presented the case to the jury as one involving solely an armed robbery prosecution, there was no possibility of a non-unanimous jury, with some memhers finding guilt of robbery and others guilt of use of firearms during the robbery. Thus if there was any error in the framing of the indictment, it was harmless. Kimble next asserts that certain pretrial contacts between himself and the victim, Danny Bernhardt, were sufficiently suggestive to taint Bernhardt's later in-court identification. The robbery occurred on February 17, 1974. On February 22, Bernhardt came to the State Troopers' office in the Fairbanks courthouse to pick up a subpoena. While Bernhardt was in the office chatting with a trooper about matters unconnected with the robbery, Kimble and another prisoner were led into the room and put in a holding cell. According to the trooper, "Mr. Bernhardt got kind of a funny expression on his face, and he said that — meaning Mr. Kimble — was the one that perpetrated the armed robbery". Neither Bernhardt nor the trooper knew Kimble's name at the time or that he was there for a purpose related to the robbery of Bernhardt. Bernhardt himself testified that he saw Kimble entering the elevator near the troopers' office in the courthouse and at the time recognized him as the robber. Kimble was not wearing prison clothes or handcuffs at the time, but Bernhardt did believe him to be in custody. Later that same day Bernhardt again observed Kimble. Bernhardt was subpoenaed to testify at the preliminary hearing of another defendant charged in connection with the robbery. While sitting in the courtroom waiting to testify, Bernhardt observed Kimble for IS to 30 minutes sitting in an area reserved for persons waiting to be arraigned. Later in the hall Bernhardt asked a trooper the name of that person and was told his name was Kimble. The effect of suggestive pretrial contacts on in-court identification is the subject of a number of United States Supreme Court and Alaska Supreme Court opinions. In United States v. Wade and its progeny the concern was mainly with the effect of lack of counsel at critical stages of prosecution at which identifications were made. In Stovall v. Denno, the Court considered whether, in the totality of the circumstances, a pretrial confrontation with a defendant might be so suggestive and conducive to irreparable mistaken identification as to deny the defendant due process of law. We have employed the Wade-Stovall type of analysis and attempted to determine whether, in each case, there is sufficient evidence of an independent origin for the in-court identification that any suggestive pretrial contacts could not substantially lessen the dependability of the in-court identification. In examining the facts in this case, however, we note at the outset that it differs from the cases cited supra in that those cases involved confrontation arranged by the police or prosecuting authority for the purpose of affording opportunity for a pretrial identification of the defendant. In this case, on the other hand, the confrontations were accidental in the sense that the State at no time appears to have intended Bernhardt to view Kimble for the purpose of making an identification. Nor do we believe that the State deliberately attempted to influence Bernhardt's memory of the robbery by exposing Kimble to him. To extend the Wade-Sto-vall line of cases to purely accidental pretrial confrontations would place too great a burden on police and prosecutors to isolate witnesses and defendants. We hold, therefore, that whan a pretrial confrontation is purely accidental and is not prearranged by the State, we will not ordinarily inquire into whether a denial of due process is the result. An accidental pretrial confrontation may be the subject of cross-examination of course, but on the whole the question is one going to the weight rather than the admissibility of the evidence. However, even if we were to reach the question of a due process violation, we would be highly unlikely to find a violation of due process in this case. Bernhardt first saw Kimble inside the Fairbanks Inn, where he spoke with Kimble and was able to observe his full face. During the robbery the robber wore a hood which covered his ears but left most of his face in view. Although he could not clearly make out the facial features of the robber outside, Bernhardt testified that mainly he pictured the robber as he viewed him inside the Inn. The confrontations at the courthouse took place only five days after the robbery. When Bernhardt first sighted Kimble on that day he had no reason to connect him with the robbery; nonetheless his identification was spontaneous and unprompted. In addition, Bernhardt gave the police a description of the robber which generally fit the appellant. Thus, the evidence indicates that Bernhardt's identification had an independent origin in his observations during the robbery; the likelihood that the pretrial confrontations formed the basis of the courtroom identification is small enough to be discounted. Kimble's third specification of error relates to a photographic identification by a witness. The day after the robbery a man bought a ring from a Fairbanks jewelry store using Danny Bernhardt's stolen credit card. Karen McCarten, a store clerk who knew the real Danny Bernhardt slightly, reported her suspicions to the police. The same day the police caught a man (not Kimble) using Bernhardt's credit card in another store. A few weeks after the robbery Mc-Carten was shown a photographic lineup by a police detective and picked Kimble out as the person who had purchased the ring with Bernhardt's credit card. At trial she testified that Kimble had purchased the ring, and the detective testified as to her earlier identification of the photograph. Kimble moved before trial to suppress evidence of McCarten's photographic identification because counsel was not present during the photo display. The motion was denied, and Kimble now asserts this as error. Kimble admits that the controlling law on photographic displays is contained in United States v. Ash, which does not support his position. He urges that this court apply a stricter standard under the Alaska Constitution. In Ash, a bank was robbed in 1965 by two men in stocking masks. In 1966 four bank workers made uncertain identifications of Ash's picture when it was shown to them in a group of five. Thereafter Ash was arrested and indicted. In 1968, just before trial, the prosecutor showed five new photos to the four witnesses; three picked out Ash, but one was unable to make a selection. The Supreme Court decided that this latter photo lineup, conducted without defense counsel present, was proper. The Court reviewed the Wade decision and decided that here a determination of the inaccuracies of the photo display technique did not end the examination, but led to the second question, "whether confrontation with counsel at trial can j serve as a substitute for counsel at the pretrial confrontation" (413 U.S. at 316, 93 S.Ct. at 2577). It concluded that to extend the right to counsel to pretrial photographic displays would be a significant departure from the historical test; it could lead, for instance, to requiring coun sel at the prosecutor's trial-preparation interviews with witnesses. Appellant contends that the reasoning of Ash conflicts with the Wade decision's emphasis on the ability of counsel to observe the identification procedure and so to reconstruct it at trial. We are not convinced that there exists good reason to impose a requirement of counsel at photographic displays, and we decline to so rule. Since there is no right to counsel at photographic displays, Kimble's motion to suppress was properly denied. However, we think it a reasonable requirement that in the future all photo displays which are used in photographic lineups be preserved and made part of the record. Kimble also contends that it was error for the Superior Court to refuse to call additional veniremen after his counsel pointed out that there were no black members of the venire of jurors. Kimble, who is black, asserts that he was thereby denied his right to trial by a jury of his peers. At the outset we note that the motion to call additional veniremen came halfway through the jury impaneling. The trial judge indicated he considered the motion untimely. We need not decide the timeliness question since we find Kimble's contention to be without substantive merit. This court has held that purposeful and systematic exclusion of an identifiable portion of the community must be shown to invalidate a jury in a criminal case. In Malvo v. J. C. Penney, Co., Inc., the plaintiffs, who were black, contended that the absence of blacks from the two juries which tried the civil false arrest-imprisonment suits established a prima facie case of discrimination. In Malvo we cited Swain v. Alabama, where the Supreme Court of the United States said: [A] defendant in a criminal case is not constitutionally entitled to demand a proportionate number of his race on the jury which trie[d] him nor on the venire [nor] jury roll from which petit jurors are drawn. . Thus in Malvo, we concluded, it must be shown that the jury selection method purposefully and systematically excludes an identifiable portion of the community, and it is not sufficient to show simply that the particular jury in question does not include a representative from all segments of the local population. In the instant case Kimble has conceded that there was no impropriety in the selection of the venire. He basically contends that he has a right to have members of his own race on the jury. Since Malvo negatives this assertion, and since he did not attempt to prove intentional or systematic exclusion of blacks, we find no merit to his complaint concerning the ve-nire. Kimble's final contention is that he was denied due process because the jury was allowed to deliberate for either 21 or 22 hours without access to adequate rest facilities. The record indicates that the jury commenced its deliberations about 11:40 a. m. on June 4th. Court was next reconvened to receive the verdict at 9:40 a. m. on June 5th. The record does not reveal exactly when the verdict was reached, although the jury foreman dated the verdict form as June 5. Because no hotel space was available at the time in Fairbanks, none was provided for the jurors. It appears that the jurors made some attempt to sleep in the courtroom. In West v. State, we were confronted with the factual situation of a jury returning its verdict after 14 hours and 20 min utes. of actual deliberations. We noted that the jury never complained of fatigue and declined to reverse the conviction on the basis of the elapsed time of deliberations alone. A number of cases from other jurisdictions indicate the general rule that some evidence of fatigue or coercion beyond that inferrable from length of deliberations alone must be shown to gain reversal. In the instant case, not only did the jury not complain of fatigue, the members were not continuously deliberating during the period at issue, but some at least attempted to sleep in the courtroom. In view of the total lack of evidence that fatigue or coercion was a factor in the verdict, we uphold the trial court's exercise of discretion in allowing the jury to deliberate throughout the period in question. Affirmed. . The indictment read in part: That on or about the 17th day of February, 1974, at or near Fairbanks, in the Fourth Judicial District, State of Alaska, Lionel Kimble did willfully, . by force and violence and by putting Danny L. Bernhardt in fear with a rifle, take from the person of said Danny L. Bernhardt property of value, to-wit: a leather wallet containing Master Charge, Penney's, Wards, Standard Oil Company and Northern Commercial Company credit cards issued in the names of Danny L. Bernhardt and Nancy W. Bernhardt. All of which is contrary to and in violation of Alaska Statutes 11.15.240 and 11.15.295 and against the peace and dignity of the State of Alaska. . AS 11.15.240. Bobbery. A person who, by force or violence, or by putting in fear, steals and takes anything of value from the person of another is guilty of robbery, and is punishable by imprisonment in the penitentiary for not more than 15 years nor less than one year. . AS 11.15.295. Use of firearms during the commission of certain crimes. A person who uses or carries a firearm during the commission of a robbery, assault, murder, rape, burglary, or kidnapping is guilty of a felony and upon conviction for a first offense is punishable by imprisonment for not less than 10 years. Upon conviction for a second or subsequent offense in violation of this section, the offender shall be imprisoned for not less than 25 years. , . See C. Wright, 1 Federal Practice and Procedure § 141-43; 8 Moore's Federal Praetiee ¶ 8.03-.04. . 442 P.2d 44 (Alaska 1968). See also Nickerson v. State, 492 P.2d 118, 121 (Alaska 1971). . 498 P.2d 106 (Alaska 1972). . See Christian v. State, 513 P.2d 664 (Alaska 1973) ; Alaska B.Crim.P. 7(e). . 479 P.2d 302 (Alaska 1970). . See also Robinson v. State, 484 P.2d 686 (Alaska 1971). We have also voided separate sentences for shooting with intent to kill (AS 11.15.150) and use of a firearm during commission of the assault (AS 11.15.-295), McCracken v. State, 521 P.2d 499 (Alaska 1974), on the same double jeopardy grounds. . Instruction No. 2 states " . . . the state has the burden of proving beyond a reasonable doubt every material allegation contained in the indictment, as well as the essential elements of the crime of robbery by use of firearms". Instruction No. 3 lists the "essential elements of the crime of robbery by use of firearms"; the final element listed is "that a firearm was used in the commission of the crime". In Instruction No. 23 the jury was told: If you should find the defendant guilty of robbery by use of firearms as charged in the Indictment your foreman will write the word "guilty" in the space provided on the verdict form. If your verdict is that the defendant is not guilty of the crime of robbery by use of firearms as charged in the Indictment, your verdict shall be "not guilty" and your foreman will enter the same on the verdict form. Finally, the verdict form returned by the jury pronounced the defendant "guilty of the crime of robbery by use of firearms as charged by the Indictment in this case". . We note that Kimble couched the objection to the indictment in terms of a motion to dismiss. Even if the indictment here had been duplicitous, the proper remedy would not have been to dismiss it, but to compel the state to elect the charges on which it wished to proceed. Trounce v. State, 498 P.2d 106, 111 (Alaska 1972). . Kimble was being brought to the courthouse from the jail in connection with his arraignment later that day. .United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) ; Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967) ; Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967) ; Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970) ; Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972) ; Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972) ; McCracken v. State, 521 P.2d 499 (Alaska 1974) ; Davis v. State, 499 P.2d 1025 (Alaska 1972), rev'd on other grounds, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). See also Annot., 39 A.L.R.3d 487; Annot., 39 A.L.R.3d 791 (1971) ; Grano, "Kirby, Biggers and Ash: Do Any Constitutional Safeguards Remain Against the Danger of Convicting the Innocent?", 72 Mich.DRev. 717 (1974). . 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). . 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). . We would, however, admonish the State to greater diligence in guarding against inadvertent confrontations such as occurred in the preliminary hearing mentioned above. . In Davis v. State, 499 P.2d 1025 (Alaska 1972), we cited the Wade list of factors to be considered in determining whether an independent origin for an in-court identification exists: Application of this test in the present context requires consideration of various factors; for example, the prior opportunity to observe the alleged criminal act, the existence of any discrepancy between any pre-lineup description and the defendant's actual description, any identification prior to lineup of another person, the identification by picture of the defendant prior to the lineup, failure to identify the defendant on a prior occasion, and the lapse of time between the alleged act and the lineup identification. It is also relevant to consider those facts which, despite the absence of counsel, are disclosed concerning the conduct of the lineup. 388 U.S. at 241, 87 S.Ct. at 1940, 18 L.Ed.2d at 1165 (footnote omitted). Gf. the similar list of factors set forth in Neil v. Bigg&rs, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). . The sole inaccuracy was that he gave an estimate of the robber's weight higher than appellant's actual weight. . 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973). See also Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed. 2d 1247 (1968). .Malvo v. J. C. Penney Co., Inc., 512 P.2d 575 (Alaska 1973) ; Alvarado v. State, 486 P.2d 891 (Alaska 1971). See also Avery v. State, 514 P.2d 637 (Alaska 1973) ; Baelmer v. Pearson, 479 P.2d 319 (Alaska 1970) ; Green v. State, 462 P.2d 994 (Alaska 1969) ; West v. State, 409 P.2d 847 (Alaska 1966) ; Crawford v. State, 408 P.2d 1002 (Alaska 1965). . 512 P.2d 575 (Alaska 1973). . 380 U.S. 202, 208, 85 S.Ct. 824, 829, 13 L.Ed.2d 759, 766 (1965). . 409 P.2d 847 (Alaska 1966). . See e. g., Commonwealth v. Moore, 398 Pa. 198, 157 A.2d 65 (1959) ; Commonwealth v. Clark, 404 Pa. 143, 170 A.2d 847 (1961) ; People v. Presley, 22 A.D.2d 151, 254 N.Y.S.2d 400 (App.Div.1964), aff'd 16 N.Y.2d 738, 262 N.Y.S.2d 113, 209 N.E.2d 729 (1965) ; DeGrandis v. Fay, 335 F.2d 173 (2nd Cir. 1964). See also A.B.A. Standards, Trial by Jury § 5.4(b) and Comments, pp. 147-50; Annot., 93 A.L.R.2d 627 (1964).

10552707

Curtis OSTREM, Appellant, v. ALASKA WORKMEN'S COMPENSATION BOARD et al., Appellees

Ostrem v. Alaska Workmen's Compensation Board

1973-07-09

No. 1809

1061

1066

511 P.2d 1061

511

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

Curtis OSTREM, Appellant, v. ALASKA WORKMEN’S COMPENSATION BOARD et al., Appellees.

Curtis OSTREM, Appellant, v. ALASKA WORKMEN’S COMPENSATION BOARD et al., Appellees. No. 1809. Supreme Court of Alaska. July 9, 1973. Stephen C. Cowper, Fairbanks, for appellant. James R. Blair and Lloyd I. Hoppner of Rice, Hoppner, Blair & Associates, Fairbanks, for appellees Burgess & Employers Commercial Union. Dennis Cook, Fairbanks, for appellees Cummins & Insurance Co. of America. Before RABINOWITZ, C. J., and CONNOR, ERWIN, BOOCHEVER and FITZGERALD, JJ.

2739

16570

OPINION BOOCHEVER, Justice. In this case we are confronted with the question of whether Curtis Ostrem was an employee of either Cummins Alaska Service (Cummins) or Burgess Construction Company (Burgess), or both, so as to be entitled to benefits under the Alaska Workmen's Compensation Act. The Alaska Workmen's Compensation Board (the Board) found that he was an independent contractor and not entitled to compensation. On February 20, 1970 Cummins secured the services of Ostrem to install a rebuilt diesel engine pursuant to warranty into a piece of heavy equipment owned by Burgess Construction Company, and located at Burgess' camp 50 miles north of Liven-good, Alaska. While he was on the job, appellant, Ostrem, lived in the Burgess camp since there was no other place available. Ostrem testified at the hearing that on this and similar jobs, he was paid on what is referred to as a "portal to portal" basis at the rate of $10 per hour with a minimum of 12 hours per day, plus room, board and travel expenses. On such jobs, Os-trem was normally paid after submitting an invoice. He supplied his own tools, except for one of a specialized nature for the particular machine, which was supplied by Cummins. Ostrem had an Alaska business license, but no shop of his own. Appellant was a member of Local 302 and was hired out of the union hall at times, although not on this occasion. His hourly rate of pay on this job was equivalent to union scale. On February 21, 1970 Ostrem worked on the engine all day in the Burgess shop until a helper furnished by Burgess had to leave and Ostrem could do no more work alone. While Ostrem was picking up his tools, a Burgess driller entered the shop and stated that a fitting had broken off from a piece of equipment, that fuel was leaking on the ground, and that he needed it fixed right away. Ostrem began to chip out a broken bushing, and in the process a small piece of steel came loose and entered his eye. Ostrem sought compensation from both Cummins and Burgess, and the matter was heard before the Board in Fairbanks on March 9, 1972. The Board found that Os-trem was an independent contractor and not an employee of either Burgess or Cum-mins, and concluded that he was not entitled to any workmen's compensation benefits. On appeal to the superior court, the Board's order was affirmed by summary judgment in favor of the Alaska Workmen's Compensation Board, Burgess Construction Company, Cummins Alaska Service, Inc., and their respective insurance companies. Ostrem then filed this appeal. The test to be used in reviewing the decision of the Board was most recently stated by us in Anderson v. Employers Liability Assurance Corp., as follows: Our review of determinations of the Alaska Workmen's Compensation Board is limited by the substantial evidence test. A decision of the board may not be overturned unless it is unsupported by substantial evidence on the record taken as a whole. It is not important that the particular situation before the board is subject to more than one inference. What matters is whether the determination of the board is supported by substantial evidence on the whole record. (Citations omitted.) This test is limited by the language of Laborers & Hod Carriers Union Local 341 v. Groothius, which stated: The local is correct in noting that the reviewing court is not to "weigh the evidence or choose between competing inferences reasonably to be drawn from the evidence". But when the decision "rest[s] on erroneous legal foundations," it cannot be supported on appeal to this court. (Footnotes omitted.) This court then must review the record of the Board to determine whether there was substantial evidence on the record taken as a whole to support the conclusion that appellant, Ostrem, was an independent contractor, and to determine whether the Board applied the proper legal tests. In Searfus v. Northern Gas Co., we set forth the test to be applied in determining whether an injured claimant was to be considered as an employee under the provisions of the Alaska Workmen's Compensation Act, stating: Professor Larson states that the theory of compensation legislation is that the costs of all industrial accidents should be borne by the consumer as a part of the cost of the product. From this principle, Professor Larson infers that "the nature of the claimant's work in relation to the regular business of the employer" should be the test for applicability of workmen's compensation, rather than the master-servant test of control which has been developed to delimit the scope of a master's vicarious liability to third persons for torts committed by his servants. It follows that any worker whose services form a regular and continuing part of the cost of that product, and whose method of operation is not such an independent business that it forms in itself a separate route through which his own costs of industrial accident can be channelled, is within the presumptive area of intended protection. Terming this approach the "relative nature of the work" test, Larson would have the trier of fact determine "employee" status through consideration of the character of the claimant's work or business, and the relationship of the claimant's work or business to the purported employer's business. (Footnotes omitted.) The "relative nature of the work" test has two parts: first, the character of the claimant's work or business; and second, the relationship of the claimant's work or business to the purported employer's business. Larson urges consideration of three factors as to each of these two parts. With reference to the character of claimant's work or business the factors are: (a) the degree of skill involved; (b) the degree to which it is a separate calling or business; and (c) the extent to which it can be expected to carry its own accident burden. The relationship of the claimant's work or business to the purported employer's business requires consideration of: (a) the extent to which claimant's work is a regular part of the employer's regular work; (b) whether claimant's work is continuous or intermittent ; and (c) whether the duration is sufficient to amount to the hiring of continuing services as distinguished from contracting for the completion of the particular job. In ascertaining whether there was substantial evidence on the record taken as a whole to justify the Board's finding that Ostrem was an independent contractor, we first look to the character of Ostrem's work or business. There was sufficient evidence that a high degree of skill was involved in his work. There was also evidence indicating that Ostrem was engaged in a separate calling or business. This included the testimony that he established his own rate of pay, established his own minimum hours, established his mileage rate, took out a business license, was paid after submission of an invoice, and paid his own income tax. Appellant further testified that he generally was independent and unsupervised, that he had worked for up to half-a-dozen other people under arrangements similar to this, and that he was reputed to be available for heavy equipment work. The Board also considered that the invoice submitted in this case bore the heading "Curt's Diesel Service", and the fact that appellant utilized his own tools, except for the additional Cummins tool specified for the particular job. As to the extent to which Ostrem could be expected to carry his own accident burden, the third factor in examining the character of claimant's work, no direct evidence or testimony was introduced. There was testimony, however, that Ostrem had secured the advice of an accountant in establishing his business. Most of the necessities of establishing an independent business, with the exception of securing workmen's compensation coverage, seem to have been considered. One reasonable inference from the facts is that Ostrem could be expected to carry his own workmen's compensation coverage. We are not here dealing, of course, with the question of whether or not he did carry workmen's compensation coverage, but only with the question of whether he could have been expected to carry his own accident burden, either by workmen's compensation insurance or some other means. Looking to the second major test, the relationship of the claimant's work or business to the purported employer's business, the first factor to be considered is the extent to which claimant's work is a regular part of the employer's regular work. There is evidence from which the Board could find that Ostrem's work was not a regular part of the employer's regular work. Ostrem worked for a number of businesses and was generally on call. He had never worked directly for Cummins before, was undertaking a job which apparently involved only 40-50 working hours, had worked for other people under this type of arrangement, and generally was reputed to be available to do such work. In light of these facts, it appears that the job was required at unpredictable intervals and was not protracted, and that the specialist called into handle the installation could be considered an independent contractor. The second subsidiary factor in testing the relationship of the claimant's work or business to the purported employer's business is whether the work is continuous or intermittent. Here the work was a single job for Cummins involving but 40-50 working hours and thus could not be considered continuous. The third factor is whether the duration is sufficient to amount to the hiring of continuing services as distinguished from contracting for the completion of a particular job. Here it seems clear that Cum-mins was contracting for the installation of a single engine in a loader, a job that would take at most a few days. He was thus engaged for the completion of a particular job. Upon the basis of the above evidence, the Board concluded that appellant was an independent contractor and not an employee of Cummins, Applying the Searfiw legal tests, we find that although there was evidence to the contrary and more than one inference could have been drawn from the testimony, the Board's determination was supported by substantial evidence. We accordingly concur in the superior court's affirmance of the Board's decision on this point. Ostrem has more than one string to his bow, however, and argues that even if he is not to be considered an employee of Cummins he is still entitled to compensation either as an emergency employee or as a borrowed servant of Burgess. When Ostrem was injured he was performing services for the benefit of Burgess. This alone, however, is not sufficient to justify payment of compensation. A determination must be made as to whether Ostrem was performing services as a loaned or emergency employee. In Reader v. Ghemm Co.,' we quoted the Restatement of Agency definition of a loaned servant, as follows: A servant directed or permitted by his master to perform services for another may become the servant of such other in performing the services. He may become the other's servant as to some acts and not as to others. It is clear that to be a loaned servant one first must be a servant of a master who loans his employee's services to another. Since Ostrem was found to be an independent contractor as to Cummins rather than an employee, the loaned servant doctrine is inapplicable. A more difficult question is presented as to whether Ostrem was an "emergency employee" of Burgess. Larson, in his discussion of emergency services, states: It is well established that a person who is asked for help in an emergency which threatens the employer's interests becomes an employee under an implied contract of hire. The most familiar example is that of the farmer or bystander who is called upon by an employed trucker to help get the truck out of the mire in which it is stuck. In such a case it is possible to say that the employee, although ordinarily without power to make contracts binding his employer, has implied authority to employ an assistant, since the employer must be presumed to intend that necessary measures be taken to set the employer's business again in motion. (Footnote omitted.) It is entirely consistent with the theory of workmen's compensation legislation that a business which utilizes the services of a third person in an emergency should bear the risk of his injury, the costs incurred being ultimately borne by the consumer as a part of the cost of the product. An independent contractor or self-employed person may as readily become an emergency employee as may one who is already an employee of a different employer. In City of Seward v. Wisdom this court dealt with the concept of an emergency employee. In that case, we ruled that a volunteer helping after the earthquake should not be considered an employee of the city, and therefore his wife could not recover workmen's compensation benefits from his death. The decision was based on the fact that Wisdom had volunteered to help without any request for assistance by the city official in charge. Ostrem's claim is distinguishable from Wisdom in that Ostrem was asked to help and did not volunteer his services. Nor do we consider the fact that he received no remuneration for his services as controlling. The test should be whether or not he had the right to compensation, not whether he demanded payment. However, not every service at the request of another creates an emergency employee situation: For this kind of implied hiring authority to arise there must, of course, be a genuine emergency ruling out normal procedures for hiring or for obtaining permission to engage assistance. Although the claimant raised the issue before the Alaska Workmen's Compensation Board as to whether he was an emergency employee, the Board's decision makes no findings or conclusions directed to that doctrine. We, therefore, find it necessary to remand this matter to the superior court for the purpose of having it direct the Board to make findings and conclusions with reference to the issue of the emergency employee doctrine. Specifically, the Board should enter findings as to whether an emergency existed at the time that Ostrem was requested to assist the Burgess employee, and whether Ostrem would have had the right to compensation for such services under an implied contract of hire if he had so requested. The Board may take' additional evidence on these questions, if necessary, and should then decide whether or not Ostrem is entitled to compensation as an emergency employee. Remanded. . AS 23.30.005-.270. . 498 P.2d 288, 289-290 (Alaska 1972). . 494 P.2d 808, 812 (Alaska 1972). . 472 P.2d 966, 969 (Alaska 1970). . Larson sets forth guidelines for this test in 1A of The Law of Workmen's Compensation, sections 45.31, 45.31(a) and 45.31(b), at 716-724. An article in 1 UCLA-Alaska Law Review 40, 56 (1971) suggests several questions to be asked in applying the Larson tests to a skilled laborer: Does he work for many people, "on call", for a few businesses, or for a single employer? Does he employ private listings, or work in connection with a general contractor or a subcontractor? If the latter, how often with the same contractor? . 490 P.2d 1200, 1203 (Alaska 1971), quoting 1 Restatement (Second) of Agency § 227 (1957). . 1A Larson's Workmen's Compensation Law § 47.42(c), at 780 (1967). . The social philosophy of workmen's compensation legislation is discussed in Searfus v. Northern Gas Co., 472 P.2d 966, 969 (Alaska 1970). .413 P.2d 931 (Alaska 1966). Citation of this case is not necessarily to be construed as agreement by all present members of the court with its holding. . 1A Larson's Workmen's Compensation Law § 47.42(c), at 781 (1967). . The Board did state: "In our opinion the applicant, at least in the present case, is an independent contractor and is not an employee of either of the defendants". Since there were no specific findings or conclusions made pertaining to the emergency employee doctrine we cannot determine whether that quoted conclusion was meant to apply to that issue.

10552772

Fred HOLLAUS, Appellant, v. LeRee AREND and New State Lands, Inc., Appellees; LaRee AREND and New State Lands, Inc., Appellants, v. Fred HOLLAUS, Appellee

Hollaus v. Arend

1973-07-09

Nos. 1667, 1679

1074

1076

511 P.2d 1074

511

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

Fred HOLLAUS, Appellant, v. LeRee AREND and New State Lands, Inc., Appellees. LaRee AREND and New State Lands, Inc., Appellants, v. Fred HOLLAUS, Appellee.

Fred HOLLAUS, Appellant, v. LeRee AREND and New State Lands, Inc., Appellees. LaRee AREND and New State Lands, Inc., Appellants, v. Fred HOLLAUS, Appellee. Nos. 1667, 1679. Supreme Court of Alaska. July 9, 1973. Ernest Z. Rehbock, Anchorage, for appellant Fred Hollaus. Eugene V. Miller, Fairbanks, for appel-lee New State Lands. James R. Blair, Fairbanks, for appellee LaRee Arend. Before RABINOWITZ, C. J., and CONNOR, ERWIN, BOOCHEVER and FITZGERALD, JJ.

1155

6966

OPINION PER CURIAM. Two issues are presented to us in this appeal and cross-appeal; namely, whether the superior court erred in denying appellant Fred Hollaus' request for specific performance of a writing alleged to have constituted a valid contract with appellee LaRee Arend for the sale of certain of the latter's property, and whether the superior court erred in denying the request of ap-pellee Arend for attorney's fees. The superior court based its denial of appellant's application for specific performance of the alleged contract upon alternate holdings: that the writing was obtained through "conduct tantamount to duress," and that the provisions of the writing were too "indefinite and uncertain to be enforceable." We agree with the lower court's latter conclusion. It is well established that a contract "must be reasonably definite and certain as to its terms" to be specifically enforceable. Further, as this court recently recognized, "A greater degree of certainty is required for specific performance than for damages . . . . " Here, as amply highlighted by the superior court in its "Findings of Fact," the writing in question fatally omitted or ambiguously referred to such material terms as: a precise description of the 74.56 acres to be conveyed and of the optional 25 acres; a specific reference to any down payment; terms relating to and consideration for the option; dates of sale, taking of possession, transfer of title, and commencement of payments; provisions for security; and the amount of monthly interest payments and rate of interest. A contrary conclusion is not compelled by our recent decision in Rego v. Decker. In Rego, we upheld the specific performance of an option to sell land agreement contained in a lease, despite the absence or uncertainty of several terms such as any provision for security. There, we resolved the difficulties presented as a result of the uncertain terms of the option by encouraging creative adjudication, by noting that a decree for specific performance "can be fashioned to provide that the plaintiff furnish adequate security for his agreed performance." That is, in Rego, we recognized that "courts should fill gaps in contracts to ensure fairness where the reasonable expectations of the parties are fairly clear." In the same opinion, however, we also cautioned that courts should not impose on a party any performance to which he did not and probably would not have agreed. Where the character of a gap in an agreement manifests failure to reach an agreement rather than a sketchy agreement, or where gaps cannot be filled with confidence that the reasonable expectations of the parties are being fulfilled, then specific enforcement should be denied for lack of reasonable certainty. (Footnote omitted.) Here, we are convinced that the "gaps" of uncertainties in the instant writing are of such character as to manifest a "failure to reach an agreement." Thus, the superior court's denial of Hollaus' request for specific performance was proper. Similarly, we are persuaded that the superior court did not abuse its discretion in refusing to award attorney's fees to Arend. Moreover, appellee Arend's proposed reading of Alaska Rule of Civil Procedure 82(a)(2) overlooks the possibility that the superior court interpreted Hollaus' action as being in part a request for a money judgment, and accordingly, denied attorney's fees under Alaska Rule of Civil Procedure 82(a)(1). Since we are not convinced that the superior court abused its discretion in the instant case, we conclude that the lower court's refusal to award attorney's fees to Arend was not error. In view of our foregoing conclusions, the rulings of the superior court are affirmed. Affirmed. . The writing in question provided: Fairbanks, Alaska May 29, 1969 I agree to sell to Mr. Fred Hollaus and Tony Balzac the following described real estate — 74.56 acres comprising— Lot 8, S ½ SW ¼, NW ¼, NW ½, SW ¼, W ½ W ½ SW ⅛ (less 5 acres), and the dwelling house and all other improvements situated thereon, for the total price of $35,000 thirty five thousand dollars, with five thousand dollars ($5,000.00). I also agree to give Mr. Hollaus and Mr. Balzac an option to purchase the remaining 25 acres of the Arend homestead for $25,000. The said option to run one year from date. /s/ LaRee O. Arend I have received from Fred Hollaus $300.00 as earnest money, to be applied toward purchase of the 74.56 acres. /s/ LaRee C. Arend Payments on the remaining balance will be monthly interest plus $5.00 or more as desired by the buyers. /s/ LaRee C. Arend . While we do not find that the record supports the holding that the writing was obtained through "conduct tantamount to duress," we agree with the superior court that the writing must fail for lack of definiteness and certainty. . Alaska Creamery Products, Inc. v. Wells, 373 P.2d 505, 510 (Alaska 1962) (contract for sale of goods). . Id.; Lewis v. Lockhart, 379 P.2d 618, 622 (Alaska 1963) (contract for sale of land) ; 5 A. Corbin, Contracts § 1174 (1964) ; Restatement of Contracts § 370 (1932). . Rego v. Decker, 482 P.2d 834, 838 (Alaska 1971). Id. 05 Id. M Id. at 837. CO Id. at 837-838. CO . As we said in Dale v. Greater Anchorage Area Borough, 439 P.2d 790 (Alaska 1968), "[t]he matter of awarding attorney's fees to the prevailing party as part of the costs of an action is committed by rule to the broad discretion of the trial court." 439 P.2d at 793; see also Froelicker v. Hadley, 442 P.2d 51 (Alaska 1968). . Alaska R.Civ.P. 82(a)(2) provides: In actions where the money judgment is not an accurate criteria for determining the fee to be allowed to the prevailing side, the court shall award a fee commensurate with the amount and value of legal services rendered. In the case at bar, Arend contends that it was "manifestly unreasonable" not to award her attorney's fees citing Palfy v. Rice, 473 P.2d 606 (Alaska 1970). . In his original complaint, Hollaus requested judicial relief either in the form of specific performance or money damages. . Alaska R.Civ.P. 82(a) (1) provides: Unless the court, in its discretion, otherwise directs, the following schedule of attorney's fees will be adhered to in fixing such fees for the party recovering any money judgment therein, as part of the costs of the action allowed by law: Should no recovery be liad, attorney's fees for the prevailing party may be fixed by the court as a part of the costs of the action, in its discretion, in a reasonable amount.

8435956

Y.J., Appellant, v. STATE of Alaska, Appellee

Y.J. v. State

2006-03-03

No. A-9021

954

959

130 P.3d 954

130

Pacific Reporter 3d

Alaska Court of Appeals

Alaska

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

CAP

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

Y.J., Appellant, v. STATE of Alaska, Appellee.

Y.J., Appellant, v. STATE of Alaska, Appellee. No. A-9021. Court of Appeals of Alaska. March 3, 2006. Jill C. Wittenbrader, Assistant Public Advocate, and Joshua P. Fink, Public Advocate, Anchorage, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W. Marquez, Attorney General, Juneau, for the Appellee. Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.

2789

16724

OPINION MANNHEIMER, Judge. Following a bench trial in front of Superior Court Judge Dan A. Hensley, Y.J. was found to be a delinquent minor based on allegations that he, as a seventeen-year-old, carried a concealed firearm (fifth-degree weapons misconduct under AS 11.61.220(a)(6)), and that he also hid evidence of this crime (tampering with evidence under AS 11.56.610(a)). These charges arose from an incident that occurred on the evening of July 17, 2004. Anchorage Police Officer Jack Carson and several other officers were investigating a shooting that had occurred earlier that day. The officers approached a group of young men and juveniles who were standing around a parked car. One of the juveniles, later identified as Y.J., began to back away from the officers and then turned and ran. Y.J. ran hunched over, and he appeared to be holding something inside his pants. Although Officer Carson could not see this object, he suspected that it was a gun because Y.J. was holding the object at his hip. Officer Carson lost sight of Y.J. several times as the boy rounded the buildings along Russian Jack Drive. During one of the times when Y.J. was out of the officer's sight, the boy was running along a wooden fence. Unbeknownst to Y.J., another officer was running parallel to Y.J. on the other side of the fence. This officer saw a handgun arc over the fence, rattle through the branches of a tree, and then fall to the ground at his feet. In the meantime, Officer Carson continued to chase Y.J. The officer arrived at the parking area in front of a condominium building located at 1701 Russian Jack Drive. Y.J. was nowhere to be seen. The officer asked a bystander where Y.J. had gone, and the bystander pointed to Unit D-l of the condominium building. Officer Carson and several other officers posted themselves around the entrance to that unit. Y.J. was indeed inside Unit D-l. Damon Shine and his 14-year-old daughter lived in this unit. The daughter heard someone come into the residence. When the girl went upstairs to find out who it was, she discovered Y.J. (with whom she was acquainted) in the upstairs bathroom. The girl told Y.J. to leave, but he refused. The girl then went outside, where she encountered the police officers. Y.J. came out of the residence several minutes later, and the officers took him into custody. Officer Randy Rhodes then entered the residence, looking for weapons. He discovered a holster under a bed on the second floor. When Damon Shine was asked about this holster, he confirmed that it did not belong to him or to anyone else in his family. The police later learned that both the holster and the handgun (the one that was tossed over the fence) had been stolen approximately two years earlier. The holster was designed to hold that particular handgun. At Y.J.'s trial, he contended that the State had failed to prove, beyond a reasonable doubt, that he was the person who tossed the gun over the fence or who placed the holster under the bed. Superior Court Judge Dan A. Hensley rejected these contentions. He found that Y.J. had in fact possessed the concealed handgun and holster, that Y.J. had tossed the gun over the fence, and that Y.J. had then hidden the holster under the bed in the condominium unit. After his trial, Y.J. filed a motion for a partial judgement of acquittal. In this motion, Y.J. argued that even if he had tossed the gun over the fence, and even if he had hidden the holster under the bed, these acts did not constitute the crime of evidence tampering under AS 11.56.610(a). Judge Hensley denied this motion, and Y.J. "now appeals Judge Hensley's decision. (Y.J. does not appeal Judge Hensley's finding that he committed fifth-degree weapons misconduct by possessing a concealed firearm.) Y.J. argues that, under this Court's decision in Vigue v. State, 987 P.2d 204 (Alaska App.1999), he is entitled to a judgement of acquittal on the evidence tampering charge even if the State proved that he tossed the handgun over the fence and then hid the holster under the bed. For the reasons explained here, we need not resolve whether Y.J.'s act of tossing the handgun over the fence constituted evidence tampering, because we hold that Y.J.'s act of hiding the holster did constitute the offense of evidence tampering. Did Y.J. ⅛ act of tossing the handgun over the fence constitute the offense of evidence tampering as defined in AS 11.56.610(a)? In Vigue, this Court held that a defendant's act of tossing drugs to the ground when he saw the police approaching did not constitute an act of "suppression", "concealment", or "removal" of evidence for purposes of Alaska's evidence tampering statute, AS 11.56.610(a). 987 P.2d at 210. And, after the briefing was completed in Y.J.'s case, this Court decided Anderson v. State, 123 P.3d 1110 (Alaska App.2005), another ease involving the evidence tampering statute. In Anderson, we held that a defendant's act of tossing a handgun and ammunition from a car while he was being chased by the police did not constitute evidence tampering. Id. at 1118-19. In Y.J.'s case, his act of tossing away the handgun while he was being chased by Officer Carson appears to be analogous to the conduct of the defendant in Anderson when he tossed the gun from the car — conduct that we ruled did not constitute the actus reus of evidence tampering. The State argues, however, that Y.J.'s case is different because (1) Y.J. was out of Officer Carson's sight when he tossed the handgun away, and (2) Y.J. did not simply throw the gun down, but rather tossed the gun over a fence where he thought it would remain hidden. The State argues that it was pure fortuity that there was an officer on the other side of the fence who observed the gun fall. Otherwise, Y.J. might have accomplished his intention of concealing his possession of the handgun — indeed, perhaps concealing the handgun's very existence — from the police. The State offers plausible distinctions between the facts of Y.J.'s case and the facts of cases like Vigue and Anderson. On the other hand, one could plausibly argue that, from the standpoint of protecting police officers, we should not interpret the law so as to penalize armed suspects for tossing away their weapons during police chases. However, we conclude that we need not resolve these issues, because Judge Hensley found Y.J. guilty of evidence tampering on a separate independent basis: Y.J.'s act of hiding the holster in the condominium unit. As we explain here, this latter conduct did constitute the offense of evidence tampering. Y.J.'s act of concealing the holster under the bed constituted the offense of evidence tampering as defined in AS 11.56.610(a) Y.J. argues that, as a legal matter, he did not "conceal" the holster because the police quickly located this holster when, following Y.J.'s surrender, they entered the residence and searched the residence for weapons. Y.J. argues that "a holster [placed] under a bed is as [likely] to [be discovered] as . something [dropped] in plain view of a policeman. In both instances, there is almost no effort put into an attempt to hide . the object." We disagree. To the extent that Y.J. may be arguing that he did not intend to hide the holster when he placed it under the bed, he is disputing Judge Hensley's view of the facts — in particular, Judge Hensley's verdict that Y.J. put the holster under the bed "with intent to impair its verity or availability in . a criminal investigation" (the mens rea required by the evidence tampering statute). The "substantial evidence" test governs appellate review of verdicts in judge-tried cases. Helmer v. State, 608 P.2d 38, 39 (Alaska 1980). Thus, Y.J. must show that there was no "substantial evidence" to support Judge Hensley's verdict. Under the substantial evidence test, we must uphold Judge Hensley's verdict if the record contains evidence that "a reasonable mind might accept as adequate to support [the challenged] conclusion". We do not re-weigh the evidence or choose between competing inferences; we only determine whether evidence exists to support the judge's conclusion. Here, there is ample evidence that Y.J. placed the holster under the bed in the hope that the police would not find it. As explained above, Y.J. ran into another family's residence to escape from the police. By this maneuver, he did temporarily frustrate police efforts to locate him. While in the residence, Y.J. placed his holster under a bed. A few minutes later (after Y.J. was discovered and was asked to leave by a resident of the house), Y.J. emerged from the residence and surrendered to the police. But because he left the holster behind in the residence, Y.J. had no further physical evidence on his person to connect him to the possession of the concealed handgun. From these facts, Judge Hensley could justifiably conclude that when Y.J. placed the holster under a bed in a house that was not his, Y.J. did so for the purpose of hiding the holster from the police, thus "impairing] its . availability in . a criminal investigation". This leaves the legal issue of whether Y.J;'s conduct constituted the actus reus of evidence tampering. Y.J. argues that he never actually "concealed" the holster because the police located it so quickly when they swept the condominium unit for weapons. But Y.J.'s argument overlooks the fact that he ran into another family's residence and, while he was out of sight of the police, he put the holster in a place where the police would not find it unless they entered the residence and searched. Even after the police located the holster, they had to question Damon Shine in order to ascertain that the holster did not belong to a member of his family. Given these circumstances, the fact that the police quickly found the holster in its hiding place does not defeat a finding that Y.J.'s conduct constituted a concealment of the holster for purposes of the evidence tampering statute. Y.J. argues that we should follow the New Jersey courts by limiting our evidence tampering statute so that it does not apply to efforts to hide evidence of an on-going pos-sessory offense. But this suggested interpretation of the statute would not help Y.J. His act of concealing the holster under the bed in the Shine residence occurred after his possessory offense (carrying a concealed firearm) had ended. Not only had Y.J. tossed the handgun away, but he had also reached a place of temporary refuge (the condominium unit); thus, there was a break in the action. With the police still searching for him, Y.J. then attempted to rid himself of an article (the holster) that tended to circumstantially prove that he had earlier possessed the concealed firearm — so that when he emerged from the residence and surrendered to the police, he would not be carrying the tell-tale holster. Our decision in Anderson suggests that Y.J. might not have been guilty of evidence tampering if he had tossed away the holster and the handgun at the same time. Thus, it may appear incongruous to hold Y.J. liable for evidence tampering because he waited until a few minutes later to conceal the holster. We base our.decision on the fact that there was a break in the action, that Y.J. had reached a place of temporary refuge, and that Y.J. hid the holster in such a manner that it could not definitely be linked to him until the police interviewed the home owner and verified that the holster did not belong to anyone living there. There must be a point at which an act of concealing evidence is no longer deemed merely an aspect of the underlying possesso-ry offense, but rather takes on independent legal significance. Without some sort of dividing line, either all acts of concealing evidence of a possessory offense would be evidence tampering, or none would. We are not prepared to definitively draw this line for all future cases, but we do hold that, under the facts of this case, Y.J.'s act of hiding the holster in the condominium unit crossed the line and became an independent offense. Y.J.'s argument that the evidence tampering statute imposes a disproportionate penalty for acts of evidence concealment relating to a misdemeanor Y.J. raises one last argument: the assertion that it is unfair to impose felony penalties on a person for concealing evidence of a misdemeanor (in this case, the class B misdemeanor of fifth-degree weapons misconduct). Strictly speaking, Y.J. does not face felony penalties for evidence tampering, since he was a minor prosecuted under Alaska's delinquency laws. However, the fact that Y.J. has been adjudicated a delinquent based on felony conduct does have more severe repercussions than if he had been adjudicated a delinquent based on misdemeanor conduct. See, for example, AS 11.61.200(a)(1), which declares that the prohibition on felons carrying eoncealable firearms applies to persons who have been declared delinquent based on felony conduct. See also AS 12.55.155(c)(19), which declares that a felony sentence can be aggravated if the defendant was previously adjudicated a delinquent based on felony conduct. We therefore turn to the merits of Y.J.'s argument. In Anderson and in Vigue, we pointed out the seeming illogic of convicting someone for a felony when they try to discard or conceal evidence of a minor offense. Based on the anomalous results that would occur if we interpreted the evidence tampering statute broadly in situations where people discarded or hid evidence of an ongoing minor posses-sory offense, we concluded that the legislature had not intended for the evidence tampering statute to apply to those situations. But our decisions in Anderson and Vigue are ultimately based on statutory construction. When a question of law is governed by statute, it is not our role to adopt the social policy that we deem best. Rather, our role is to interpret the statute- — to ascertain the legislature's intent, and then to construe the statute so as to implement that intent (assuming no violation of the constitution). Here, we have already resolved the relevant issue of statutory interpretation: we have concluded that Y.J.'s act of concealing the holster falls within the scope of the evidence tampering statute. We acknowledge that, in some instances, a defendant's punishment for evidence tampering can be much more severe than the defendant's punishment for the underlying crime to which the evidence pertains. The legislature has declared that every act of evidence tampering is a felony, even when the underlying offense to which that evidence relates is only a misdemeanor or even a "violation" (a non-criminal offense that carries only a fine as punishment). Indeed, the evidence tampering statute applies to the concealment, suppression, removal, destruction, mutilation, or alteration of physical evidence pertinent to any "official proceeding". An "official proceeding" is defined as "[any] proceeding heard before a legislative, judicial, administrative, or other governmental body or official authorized to hear evidence under oath." AS 11.81.900(b)(41). Thus, the evidence tampering statute covers physical evidence that is pertinent to civil lawsuits and administrative proceedings, not just criminal and quasi-criminal prosecutions. Y. J. argues that it is unfair, and bad policy, to make every act of evidence tampering a felony. But this is a question of social policy entrusted to the judgement of the legislature. Whatever may be the merits of Y.J.'s position, he must address his arguments to the legislature, not to this Court. Conclusion The judgement of the superior court is AFFIRMED. . Smith v. Sampson, 816 P.2d 902, 904 (Alaska 1991); Storrs v. State Medical Board, 664 P.2d 547, 554 (Alaska 1983). . Smith, 816 P.2d at 904; Storrs, 664 P.2d at 554. . See State v. Sharpless, 314 N.J.Super. 440, 715 A.2d 333, 343 (App.1998); State v. Fuqua, 303 N.J.Super. 40, 696 A.2d 44, 47-48 (App.1997). We discussed both of these cases in Vigue, 987 P.2d at 208-09. . Anderson, 123 P.3d at 1118; Vigue, 987 P.2d at 211. . Progressive Insurance Co. v. Simmons, 953 P.2d 510, 516 (Alaska 1998); State v. Roberts, 999 P.2d 151, 153 (Alaska App.2000); State v. McCallion, 875 P.2d 93, 98-99 (Alaska App.1994). . See AS 11.81.900(b)(62).

10404860

In the Matter of D.C. P.C., Appellant, v. STATE of Alaska and J.C., Appellees

P.C. v. State

1986-02-28

No. S-944

1

1

715 P.2d 1

715

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

In the Matter of D.C. P.C., Appellant, v. STATE of Alaska and J.C., Appellees.

In the Matter of D.C. P.C., Appellant, v. STATE of Alaska and J.C., Appellees. No. S-944. Supreme Court of Alaska. Feb. 28, 1986. Stephan R. West, Alaska Legal Services Corp., Ketchikan, for appellant. Mark L. Ells, Asst. Dist. Atty., Ketchi-kan, for appellee State of Alaska. Bruce Davies, Ketchikan, for appellee J.C. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

404

2477

OPINION MATTHEWS, Justice. In this appeal from a superior court order of foster placement of an Indian child, we find it necessary to vacate the order and remand because no written findings of fact were entered as required under Children's Rules 21(c) and 22(d). The findings requirement serves three basic functions: (1) it aids the trial judge's analytical process; (2) it may be relevant for collateral estoppel purposes; and (3) it aids the appellate court on review. Merrill v. Merrill, 368 P.2d 546, 548 (Alaska 1962). Of these, the first and the third are implicated here. Of special importance is the lack of a finding concerning the issue of whether the continued custody of the child by the parent is likely to result in serious emotional or physical damage to the child. Such a finding is mandated under 25 U.S.C. § 1912(e). Additionally, section 1912(e) requires that a qualified expert witness testify that continued custody of the child by the parent is likely to result in serious emotional or physical damage to the child. Although a qualified expert testified that the child had been sexually abused, no expert gave the predictive testimony required by statute. For the above reasons, the order is VACATED and the matter is REMANDED for supplemental proceedings. . We find no abuse of discretion in the trial court's determination that the witness was a qualified expert for purposes of section 1912(e), given her education, training, and work experience in the field of sexual abuse of children. See H.Rep. No. 1386, 95th Cong.2d Sess. 22, reprinted in 1978 U.S.Code Cong. & Ad News 7530, 7545; United States Department of the Interior, Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed.Reg. 67583, 67593 (1979). . We find no violation of the reasonable proximity provision of 25 U.S.C. § 1915(b). The trial court did not abuse its discretion in determining that evidence of the special needs of the child in overcoming an emotionally based learning disability justified continued placement with relatives who would temporarily be moving to Seattle.

10418448

Nick J. DANCER, Appellant, v. STATE of Alaska, Appellee

Dancer v. State

1986-03-14

No. A-941

1174

1183

715 P.2d 1174

715

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

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

CAP

Before BRYNER, C.J., SINGLETON, J. and SERDAHELY, Superior Court Judge.

Nick J. DANCER, Appellant, v. STATE of Alaska, Appellee.

Nick J. DANCER, Appellant, v. STATE of Alaska, Appellee. No. A-941. Court of Appeals of Alaska. March 14, 1986. Robert H. Wagstaff, Anchorage, for appellant. Robert D. Bacon, Asst. Atty. Gen., Office of Special Prosecutions and Appeals, Anchorage, and Harold M. Brown, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., SINGLETON, J. and SERDAHELY, Superior Court Judge. Serdahely, Superior Court Judge, sitting by assignment made pursuant to article IV, section 16 of the Constitution of Alaska.

4833

31531

OPINION SINGLETON, Judge. Nick J. Dancer pled guilty and was convicted of one count of sexual abuse of a minor in the first degree, an unclassified felony. AS 11.41.434(a)(1). Dancer received the eight-year presumptive term reserved for a first felony offender convicted of sexual abuse of a minor in the first degree. AS 12.55.125(i)(l). He appeals, contending that Alaska's presumptive sentencing statutes are unconstitutional. We conclude that Dancer's constitutional arguments have been considered and rejected in prior decisions of the Alaska Supreme Court and of this court. We conclude, however, that Judge Hanson's fact findings required him to refer this case to the three-judge panel. We therefore remand this case for resentencing. Dancer has mounted an extensive constitutional attack on presumptive sentencing. Each of his arguments will be addressed in turn. There are, however, certain themes basic to his entire argument which we discuss in an introductory section. INTRODUCTION The Alaska Revised Criminal Code became law when it was signed by the governor on July 22, 1978, with an effective date of July 1, 1980. Stern, History of the Alaska Criminal Code Revision, Criminal Code Manual, Alaska Department of Law, Criminal Division, at 10 (June 1979). As part of the Revised Code, the legislature enacted a system of presumptive sentencing which departed from previous practice in a number of ways. See generally Stern, Presumptive Sentencing in Alaska, 2 Alaska L.Rev. 227 (1985). We are guided in our interpretation of the presumptive sentencing system by the tentative drafts to the current statutes and the Report of the Twentieth Century Fund Task Force on Criminal Sentencing, Fair and Certain Punishment (1976) (hereafter Fair and Certain Punishment), upon which the Revision Committee and legislature relied. One of Dancer's basic arguments is that the weight of learned opinion opposes presumptive sentencing. Dancer finds such opposition expressed in treatises and law review articles and incorporated into the various provisions of the ABA Standards for Criminal Justice, Sentencing Alternatives and Procedures (Vol. Ill, 2d ed. 1980 & Supp.1982). Dancer points out that some of those who originally favored a presumptive system have become opponents because of perceived abuses where such systems have been enacted. In making this argument, Dancer misperceives the role of appellate courts in reviewing constitutional challenges to legislation. We may not concern ourselves with the wisdom of legislation. Our role is much more modest. We evaluate the legislation to determine whether it contravenes any prohibitions in the constitution. If it does not, we must uphold the legislation. Policy arguments advocating changes to constitutional legislation must be addressed to the legislature, not the courts. A second pervasive theme in Dancer's various arguments is the assertion that sentences under the presumptive scheme are fundamentally unfair, when compared to sentences imposed before enactment of presumptive sentencing. Presumptive sentencing, in Dancer's view, does not have the flexibility to carry out the constitutional mandate that sentencing should reflect the twin goals of reforming the defendant and protecting the community. Alaska Const, art. I, § 12. In practical terms, Dancer's argument is that the statutory provision for a three-judge panel does not prevent "manifestly unjust" presumptive sentences. AS 12.55.165-.175. We have previously rejected this argument. See Nell v. State, 642 P.2d 1361, 1368 (Alaska App.1982). Dancer contends that our confidence in the three-judge panel was misplaced. In part, his argument is that three-judge panels, in general, are not performing their statutory function. This is not the proper place to consider that type of charge. Specific appeals, in concrete cases, will enable us to correct errors in the work of the three-judge panel. See, e.g., Smith v. State, 711 P.2d 561, (Alaska App.1985). In Smith, we recognized that the legislature intended that AS 12.55.165 establish two separate bases for referral of a case from a trial court to a three-judge panel for sentencing. First, referral is warranted in situations where manifest injustice would result from failure to consider relevant, nonstatutory aggravating or mitigating factors in sentencing; and, second, where manifest injustice would result from imposition of a presumptive sentence, whether or not adjusted for statutory aggravating and mitigating factors. We addressed the second basis in Lloyd v. State, 672 P.2d 152, 154 (Alaska App.1983), where we evaluated alternate semantic interpretations of the statutory phrase "manifest injustice," e.g., "shocking to the conscience" or "obviously unfair." Both of these alternative phrasings, we concluded, appropriately emphasized the subjective element of the decision. Lloyd, 672 P.2d at 154. Nevertheless, we emphasized that the Chaney criteria provide some objectivity in reaching the ultimate decision of whether a given presumptive sentence, adjusted for aggravating and mitigating factors, is manifestly unjust. See State v. Chaney, 477 P.2d 441, 444 (Alaska 1970). While we did not make the connection explicit, the second prong of the "manifest injustice" standard, as refined in Lloyd, is similar to the "clearly mistaken" standard adopted by the Alaska Supreme Court for sentence review in McClain v. State, 519 P.2d 811 (Alaska 1974). In order to apply this standard, the trial court must compare the presumptive sentence with sentences generally received for similar conduct. Pears v. State, 698 P.2d 1198, 1202-04 (Alaska 1985). Decisions of the Alaska Supreme Court evaluating sentences under McClain would be particularly helpful in determining whether, in view of the totality of the circumstances, a presumptive sentence adjusted for statutory aggravating and mitigating factors is manifestly unjust in a particular case. If a sentence equal to the presumptive term would have been found "clearly mistaken" on review under former law, it will probably be "manifestly unjust" under current law. Furthermore, a complete analysis will also require consideration of the appropriate sentence for any lesser-included offenses which defendant's conduct most nearly approximates. AS 12.-55.155(d)(9); Braaten v. State, 705 P.2d 1311, 1324-26 (Alaska App.1985) (Singleton, J., concurring). See also Heathcock v. State, 670 P.2d 1155, 1160-61 (Alaska App.1983) (equating the proportionality-review approach to cruel and unusual punishment analysis in recent cases with the determination of "manifest injustice") (Singleton, J., concurring in part and dissenting in part). In contrast, where the argument is made that manifest injustice results from failure to consider relevant aggravating or mitigating factors not specifically included in AS 12.55.155, the analysis would differ. Smith, 711 P.2d at 569-70. The proponent must specify an aggravating or mitigating factor that should have been, but was not, included in AS 12.55.155 and establish its relevance to his or her case. In evaluating the proposed factor, the trial court should consider the underlying rationale for aggravating and mitigating factors. The revisers of Alaska's Criminal Code relied upon the Report of the Twentieth Century Fund Task Force on Criminal Sentencing, Fair and Certain Punishment (1976) which states: The Task Force recommends that the legislature, or the body it designates, also define specific aggravating or mitigating factors, again based on frequently recurring characteristics of the crime and the criminal_ In imposing sentences, judges normally consider a wide variety of factors. Some of these, such as the defendant's race, appearance, or sex are clearly improper; others, such as whether the defendant pleaded guilty or "cooperated" with the authorities, are debatable. It is the view of the Task Force, based on its own experience and on what it has learned about the system as a whole, that different judges — acting without legislative or appellate court guidance— have different views as to whether a given factor is appropriately considered in sentencing. It is our conclusion that these issues should be openly debated, that, in situations where the factors are fairly typical and frequently recurring, the legislature (or delegated body) should decide whether these factors should be considered in sentencing. Only in truly extraordinary and unanticipated circumstances would the judge be permitted to deviate from the presumptive sentence beyond the narrow range permitted by an ordinary finding of aggravating or mitigating factors. Any deviation would have to be justified in a reasoned opinion subject to a searching review on appeal. Absolute maximum or minimum sentences available to a judge in such extraordinary cases should also be established by the legislature. Fair and Certain Punishment, at 20-21 (emphasis in original). This two-fold analysis under AS 12.55.-165, which we adopted in Smith, 711 P.2d 561, was anticipated in the Task Force report and foreshadowed in the tentative draft. Alaska Revised Criminal Code, Part VI, commentary at 71-74 (Tentative Draft 1978). It appears that the legislature, in adopting AS 12.55.165, in effect delegated to the three-judge panel the authority to create new aggravating and mitigating factors under the common law, which would be available for consideration in subsequent cases. Such aggravating and mitigating factors, if adopted by the three-judge panel in resolving a concrete case, should meet the general criteria controlling the legislative adoption of aggravating or mitigating factors. In contrast, if the factors which make a presumptive sentence manifestly unjust in a given case are "truly extraordinary and unanticipated circumstances," the case would fall in the second or Lloyd category, rather than the first or Smith category for consideration. The foregoing discussion of the function of the three-judge panel as the "safety valve" for our presumptive sentencing scheme is a response to Dancer's general complaints about the statutory system and explains our rejection of those general complaints. In the remainder of this opinion we address each of Dancer's specific constitutional challenges to Alaska's presumptive sentencing scheme. SEPARATION OF POWERS Dancer argues that the separation of powers, implicit in the Alaska State Constitution, provides Alaska trial courts with inherent power to suspend legislatively established sentences and place convicted persons on probation during the suspended period. Dancer reasons that any legislative attempt to interfere with this power by establishing flat-time sentences, minimum sentences, or presumptive sentences is therefore void unless the legislation expressly provides or can be interpreted to provide the trial court with discretion to suspend the sentences established. Dancer relies primarily on State v. McCoy, 94 Idaho 236, 486 P.2d 247 (1971), and State v. Lindquist, 99 Idaho 766, 589 P.2d 101 (1979). He also finds support in Chief Justice Bird's concurring and dissenting opinions in People v. Tanner, 23 Cal.3d 16, 151 Cal.Rptr. 299, 587 P.2d 1112 (1978) (Bird, C.J., concurring and dissenting), vacated on rehearing, 24 Cal.3d 514, 156 Cal.Rptr. 450, 480, 596 P.2d 328, 358 (1979) (Bird, C.J., concurring and dissenting) and decisions of the North Carolina, New York, Michigan and New Jersey courts. See People v. Stickle, 156 Mich. 557, 121 N.W. 497, 499 (1909); State ex. rel. Gehrmann v. Osborne, 79 N.J.Eq. 430, 82 A. 424, 428 (1912); People ex rel. Galea v. McCoy, 27 Misc.2d 850, 209 N.Y.S.2d 205, 206 (1960) rev'd on other grounds, 14 A.D.2d 979, 221 N.Y.S.2d 417 (1961); State v. Simmington, 235 N.C. 612, 70 S.E.2d 842, 844 (1952). See generally Note, Separation of Powers — The Suspended Sentence, 51 N.C.L. Rev. 184 (1972); Annot. 100 A.L.R.3d 431, § 6 (1980 & Supp.1985). The Alaska Supreme Court has consistently held that our trial courts have no inherent authority to suspend sentences; the power exists only when conferred upon the judiciary by the legislature. See, e.g., Pete v. State, 379 P.2d 625 (Alaska 1963); but cf. Wright v. Anchorage, 590 P.2d 425 (Alaska 1979); Kodiak v. Jackson, 584 P.2d 1130 (Alaska 1978) (mandatory minimum sentences created by city ordinance are invalid when in conflict with state law authorizing trial courts to suspend sentences). The Alaska Supreme Court has consistently held that the power to determine an appropriate punishment for an offense is vested exclusively in the legislature. See, e.g., Rust v. State, 582 P.2d 134, 136-37 (Alaska 1978); B.A.M. v. State, 528 P.2d 437 (Alaska 1974); Faulkner v. State, 445 P.2d 815, 818 (Alaska 1968). Cf. Thomas v. State, 566 P.2d 630, 637-38 (Alaska 1977); Speas v. State, 511 P.2d 130 (Alaska 1973). In reliance on this authority, we have previously sustained Alaska's presumptive sentencing statute against challenges similar to those raised by Dancer. See, e.g., Koteles v. State, 660 P.2d 1199, 1200 (Alaska App.1983); Wright v. State, 656 P.2d 1226, 1227-28 (Alaska App.1983); Nell v. State, 642 P.2d 1361, 1368-70 (Alaska App.1982). See also Martin v. State, 664 P.2d 612, 620 (Alaska App.1983) (twenty-year minimum sentence for conviction of first-degree murder does not violate constitution), cert. denied, 465 U.S. 1007, 104 S.Ct. 1001, 79 L.Ed.2d 234 (1984). Dancer acknowledges the existence of these cases and recognizes that they are in conformity with the majority view in the United States. He argues, however, that Nell and its progeny apply only to repeat offenders and contends that the constitutional position of a first offender is worthy of greater protection and consideration. Dancer misunderstands Nell. While Nó-teles and Wright involved individuals who were subject to presumptive sentencing as second felony offenders, Nell was a first offender convicted of robbery in the first degree, former AS 11.41.500(a)(1). He was subject to a presumptive sentence under former AS 12.55.125(c)(1), which provided a presumptive sentence of six years for a first offender who commits a class A felony other than manslaughter and used or possessed a firearm during the commission of the offense. 642 P.2d at 1367. Nell's situation is therefore indistinguishable from Dancer's case. Martin was also a first offender. Martin, 664 P.2d 612. DUE PROCESS AND EQUAL PROTECTION Dancer next argues that to the extent that presumptive sentencing denies him individualized consideration and the opportunity to have his rehabilitation advanced by a suspended sentence, it denies him his constitutional right to due process and equal protection. U.S. Const, amend. XIV; Alaska Const, art. I, § 1, 3. Similar arguments were rejected in Nell, Koteles and Wright. The Alaska Supreme Court has established a single test for determining whether a statutory penalty constitutes cruel or unusual punishment, or violates substantive due process. See Thomas v. State, 566 P.2d 630, 635 (Alaska 1977); Green v. State, 390 P.2d 433, 435 (Alaska 1964); accord Lemon v. State, 654 P.2d 277, 278-79 n. 2 (Alaska App.1982); M.O.W. v. State, 645 P.2d 1229, 1231 n. 4 (Alaska App.1982). Cf. Reynolds v. State, 664 P.2d 621 (Alaska App.1983) (including defendant's conduct within definition of first-degree sexual assault did not subject him to cruel and unusual punishment). In Thomas, the court said: In Green v. State, 390 P.2d 433, 435 (Alaska 1964), this court articulated the following test for determining whether a particular punishment constitutes cruel and unusual punishment: Only those punishments which are cruel and unusual in the sense that they are inhuman or barbarous, or so disproportionate to the offense committed as to be completely arbitrary and shocking to the sense of justice may be stricken as violating the due process [and cruel and unusual punishment] clauses.... 566 P.2d at 635 (footnote omitted). The United States Supreme Court recently phrased a different constitutional test for cruel and unusual punishment, stating: "[W]e hold as a matter of principle that a criminal sentence must be proportionate to the crime for which the defendant has been convicted." Solem v. Helm, 463 U.S. 277, 290, 103 S.Ct. 3001, 3009, 77 L.Ed.2d 637, 649 (1983). The Court went on to explain the deference due by appellate courts in sentencing matters: Reviewing courts, of course, should grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes, as well as to discretion that trial courts possess in sentencing convicted criminals. [Footnote omitted.] 463 U.S. at 290, 103 S.Ct. at 3009, 77 L.Ed.2d at 649. The footnote states, in part: In view of the substantial deference that must be accorded legislatures and sentencing courts, a reviewing court rarely will be required to engage in extended analysis to determine that a sentence is not constitutionally disproportionate. 463 U.S. at 290 n. 16, 103 S.Ct. at 3009 n. 16, 77 L.Ed.2d at 649 n. 16. A sentence of eight years imposed upon a first offender convicted of genital intercourse with an eleven-year-old child is not so disproportionate to the offense committed as to warrant a finding of cruel and unusual punishment. See State v. Andrews, 707 P.2d 900, 911-17 (Alaska App.1985) (evaluating typical sentences for sexual assault on children under prior law), petition for hearing granted (Alaska, December 6, 1985). Since the Alaska Supreme Court has established the same test for cruel and unusual punishment and violations of substantive due process, it necessarily follows that a presumptive sentence of eight years does not violate substantive due process. Dancer contends that the imposition of a presumptive sentence, which can only be modified by recourse to statutorily established aggravating and mitigating factors, denies him the individualized consideration and respect for his rehabilitation which are available to trial courts sentencing those not subject to a presumptive term. Therefore, he claims his right to the equal protection of the law is violated. In Stiegele v. State, 685 P.2d 1255, 1257 (Alaska App.1984), we noted that the Alaska Supreme Court has interpreted our state equal protection and due process provisions more broadly than the federal courts have construed the comparable federal provisions. Consequently, if a statute passes muster under the Alaska constitutional provisions, it will be valid under the federal constitution. To withstand an equal protection challenge, a legislative classification need not be perfect, it "must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike." 685 P.2d at 1257, quoting Griffith v. State, 641 P.2d 228, 233 (Alaska App.1982). In Stiegele, we upheld a statute denying bail on appeal to those convicted of unclassified felonies and class A felonies. We noted that the effect of the statute was to deny bail to those convicted of the most serious crimes, which carry the most serious penalties, and we found that to be a reasonable- legislative classification in light of the purposes of bail, i.e., assurance of continued appearance and protection of the community. 685 P.2d at 1257-58. The class addressed in Stiegele was the class of those convicted of an unclassified felony or a class A felony. Here, we consider the class of first felony offenders who are subject to presumptive sentences, i.e., those who are convicted of a class A or unclassified felony. Presumptive sentencing serves the legislative goal of ensuring uniformity and limiting disparity in sentencing. Presumptive sentencing is appropriate for this limited class of first offenders because the risk of disparity in sentencing is greatest where the maximum penalty is the greatest. Similarly, a class comprised of class A felons and unclassified felons is the group most likely to be dangerous to the community. We stress that in determining whether a legislative classification violates equal protection, we look to the classes established by the legislation and not individual members of those classes. Stiegele, 685 P.2d at 1258. Finally, if some unspecified mitigating factor should apply to Dancer's case, or if regardless of mitigating factors the presumptive term for Dancer's offense would be "manifestly unjust," he has a remedy in the three-judge panel. PRINCIPLE OF REFORMATION Dancer next argues that applying presumptive sentencing to first felony offenders violates Article I, Section 12 of the Alaska Constitution which provides in pertinent part: Penal administration shall be based upon the principle of reformation and upon the need for protecting the public. We rejected the argument that presumptive sentencing violates this constitutional provision in Nell, 642 P.2d at 1369-70. The constitutional provision addresses penal administration as a system. Necessarily, its scope differs as it is applied to sentencing by judges and to treatment after sentencing by correctional officials. It is not necessary for us to address its impact on corrections in this case. It addresses criminal sentencing by requiring that a criminal sentence must serve one of two goals. It must either provide for the defendant's rehabilitation, or if that is not feasible, it must serve to protect the public. Koteles v. State, 660 P.2d at 1202 (Singleton, J., concurring). A severe sentence of imprisonment is not necessarily inconsistent with the rehabilitation of a first felony offender convicted of sexual assault. State v. Lancaster, 550 P.2d 1257, 1259 (Alaska 1976). As we noted in Nell, presumptive sentencing serves the legislative goal of eliminating unjustified disparity in sentences and obtaining reasonable uniformity in sentences. 642 P.2d at 1369. The legislature could also reasonably conclude that those who commit class A felonies and unclassified felonies or are repeat offenders present a sufficient risk of danger to the public so that a presumptive sentence that emphasizes special and general deterrence, the isolation of repeat offenders who cannot be deterred or reformed, and the affirmation of community norms, should be given preference over rehabilitation. Such a determination does not violate Article I, Section 12 of the state constitution. EXECUTIVE CLEMENCY AND PAROLE POWER Finally, Dancer argues that legislation making those presumptively sentenced ineligible for parole violates Article III, Section 21 of the state constitution, which provides: Executive Clemency. Subject to the procedure prescribed by law, the governor may grant pardons, commutations, and reprieves, and may suspend and remit fines and forfeitures. This power shall not extend to impeachment. A parole system shall be provided by law. Dancer realizes that the phrase "shall be provided by law" means by the legislature. See Alaska Const, art. XII, § 11; Anderson v. Anchorage, 645 P.2d 205, 210 (Alaska App.1982) (use of term "by law" in constitution and statutes means "by the legislature"). He argues, however, that inclusion of a reference to parole in an article dealing with executive clemency establishes that the drafters intended that the governor, not the legislature, should determine who was to be eligible for parole, and that the legislature's power to "provide by law" for a parole system was subject to the same constitutional limitations that would apply to legislation purporting to establish procedures whereby the governor could grant pardons, commutations, and reprieves. The minutes of the constitutional convention discussing this provision do not specifically address the question of parole. Dancer points out that the drafters did address the governor's clemency power during their deliberations and apparently intended to prevent secret pardons and commutations by making the governor's powers subject to legislative procedures. See 3 Proceedings of the Alaska Constitutional Convention, at 2190-91 (1956). We believe that Dancer has read the provision regarding parole incorrectly. Presumptive sentencing does not interfere with the governor's power to grant pardons, reprieves, or executive clemency. Dancer is free to apply for clemency, and the governor is free to grant it if he wishes to do so. We are satisfied that Article III, Section 21 was drafted as it was to differentiate between the parole power, which is vested in the legislature, and the governor's analogous power to grant' pardons, commutations and reprieves, which would be solely the province of the executive, subject to procedures established by the legislature. Viewed in this way, the legislature is free to establish presumptive sentences for certain offenses and dispense with parole for those offenses without violating Article III, Section 21 of the Alaska Constitution. REFERRAL TO THE THREE-JUDGE PANEL Dancer requested the trial court to refer his case to the three-judge panel. The trial court apparently found that an eight-year sentence for Dancer would be manifestly unjust indicating that he would never impose such a sentence for Dancer if he had any discretion, but based on his experience with the three-judge panel concluded that referral would be futile. Dancer did not assign this ruling as error. Consequentially, we may only address it if it constitutes plain error. Alaska R.Crim.P. 47(b). We find plain error in this case. Once Judge Hanson found that a sentence for Dancer of eight years was manifestly unjust, he should have referred the case to a three-judge panel with his recommendations and findings. See Lloyd v. State, 672 P.2d 152 (Alaska App.1983). Given Judge Hanson's findings of manifest injustice, referral was mandatory. See AS 12.55.165 & .175. The trial court's decision that presumptive sentencing is constitutional is AFFIRMED. The sentence of the superior court is VACATED, and this case is REMANDED to the superior court with directions to enter an order referring the matter to the three-judge panel established pursuant to AS 12.55.165 & .175. COATS, J., not participating. . Criticism of former sentencing law pinpointed the personality of the sentencing judge as the paramount factor in determining the length of sentences. Some judges were known to be lenient and some to be severe. Stern, 2 Alaska L.Rev. at 228-29. In part, current law has been structured to eliminate the benefit of a lenient judge and the detriment of a severe judge. Functionally, this is the primary shift between the old and the new sentencing codes. To the extent that Dancer is arguing that he has a constitutional right to the opportunity to a random assignment of a lenient judge for sentencing, the argument is frivolous. . We do not suggest that the "clearly mistaken" standard under former law and the "manifestly unjust" standard under current law are identical. Certainly, a legislative presumptive sentence must be treated more deferentially than a single judge's sentencing decision. As we have indicated, referral to the three-judge panel will be relatively rare. Walsh v. State, 677 P.2d 912, 918-19 (Alaska App.1984). The functional similarity between the two standards is that both involve review of a sentence by a panel of judges. The supreme court rarely overturned trial court sentences under the McClain standard. Likewise, the majority of a panel of judges must concur if any deviation from the presumptive term is to be allowed. AS 12.55.-175(d). It is likely that a panel will just as rarely overturn a presumptive sentence based upon a finding that it is manifestly unjust. In neither case, does the rarity of a decision disap proving a sentence establish a lack of meaningful sentence review. . The three-judge panel's authority to establish new aggravating and mitigating factors constitutes a legislative recognition of the court's common law power to develop the law subject to legislative and constitutional limitations. See AS 01.10.010 (applicability of the common law). See also Wells v. State, 687 P.2d 346, 348-51 (Alaska App.1984) (discussing the legislative decision to permit common law development of the necessity defense despite inclusion of the defense within the revised code). Of course, any common law decision establishing a new aggravating or mitigating factor is subject to reconsideration by the legislature. It is unlikely that the panel would accept a "new" factor if that factor had already been expressly considered and rejected by the legislature. Cf. AS 12.55.155(g) (voluntary alcohol or drug intoxication or chronic alcoholism or other drug addiction may not be considered an aggravating or mitigating factor). . The only constitutional limitations on the legislature's power to prescribe punishments which the supreme court has previously recognized are the due process and cruel and unusual punishment clauses of the state and federal constitutions. Faulkner v. State, 445 P.2d at 818. . In Smith, 711 P.2d 561, the trial court proposed that the three-judge panel adopt a new mitigating factor that would enable the court to consider favorable information pertaining to a youthful first offender's potential for rehabilitation. As envisioned by Superior Court Judge Ripley, this factor could be applied only to youthful first offenders whose criminal acts were out of character and whose background, education, and experience established that they could be rehabilitated without danger to the public by a sentence substantially shorter than the presumptive sentence. The three-judge panel rejected this proposed factor without considering its merits because it concluded that the factor, if established, would not warrant substantial reduction in the presumptive sentence. We reversed, holding that the factor should have been considered on its merits. This factor, if generally applied, would enable the trial courts to differentiate between first offenders whose felony involved characteristic conduct, evidenced by previous unchanged activities or misdemeanor and juvenile convictions, and those whose felony conviction involved conduct which was truly impulsive and out of character. General recognition of this mitigating factor, where appropriate, would undercut the force of most of Dancer's policy arguments about presumptive sentencing as it applies to first offenders. . In Green, the Supreme Court of Alaska noted that our constitution, unlike those in some sister states, has no specific provision requiring that penalties shall be proportioned to the nature of the offense. 390 P.2d at 435. Nevertheless, Solem requires our courts to consider proportionality; the three-judge panel provides an additional check to correct any sentence that might otherwise run afoul of Solem. See Heath cock v. State, 670 P.2d 1155, 1160-61 (Alaska App.1983) (Singleton, J. concurring in part and dissenting in part).

10419126

Stacey B. LAWRENCE, Appellant, v. STATE of Alaska, Appellee

Lawrence v. State

1986-03-21

No. A-799

1213

1217

715 P.2d 1213

715

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

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

CAP

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

Stacey B. LAWRENCE, Appellant, v. STATE of Alaska, Appellee.

Stacey B. LAWRENCE, Appellant, v. STATE of Alaska, Appellee. No. A-799. Court of Appeals of Alaska. March 21, 1986. Joseph A. Kalamarides, Kalamarides & MacMillan, Anchorage, for appellant. William Ingaldson, Asst. Dist. Atty., Victor C. Krumm, Dist. Atty., Anchorage, and Harold M. Brown, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and SINGLETON and ANDERSON, JJ. Anderson, District Court Judge, sitting by assignment made pursuant to article IV, section 16 of the Constitution of Alaska.

2432

14920

OPINION BRYNER, Chief Judge. Stacey B. Lawrence appeals his conviction for driving while intoxicated, AS 28.-35.030. We affirm. I. FACTS On December 4, 1983, Alaska State Trooper Barry Joe Croy stopped a car that was weaving and had its tail-lights out. The car was driven by Stacey Lawrence, an Anchorage Police Officer. When stopped, Lawrence was in uniform, driving home in his own car from a party. When Croy noticed Lawrence's uniform, he asked for identification. Lawrence first showed his badge and then his driver's license. Croy asked Lawrence to come back to the trooper car. Although Lawrence said he had had two or three drinks and was returning home from a Christmas party, Croy saw nothing to indicate intoxication or impairment. Inside the trooper car, Croy asked Lawrence to recite the alphabet and to count downward from 200 to 180. Lawrence performed these tests accurately but slowly and deliberately. Based upon these observations, Croy concluded that Lawrence was "borderline" concerning guilt for the offense of driving while intoxicated (DWI). Croy did not believe there was enough evidence of intoxication to make a "good, reliable DWI case that the district attorney's office [would] accept for prosecution." After talking with other troopers who had arrived at the scene, Croy decided to park Lawrence's car and take him home. He told Lawrence of his decision. Lawrence did not object. Croy later testified that he was not certain whether he told Lawrence he was not under arrest, but he assumed that Lawrence knew, simply because Croy was taking him home. Croy would have let Lawrence take a cab or arrange for another ride, but he would not have allowed him to drive. On the way to Lawrence's home, Croy and Lawrence began to talk about the In-toximeter 3000. Lawrence is an experienced operator of the Intoximeter 3000. His duties have included instructing other officers in the operation of the device. Croy was curious about the accuracy of his conclusion that Lawrence was a "borderline" DWI violator, and, as they drove past the state trooper's Anchorage post, he asked if Lawrence would be willing to take the Intoximeter test. Croy clearly indicated that the test would be just for "kicks." He did not intend to arrest Lawrence, regardless of the results, and he did not anticipate that the results might be used against Lawrence in any prosecution. Lawrence agreed to take the test. He said that he thought he would score a .18 or a .19. Inside the station, Lawrence administered the test to himself. Croy was not concerned about who administered the test, because he was only seeking to satisfy his curiosity. The result obtained by Lawrence was .19. Lawrence did not preserve a sample of his own breath, and Croy did not fill out the usual forms. Despite the high Intoximeter score, Croy did not think he could arrest Lawrence, because he had not given Lawrence implied consent warnings and had not taken any of the other steps he would normally take in a routine DWI case. After the test, Croy drove Lawrence home as planned. Croy was later contacted by the district attorney's office and questioned about his decision not to arrest Lawrence. Lawrence's Intoximeter result was retrieved through the machine's memory function, and he was eventually charged with DWI. PROCEEDINGS Lawrence moved to suppress the Intox-imeter result on several grounds. He argued that the state failed to establish a proper foundation for an admission of the Intoximeter result, that Croy had failed to read him the requisite implied consent warning, that Croy did not give him an opportunity to consult with an attorney before taking the test, that no sample of his breath had been preserved, and that Croy had improperly induced him to take the test by impliedly promising that no arrest would be made. After an evidentia-ry hearing, District Court Judge Natalie K. Finn denied all of Lawrence's motions, but ruled that "the state must still establish the reliability of the test before the result will be admitted at trial." Lawrence was later convicted by a jury. DISCUSSION Lawrence first argues that he should have been allowed to consult with an attorney before deciding whether to take the breath test. See Copelin v. State, 659 P.2d 1206 (Alaska 1983), cert. denied, — U.S. —, 105 S.Ct. 430, 83 L.Ed.2d 357 (1984). Under Copelin, however, the right to consult with counsel arises only when a person is arrested for DWI and asks to contact an attorney. Id. at 1208. Lawrence was not arrested for DWI, and he made no such request. Lawrence had no independent constitutional right to contact counsel prior to deciding whether to take an Intoximeter test. Svedlund v. Anchorage, 671 P.2d 378, 381 (Alaska App.1983). Lawrence next argues that Croy did not comply with AS 28.35.031(a), which authorizes a breath test only when there is probable cause to believe that a person has been driving while intoxicated. See Burnett v. Anchorage, 678 P.2d 1364, 1368 (Alaska App.), cert. denied, — U.S. —, 105 S.Ct. 190, 83 L.Ed.2d 123 (1984). The statute, however, does not apply in this situation. Lawrence freely consented to take the test and even administered it himself. He was in no way coerced to take the test. Reliance on the implied consent statute was unnecessary in Lawrence's case, because Lawrence gave his actual consent to the test. Alaska Statute 28.35.031 does not preclude administering an Intoximeter test under these circumstances. Lawrence next argues that the state failed to preserve a sample of his breath. See Anchorage v. Serrano, 649 P.2d 256 (Alaska App.1982). Even assuming that Serrano applies to breath tests consented to by a person who has not been arrested for DWI, the state is not held strictly liable whenever there is no preserved sample. Anchorage v. Flack, 685 P.2d 108, 109 (Alaska App.1984). The machine used by Lawrence was equipped to preserve a sample automatically; Lawrence simply turned off the machine before the sample was preserved. Under these circumstances, the failure to preserve a breath sample cannot be attributed to the state, and suppression is unwarranted. Id. at 110. Lawrence also argues that his statements to Croy should have been suppressed because they resulted from an implied promise that no arrest would be made: "[Croy's] actions in not arresting Lawrence and offering to give him a ride home communicated to Lawrence that there was going to be no criminal action against him." This argument cannot apply to statements Lawrence made before Croy decided to drive Lawrence home. As to subsequent statements, Judge Finn concluded that they were made in the course of a casual conversation and were not the product of an interrogation. Judge Finn also found that driving Lawrence home was not a ploy on Croy's part and that Croy never intended to arrest Lawrence. It would be difficult to refute this conclusion, since Croy in fact did not arrest Lawrence, even after the relatively high Intox-imeter result. Judge Finn did not expressly make a finding as to whether there was any promise, implied or express. However, we find no evidence of any promise that was not fulfilled. Croy assumed that Lawrence knew he was not being arrested, and it seems fairly obvious that Lawrence did in fact know that he was not under arrest. It does not appear that Croy told Lawrence that no charges could ever result from the incident. Croy never represented that Lawrence had anything to gain by making any statements, and there is nothing to indicate that Lawrence believed he stood to gain anything from the statements he made. Nor do we find any basis for concluding that Lawrence — particularly as an experienced law enforcement officer— could reasonably have believed that Croy had the legal authority to make a binding commitment precluding the state from any future effort to prosecute Lawrence. At most, Croy's conduct and statements amounted to an implied promise to refrain personally from making an arrest and to refrain from taking any further action against Lawrence. Yet, to the extent that Croy impliedly made such a promise, he clearly kept it. Lawrence relies on S.B. v. State, 614 P.2d 786 (Alaska 1980), in which the supreme court held that there was no need to suppress statements made by a juvenile in response to a police officer's promise that he would recommend leniency if the juvenile told the truth. The court suggested that suppression might be warranted "[h]ad the officer indicated that no charges would be filed in exchange for the young man's candor_" Id. at 789. In this case, however, there is simply no element of exchange, or quid pro quo. Even if Lawrence made the statements under the mistaken apprehension that no charges would be filed in this case, Croy did not induce or encourage Lawrence to make the statements. We find no error in admission of the statements. We similarly conclude that Lawrence's consent to take the Intox-imeter test was not the product of any unkept promise, express or implied. Lawrence's final contention is that the Intoximeter result should have been suppressed "for failure to meet foundational requirements." At the evidentiary hearing on the motion, Croy testified that he did not observe Lawrence as closely as he would a DWI arrestee but that he did not see him do anything that would have adversely affected the accuracy of the breath test. Once inside the trooper post, Lawrence turned on the light and put a new mouthpiece on the Intoximeter machine. Croy watched as Lawrence pushed the "start" button and then pushed "enter". When the computer portion of the Intoxim-eter 3000 asked for a breath sample, Lawrence provided a breath sample. Once the result of .19 was displayed on the screen, Lawrence turned the machine off. Lawrence ran an initial external standard, but did not run a second external standard after the result was displayed. Croy nonetheless testified that he had no doubts about the reliability of the test run by Lawrence. Croy had himself administered about 250 Intoximeter tests, and he had never encountered a situation in which the external standard was acceptable on the first reading, before the breath sample was provided, but unacceptable on the second reading, after the sample was provided and analyzed. Sergeant Stewart, another trooper who served as an Intoximeter instructor, testified that over a two-year period he had never heard of the first external standard result not matching the second. However, Officer Turner Pippin of the Anchorage Police Department, also an instructor on the Intoximeter 3000 and a factory-trained repair technician, stated that he could not testify as to the accuracy or reliability of any test run without the second external standard. In his motion to suppress, Lawrence pointed out that, in administering the test to himself, he had not complied with many of the procedures approved by the Department of Health and Social Services for use of the Intoximeter 3000 machine. 7 AAC 30.020. In arguing the motion, Lawrence's attorney focused in particular upon the fact that no second external standard was done. The assistant district attorney emphasized the testimony of Croy and Stewart and pointed out that there was no suggestion that there were odors present in the room that might have affected the test. Because the main function of the second standard is to determine whether any external influences could be operating, the fact that the second standard was not run did not really affect the reliability of the result itself, according to the state. At the conclusion of the pretrial hearing, Judge Finn expressed some reservátions about the reliability of the manner in which Lawrence administered his test. The judge nevertheless declined to suppress the test result in advance of trial, ruling, instead, that "the state must still establish the reliability of the test before the result will be admitted at trial." On appeal, Lawrence renews the argument that the specified procedures for administering an Intoximeter test were not complied with. Significantly, however, his claim is restricted to the adequacy of the state's pretrial evidence. He does not argue that the foundation established at trial was inadequate, nor does he assert that his jury was instructed in accordance with any of the statutory presumptions regarding breath test results. Because Lawrence has not made any - assertions to the contrary, we must assume that an adequate foundation was presented at trial for the introduction of the Intoximeter test result and that the jury was not instructed in accordance with any of the presumptions. It is therefore irrelevant whether the evidence presented in the pretrial hearing was sufficient to establish substantial compliance with the procedures prescribed by the department. See Oveson v. Anchorage, 574 P.2d 801 (Alaska 1978); Wester v. State, 528 P.2d 1179, 1184 (Alaska 1974), cert. denied, 423 U.S. 836, 96 S.Ct. 60, 46 L.Ed.2d 54 (1975). Even in the absence of strict compliance with the specified procedures for administering breath tests, AS 28.35.031 did not preclude the state from seeking admission of Lawrence's Intoxime-ter test result by laying a proper foundation independently establishing the accuracy of that result. Ahsogaek v. State, 652 P.2d 505, 506 (Alaska App.1982). As Judge Finn stated at the close of the evidentiary hearing, nothing precluded Lawrence from attacking the Intoximeter result by pointing out to the jury any weaknesses in the foundation or in the administration of the test. See Pears v. State, 672 P.2d 903, 909 (Alaska App.1983), reversed on other grounds, 698 P.2d 1198 (Alaska 1985); Cooley v. Anchorage, 649 P.2d 251, 254-55 (Alaska App.1982). Lawrence nonetheless argues that placing him in the position of having to attack the administration of the test conflicted with his fifth amendment right against self-incrimination. In particular, Lawrence notes that, in order to suggest that he was too intoxicated to administer a reliable test, he would have had to present evidence that tended simultaneously to establish an element of the offense with which he was charged. While Lawrence is correct that admission of the test result required him to make a difficult choice, we find no basis for concluding that putting him to such a choice was constitutionally prohibited. The conviction is AFFIRMED. COATS, J., not participating.

10413142

ALASKA COMMERCIAL FISHING & AGRICULTURE BANK, and Foss Shipyard, a division of Foss Launch & Tug Co., Plaintiffs, Deep Sea Fisheries, Inc., Plaintiff in Intervention, v. O/S ALASKA COAST, Official No. 612616, its engines, rigging, tackle, gear, furniture, equipment, and appurtenances, and Lloyd W. Collins and Sherron L. Collins, and Alaska Coast Fisheries, Inc., Defendants, State of Alaska, Department of Public Safety, Division of Fish and Wildlife Protection, Claimant

Alaska Commercial Fishing & Agriculture Bank v. O/S Alaska Coast

1986-03-14

No. S-892

707

714

715 P.2d 707

715

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

ALASKA COMMERCIAL FISHING & AGRICULTURE BANK, and Foss Shipyard, a division of Foss Launch & Tug Co., Plaintiffs, Deep Sea Fisheries, Inc., Plaintiff in Intervention, v. O/S ALASKA COAST, Official No. 612616, its engines, rigging, tackle, gear, furniture, equipment, and appurtenances, and Lloyd W. Collins and Sherron L. Collins, and Alaska Coast Fisheries, Inc., Defendants, State of Alaska, Department of Public Safety, Division of Fish and Wildlife Protection, Claimant.

ALASKA COMMERCIAL FISHING & AGRICULTURE BANK, and Foss Shipyard, a division of Foss Launch & Tug Co., Plaintiffs, Deep Sea Fisheries, Inc., Plaintiff in Intervention, v. O/S ALASKA COAST, Official No. 612616, its engines, rigging, tackle, gear, furniture, equipment, and appurtenances, and Lloyd W. Collins and Sherron L. Collins, and Alaska Coast Fisheries, Inc., Defendants, State of Alaska, Department of Public Safety, Division of Fish and Wildlife Protection, Claimant. No. S-892. Supreme Court of Alaska. March 14, 1986. James M. Gorski, Hughes, Thorsness, Gantz, Powell & Brundin, Anchorage, for plaintiff, Alaska Commercial Fishing & Agriculture Bank. James B. Friderici, Delaney, Wiles, Hayes, Reitman & Brubaker, Anchorage, for plaintiff, Foss Shipyard. Marilyn J. Kamm, Lane Powell, Barker & Hicks, Anchorage, for plaintiff in intervention, Deep Sea Fisheries. Kathleen McGuire, Asst. Atty. Gen., Anchorage, Norman C. Gorsuch, Atty. Gen., Juneau, for claimant, State of Alaska, Department of Public of Safety. No appearance by defendants. Before RABINOWITZ, C.J., and BURKE, MATTHEWS and COMPTON, JJ.

4110

25994

OPINION BURKE, Justice. I. INTRODUCTION Pursuant to Alaska Appellate Rule 407, the United States District Court for the District of Alaska ("District Court") has certified a question for our interpretation of Alaska law. In this opinion, we determine whether the Alaska Commercial Fishing and Agriculture Bank ("CFAB") is a state agency for purposes of maritime lien foreclosure proceedings. We conclude that CFAB is not a state agency for such purposes. II. FACTUAL AND PROCEDURAL BACKGROUND The certified question arises out of multiparty litigation involving the O/S Alaska Coast. On July 25, 1984, CFAB filed its complaint in rem and in personam in District Court. CFAB sought to foreclose a claimed preferred ship mortgage. Foss shipyard ("Foss") intervened on August 17, 1984, seeking to foreclose a claimed maritime lien. The State of Alaska ("State") filed a claim on August 20, 1984. The State claimed that it held a mortgage from the Collins', previous owners of the O/S Alaska Coast, superior to CFAB's. The State also alleged numerous defects in CFAB's mortgage. The State amended its claim on October 8, 1984. It further claimed that the state court forfeiture decree gave it priority over all the maritime liens. Deep Sea Fisheries ("Deep Sea") then intervened on November 1, 1984, to foreclose its claimed maritime liens. Foss argues that CFAB should be considered part of the State, i.e., an agency of the State. Foss thus charges CFAB with constructive knowledge at the time of the 1981 mortgage of alleged prior fishing violations by-the Collins' involving the Alaska Coast. Foss claims that CFAB had access to such information through the State law enforcement agencies' criminal computer files. Foss also claims that CFAB's preferred ship mortgage merged with the State's foreclosure interest. Since, Foss alleges, CFAB is part of the State, the merger of CFAB's equitable lien with the State's legal title extinguished the equitable interest. Both the State and Deep Sea initially agreed with Foss' argument. The District Court informs us that any extinguishment of CFAB's preferred ship mortgage would give Foss and Deep Sea liens enforceable against the vessel superi- or to any remaining interest of CFAB. If CFAB's mortgage did not merge, however, its foreclosure would wipe out all claims of other parties since the mortgage debt exceeds the vessel's fair market value. Since a dispositive ruling of extinction by merger depends upon a finding that CFAB is a state agency, the District Court determined that this court was best suited to determine CFAB's status under Alaska law. III. CFAB'S STATUS On several previous occasions, this court has analyzed in detail the status of purported state agencies. In no case have we addressed the status issue purely in the abstract. Rather, on each occasion, we have considered the entity's status solely for the narrow purposes necessary to that litigation. The cases document the factors we use to analyze the relationship between the state and a state authorized entity. In DeArmond v. Alaska State Development Corp., 376 P.2d 717 (Alaska 1962), we considered the constitutionality of the legislation creating and funding the Alaska State Development Corporation ("ASDC"). The legislature created the ASDC to make development loans for business and industry. Id. at 723. We first concluded that the creation and funding of the ASDC fulfilled a proper public purpose. Id. We then considered whether the act creating the ASDC violated the constitution by creating an overly independent agency. The act specifically provided that the "corporation is an instrumentality of the state within the Department of Commerce, but has a legal existence independent of and separate from the state." Id. at 724. Appellant charged that lack of state direction over the corporation meant that the ASDC was not " 'within' the Department of Commerce or any of the other principal departments of the state government." Id. We disagreed. Id. at 724-25. To reach our conclusion that the ASDC was "within" the Commerce Department, we catalogued the controls over the ASDC. We had already noted how the act itself expressly evinced the legislative intent to locate the agency within the Commerce Department. Id. The act made the Commissioner of Commerce a director. Id. We noted the potential for the commissioner's considerable influence and oversight over ASDC activities. Id. We noted that the governor appointed all of the remaining six directors to serve solely at the governor's pleasure. Id. We noted that the agency had to report annually to the governor and the legislature. Id. The act also required both the legislative auditor and the state bank examiner to audit the agency annually. Id. We finally observed that the legislature had to approve the final dissolution of the agency. Id. We considered the agency's separate corporate status as a neutral factor. We stated that "[t]his is nothing more than a declaration of the legal relationship that most corporations have with respect to their creators." Id. On the whole, the broad discretion held by the agency over the choice of particular loans did not outweigh the "considerable control . retained in the executive branch." Id. Thus, we concluded that the ASDC was an instrumentality of the state "within" the Department of Commerce. Id. at 724-25. In Walker v. Alaska State Mortgage Ass'n, 416 P.2d 245 (Alaska 1966), we considered a similar constitutional challenge to the Alaska State Mortgage Association ("ASMA"). The legislature created ASMA to finance housing for buyers unable to obtain market loans. Id. at 248. Again, the appellant charged that ASMA was not "within" the Department of Commerce. Id. at 249. We again disagreed. Id. We applied the DeArmond factors. The statute expressly located the agency within the Commerce Department. Id. ASMA had to send comprehensive annual reports to the legislative auditor. Id. ASMA had to send certified copies of each meeting's minutes to the governor. Id. at 249-50. Again, the commissioner of commerce was a permanent ASMA director and the governor appointed the remaining directors to serve at his pleasure. Id. at 250. In Alaska State Housing Authority v. Dixon, 496 P.2d 649 (Alaska 1972), we held that the Alaska State Housing Authority ("ASHA") was a state agency for purposes of the Administrative Procedures Act ("APA"). The legislation creating ASHA expressly located it "within" the Commerce Department. Id. at 651. The commerce commissioner was an ASHA director and the governor appointed the remaining directors to serve at his pleasure. Id. ASHA had to submit annual reports to the Commerce Department. Id. Finally, we noted that nothing in the APA expressly excluded ASHA from its provisions. Id. We concluded that the APA applied to ASHA. Two opinions issued on the same day represent our most recent elaborations of the status of a state agency. In University of Alaska v. National Aircraft Leasing, Ltd., 536 P.2d 121 (Alaska 1975), we concluded that the statutory ban on jury trials in actions against the state extended to suits against the University of Alaska. Article VII of the constitution expressly creates the University. We noted that both this constitutional provision and legislative enactments grant the University a broad degree of autonomy Id. at 123-24. The University holds title to real property in its own name. Id. at 123. The board of regents appoints the president, formulates policy, fixes compensation, awards degrees, manages University assets, and selects and leases University lands. Id. at 123-24. Finally, the University can sue and be sued in its own name. Id. at 127. We additionally noted, however, the considerable controls retained by the state. The governor nominates and the legislature confirms all appointments to the regents. Id. at 124. The regents must report annually to both the legislature and the governor. Id. The regents must deposit all funds received for university expansion from a sale or lease of university lands in an account held by the Revenue Department. Id. Finally, we noted that the legislature contributed almost two-thirds of the annual budget in 1974. Id. As in DeArmond and Dixon, we reiterated the rule that independent corporate status did not prevent a finding of state agency. Instead, we stated that "the guideposts for such an inquiry are to be found more in political and functional realities than in organizational formalities." Id. at 125-26. We concluded that the University had a "unique corporate character . and that it was created to pursue the governmental task of providing education in accordance with an express mandate of the constitution, the fundamental and basic government of this state." Id. at 127-28. Alaska State Operated School System v. Mueller, 536 P.2d 99 (Alaska 1975), represents our most elaborate discourse on the attributes of a state agency. Like University of Alaska, it involved "the clearly governmental function of furnishing edu-cation_" 536 P.2d at 102. The parties disputed whether the civil rules for service of process and pleadings upon a state instrumentality applied to the Alaska State Operated School System ("ASOS"). We initially noted the autonomy enjoyed by ASOS. We noted its separate corporate status, its capacity to sue, and its powers to hold property, contract, adopt administrative rules, and accept governmental grants or loans. Id. at 101. We then, however, exhaustively listed the control retained over it. We traced the source of all its powers to statute. Id. We noted that the governor nominated and the legislature confirmed all appointments to the ASOS board. Id. All directors served at the governor's pleasure and the governor approved the president's salary. Id. at 101-02. The State Personnel Act covered all employees. Id. at 102. The directors had to send annually an audit to the educational commissioner. Id. The Education Department had final say over all plans for opening or closing schools. Id. Ultimate title to all ASOS property remained vested in the state. Id. Finally, the Department of Public Works had to perform all construction required by ASOS. Id. Faced with this battery of "functional and organizational connections with [the state]," we concluded that "the scales weigh heavily in favor of the conclusion that for the purposes of the applicability of Civil Rule 4(d)(7) and (8), ASOS is an instrumentality or agency of the state as opposed to being an entity which is 'independent' of it." Id. at 102. Our previous decisions thus require us to balance an entity's autonomy against the state's retained control. We note initially that mere creation of an entity by the state does not make that entity an instrumentality of the state. Otherwise, all corporations would be state agencies since a corporation ultimately derives its power from statute. Likewise, the mere retention of some oversight by the state over such an entity will not transform it into a state agency. Again, the state retains control over numerous aspects of corporate existence. Following DeAr-mond, we consider corporate status a neutral factor that neither precludes nor mandates a finding of state "agency." In this case, we note CFAB's connections to the state. Unlike most corporations, CFAB was expressly created by the legislature through passage of an organic act. AS 44.81.010-350. The legislature declared that CFAB exercises its powers "for a public purpose." AS 44.81.010(a). CFAB can give the lenders and federal agencies the state's pledge that the state will not alter CFAB's contractual powers. AS 44.81.160. The legislative auditor, who otherwise au dits state agencies, may audit CFAB. AS 44.81.270. In addition to these points, we also note additional connections with the state. The state authorized the initial funding for CFAB by a purchase of preferred, nonvoting shares. AS 44.81.010(b)-(c). Moreover, the governor appoints two of the seven members until CFAB repurchases the state's CFAB shares. AS 44.81.020(a). In addition, the legislature has limited a director's compensation. AS 44.81.110. CFAB's annual report must include any information that the legislature requests. AS 44.81.200. Finally, the commissioner of commerce and economic development retains the authority to dissolve CFAB if CFAB fails to repurchase the state's shares within twenty years from the State's initial purchase. AS 44.81.010(b). Several factors demonstrate CFAB's autonomy. Unlike the agencies in DeAr-mond, Walker, and Dixon, CFAB is not expressly "within" any executive department. In those cases as well as in ASOS and University of Alaska, all the governing board members were appointed by the governor; in all but University of Alaska, the board members served solely at the governor's pleasure. Here, the governor can only appoint two of seven board members, and then only until CFAB repurchases the state's preferred, nonvoting shares. AS 44.81.020(a). CFAB's members elect the other five directors. Id. CFAB annually reports only to its members, not directly to the state. AS 44.81.200. Moreover, the state asserts and Foss does not deny that CFAB does not receive funds annually from the state budget. In addition, we note further evidence of autonomy. The section authorizing the legislative auditor to review CFAB states that such an audit "may" occur, not that it "shall" occur. AS 44.81.270. The legislature expressly excluded CFAB employees from the definitions of state employees and employees of a public organization. AS 44.81.070(c). The CFAB stock purchased by the state lacks voting rights. AS 44.81.-010(b). The state is not CFAB's only investor; no one can receive a loan from CFAB without purchasing membership shares or otherwise becoming a partner. AS 44.81.-210(a)(1) and AS 44.81.350(3). Finally, upon repurchase of all the state owned shares, CFAB will become a solely member-owned private cooperative corporation. AS 44.81.220. This last section also exempts CFAB from the normal restrictions on bank activity by private cooperatives. Id. The section exemplifiés CFAB's uniqueness: the legislature intended CFAB's special role in the Alaska economy to continue long after any direct government involvement ceases. CFAB directs us to the strongest evidence of the legislature's intent to create a unique, independent entity. In 1981, the legislature became concerned with CFAB's ability to borrow funds through the Federal Farm Credit System's Bank of Cooperatives in Spokane. The Bank of Cooperatives was CFAB's primary source of funds. Apparently, CFAB could not borrow funds from the bank if CFAB was a public agency. The legislature considered a series of amendments to AS 44.81.010 designed to clarify CFAB's status as a private entity. See generally, Hearings on H.B. 413, House Judiciary Committee, April 10 & April 24, 1981 ("Hearings"). The legislative history contains many remarks by representatives demonstrating a legislative intent to reduce the ambiguities in CFAB's relationship to the state. For example, during house judiciary committee hearings, Representative Miller stated: The whole thrust of the [legislation creating CFAB] was for us to create essentially private entities . the thrust was to be . really a private enterprise operation . started with a state loan . we wanted to create a private entity that could take advantage and leverage an awful lot of money that was available through this national system. Hearings, April 24,1981 (Statement of Rep. Miller). During the same hearing, Representative Clocksin stated: I don't think that anyone can seriously say that if this legislation passes with this amendment [amending section 3 regarding compensation of Board members] that we aren't making an absolutely clear legislative decision to separate CFAB from the state and create it as a private organization for most purposes Hearings, April 24,1981 (statement of Rep. Clocksin). The 1981 amendments substantially changed CFAB's organic act. Ch. 109, § 1-12, SLA 1981. Most importantly, the legislature deleted two references to the state in former AS 44.81.010(a). Prior to the amendments, this section stated: There is established the Commercial Fishing and Agriculture Bank. The bank is a public corporation and government instrumentality in the Department of Commerce and Economic Development but has a legal existence independent of and separate from the state. The exercise by the bank of the powers conferred by this chapter is considered an essential governmental function of the state. Except as otherwise provided in this chapter, the bank is subject to the provisions of AS 10.15.005-10.15.600. Ch. 159, § 3, SLA 1978 (emphasis added). The 1981 legislation, however, substituted the following section: (a) There is established the Alaska Commercial Fishing and Agriculture Bank. [THE BANK IS A PUBLIC CORPORATION AND GOVERNMENT INSTRUMENTALITY IN THE DEPARTMENT OF COMMERCE AND ECONOMIC DEVELOPMENT BUT HAS A LEGAL EXISTENCE INDEPENDENT OF AND SEPARATE FROM THE STATE.] The exercise by the bank of the powers conferred by this chapter is considered to be for a public purpose [AN ESSENTIAL GOVERNMENTAL FUNCTION OF THE STATE], Except as otherwise provided in this chapter, the bank is subject to the provisions of AS 10.15.005-10.15.600. The bank is exempt from the provisions of the Alaska Banking Code (AS 06.05) in the exercise of powers granted by this chapter. (Bracketed material deleted, underscored material added by the 1981 act.) The 1981 act' also stated that CFAB employees are not state employees, and that CFAB directors are not to be reimbursed as though they were members of state boards Ch. 109, § 2 & 3, SLA 1981. We think that the legislative history of the 1981 act demonstrates that the legislature considers CFAB a private entity for most purposes. When possible, we construe a statute as consistent with the express legislative intent. We believe that the 1981 amendments effectively enacted this legislative intent. CFAB has few of the state ties that we found dispositive in DeArmond, Walker, and Dixon; CFAB does not resemble the instrumentalities discussed in ASOS or University of Alaska. IV. CONCLUSION In the limited context of these maritime lien foreclosure proceedings, we find persuasive the strong legislative intent to confer a full measure of independence upon CFAB. In its 1981 amendments, the legislature clarified its decision to stimulate the Alaska fishing and farming industries by creating and helping fund a private bank eligible for federal loans. CFAB's business purposes thus required the independence of its operation from the state. Accordingly, we rule that the District Court should consider CFAB to be an entity separate from the state for purposes of the pending foreclosure proceedings. MOORE, J., not participating. . Alaska Appellate Rule 407(a) provides: The supreme court may answer questions of law certified to it by . 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. .The District Court specifically asked, "Is the Alaska Commercial Fishing and Agriculture Bank an agency of the State of Alaska?" The court, however, stated: "The Alaska Supreme Court is, of course, free to restate the issue in any terms which it may choose." We prefer to avoid an abstract discussion of CFAB's status. See infra note 5. Therefore, we have confined our discussion to the narrower question of CFAB's status for purposes of these maritime lien foreclosure proceedings. . After certification, the State reversed its position. It now agrees with CFAB that CFAB is not a state agency. Deep Sea continues to support Foss. . CFAB claims a mortgage balance of $1,650,-000. Foss asserts a lien of $96,814 plus interest. Deep Sea seeks $122,750.60 plus interest. At an interlocutory sale, held on January 2, 1985, no bids were received for the minimum specified price of $600,000. . For example, in University of Alaska v. National Aircraft Leasing, Ltd., 536 P.2d 121 (Alaska 1975), we decided that the University was a state agency under the statute barring trial by jury in actions against the state. That decision did not foreclose separate inquiry into the University's status in Carter v. Alaska Public Employees Ass'n, 663 P.2d 916 (Alaska 1983). In Carter, we concluded that the University was a state agency for purposes of AS 09.25.110, a statute requiring disclosure of public records. In University of Alaska v. Geistauts, 666 P.2d 424 (Alaska 1983), we considered the University's status for yet another purpose: we held that a University committee was an agency for purposes of AS 44.62.310, a statute that requires public agencies to hold open meetings. While we reached the same conclusion in each of these three cases, each circumstance required independent analysis. Therefore, we look here to CFAB's status for purposes of the pending admiralty foreclosure proceedings only. To the extent that Northwest Arctic Regional Educ. Attendance Area v. Alaska Public Service Employees, Local 71, 591 P.2d 1292, 1297 (Alaska 1979) contains language to the contrary, we disapprove it. In that case, a teacher's union sought to bind a regional education attendance area ("REAA") to a collective bargaining decision made by the REAA's predecessor, the Alaska State Operated School System ("ASOS"). The parties disputed the applicability of the Public Employment Relations Act ("PERA") to noncer-tificated employees of the REAA. Id. at 1293. The ASOS had elected to bargain with the employees under PERA; the REAA, however, claimed an exemption under PERA, as a "school district." Id. at 1296-97. A portion of the case turned on whether the ASOS had itself been a school district. Id. at 1297. We had previously determined that the ASOS was a state agency for purposes of the civil rules governing service of process and pleadings. Alaska State Operated School System v. Mueller, 536 P.2d 99, 104 (Alaska 1975). We had also determined that employees of the ASOS' predecessor were state employees. Begich v. Jefferson, 441 P.2d 27, 34 (Alaska 1968). We acknowledged that neither of these cases determined the status of the ASOS under the PERA. 591 P.2d at 1297. We also properly acknowledged that the two cases implied that the ASOS "was a state agency for purposes other than the Civil Rules." Id. We then, however, immediately stated that "it follows that the ASOS was a state agency subject to the PERA." Id. While the result was correct, the differences between the purposes of the PERA and the civil rules warranted more discussion. While precedent supported the implication, it did not necessarily compel the result. In any event, we did not rule that the ASOS was a state agency for all purposes; rather, we confined our holding to the PERA. . Former AS 44.59, repealed by ch. 106, § 78, SLA 1980. . Alaska Constitution, art. Ill, § 22 states: All executive and administrative offices, departments, and agencies of the state government and their respective functions, powers, and duties shall be allocated by law among and within not more than twenty principal departments, so as to group them as far as practicable according to major purposes. Regulatory, quasi-judicial, and temporary agencies may be established by law and need not be allocated within a principal department. . Former AS 44.56, repealed by ch. 164, § 1, SLA 1975. . AS 18.55.010-290. . AS 44.62.010-650. . See Civil Rule 4(d)(7) & (8). . Former AS 14.08, repealed by ch. 124, § 1, SLA 1975. . See Title 10, Alaska Statutes. . See, e.g., AS 10.05.018(3), AS 10.05.519-534, AS 10.05.777. .Similarly neutral is CFAB's capacity to sue and be sued under AS 44.81:210(6). Corporations normally hold this power. See University of Alaska, 536 P.2d at 127 n. 35. We decline to rule whether the state is a necessary or proper party to a suit by or against CFAB. See AS 44.80.010. . See AS 24.20.271. . Representative Miller had also served in the legislature during the passage of the legislation creating CFAB. . Alaska Cooperative Corporation Act, AS 10.-15.005-AS 10.15.600. . See supra note 18. . The 1981 act also clarified CFAB's status as a cooperative corporation, ch. 109, § 4, 5, 7, SLA 1981. The act imposed confidentiality requirements upon CFAB records and authorized legislative audits. Id. at § 4-8. .Anchorage Municipal Employee's Ass'n v. Municipality of Anchorage, 618 P.2d 575, 580 (Alaska 1980). See also City and Borough of Sitka v. International Brotherhood of Electrical Workers, Local 1547, 653 P.2d 332, 336 (Alaska 1982).

10429067

Carol JACKSON, Appellant, v. STATE of Alaska, Appellee

Jackson v. State

1983-02-04

No. 6664

405

407

657 P.2d 405

657

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

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

CAP

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

Carol JACKSON, Appellant, v. STATE of Alaska, Appellee.

Carol JACKSON, Appellant, v. STATE of Alaska, Appellee. No. 6664. Court of Appeals of Alaska. Feb. 4, 1983. Eric L. Hanson, Lynch, Farney & Crosby, Anchorage, for appellant. Kristen Young, Asst. Atty. Gen., Anchorage, and Wilson L. Condon, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

960

6137

OPINION SINGLETON, Judge. Carol Jackson was convicted of concealment of merchandise, AS 11.46.220, and assault in the fourth degree, AS 11.41.-230(a)(1). She appeals contending that the trial court erred in failing to suppress the property which she allegedly concealed. She argues that the property in question was illegally seized from her purse by a store security guard in violation of the state and federal constitutions. We affirm. Christian Martin, a security guard employed by Nordstrom Department Store, was engaged in his duties on April 26, when he observed Andrew Walker and Carol Jackson concealing merchandise on their persons. Specifically, he saw Jackson put a women's blazer and skirt in her purse and Walker put two dresses in his pants. Martin approached Walker and Jackson and identified himself as a store security guard. When Jackson and Walker attempted to flee, Martin took Walker by the arm and a scuffle ensued. Jackson jumped on Martin's back and began to pummel him with her purse and then discarded her purse under a display rack. Martin summoned assistance and Jackson and Walker were subdued. During the scuffle, the two dresses were removed from Walker's pants. Subsequently, Jackson's purse was retrieved by store personnel and searched, disclosing the blazer and skirt. Jackson argues that Martin, while an employee of Nordstrom, a private business, was acting under color of state law in searching her purse and retrieving property from Walker's pants. Since he had no warrant, she continues, the search violated her right to be free from unreasonable searches and seizures under the state and federal constitutions requiring the suppression of the evidence in question. She relies on People v. Zelinski, 24 Cal.3d 357, 155 Cal.Rptr. 575, 594 P.2d 1000 (1979). It is not necessary for us to decide the extent to which the respective constitutions limit searches by private security guards since, if Jackson is correct that Martin should be treated as a peace officer, the concealed property was properly retrieved from Jackson's purse in a search incident to an arrest. Martin observed Jackson and Walker conceal property belonging to Nord-strom on their persons. He thus had probable cause to believe that they were violating AS 11.46.220 and Anchorage Municipal Ordinance 8.05.550(B) in his presence. AS 12.-25.030(a)(1). See Smith v. Municipality of Anchorage, 652 P.2d 499 (Alaska App.1982) (setting out the elements of these offenses). Assuming that we treat him as a peace officer, authorization to arrest where an arrest actually is made carries with it permission to search for evidence of the offense. See Hinkel v. Anchorage, 618 P.2d 1069 (Alaska 1980). In Hinkel, permission to search was expressly extended to Hink-el's purse even though it had been seized and was therefore beyond her power to retrieve any weapon or destroy any evidence contained within it. Martin saw the defendants conceal property in Jackson's purse. Under these facts, his search was not unreasonable. See Dunn v. State, 653 P.2d 1071 (Alaska App., 1982). We recognize that the Supreme Court of California in Zelinski held that while store security guards acted under color of state law and were therefore subject to constitutional limitations on searches and seizures, they were not police officers and therefore could not search a person detained for contraband without express statutory authority. The Zelinski court noted that California law expressly authorizes those making citizen's arrests to search for weapons but was silent regarding searches for evidence. We need not decide the extent of a private person's authority to search incident to a citizen's arrest under Alaska law in order to decide this case. People v. Zelinski is distinguishable. In Zelinski, the store detective searched the defendant and discovered illegal drugs. Zelinski was prosecuted for the possession of those drugs. Here the store detective searched for his employer's merchandise and recovered it. Jackson was prosecuted for the theft of the merchandise. No applicable Alaska statute purports to regulate searches by private persons. Cf. AS 11.46.230 (authorized reasonable detention) and AS 12.25.030 (authorizes arrests without a warrant). Thus, the common law would appear applicable. See AS 01.10.010. At common law, a merchant has the right to retrieve, by nondeadly force, property illegally obtained from him by force or fraud. See Restatement (Second) of Torts, § 100-111. See AS 11.81.350(a) (use of nondeadly force permitted in defense of property). Thus, even if we were to follow Zelinski, and hold that an arrest and subsequent search by a store security guard of a suspected shoplifter is partly state action and partly private action, we would find Martin's actions, in recovering his employer's property, legal and reasonable and therefore permissible under the state and federal constitutions. Consequently, the merchandise taken from Jackson's purse was admissible in evidence against her. We note that a California appellate court reached the same conclusion on similar facts distinguishing Zelinski in this way. People v. Carter, 130 Cal.App.3d 690, 181 Cal.Rptr. 867 (1982). Consequently, we need not decide whether a violation of any statutory or common law limitations on searches of suspected shoplifters by merchants would require application of an exclusionary rule. See Harker v. State, 637 P.2d 716 (Alaska App.1981) (Alaska Rule of Evidence 412, which bars illegally obtained evidence, applies to evidence seized in violation of constitutional protections. Whether to suppress evidence seized in violation of statute which does not constitute a violation of the constitution as well will be determined on a case-by-case basis). The judgment of the superior court is AFFIRMED.

10409193

Edwin BIGNELL, Appellant, v. WISE MECHANICAL CONTRACTORS & Industrial Indemnity Company of Alaska, Inc., Appellees

Bignell v. Wise Mechanical Contractors

1986-05-30

No. S-742

490

497

720 P.2d 490

720

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

Edwin BIGNELL, Appellant, v. WISE MECHANICAL CONTRACTORS & Industrial Indemnity Company of Alaska, Inc., Appellees.

Edwin BIGNELL, Appellant, v. WISE MECHANICAL CONTRACTORS & Industrial Indemnity Company of Alaska, Inc., Appellees. No. S-742. Supreme Court of Alaska. May 30, 1986. James A. Parrish and Lance C. Parrish, Parrish Law Office, Fairbanks, for appellant. Liam J. Moran, Hagans, Brown & Gibbs, Anchorage, for appellees. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

4404

27577

OPINION RABINOWITZ, Chief Justice. I. History. This case involves the question of whether an employee can recover multiple attorney's fees when his employer controverts his workers' compensation claim more than once. Edwin Bignell was injured in the course and scope of employment while employed by Wise Mechanical Contractors. Wise was insured for workers' compensation claims by Industrial Indemnity Company of Alaska, Inc. (Both will be collectively referred to as "Wise.") Bignell injured his back on March 9, 1978 when he slipped while carrying some lumber. Wise paid temporary total disability benefits to Big-nell until July 20, 1979, when it paid him a $6,000 permanent partial disability benefit. Bignell then filed an application for adjustment of claim, seeking continued payment of temporary total disability benefits. On March 6, 1980, the Alaska Workers' Compensation Board (the board) ruled that because Bignell was a prospective rehabilitation candidate, he remained temporarily disabled and should continue to receive temporary total disability benefits while being retrained. The board also ordered Wise to pay Bignell an attorney's fee pursuant to AS 23.30.145(a). Section (a) sets a minimum attorney fee equal to 25% of the first $1,000 of compensation and 10% of any compensation greater than $1,000. Wise appealed the board's order to the superior court. The superior court re versed the board, holding that temporary total disability ended once Bignell's medical condition became stable. In turn this court reversed the superior court in Bignell v. Wise Mechanical Contractors, 651 P.2d 1163 (Alaska 1982), holding that Bignell was entitled to temporary disability benefits while he was participating in vocational rehabilitation. Bignell then made a motion to this court for attorney's fees on appeal. This motion was not immediately decided. During the pendency of the appeal in the supreme court, Bignell participated in vocational rehabilitation training at the Colorado School of Trades. In February 1981, Bignell discontinued this training. He petitioned the board for an award of permanent total disability benefits, and the board denied the request and suspended his temporary disability benefits as well on May 14, 1982. On June 16, 1982, Bignell contacted the Alaska Division of Vocational Rehabilitation (DVR) and expressed an interest in resuming his vocational rehabilitation. On November 2, 1982, the board held a hearing to settle the parties' disputes regarding Bignell's temporary disability benefits during vocational rehabilitation, costs, and attorney's fees. The major issue was the date on which Bignell again became entitled to temporary total disability benefits. Wise contended that Bignell was not entitled to the benefits until he actually entered a rehabilitation program, which at that point he had not yet done. In its March 18, 1983 decision, the board found that Bignell was entitled to temporary total disability benefits from June 16, 1982, when he contacted DVR to resume training, through the continuance of his disability or until there was substantial evidence that he was not cooperating with efforts of rehabilitation. In addition to reinstating Bignell's temporary disability benefits, the board ordered the payment of "statutory minimum attorney's fees and legal costs pursuant to AS 23.30.145(a)." Bignell did not appeal this decision. On April 26, 1983, this court issued an order addressing Bignell's previous motion for attorney's fees for work performed at the appellate level. We stated that Bignell could apply to the superior court for an award of attorney's fees pursuant to AS 23.30.145(c) after attorney's fees had been set by the board under AS 23.30.145(a) and (b). In response to this order, Bignell filed an application for adjustment of claim, asking the board to "determine attorney's fees pursuant to AS 23.30.145(a) and (b) as set forth in the Supreme Court Order dated April 26, 1983." The board held a hearing on this application on July 12, 1983. At this hearing Bignell argued that the board's two previous awards of statutory minimum attorney's fees should be compounded. Bignell maintained that he should receive 25% of the first $1,000 and 10% thereafter of all the benefits he had received since Wise first controverted his claim, and in addition, 25% of the first $1,000 and 10% thereafter of the benefits Bignell had received since Wise controverted his claim a second time. In other words, Bignell wants a doubled attorney's fees award for the benefits due after June 16, 1982. The board issued an order on September 28, 1983, in which it stated: 1. Employee is entitled to an award of statutory minimum attorney's fees of 25 per cent of the first $1,000 and 10 per cent of all amounts in excess of $1,000 paid as compensation for the periods from July 20, 1979, through May 7, 1981. He is also entitled to statutory minimum fees of 25 per cent of the first $1,000 and 10 per cent thereafter of all compensa tion paid from June 16, 1982, through retraining. Bignell appealed this decision to the superior court, and Wise appealed another aspect of the case. The parties agreed to stay these appeals pending determination by the board of Bignell's motion for reconsideration of reasonable attorney's fees. At the hearing on this motion, Bignell again argued that he was entitled to double the statutory minimum fee since Wise had twice controverted his claims for compensation. Alternatively, Bignell argued that he was entitled to a reasonable amount under § 145(b) for the work he performed re-establishing his right to compensation when Wise controverted it the second time. Wise objected to Bignell's arguments on the ground of res judicata; it argued that the issue of Bignell's entitlement to attorney's fees was foreclosed as a result of his failure to appeal the board's March 18, 1983 decision. The board denied Bignell's motion for reconsideration of its September 28, 1983 order. It held that the single statutory minimum fee award constituted a reasonable fee and that Bignell was not entitled to an award in excess of that sum. It found that Bignell had received $8,000 in statutory minimum attorney's fees which, based on 67 hours of work, constituted a compensation of $120 per hour. In its March 5, 1984 decision the board stated in part: If we were to apply employee's mathematical formula, the award of attorney's fees would greatly exceed an amount we consider to be fair and reasonable given the facts of this case. We believe that the purpose of AS 23.30.145 is to provide a fair and reasonable award of attorney's fees. To achieve this goal, the Board will apply the provisions set forth in AS 23.30.145 to determine whether a fee in excess of the statutory minimum should be awarded. We do not believe that this goal is achieved by utilizing the formula suggested by employee in this case. In view of its resolution of the attorney fee issue, the board held the defense of res judicata to be moot. On appeal the superior court ruled that Bignell had failed to establish that the board abused its discretion in the March 5, 1984 decision awarding the statutory minimum attorney fee. This appeal followed. II. Res Judicata. Wise contends that Bignell cannot argue the issue of attorney's fees because of the doctrine of res judicata. On March 18, 1983, the Workers' Compensation Board issued an order that, among other things, awarded Bignell statutory minimum attorney's fees. This was the second time that the board had awarded Bignell § 145(a) attorney's fees, and the order did not indicate how this award related to the previous award. Bignell did not appeal this order. On April 26, 1983, this court issued an order addressing a motion Bignell had previously made for attorney's fees for work performed at the appellate level. We stated that Bignell could apply to the superior court for an award of appellate attorney's fees after attorney's fees had been set by the board under AS 23.30.145(a) and (b). In response to this order, Bignell filed an application for adjustment of claim with the board. At the July 12, 1983 hearing Bignell argued that the two statutory minimum attorney's fees awards should be compounded. Wise did not raise the issue of res judicata at this hearing, but argued that there was no statutory support for doubling statutory minimum attorney's fees awards. On the motion for reconsid eration, Bignell again argued that he was entitled to double statutory minimum fees. At this hearing Wise objected on the grounds of res judicata. The board denied reconsideration and the superior court ruled that the board did not abuse its discretion. The res judicata issue was never actually decided below. Wise maintains that Bignell was precluded from arguing to the board that he was entitled to attorney's fees exceeding what the board had previously awarded in its orders of March 6,1980 and March 18,1983 because he did not appeal those awards. Bignell argues that the language of both fee awards indicates that a second, new award was granted at the March 18, 1983 hearing. He asserts that the March 18, 1983 order cannot be fairly read so as to have put him on notice to appeal; the parties, in good faith, simply interpreted the orders differently. The first issue we must decide is whether the principles of res judicata apply to a judgment of the Alaska Workers' Compensation Board. Wise argues that res judicata applies to workers' compensation proceedings,. and Bignell does not dispute this. We agree with this view. The same considerations of efficiency and fairness that limit civil plaintiffs to "one bite of the apple" apply equally to workers' compensation proceedings. The second issue is whether Wise's application of res judicata is appropriate in this case. When a valid and final personal judgment is rendered in favor of the plaintiff, the plaintiff cannot thereafter maintain an action on the original claim or any part thereof. Restatement (Second) of Judgments § 18(1) (1982). Wise's res judi-cata objection is misplaced in this case. Bignell made a claim for attorney's fees in the proceeding that resulted in the order of March 18, 1983. The order granted him the statutory minimum fees based on a formula incorporating future disability benefits. The board held its July 12, 1983 hearing in order to determine the exact amount of attorney's fees due Bignell under the March 18, 1983 order, in response to our order requesting such a determination. Bignell did not make a claim for attorney's fees in the second action; he was not disputing the award he received in the first action. Rather, he was asking that the amount previously awarded be determined. During the latter proceeding, it became apparent that the parties had different interpretations of the two statutory minimum attorney's fees awards. Therefore the proper focus is on issue preclusion rather than claim preclusion. Wise's only feasible claim is that Bignell was precluded from raising the issue of how to compute the second award because that issue had been determined in a prior proceeding. To warrant collateral estoppel, an issue must have been actually litigated and determined in the first action by a valid and final judgment, and the determination must have been essential to the judgment. Restatement (Second) of Judgments § 27 (1982). When an issue is properly raised by the pleadings or otherwise, is submitted for determination, and is determined, the issue is actually litigated within the meaning of this section. Id., comment d. The record contains no indication that the issue of how to compute the second attorney fee award was actually litigated in the November 2, 1982 proceeding, which produced the March 18, 1983 order. The burden of pleading and proving the identity of issues rests on the party asserting the estoppel. Hernandez v. City of Los Angeles, 624 F.2d 935, 937 (9th Cir.1980). To sustain this burden a party must introduce a record sufficient to reveal the controlling facts and pinpoint the exact issues litigated in the prior action. Id. Wise has not met its burden of proving that the issue was actually litigated and decided in the first action. The record indicates that at the November 2, 1982 hearing, the parties addressed the issues of temporary total disability, vocational rehabilitation, transportation costs, penalties, costs, and attorney's fees. The resulting order of March 18, 1983 addressed the issues of Bignell's entitlement to reinstated temporary total disability benefits, transportation costs, and attorney's fees. With regard to attorney's fees, the order states only, "We find the employee obtained the services of an attorney who assisted him in the successful prosecution of his claim. We conclude the employee is entitled to the statutory minimum attorney fee and his legal costs under AS 23.30.-145(a)." The board did not decide, and apparently did not consider, whether this award was to be added to the March 6, 1980 award to constitute doubled § 145(a) attorney's fees. On this record we cannot say that the workers' compensation board held in its March 18, 1983 order that the award of attorney's fees was not to be compounded with the previous award. Therefore, Wise has not established that this issue was actually litigated in that proceeding, and Big-nell was not precluded from raising it in the July 12, 1983 hearing. III. Double Minimum Statutory Attorney's Fees. Bignell argues that Wise controverted his claim on two occasions; he challenged Wise both times; and the board awarded him § 145(a) attorney's fees both times. The first award is computed as a percentage of his compensation beginning when Wise first controverted it and continuing indefinitely as to all benefits thereafter. The second award is computed as a percentage of his compensation beginning when Wise controverted it a second time and continuing as to all benefits thereafter. Therefore, Bignell contends, when he was awarded attorney's fees the second time, he was still entitled to attorney's fees for his first compensation award. During this "overlap" period, Bignell argues, the § 145(a) percentage should be doubled. In its March 6, 1980 decision the board found a controversion and awarded Bignell § 145(a) attorney's fees for the benefits then due and for all future benefits. Big-nell contends that this is the correct award under State, Department of Highways v. Brown, 600 P.2d 9 (Alaska 1979), since Wise controverted Bignell's entitlement to receive all future benefits. Bignell asserts that by virtue of the second statutory fee award, he is entitled to a double award for the compensation paid after June 16, 1982, the date Wise should have resumed Big-nell's temporary disability benefits. He points out that if Wise had not controverted his compensation a second time, the first minimum fee would have applied to the total payment. Wise, however, again controverted Bignell's entitlement when he resumed vocational rehabilitation in 1982, and Bignell had to counter Wise's new line of defense. Unless the awards were then doubled Bignell's attorney would not be compensated for any work he did the second time Wise controverted Bignell's claim. Wise contends that Bignell's original entitlement to statutory minimum attorney's fees ended on May 7, 1981 when he discontinued vocational rehabilitation. His second statutory minimum attorney's fees award alone applied to the temporary disability benefits that commenced on June 16, 1982 and continued through Bignell's completion of his second vocational rehabilitation program. Thus, Wise argues that at no time should the attorney's fees be compounded. The board did not explain its reasons for refusing to grant Bignell double statutory minimum attorney's fees awards other than to discuss the reasonableness of the award. It appears that the board intended the attorney's fees awards to be distinct and to apply separately to the two discrete compensation awards. In its March 6,1980 order, the board stated that, "Future temporary total disability benefits are to be paid so long as the applicant continues to do his utmost to minimize his damages by proper medical treatment and completion of a vocation rehabilitation evaluation." The board also awarded § 145(a) attorney's fees "on all temporary benefits due in excess of the $6,000.00 advance and continuing on future benefits." Bignell discontinued vocational rehabilitation and the board suspended his entitlement to any benefits on March 14, 1982. When he later began a second vocational rehabilitation program, Wise again controverted his entitlement. Bignell successfully challenged Wise and was again awarded statutory minimum attorney's fees. It is unlikely that at this point the board considered the first § 145(a) award still operative. The issue of whether Bignell's first attorney's fees award should have continued to accrue on his second compensation award turns upon the application of Brown to the facts of this case. In Brown, Brown claimed that he was injured in the course and scope of employment with the State Department of Highways in December 1974. The state's workers' compensation carrier originally accepted the claim, but later stopped making payments in January 1975 when his physician, Dr. Ha, found that Brown's condition was due to a giant cell tumor that was neither caused nor aggravated by the employment injury. Brown disputed the carrier's action and filed an application for adjustment of his claim. Two physicians who examined Brown later found the condition to be work related, and Dr. Ha modified his previous opinion. The state then accepted Brown's claim without a hearing and paid compensation for the period of January 1975 to January 1976 in the amount of $10,429. In addition, the state paid attorney's fees pursuant to § 145(a) on the $10,429. Brown eventually collected $30,000 in workers' compensation benefits, but the carrier refused to pay § 145(a) attorney's fees on the remaining $19,571 that Brown received. Brown applied to the board for attorney's fees and his claim was rejected. The superior court reversed the board and awarded Brown § 145(a) attorney's fees on the remaining $19,571. In affirming the superior court's award, we stated: What [the carrier] had controverted or denied in January, 1975, was its obligation to pay any compensation at all for temporary total disability. The efforts of Brown's attorney did not result in payment by the carrier of only $10,429. Those efforts resulted in the payment of compensation in the amount of $30,000. 600 P.2d at 11. Bignell maintains that under the holding in Brown, his attorney did not have to perform any work after the first hearing on his claim in order for the fee to be due. If the carrier had paid as required, the minimum fee would have applied to all of Wise's payments. Furthermore, Bignell contends, it is irrelevant that there was a period when he was not collecting any workers' compensation benefits. When a temporary suspension of compensation occurs, attorney's fees are also temporarily suspended because fees apply only on compensation paid. Once compensation resumes, however, attorney's fees should resume as well. Bignell's suggested application is consistent with the Brown case. Wise, in its original controversion, denied responsibility to ever again pay Bignell temporary disability benefits, and his attorney's efforts established his entitlement to receive temporary disability payments when in vocational rehabilitation. Had Wise paid Big-nell's benefits without dispute when Big-nell resumed vocational rehabilitation, arguably the attorney's fees award should have been resumed, because Bignell's attorney had already established Bignell's entitlement to temporary disability benefits while engaging in vocational rehabilitation. Bignell, however, does not address the question of precisely when his entitlement to benefits under the first award resumed. In response to Wise's first challenge, Big-nell's attorney established Bignell's entitlement to receive temporary benefits while participating in a vocational rehabilitation program. He did not establish Bignell's entitlement to receive benefits after contacting the DVR and before actually beginning the program. This court did not decide this question in Bignell v. Wise Mechanical, 651 P.2d 1163. When Bignell resumed vocational rehabilitation in 1982, Wise controverted his entitlement to receive temporary benefits before entering the program. Wise conceded that Bignell was entitled to temporary compensation benefits after he entered a program. The dispute was over an entitlement that Big-nell's attorney had not previously established. Thus, Bignell's attorney initially established Bignell's entitlement to receive benefits whenever he was engaged in vocational rehabilitation. Under Brown, his efforts should be rewarded with § 145(a) attorney's fees computed on all benefits paid as a result of successfully challenging the controversion. The attorney's initial efforts did not necessarily entitle Bignell to receive temporary compensation for the period between the time he contacted the DVR and the day he actually entered the program. Bignell's attorney established this entitlement only after Wise controverted it in 1982. The amount controverted the second time consisted of the benefits due from June 16, 1982, when Bignell contacted the DVR until he entered the program. The second § 145(a) attorney's fees award therefore should be computed only on those benefits. The result of this analysis is that Big-nell's attorney is not entitled to double benefits at any time. The first § 145(a) award entitles him to attorney's fees computed from Bignell's benefits received from July 20, 1979 through February 27, 1981, when Bignell discontinued rehabilitation, and from his benefits received when he entered a rehabilitation program a second time until he discontinued it a second time. The second § 145(a) award entitles him to attorney's fees computed from his benefits received from June 16, 1982 until he entered a rehabilitation program the second time. AFFIRMED in part, MODIFIED in part, and REMANDED for determination of attorney's fees consistent with this opinion. . Wise stopped paying temporary benefits when Bignell's medical condition became stable and stationary. . Section 23.30.145. Attorney fees. (a)Fees for legal services rendered in respect to a claim are not valid unless approved by the board, and the fees may not be less than 25 per cent on the first $1,000 of compensation or part of the first $1,000 of compensation, and 10 per cent of all sums in excess of $1,000 of compensation. When the board advises that a claim has been controverted, in whole or in part, the board may direct that the fees for legal services be paid by the employer or carrier in addition to compensation awarded; the fees may be allowed only on the amount of compensation controverted and awarded. When the board advises that a claim has not been controverted, but further advises that bona fide legal services have been rendered in respect to the claim, then the board shall direct the payment of the fees out of the compensation awarded. In determining the amount of fees the board shall take into consideration the nature, length and complexity of the services performed, transportation charges, and the benefits resulting from the services to the compensation beneficiaries. (b) If an employer fails to file timely notice of controversy or fails to pay compensation or medical and related benefits within 15 days after it becomes due or otherwise resists the payment of compensation or medical and related benefits and if the claimant has employed an attorney in the successful prosecution of the claim, the board shall make an award to reimburse the claimant for the costs in the proceedings, including a reasonable attorney fee. The award is in addition to the compensation or medical and related benefits ordered. (c) If proceedings are had for review of a compensation or medical and related benefits order before a court, the court may allow or increase an attorney's fees. The fees are in addition to compensation or medical and related benefits ordered and shall be paid as the court may direct. . The attorney's fees award was to be calculated on benefits due in excess of the uncontroverted $6,000 permanent partial disability payment. . Following the filing of the Notice of Appeal, Industrial Indemnity obtained a stay of the board's award from a superior court judge and therefore did not initially pay Bignell workers' compensation benefits during the pendency of the appeal. Upon Bignell's motion for change of venue the case was assigned to another superior court judge who subsequently vacated the stay. Wise then petitioned to the supreme court and the issue was resolved in Bignell's favor in Wise Mechanical Contractors v. Bignell, 626 P.2d 1085 (Alaska 1981). Thus, following the petition for review, some temporary total disability benefits were paid while the question of Big-nell's entitlement to temporary total disability benefits was being examined on appeal. However, the attorney's fees ordered were not paid. . Bignell's attorney had filed an affidavit establishing that he had expended 67 hours in pursuing his client's claim before the board. . The board's exact fee award is relevant to the superior court's determination of appellate attorney's fees. The superior court will adjust appellate attorney's fees downward when application of the statutory minimum formula produces a disproportionately large award for the board proceeding. See Wien Air Alaska v. Arant, 592 P.2d 352, 366 (Alaska 1979). . See 3 A. Larson, The Law of Workmen's Compensation § 79.72(a), at 15-426.226 (1983) (As to res judicata in compensation related matters, the beginning point is recognition of the proposition that res judicata does apply to the decisions of compensation boards and commissions no less than to the decisions of a court.) . The record does not specify the date when he resumed retraining. . We express no opinion as to whether § 145(a) fees can ever be doubled. That issue will be addressed in the event we are presented with the circumstance where an employer has twice controverted an employee's entitlement to the same benefits. Bignell also argues that, at a minimum, additional fees are mandated by § 145(b). Notwithstanding this position, Bignell maintains that the second dispute was a controversion in fact, rendering § 145(a) fees appropriate. Wise does not disagree. The § 145(a) formula applies to "controverted" claims, and the § 145(b) grant of reasonable attorney's fees applies to an employer who otherwise fails to make payment of compensation. Wien Air Alaska v. Arant, 592 P.2d 352, 364 (Alaska 1979); Haile v. Pan American World Airways, Inc., 505 P.2d 838, 840 (Alaska 1973). The second dispute between Bignell and Wise clearly involved a "controversion." Therefore, § 145(a) minimum statutory attorney's fees for the period in controversy was the correct award, and Bignell is not entitled to any additional award.

10404031

George G. BARTHOLOMEW, Appellant, v. STATE of Alaska, Appellee

Bartholomew v. State

1986-05-30

No. A-1380

54

55

720 P.2d 54

720

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

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

CAP

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

George G. BARTHOLOMEW, Appellant, v. STATE of Alaska, Appellee.

George G. BARTHOLOMEW, Appellant, v. STATE of Alaska, Appellee. No. A-1380. Court of Appeals of Alaska. May 30, 1986. James T. Mulhall, Birch, Horton, Bittner, Pestinger & Anderson, Fairbanks, for appellant. Kenneth J. Goldman, Asst. Dist. Atty., Harry L. Davis, Dist. Atty., Fairbanks, and Harold M. Brown, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

705

4621

OPINION BRYNER, Chief Judge. George Bartholomew was convicted after pleading no contest to one count of sexual assault in the first degree, an unclassified felony, AS 11.41.410, and one count of sexual abuse of a minor in the second degree, a class B felony, AS 11.41.436(a)(3) and (b). Superior Court Judge Jay Hodges sentenced Bartholomew to a presumptive eight-year term on the sexual assault charge and to a consecutive, three-year suspended term on the sexual abuse charge. Bartholomew appeals, contending that Judge Hodges erred in rejecting a request to refer his case to the three-judge sentencing panel. See AS 12.55.165-12.55.-175. Bartholomew's three-judge panel argument relies on this court's decision in Smith v. State, 711 P.2d 561 (Alaska App.1985). Unlike the defendant in Smith, however, Bartholomew does not qualify as a youthful first offender. He was thirty-six years of age at the time of his conviction. He had been convicted of burglary as a minor, and, as an adult, had been convicted and had spent four weeks in jail for contempt of court. Moreover, Bartholomew's conviction in the present case was not for a single, impulsive episode of criminal misconduct. Rather, he was convicted of two separate offenses that reflected a prolonged pattern of sexual abuse Bartholomew inflicted on a member of his own family, his step-daughter, over a period of approximately four years. Finally, the sentencing record does not support the conclusion, as it did in Smith, that Bartholomew's prospects for successful rehabilitation are exceptionally good. In Smith, the sentencing judge intimated that the period of time served in jail by the defendant prior to sentencing was adequate to fulfill the sentencing goals of reformation and individual deterrence. The sentencing judge affirmatively concluded that no significant additional rehabilitative efforts were required and that, indeed, prolonged incarceration would likely damage the defendants' chances for rehabilitation. Smith v. State, 711 P.2d at 566. No comparable findings were made in this case, nor, in our view, could such findings have been made. Bartholomew's remorse appears to be genuine, and his willingness to undergo treatment seems exemplary. Certainly, as reflected in his psychiatric report, Bartholomew appears to be a good candidate for rehabilitation when compared to similarly situated offenders. Yet it is undisputed that Bartholomew would require a substantial period of treatment in a closely supervised setting before successful rehabilitation could be predicted with any degree of assurance. Given the seriousness and duration of Bartholomew's offenses, the uncertain etiology of his conduct, and the nature and extent of his psychological and emotional problems, any definitive attempt at a prognosis for his ultimate success at rehabilitation would, at this point, be wholly speculative. Having independently reviewed the entire sentencing record, we conclude that Judge Hodges was not clearly erroneous in denying Bartholomew's request for referral to the three-judge sentencing panel and that the sentences imposed by Judge Hodges are not clearly mistaken. See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974); Juneby v. State, 641 P.2d 823 (Alaska App.1982), modified on other grounds, 665 P.2d 30 (Alaska App.1983). The sentence is AFFIRMED. . Although Judge Hodges found only that imposition of the presumptive term would not amount to manifest injustice and did not separately address the question whether failure to consider rehabilitation in imposing a sentence would be manifestly unjust, see Smith v. State, 711 P.2d at 571-72, we find a remand for additional findings would serve no useful purpose in this case. As the state directly notes, Judge Hodges had discretion to consider rehabilitation as a component of the non-presumptive sentence he imposed for Bartholomew's conviction of sexual abuse of a minor in the second degree. The fact that Judge Hodges elected to impose a consecutive sentence (albeit suspended) on that charge provides adequate assurance that, in Judge Hodges' view, the goal of rehabilitation could adequately be considered without the need for referral to the three-judge sentencing panel.

10460359

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

Gregory v. State

1976-05-24

No. 2467

374

381

550 P.2d 374

550

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

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

John GREGORY, Appellant, v. STATE of Alaska, Appellee. No. 2467. Supreme Court of Alaska. May 24, 1976. Brian Shortell, Public Defender, Anchorage, Myron Angstman, Asst. Public Defender, Bethel, for appellant. Avrum M. Gross, Atty. Gen., Juneau, Joseph D. Balfe, Dist. Atty., Ivan Lawner, Asst. Dist. Atty., Anchorage, J. Randall Luffberry, Asst. Dist. Atty., Bethel, for ap-pellee. Before BOOCHEVER, C. J., and RA-BINOWITZ, CONNOR, ERWIN, and BURKE, JJ.

2722

16413

OPINION ERWIN, Justice. The sole issue presented to this court is whether appellant John Gregory should have been permitted to withdraw his plea of guilty to the charge of operating a motor vehicle while intoxicated. Gregory contends that he did not make a knowing and intelligent waiver of his right to counsel and thus he must be allowed to withdraw his guilty plea, entered without the assistance of counsel, to "correct manifest injustice" under Criminal Rule 32(d)(1). In the early hours of December 2, 1974, Gregory, a Bethel resident, was arrested for operating a motor vehicle while intoxicated. That afternoon he was brought before the District Court in Bethel with Magistrate Helen Edge presiding. At the arraignment, the court began by advising Gregory of his various constitutional rights. After this advisement Magistrate Edge stated, "At this time I'm going to ask you if you had understood those rights I just got done telling you?" While the magistrate spoke English up to this point, the record reflects that she continued her inquiry in Yupik, an Eskimo dialect, by asking, "Did you understand them ?" Gregory, a 40-year-old Eskimo with three years of formal education, responded in Yupik with a simple, "Yes." After reading the complaint and discussing the potential penalties for the crime of driving while intoxicated, the court asked Gregory whether he wanted an attorney to represent him in the case. Gregory's first reply was in Yupik, and he asked, "How?" The court responded in Yupik with, "Do you wish to get help from an attorney concerning this paper or do you want to speak for yourself?" Mr. Gregory replied in Yupik, "I don't have anything to say." Apparently aware of the fact that there was a communication problem, the court continued questioning Gregory. Speaking Yupik, the court asked, "What about an attorney ?" Then in English, "You wish an attorney? Could you answer me on the record so we could have it on tape?" Continuing in Yupik the court remarked, "Answer that way, shaking your head if your answer is no or nod your approval." Gregory finally responded in Yupik, "I do not wish to have an attorney." Upon accepting this waiver of counsel, the court asked Gregory to enter a plea. "How are you going to enter your plea on this charge?" Then in Yupik, "How are you going to answer to this charge of yours?" Speaking Yupik, Gregory responded, "Do I plead guilty?" Continuing in Yupik, the court stated, "It is-your answer to say." At that point Gregory entered a plea of guilty. After additional questioning, speaking both Yupik and English, the court sentenced Gregory to 120 days in jail with 60 days suspended, imposed a $250.00 fine and suspended the entire amount, and revoked his driver's license for one year. Gregory subsequently secured the aid of the public defender in Bethel and appealed his conviction to the superior court, arguing that he should be allowed to withdraw his guilty plea because it was entered without the assistance of counsel. On December 20, 1974, a hearing, was conducted, and after considerable testimony the magistrate's judgment was affirmed. Gregory thereupon filed an appeal to this court. The threshold question is whether Gregory was in fact entitled to the assistance of counsel at the arraignment. The sixth amendment to the United States Constitution provides in pertinent part: In all criminal prosecutions, the accused shall enjoy the right . to have the Assistance of Counsel for his de-fence. Article 1, § 11, of the Alaska Constitution similarly provides for the right to the assistance of counsel. In Alexander v. City of Anchorage this court had the opportunity to define the scope of the right to counsel in Alaska under the state constitution. In that case we held that the accused shall have the right to be represented by counsel in any criminal prosecution. We reasoned that this means that he has the right to the assistance of counsel for his defense if he is prosecuted for a misdemeanor, as well as for a felony, when the penalty upon conviction of the misdemeanor may result in incarceration in a jail or penal institution, the loss of a valuable license, or a fine so heavy as to indicate criminality. When convicted for violating AS 28.-35.030, the law prohibiting operation of a motor vehicle while intoxicated, a person may receive a fine of not more than $1,000 or a term of imprisonment for not more than one year, or both. Therefore, under our holding in Alexander, Gregory's case was one in which the right to counsel was guaranteed him by the Alaska Constitution. The record reveals that Gregory pleaded guilty without the assistance of counsel; hence, unless he waived this "valuable right," his plea was invalid and the lower court erred in denying his motion to withdraw it. Alaska Criminal Rule 39(b)(3) provides as follows with regard to indigent defendants : In the absence of a request by a defendant, otherwise entitled to appointment of counsel, the court shall appoint counsel for him unless he demonstrates that he understands the benefits of counsel and knowingly waives the same. (Emphasis added) It is Gregory's contention in this appeal that although he waived his right to counsel, the record of the arraignment clearly demonstrates that he lacked the requisite understanding of the benefits of counsel necessary for a valid waiver. The State, on the other hand, contends that the magistrate who conducted the arraignment was unusually situated to determine Gregory's capacity to understand the advantages of being represented by an attorney because she had known him for about ten years. It is also pointed out that Gregory had been in court on previous occasions and that the magistrate was aware of this fact when she dealt with him at the arraignment. It is the State's position, then, that this court should rely on the magistrate's testi mony given at the superior court hearing that Gregory did in fact make an intelligent waiver of his right to counsel before he entered his plea of guilty. We hold in accordance with the clear language of Criminal Rule 39(b)(3) that a defendant who has not demonstrated that he understands the benefits of counsel cannot be said to have waived counsel. Criminal Rule 39(b)(3) made it incumbent upon the presiding magistrate, by recorded colloquy with Gregory, to ascertain whether he understood the benefits of counsel; no amount of circumstantial evidence in this case, given the answers of this witness, that he may have been aware of what lawyers do and what a lawyer could do for him will suffice to stand in its stead. We consider it determinative, then, that the record is devoid of any indication that Gregory understood a lawyer's function and the advantages of legal representation in a criminal proceeding before the waiver was accepted. Reason and reflection compel us to recognize that in our complex system of justice, many people brought before the court are unfamiliar with even the most basic legal concepts. Gregory's confusion at the hearing before the superior court with respect to legal terminology, particularly the terms lawyer, attorney, and public defender, is indicative of this fact. We also recognize that the trial court is obligated to be certain that each citizen, when involved in a criminal matter, is aware of the various rights guaranteed him by the Alaska and United States Constitutions. To insure that all defendants enjoy the right to counsel, it must be clear from the record that the person has been informed of the role of a defense attorney and the advantages of being represented by one in a criminal proceeding. Only after this information is placed before the accused can it be said that he has the capacity, in a legal sense, to make a knowledgeable waiver of his right to counsel under Rule 39(b)(3). Furthermore, after this information is presented to a defendant, an unequivocal statement by the person that he does not want counsel should not put an end to the matter. The court can make certain that a defendant's waiver of counsel is intelligently made only from a penetrating and comprehensive examination of all the circumstances under which such a plea is made. Thus, to be valid, such waiver must be made with: an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances of mitigation thereof, and all other facts essential to a broad understanding of the. whole matter. While only a brief inquiry into a defendant's comprehension of the right will be necessary in many cases, we recognize that in extreme circumstances the person may be unable to make an intelligent choice because of his mental condition, age, education, experience, the complexity of the case, or other factors. When such a' situation arises, it is the duty of the court, whether requested or not, to assign counsel for the accused as a necessary requisite of due process of law under the federal and state constitutions. In adopting this position, we do not intend to infringe on the constitutional right to self-representation which we enunciated in McCracken v. State. However, we view our holding therein to be consistent with the foregoing standard with respect to waiver of counsel, for in McCracken we stated: The right [to self-representation] is not absolute. In order to prevent a perversion of the judicial process, the trial judge should first ascertain whether a prisoner is capable of presenting his allegations in a rational and coherent manner before allowing him to proceed pro se. Second, the trial judge should satisfy himself that the prisoner understands precisely what he is giving up by declining the assistance of counsel. Rule 39 (b)(3) provides that at the trial stage counsel should be appointed unless the defendant "demonstrates that he understands the benefits of counsel and knowingly waives the same." (Citations omitted) Rule 39(b)(3) was promulgated in light of the constitutional right to self-representation, not in spite of that right. It indicates to the bench the sort of basic inquiry upon which that right may be conditioned, not in derogation of that right, but rather with the purpose of insuring that an unknowing defendant's right does not become a burden. As previously noted, Gregory was not informed of the benefits of legal representation before he waived the right to the assistance of counsel; therefore, the waiver was without legal consequence under Criminal Rule 39(b) (3). Criminal Rule 32(d)(1) provides that: The court shall allow the defendant to withdraw his plea of guilty or nolo con-tendere whenever the defendant, upon a timely motion for withdrawal, proves that withdrawal is necessary to correct manifest injustice. (ii) Withdrawal is necessary to correct a manifest injustice whenever the defendant demonstrates that: (aa) He was denied the effective assistance of counsel guaranteed to him by constitution, statute or rule . Since Gregory's waiver was invalid, he was denied the effective assistance of counsel and manifest injustice took place when the court accepted his plea of guilty to driving while intoxicated. In light of the fact that this determination mandates a plea withdrawal, the superior court's ruling to the contrary is reversed. This case is reversed and remanded for further proceedings in conformity with this opinion. . 490 P.2d 910 (Alaska 1971). . Id. at 913. . In Alexander v. City of Anchorage, 490 P.2d 910, 913 (Alaska 1971) (footnotes omitted), quoting Powell v. Alabama, 287 U.S. 45, 68-69, 53 S.Ct. 55, 64, 77 L.Ed. 158, 170 (1932), we made the following observation: To be assisted by counsel in a criminal action is not merely desirable. It is a valuable right. Nearly 40 years ago the United States Supreme Court, in speaking of this right as guaranteed by the sixth amendment to the federal constitution, had this to say: The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. . In this regard we note the Magistrate's Handbook provides the following instructions for informing defendants of their rights in misdemeanor cases: You have a right to have your attorney present at all stages of the criminal proceedings. If you cannot afford your own attorney, the court can appoint a public defender to you. Or, you may represent yourself without aid of counsel. Do you know what an attorney can do for youf (Pause for answer and explain if answer is "No.") Would you like an attorney to represent you? (If "Yes," proceed according to Chapter ) and determine if defendant can pay for his own or if he needs appointed counsel.) You may remain silent — you do not have to make any statements. At the arraignment the magistrate made the following comments: John, before we go any further, I am going to advise you of your rights at this time. You have a right to have your attorney present at all stages of this criminal proceeding. If you cannot pay for an attorney, the Court can appoint a Public Defender to represent you, or you may represent yourself without aid of an attorney. You have a right to remain silent. You do not have to make any statements. It is apparent, then, that the magistrate was following the handbook but omitted the section dealing with whether Gregory understood the benefits of counsel. . The Anglo-American system of justice differs substantially from the traditional Indian, Eskimo and Aleut systems, which predated Western cultures by hundreds of years. The cultural difficulties experienced by many of the Alaska Natives as the contemporary Anglo-American institutions reach out to the bush communities require that the State legal system use extreme care in eases of this nature. Therefore, in those areas where a substantial portion of the population consists of Native Alaskans, we urge the administrative office of the court system to develop bilingual explanations of basic rights for those who appear in criminal proceedings so that all citizens are clearly aware of their constitutional rights. . Von Moltke v. Gillies, 332 U.S. 708, 724, 68 S.Ct. 316, 323, 92 L.Ed. 309, 321 (1948). . Clark v. State, 388 P.2d 816, 822 (Alaska 1964). . Von Moltke v. Gillies, 332 U.S. 708, 724, 68 S.Ct. 316, 323, 92 L.Ed. 309, 321 (1948). . The A.B.A. Standards, Providing Defense Services, § 7.2 (Approved Draft 1968), provides as follows: The accused's failure to request counsel or his announced intention to plead guilty should not of itself be construed to constitute a waiver. An accused should not be deemed to have waived the assistance of counsel until the entire process of offering counsel has been completed and a thorough inquiry into the accused's comprehension of that offer and his capacity to make the choice intelligently and understandingly has been made. No waiver should be found to have been made where it appears that the accused is unable to make an intelligent and understanding choice because of his mental condition, age, education, experience, the nature or complexity of the case, or other factors. . 518 P.2d 85 (Alaska 1974). . Id. at 91-92.

10349745

Charles E. UNDERWOOD, Jr., Susie G. Underwood, and Anthony C. Underwood, Appellants, v. STATE of Alaska, Governor Walter J. Hickel and Department of Revenue, Appellees

Underwood v. State

1994-09-30

No. S-5802

322

328

881 P.2d 322

881

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

Charles E. UNDERWOOD, Jr., Susie G. Underwood, and Anthony C. Underwood, Appellants, v. STATE of Alaska, Governor Walter J. Hickel and Department of Revenue, Appellees.

Charles E. UNDERWOOD, Jr., Susie G. Underwood, and Anthony C. Underwood, Appellants, v. STATE of Alaska, Governor Walter J. Hickel and Department of Revenue, Appellees. No. S-5802. Supreme Court of Alaska. Sept. 30, 1994. Robert John, Law Office of Robert John, Fairbanks, for appellants. Vincent L. Usera, Asst. Atty. Gen., and Bruce M. Botelho, Atty. Gen., Juneau, for appellees. Before MOORE, C.J., and RABINOWITZ, MATTHEWS, COMPTON and EASTAUGH, JJ.

3045

19141

OPINION MOORE, Chief Justice. At issue in this appeal is the constitutionality of a 1992 amendment to the permanent fund dividend (PFD) • statutes, Chapter 4, section 4, SLA 1992. The amendment changed the qualifying date set forth in AS 43.23.005(a) for a 1993 PFD. Charles E. Underwood, Jr., along with his wife and son, Susie G. Underwood and Anthony C. Underwood (the Underwoods), allege that they were unlawfully denied 1993 PFDs as a result of the change. They instituted this action against the State of Alaska, Governor Walter J. Hickel and the Department of Revenue (collectively "the State"), claiming that the amendment violated a number of their constitutional rights and that the State was estopped from denying their dividend applications. The superior court granted summary judgment in favor of the State. We affirm. I. FACTS AND PROCEEDINGS The facts are not in dispute. The Under-woods timed their move from Texas to Alaska with the specific intention of becoming Alaska residents in time to qualify for a 1993 PFD. According to Charles Underwood, he understood that in order to qualify for the 1993 PFD, the family members had to be state residents on or before April 1, 1992. Although Charles otherwise would have preferred to remain at his job in Texas until May 1992, he resigned in March. Had Charles remained at his job until late May as he desired, Charles claims he would have earned roughly another $3,000 in after tax wages. The family arrived in Alaska on March 25, 1992. On March 31, 1992, Governor Hickel signed Chapter 4, section 4, SLA 1992, which amended AS 43.23.005 by changing the eligibility requirements for a PFD to coincide with the calendar year. As a result, to be eligible for a 1993 PFD, applicants had to show Alaska residency as of January 1,1992. Accordingly, persons who established Alaskan residency between January 2, 1992 and April 1, 1992 were not eligible for a 1993 PFD, whereas under prior law they would have been eligible. The Underwoods brought suit in superior court challenging the constitutionality of the enactment. They specifically claimed that it violated the equal protection and due process guarantees of the federal and state constitutions, that it constituted an ex post facto law, that it was an impermissible taking of property, and that the State was equitably es-topped from amending the law. The superior court granted summary judgment in favor of the State on all of the Underwoods' claims. The Underwoods appeal. II. DISCUSSION The parties agree that there are no issues of material fact, and that this case may be properly resolved as a matter of law. The constitutional and other purely legal questions at bar are issues to which this court will apply its independent judgment. State v. Anthony, 810 P.2d 155,156-57 (Alaska 1991); Croft v. Pan Alaska Trucking, 820 P.2d 1064, 1066 (Alaska 1991). A. The Challenged Enactment Does Not Violate The Underwoods' Constitutional Rights. Alaska Statute 43.23.005 governs the eligibility requirements for a PFD. Following the enactment of Chapter 4, section 4, SLA 1992, the statute provided that: (a) An individual is eligible to receive one permanent fund dividend each year in an amount to be determined under AS 43.23.025 if (3) the individual was a state resident for at' least the calendar year immediately preceding January 1 of the current dividend year; . AS 43.23.005(a)(3) (emphasis added). Prior to the 1992 amendment, the statute required Alaska residency for the twelve month period immediately preceding April 1 of the current dividend year. AS 43.23.005(a)(2) (effective June 11, 1991). 1. Equal Protection The Underwoods assert that the 1992 enactment denied them equal protection and opportunity under both the Federal and Alaska Constitutions. See U.S. Const, amend. XIV; Alaska Const, art. I, § 1. Because Alaska's equal protection clause "is more protective of individual rights than the federal equal protection clause," State v. Anthony, 810 P.2d at 157, we focus our analysis on the Alaska Constitution. We have adopted a sliding scale approach to equal protection questions. State v. Erickson, 574 P.2d 1, 11-12 (Alaska 1978). Under this approach, " '[t]he applicable standard of review for a given case is to be determined by the importance of the individual rights asserted and by the degree of suspicion with which we view the resulting classification scheme.' " State, Dep't of Revenue v. Cosio, 858 P.2d 621, 629 (Alaska 1993) (quoting State v. Ostrosky, 667 P.2d 1184, 1192-93 (Alaska 1983)). As the level of scrutiny selected moves up the sliding scale, the asserted governmental interests must be relatively more compelling, and the legislation's means-to-ends fit must be correspondingly closer. Ostrosky, 667 P.2d at 1193. Conversely, "if relaxed scrutiny is indicated, less important governmental objectives will suffice and a greater degree of over/or underin-elusiveness in the means-to-ends fit will be tolerated." Id. (footnote omitted). We have held that an individual's interest in a PFD "is merely an economic interest and therefore is entitled only to minimum protection under our equal protection analysis." Anthony, 810 P.2d at 158. Under this minimum level of scrutiny, the State must show that the challenged enactment was designed to achieve a legitimate governmental objective, and that the means bear a "fair and substantial" relationship to the accomplishment of that objective. Cosio, 858 P.2d at 629; Anthony, 810 P.2d at 158-59. The State asserts that the purpose of the challenged legislation was to improve the overall efficiency of the PFD program. By moving the qualifying date to coincide with the calendar year, the PFD division of the Department of Revenue gains three months to process applications. This additional time should result in earlier detection of ineligible applicants and fewer improperly paid PFDs, less need for temporary staff to process applications, and quicker resolution of questioned applications, thereby decreasing the number of delayed payments. The State also asserts that the amendment was intended to simplify the PFD program, thereby decreasing public confusion and minimizing the many date-related errors that result in missed dividends. These objectives are legitimate ones, and we reject the Underwoods' argument to the contrary. The Underwoods contend that the cited objectives are not legitimate because they are based on cost savings and efficiency. See Herrick's Aero-Auto-Aqua Repair Serv. v. State, Dep't of Transp., 754 P.2d 1111, 1114 (Alaska 1988) ("[C]ost savings alone are not sufficient government objectives under [Alaska's] equal protection analysis."). However, the challenged legislation here is distinguishable from that in Herrick's. It is not justified solely by cost savings that are "achieved by excluding a class of persons from benefits they would otherwise receive." Id. (quoting Alaska Pac. Assurance Co. v. Brown, 687 P.2d 264, 272 (Alaska 1984)). Moreover, the State's goals of improved efficiency and consumer understanding represent different objectives than the mere goal of cost savings discussed in Herrick's or in Brown. See id.; Brown, 687 P.2d at 272. We therefore conclude that the goals of the 1992 amendment pass the legitimacy test. The means-to-ends tailoring of the amendment also satisfies the "fair and substantial relation" test. In arguing to the contrary, the Underwoods largely look to the fact that the State extended the application period for 1993 PFDs through June 1992. Their argument is that, because the application period for 1993 PFDs was extended, the legislature also could and should have extended the eligibility period for 1993 PFDs. However, the extended application period was specifically intended to reduce public confusion resulting from the 1992 statutory amendments, and it is substantially related to the purpose of the legislation. Moreover, the fact that the application time was extended says little about the claims at issue in this ease. The State does not assert that it .rejected the Underwoods' applications because of the additional burden in processing them. The issue is merely whether the changed qualifying date is fairly and substantially related to the goals of the 1992 amendments. Certainly, the State could have elected to permit applicants to achieve the one year residency requirement any time during the extended 1993 application period, thereby resulting in acceptance of the Underwoods' applications. However, the State's decision not to extend the qualifying date along with the application deadline does not mean that the enactment fails to satisfy the fair and substantial relation test. To the contrary, viewing the goals and means of the challenged legislation, we conclude that the State was not constitutionally required to extend the eligibility period for 1993 PFDs simply because it was feasible to do so. The Underwoods next rely on Isakson v. Rickey, 550 P.2d 359, 363-65 (Alaska 1976), to argue that the exclusion of people in their situation from 1993 PFD eligibility fails the fair and substantial relation test. However, Isakson does not control the outcome in this case. There, the purpose of the challenged statute was to allocate limited entry commercial fishing permits, with selection to be based upon certain hardship standards. Id. at 360. To demonstrate hardship, the statute specified that the applicant must have been the holder of a gear license prior to a cut-off date of January 1, 1973. Id. at 360-61. It was assumed that holders of gear licenses obtained after January 1, 1973 could not show hardship. We determined that the January 1, 1973 cut-off date was not fairly and substantially related to identifying the hardship necessary for an entry permit. Id. at 365. We found that the cut-off date was both overbroad and underinclusive. It was overbroad because it would include pre-1973 gear license holders who were no longer involved in commercial fishing and could not show hardship; it was underinclusive because it would exclude other persons who actively participated in and were economically dependent upon the fishery. Id. The statute at issue in Isakson cannot be logically compared to the challenged amendment in this case. Unlike the extremely loose tailoring in Isakson, the action moving the qualifying date for 1993 PFDs by three months is fairly and substantially related to the purpose of simplifying the PFD program in order to decrease public confusion and to improve efficiency and accuracy in administering the program. There is no significant danger of over or underinclusiveness as a result of the State's action. Because the challenged amendment derives from a legitimate governmental objective, and the means bear a fair and substantial relation to that objective, the 1992 amendment to AS 43.23.005(a) survives minimal scrutiny under Alaska's Constitution. Accordingly, the Underwoods' equal protection claim fails. 2. Due Process The Underwoods next assert that the enactment violated their due process rights because upon their arrival in Alaska in March 1992, they had a vested right to 1993 PFDs, subject only to their continuing residence. We disagree. As of March 31,1992, the Underwoods had been Alaska residents for approximately six days, far short of the twelve month requirement of AS 48.23.005 as it existed when the Underwoods arrived. At that time, the Un-derwoods possessed nothing more than an inchoate expectancy of a 1993 PFD that is not afforded constitutional protection. See Norton v. Alcoholic Beverage Control Bd., 695 P.2d 1090, 1092 n. 4 (Alaska 1985) (vested property rights are protected against state action by the due process clauses of the Alaska and United States Constitutions); Bidwell v. Scheele, 355 P.2d 584, 586 (Alaska 1960) (same). The Underwoods cite to real property cases from other jurisdictions to support their claim that their reliance on AS 43.23.-005 at the time of their move to Alaska should give them a vested right in the law as it existed on the date of their move. The Underwoods' analogy between real property transactions and the present case is unpersuasive. Unlike real property situations in which the complaining party indisputably possesses property rights in specific land, the Underwoods had no property right whatsoever in a 1993 PFD. Accordingly, there is no due process violation in this ease. 3. Ex Post Facto Law The Underwoods next assert that the 1992 amendment constitutes an ex post facto law in violation of the Alaska Constitution. An ex post facto law is a law " 'passed after the occurrence of a fact or commission of an act, which retrospectively changes the legal consequences or relations of such fact or deed.' " Danks v. State, 619 P.2d 720, 722 n. 3 (Alaska 1980) (quoting Black's Law Dictionary 520 (5th ed. 1979)). In determining whether a statute affecting pre-enactment conduct is unconstitutionally retrospective, one inquiry is into whether the statute affects vested rights. See Norton, 695 P.2d at 1092; see also Black's Law Dictionary 1317-18 (6th ed. 1990) (A "retrospective" or "retroactive" law is generally defined as a law which "takes away or impairs vested rights acquired under existing laws, or creates new obligations, imposes a new duty or attaches a new disability in respect to transactions or considerations already past.") (citation omitted). The Un-derwoods had no vested right to a 1993 PFD as of March 31,1992, just as no Alaskan had a vested right to a 1993 dividend at that time. Therefore, under a vested rights inquiry, the amendment clearly does not constitute an impermissible ex post facto law in violation of the Alaska Constitution. See Property Owners Ass'n v. City of Ketchikan, 781 P.2d 567, 574 n. 12 (Alaska 1989) (a statutory change which merely disappoints economic expectations and does not affect vested rights is not an ex post facto law). The Underwoods alternatively urge us to reject a vested rights inquiry and instead review the challenged enactment for fairness and reasonableness. See Norton, 695 P.2d at 1092-93 (noting the deficiencies of the vested rights analysis in determining whether a statute is in fact retroactive and whether it is unconstitutional); 2 Norman J. Singer, Sutherland Statutory Construction § 41.05, at 369-71 (5th ed. 1993) (fairness considerations represent a more meaningful standard of evaluating retroactive laws than a vested rights analysis). Even under such a standard, however, we find that the 1992 amendment at issue in this ease withstands constitutional scrutiny. The effective date of the 1992 amendment to AS 43.23.005 was January 1, 1993. The amendment made state residency during calendar year 1992 relevant to eligibility for a 1993 PFD, thereby bearing some relation to events dating back to January 1, 1992, instead of April 1,1992 as under the prior law. We are satisfied that this change did not unfairly or unreasonably impinge upon any property rights or settled expectations. Thus, we find that the amendment does not violate the constitutional prohibition against retroactive legislation. The Underwoods' claim on this ground therefore fails. See, e.g., ARCO Alaska, Inc. v. State, 824 P.2d 708, 710-12 (Alaska 1992) (upholding a tax law amendment which retroactively applied to a seven month period); Wien Air Alaska, Inc. v. State, Dep't of Revenue, 647 P.2d 1087 (Alaska 1982) (assuming the constitutionality of amendments to a tax statute retroactively applying to a six month period). B. The State Is Not Equitably Estopped From Denying the Underwoods Their 1993 PFDs. The Underwoods lastly claim that the State should be estopped from enforcing the 1992 amendment as to them because they acted in detrimental reliance on the prior law. We reject this claim. In short, the' Underwoods undertook a calculated risk when they decided to move to Alaska in March rather than May of 1992. The State engaged in no conduct encouraging this action, or in any way guaranteeing that the Underwoods would qualify for a 1993 PFD if they arrived in March. Thus, while it is unfortunate that the Underwoods' calculated risk did not pay off, the State is not obligated to pay for any losses incurred by the Under-woods as a result of their decision to move to Alaska in March. III. CONCLUSION The State's amendment to the eligibility statute for 1993 PFDs did not violate the Underwoods' constitutional rights. Nor is the State equitably estopped from denying the Underwoods a 1993 dividend. Accordingly, the superior court's order granting summary judgment in favor of the State is AFFIRMED. . Article I, section 1 of the Alaska Constitution states, "[t]his constitution is dedicated to the principle[ ] that . all persons are equal and entitled to equal rights, opportunities, and protection under the law...." Although the parties do not specifically address the issue, the class allegedly subject to disparate treatment under the amendment includes all persons who would have been eligible for a 1993 PFD but for the three month change in the qualifying date. . Although the Underwoods acknowledge that the rational basis test ordinarily applies to a person's interest in a PFD, they assert that the 1992 enactment interferes with their right to travel, thereby implicating strict scrutiny analysis. However, the issues in this case do not implicate the right to travel and are properly subject to rational basis review. . The PFD application period is governed by AS 43.23.011, which became effective on January 1, 1993 and requires that applications for PFDs be filed between January 2 and March 31 of the dividend year. Chapter 4, section 19(b), SLA 1992 provided that, notwithstanding this section, the application period for 1993 would extend through June 30, 1993. . Article I, section 7 of the Alaska Constitution provides: "No person shall be deprived of life, liberty, or property, without due process of law...." The Fifth Amendment to the United States Constitution contains a similar guarantee. .Similarly, because the Underwoods had nothing more than an inchoate expectancy of a 1993 PFD, they had no property that could have been the subject of a taking in violation of the Fifth Amendment of the Federal Constitution and Article I, section 18 of the Alaska Constitution. Accordingly, this argument also fails. . Article I, section 15 of the Alaska Constitution provides that "[n]o bill of attainder or ex post facto law shall be passed...." . In fact, because the entire dividend program is a creature of the legislature, it could have been abolished during the 1992 legislative session, so that no Alaskan received a 1993 PFD.

11799353

STATE of Alaska, DEPARTMENT OF REVENUE, CHILD SUPPORT ENFORCEMENT DIVISION ex rel. Constance L. GAUSE, Appellant, v. Thomas GAUSE, Appellee

State of Alaska, Department of Revenue, Child Support Enforcement Division Ex Rel. Constance L. Gause, Appellant, V. Thomas Gause, Appellee

1998-11-20

No. S-7953

599

606

967 P.2d 599

967

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

STATE of Alaska, DEPARTMENT OF REVENUE, CHILD SUPPORT ENFORCEMENT DIVISION ex rel. Constance L. GAUSE, Appellant, v. Thomas GAUSE, Appellee.

STATE of Alaska, DEPARTMENT OF REVENUE, CHILD SUPPORT ENFORCEMENT DIVISION ex rel. Constance L. GAUSE, Appellant, v. Thomas GAUSE, Appellee. No. S-7953. Supreme Court of Alaska. Nov. 20, 1998. Diane L. Wendlandt, Assistant Attorney General, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellant. Martha C. Shaddy, Anchorage, for Appel-lee. Before MATTHEWS, C.J., and COMPTON, EASTAUGH, FABE and BRYNER, JJ.

4475

26910

OPINION FABE, Justice. I. INTRODUCTION In an effort to collect child support arrears owed by Thomas Gause, the Child Support Enforcement Division (CSED) filed a motion under AS 25.27.226 seeking to establish a judgment for the past due payments. The superior court denied the motion, ruling that it was barred by the statute of limitations set out in AS 09.10.040(b), which applies to "actions." In State ex rel. Inman v. Dean, we held that AS 25.27.226 motions to collect child support arrears do not qualify as "actions." The legislature's view to the contrary, as expressed in § .040(b), was based on erroneous lower court decisions issued prior to Dean. Because statutes based on a mistaken premise do not change the legal rules in effect prior to their enactment, we conclude that § .040(b) does not apply to AS 25.27.226 motions. We therefore reverse. II. FACTS AND PROCEEDINGS Thomas Gause and Constance Gause married in 1967 and divorced in 1980. In the divorce decree, the superior court awarded custody of the Gauses' three children to Constance and ordered Thomas to pay $150 per month in support for each child. The court modified this order on two separate occasions to reflect changes in the custody of Gwendolyn, the Gauses' oldest child. In the last modification approved in February 1984, the court ordered Thomas to pay Constance a total of $300 per month in child support for months when Gwendolyn lived with him, and $500 per month in months when Gwendolyn lived with her. Thomas subsequently moved to South Carolina. After his move, CSED filed a petition in South Carolina under the Uniform Reciprocal Enforcement of Support Act (URESA), then in effect in Alaska. Based on the URESA petition, a South Carolina court issued an order requiring Thomas to pay a total of $175 per month in child support. CSED thereafter changed its accounting to show Thomas as accruing arrears of $175 per month, rather than $800 or $500 per month as required under the Alaska order. The statements sent by CSED to Thomas reflected this change in CSED's accounting practices. One month after the Gauses' youngest child turned twenty-one, CSED filed a motion under AS 25.27.226 asking the superior court to establish a judgment for the child support arrears owed by Thomas. CSED sought arrears based on the original Alaska support order. Thomas opposed the motion, arguing that it was barred by the statute of limitations set out in AS 09.10.040(b), which provides that an "action" to establish a judgment for child support arrears must be commenced by the date on which the youngest child covered by the support order turns twenty-one. Alternatively, Thomas claimed that the amount of arrears should be reduced because (i) CSED was estopped from claiming arrears under the Alaska order, rather than the South Carolina order; and (ii) CSED should be precluded from collecting support owed on his children's behalf for months when they resided with him. Superior Court Judge Karen L. Hunt denied CSED's motion without entering findings of fact or conclusions of law. When CSED requested that she clarify her decision, she specified her reliance on Thomas's discussion of the statute of limitations and estoppel issues. CSED appeals, arguing both that its motion was not time barred and that Thomas's arrears should not be reduced based on the claims he raised below. III. DISCUSSION A. Does the Statute of Limitations Set Out in AS 09.10.010(b) Bar CSED's Motion to Establish a Judgment for Child Support Arrears Owed by Thomas? The parties' dispute over the meaning of AS 09.10.040(b) lies at the center of this appeal. Because the context in which the legislature passed this statute is particularly relevant to how we interpret it in this case, we begin by discussing the circumstances surrounding its enactment. In 1993 two superior court judges ruled that former AS 09.10.040 barred CSED from recovering child support arrears that had accrued more than ten years before the date of its AS 25.27.226 motion. In the lower courts, CSED had not argued that the ten-year limit did not apply to its motions to collect arrears; instead, it claimed that the statute of limitations should be tolled based on its timely commencement of administrative enforcement actions. The superior court judges rejected CSED's argument, and it appealed to this court. Before we decided CSED's appeal, the legislature amended former AS 09.10.040 by adding subsection (b). The new subsection provides that "[a]n action may be brought to establish a judgment for child support payments that are 30 or more days past due under a support order . if the action is commenced by the date on which the youngest child covered by the support order becomes 21 years of age." As CSED states, the "purpose of the new legislation was to lengthen the period of time in which motions to reduce arrears to judgment could be filed." In fact, subsection (b) was created at CSED's request because it feared the loss of its collection authority over a substantial amount of arrears if we affirmed the decisions of the superior court judges. After the legislature passed new subsection (b), we decided State ex rel. Inman v. Dean, which resolved CSED's appeal of the lower court rulings interpreting former AS 09.10.040. Because the CSED motions at issue in Dean had been filed prior to the effective date of subsection (b), our decision interpreted the statute's former version. As we explained, former AS 09.10.040 became part of Alaska's statutory law in the late 1800s and stemmed from the Oregon code. Thus, our opinion relied on common law interpretations of the terms used in the statute. We began our statutory analysis in Dean by stating that a judicially decreed child support payment is a judgment that vests when the installment becomes due but remains unpaid. Therefore, we explained, although AS 25.27.226 describes motions to collect arrears as "establish[ing] a judgment," such motions are actually proceedings to enforce an already existing judgment. We then held that enforcing a judgment does not qualify as "bring[ing] an action" within the meaning of former AS 09.10.040 because an "action" under common law is a proceeding commenced by the filing of a complaint. We thus concluded that the former statute did not apply to CSED's motions under AS 25.27.226 to collect arrears. Instead, we ruled that such motions were governed by AS 09.35.020, which applies to executions of judgments. Under this statute, a judgment creditor who attempts to execute a judgment after a lapse of five years must show good cause for the delay; however, the statute places no absolute time limit on enforcement proceedings. 1. The parties'arguments CSED argues that Dean ⅛ construction of the term "action" in former AS 09.10.040 must govern our interpretation of new subsection (b) because the subsection also refers to bringing an action. Thus, it argues, because a motion to collect arrears is not, an action, subsection (b) does not apply to the AS 25.27.226 motion filed in this case. Thomas replies that our construction of the word "action" in Dean is irrelevant to interpretation of AS 09.10.040(b) because Dean ⅛ holding was based on the former version of the statute, which did not include subsection (b). He further claims that the legislature passed subsection (b) at CSED's request to apply to AS 25.27.226 motions. Thus, he concludes that it would contradict legislative intent to construe the new subsection as not applying to the motion to collect arrears filed in this case. 2. Construing AS 09.10.0Jf0(b) Each of the parties' arguments about the scope of subsection (b) has merit. As CSED claims, a motion to establish a judgment for child support arrears under AS 25.27.226 is not an "action" as that term was understood at common law. But Thomas is correct that the legislature drafted AS 09.10.040(b) with the understanding that it would apply to such motions. The crucial point, however, is that the legislature added new subsection (b) because of the lower courts' erroneous conclusion that former AS 09.10.040 applied to CSED's motions to collect arrears. We have previously considered how to analyze a statute when the legislature acts based on a mistaken premise. In City of Fairbanks v. Schaible, we were asked to decide whether the City could be held hable for injuries resulting from the negligence of its fire department. The City urged us to find that it was immune from tort liability; as evidence, it pointed to a statute enacted in 1957 that assumed that fire-fighting organizations enjoyed such immunity. We recognized that the legislature's understanding of immunity law stemmed from decisions of the territorial district court in Alaska, which had held that cities were not liable in tort for their exercise of governmental functions. We concluded, however, that the territorial court had misinterpreted the law of our state and that municipalities in Alaska did not enjoy immunity from tort liability. We also implicitly held that the 1957 statute did not change the law and emphasized that it was based on an "erroneous belief." The circumstances in Schaible, although different from those in this case, are sufficiently analogous to provide guidance in resolving the issue before us. The legislature that passed the AS 09.10.040(b) amendment, like the legislature that passed the 1957 statute in Schaible, was relying on an erroneous construction of the law by a lower court. A statute passed based on a mistaken premise does not change the legal rule in effect before its passage. Although the 1957 statute in Schaible was not an amendment to the preexisting statute, that case presented us with an opportunity to broaden the scope of municipal immunity beyond that in the preexisting statute based on the legislature's implied recognition of such immunity in the later statute. Instead, we declined to change the judicially recognized meaning of immunity to conform to the legislature's mistaken view of the law. In this case, the legislature's decision to amend AS 09.10.040(b) does not relieve us of the duty of interpreting the term "action" in that provision. Understandably, the legislature relied on erroneous trial court decisions in its assumption that motions to reduce arrears to judgment constitute "actions." But in Dean we held that they do not. As in Schaible, we decline to broaden the judicially recognized scope of the word "action" to conform to the legislature's "erroneous belief' about the law. Thus, we hold that new subsection (b) does not apply to AS 25.27.226 motions to collect arrears because such motions are not "actions" as that term is understood in the common law. The superior court therefore erred in concluding that new subsection (b) barred CSED's AS 25.27.226 motion in this case. B. Other Issues CSED also discusses the other claims raised below by Thomas regarding the amount of arrears owed. It argues (i) that it should not be estopped from seeking arrears under the Alaska order based on accounting statements sent to Thomas; (ii) that the URESA order did not modify the Alaska support order; and (iii) that, because he failed to file a motion to modify the custody and support order, Thomas's support obligation was not suspended during periods when he had physical custody of the children. The superior court's clarification order suggests that it considered only the statute of limitations and estoppel issues in reaching its decision. We therefore limit our discussion of the other claims raised by CSED to the estoppel issue. On remand, the superior court should address the merits of CSED's two remaining arguments. We analyze the estoppel argument by relying on the rule established in our recent decision in State, Department of Revenue v. Valdez. In Valdez, we stated that when CSED is collecting child support on behalf of the custodial parent, its actions cannot amount to waiver or estoppel because it has no power to waive a child's right to support. In contrast, we suggested that the doctrines of waiver and estoppel could apply when CSED is seeking reimbursement for AFDC payments, because only the State's rights would be at stake in such situations. Recognizing the applicability of our ruling in Valdez to the facts of this case, Thomas now concedes that CSED's actions in sending him erroneous accounting statements cannot justify his refusal to pay arrears owed to his ex-wife. He argues, however, that CSED is not entitled to the $600 that he owes the State for AFDC reimbursement. Although CSED theoretically could be estopped from recovering such funds under the rationale of Valdez, Thomas's estop-pel claim with respect to these funds fails because he cannot show detrimental reliance. As CSED points out, Thomas's debt for the AFDC payments accrued in 1980 and 1981, before the URESA order was issued and before CSED began sending him accounting statements showing his arrears as accruing under that order. Therefore, because Thomas could not have reasonably relied on the accounting statements in concluding that he did not owe the $600 in AFDC payments, CSED may recover these funds. IV. CONCLUSION The superior court erred in concluding that the statute of limitations set out in AS 09.10.040(b) barred CSED's AS 26.27.226 motion to collect child support arrears owed by Thomas. Subsection (b) applies only to "actions" establishing a judgment, and AS 25.27.226 motions do not qualify as "actions." The legislature's view to the contrary was based on the erroneous conclusion of the lower courts. Because statutes based on a mistaken premise do not change the legal rules in effect prior to their enactment, we conclude that subsection (b) does not apply to AS 25.27.226 motions because they are not "actions." We therefore REVERSE the decision of the superior court and REMAND for proceedings consistent with this opinion. COMPTON, J., dissenting in part. . 902 P.2d 1321, 1323-24 (Alaska 1995). . See former AS 25.25 (repealed 1995). . AS 25.27.226 provides: To collect the payment due, the custodian of a child, or the agency on behalf of that person, shall file with the court (1) a motion requesting establishment of a judgment; (2) an affidavit that states that one or more payments of support are 30 or more days past due and that specifies the amounts past due and the dates they became past due; and (3) notice of the obligor's right to respond.... . AS 09.10.040(b) provides: An action may be brought to establish a judgment for child support payments that are 30 or more days past due under a support order, as defined in AS 25.27.900, if the action is commenced by the date on which the youngest child covered by the support order becomes 21 years of age. An action after the establishment of the judgment is governed by (a) of this section. .Because the meaning of a statute is a question of law, we review de novo the superior court's interpretation of AS 09.10.040(b). See State, Dep't of Revenue v. Gerke, 942 P.2d 423, 425 (Alaska 1997). . Former AS 09.10.040 provided: No person may bring an action upon a judgment or decree of a court of the United States, or of a state or territory within the United States, and no action may be brought upon a sealed instrument unless commenced within 10 years. . See State ex rel. Inman v. Dean, 902 P.2d 1321, 1322 (Alaska 1995). . See id. at 1323. . See id. . See ch. 86, § 2, SLA 1994. . AS 09.10.040(b). . See Child Support: Hearing on House Bill 362 Before the House Health, Education and Social Services Standing Comm., 18th Legis., 2nd Sess. (Alaska 1994) (statement of Mary Gay, Director of CSED). . See Dean, 902 P.2d at 1322 n. 1. . See id. at 1324 n. 9. . See id. at 1323 (citing AS 25.27.225). . Id. at 1324 (emphasis added). . Id. at 1323-24. . See id. We suggested, however, that former AS 09.10.040 would apply to CSED's attempts to collect child support arrears based on foreign support orders because enforcing such judgments under the common law required commencing a new action. See id. at 1323. . See id. at 1324. . AS 09.35.020 provides: When a period of five years has elapsed after the entry of judgment and without an execution being issued on the judgment, no execution may issue except by order of the court in which judgment is entered. The court shall grant the motion if the court determines that there are just and sufficient reasons for the failure to obtain the writ of execution within five years after the entry of judgment. . See AS 09.10.040(b). . See former AS 09.10.040 (amended 1994). . See, e.g., Child Support: Hearing on House Bill 362 Before the Senate Judiciary Comm., 18th Legis. 2nd Sess. (April 25, 1994) (testimony of Philip Petrie, Chief Operations Officer of CSED). Mr. Petrie stated: [Tjhis bill has two purposes. The first part of it is a change to the statute of limitations.... About five years ago due to our — a limitation on AG resources, a decision was made at the Division not to send Child Support cases to court to establish judgments, which would allow us to enforce against them. It was thought at that time, and it lasted for several years, that our enforcement — administrative enforcement actions actually tolled the statute. Then last summer, we had two court cases come down in Anchorage where the judge said administrative enforcement actions did not toll the statute of limitations, which put us in a catch-22 situation where we have a substantial number of cases, 8,785 cases representing $43 million that without this change will effectively evaporate off of the books. We have — we are appealing both of those cases [to] the Supreme Court now; but that's a lengthy process. And we looked at other state statute of limitations and realized that we needed to extend ours to a more reasonable period of time so that we aren't going back into court to officially establish a judgment. And the case now, we would have to do that approximately twice in the lifetime of a normal child, assuming 18 [years]. Because there's a ten year statute of limitation. So that's the purpose of the first part of it. See Transcript of Senate Judiciary Committee Meeting, April 25, 1994. . 375 P.2d 201 (Alaska 1962), overruled on other grounds by Scheele v. City of Anchorage, 385 P.2d 582 (Alaska 1963). . See id. at 206. . See id. at 209. . See id. . See id. . See id. . See id. . See id. . AS 09.10.040(b), like former section .040, will apply only to CSED's attempts to collect child support arrears based on foreign support orders because enforcing such judgments under the common law requires commencing a new action. See Dean, 902 P.2d at 1325. . We would like to provide guidance to the superior court, however, in evaluating these remaining arguments. In deciding whether the URESA order modified the previous Alaska support order, the superior court should find helpful our recent decision in State, Department of Revenue v. Valdez, 941 P.2d 144, 154 n. 14 (Alaska 1997). With respect to its argument concerning Thomas's support obligation during periods when he had physical custody of the children, CSED now concedes that Thomas's arrears should be decreased to reflect months in which Gwendolyn lived with him. Recognizing that the order at issue in this case assumed a shifting support obligation based on Gwendolyn's residence, CSED agrees that Constance is precluded from seeking support for months in which Gwendolyn lived with Thomas. See Karpuleon v. Kar puleon, 881 P.2d 318, 321-22 (Alaska 1994). But CSED claims that Thomas's arrears should not be credited for months when his youngest child Vanessa resided with him because it was his duty to seek a modification of the custody and support order when circumstances changed. See id, at 320. In addressing this claim, the superior court may wish to decide whether a credit would be appropriate under AS 25.27.020(b), which provides that an obligor can receive an offset against child support owed for payments made directly to the obligee or to the obligee's custodian. . 941 P.2d 144 (Alaska 1997). . See id. at 154 n. 14. . See id. . See id. at 154 n. 14. . See id. at 152 n. 9 (setting out the requirements of estoppel claims).

10418238

Harvey DRAKE d/b/a Drake's Sanitation Service, and Drake's Sanitation, Inc., Appellants, v. FAIRBANKS NORTH STAR BOROUGH, Appellee

Drake v. Fairbanks North Star Borough

1986-03-21

No. S-895

1167

1170

715 P.2d 1167

715

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

Harvey DRAKE d/b/a Drake’s Sanitation Service, and Drake’s Sanitation, Inc., Appellants, v. FAIRBANKS NORTH STAR BOROUGH, Appellee.

Harvey DRAKE d/b/a Drake’s Sanitation Service, and Drake’s Sanitation, Inc., Appellants, v. FAIRBANKS NORTH STAR BOROUGH, Appellee. No. S-895. Supreme Court of Alaska. March 21, 1986. B. Richard Edwards, Law Offices of B. Richard Edwards, Anchorage, for appellants. Michael B. Markham, Asst. Borough Atty., Fairbanks, for appellee. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

1673

10640

OPINION MATTHEWS, Justice. The question in this case is whether Fairbanks North Star Borough is improperly providing a waste collection and disposal service. Garbage removal is classified as a public utility service under AS 42.05.-720(4)(F). A company which provides a public utility service must have a Certificate of Public Convenience and Necessity from the Alaska Public Utilities Commission under AS 42.05.221(a). The certificate has two functions. First, it specifies the area in which the company providing the service may operate. AS 42.05.221(a). And second, it prohibits local authorities from providing competing garbage service in the designated area, unless they buy out the holder of the certificate. AS 29.48.-033(b). Harvey Drake, appellant, has such a certificate. He claims that the appellee, Fairbanks North Star Borough, (Fairbanks) is competing in his service area. Fairbanks opened an intermediate garbage collection site at North Pole, in Drake's service area. The North Pole site consists of a dumping floor, apparently exactly what its name implies — a large floor upon which the public dumps its garbage. After the public deposits its garbage at the site, Fairbanks employees compact it, load it on to trucks, and transfer it to a garbage plant and landfill at South Cushman — outside of Drake's service area. The North Pole site is not a final disposal site. All refuse goes to South Cushman for permanent disposal. Prior to the opening of the North Pole site, the only other intermediate collection site was operated by Drake and located in his service area. That disposal site consists of a number of dumpsters. Drake claims that he is losing revenues because the residents of the area now use the North Pole dumping floor instead of his collection site. Therefore, he argues that Fairbanks has in effect taken a part of his certificate without just compensation. Fairbanks argues that it has not encroached on Drake's certificate, and that, even if it has, Drake has not suffered any economic harm. Both parties moved for summary judgment. The trial judge granted summary judgment against Drake who has appealed. No material facts are in dispute. With respect to the law, the Legislature has provided that a local government may not provide for a garbage 'collection and disposal service in any area to the extent it lies within an area granted to a garbage, refuse, trash or other waste material carrier by a certificate issued by the commission." AS 29.48.033(b) (emphasis added). The issue in this case is the meaning of "collection and disposal service." We have addressed this issue in McClellan v. Kenai Peninsula Borough, 565 P.2d 175 (Alaska 1977). In McClellan, the Ke-nai Borough set up intermediate sites, i.e., dumpsters, for garbage collection and disposal. Id. at 176. It hired private companies to operate the sites and haul garbage to landfills. Id. Two other companies, however, held utility certificates for garbage collection and disposal in the Kenai Peninsula Borough. Id. We held that the Borough was liable for a partial taking of their certificates. Id. at 177. McClellan concluded that collection is "the act or process of collecting," "something collected," or the "bringing] together into one body or place." Id. (quoting Webster's Seventh New Collegiate Dictionary (1969)). When we applied the definition in McClellan, we found that: "The fact pattern presented is clear on the point that refuse was gathered at the various intermediate sites and was hence collected." Id. We also stated that to permit the Borough to maintain intermediate garbage sites without paying compensation would "completely vitiate the requirement of [the statutes] that certificate holders be compensated for their interests." Id. On the meaning of "disposal," McClellan adopted the Alaska Public Utilities Commission's established definition. The Commission defined disposal as "the passing over of control of solid waste to the disposal site operator." Id. (emphasis omitted). Thus, the transport of refuse from the dumpsters to the landfill in McClellan amounted to "disposal" within the meaning of the statute. See id. We hold that Fairbanks is engaging in garbage "collection and disposal" as McClellan defines these terms. Because of the structuring of Fairbanks' arguments, we deal with disposal before collection. A. Disposal McClellan defines "disposal" as the passing over of control to the disposal site operator. Id. Although Fairbanks employees take control over the garbage at North Pole, the final act in the process of "disposal" occurs at South Cushman. When McClellan said that disposal meant the passing over of control to the disposal site operator, it meant at the final disposal site. The dispute in that case was over the right to transport refuse from intermediate dumpsters to "final landfill areas." Id. at 176. That was held to be a utility service. The final disposal site in this case is at South Cushman. Thus, when Fairbanks transports garbage from North Pole to South Cushman, it is engaging in "disposal." To the extent this occurs in Drake's service area, Drake deserves compensation. To hold that the disposal site need not be final would make AS 29.48.033(b) meaningless. Nothing would prevent local governments from establishing numerous intermediate disposal sites in a certificate holder's area without compensation. Since the public would deposit its garbage directly at these sites, the public would "pass over control" of its garbage at the intermediate sites. This is what we meant in McClellan when we rejected the argument that intermediate dumpsters were the functional equivalent of landfill sites: "[This] would allow the Borough to place dumpsters in such a pervasive fashion as to completely vitiate the requirement of AS 29.48.033(b) that certificate holders be compensated for their interests." 565 P.2d at 177. Fairbanks contends, however, that the statute prevents it only from collecting garbage, but not from disposing of garbage. This is erroneous. The statute refers to both "collection and disposal." AS 29.48.-033(b) (emphasis added). Moreover, in McClellan we explicitly awarded damages against the Kenai Peninsula Borough because the Borough was providing a disposal service through non-certificate holders. Fairbanks attempts to draw a distinction between the dumpsters in McClellan and the site at North Pole. It contends that the Borough becomes the owner of the garbage which is deposited at the North Pole dumping floor, whereas the owners of the dumpsters become the owners of the garbage left at their dumpsters. Fairbanks' assumption is that the dumpsters in McClellan were privately owned. Even if this were correct, ownership of the garbage is irrelevant. Otherwise, Fairbanks could purchase its own dumpsters and place them throughout a certificate holder's area with impunity. This would evade AS 29.48.033(b) in just the manner prohibited in McClellan. Under McClellan, the only consideration is the location of the final disposal site. Since this is at South Cushman, the transfer at North Pole has no legal significance. The only differences between the dumpsters in McClellan and the site at North Pole are that (1) the North Pole dumping floor is larger than the dumpsters; (2) the floor is permanent whereas the dumpsters are mobile; and (3) the North Pole employees must compact the garbage before they transfer it to South Cushman. These differences are without legal significance. North Pole is an intermediate holding facility for refuse on its way to South Cushman just as the dumpsters in McClellan were intermediate holding facilities for refuse on its way to the final landfills. They should be treated similarly. B. Collection Fairbanks is also providing a garbage "collection" service within the meaning of AS 29.48.033(b). Indeed, Fairbanks seems to admit this. For example, it says that after refuse is left at the North Pole site "[tjhere is no further collection" and "collection is over." These statements imply that collection occurs. The contention that the collection is complete once the public deposits the refuse is irrelevant. The Borough has, by operating the collection site, engaged in the "act or process of collecting" refuse. McClellan, 565 P.2d at 177. In conclusion, we hold that summary judgment against Drake was improper because Fairbanks is providing a "collection and disposal" service. On remand, summary judgment should be granted in Drake's favor on the issue of liability. Just compensation must be determined at trial. REVERSED and REMANDED. . This statute defines "public utility" to include the "furnishing [of] collection and disposal service of garbage, refuse, trash or other waste material." . The statute states: "A public utility may not operate and receive compensation for providing a commodity or service . without first having obtained from the [Public Utilities] commission a certificate declaring that public convenience and necessity require or will require the service." . This statute states that: "A certificate shall describe the nature and extent of the authority granted in it, including, as appropriate for the services involved, a description of the authorized area and scope of operations of the public utility." . This section provides: A political subdivision may not provide for a garbage, refuse, trash or other waste material collection and disposal service in any area to the extent it lies within an area granted to a garbage, refuse, trash or other waste material carrier by a certificate issued by the commission to the carrier until it has purchased the certificate, equipment and facilities of the carrier or that portion of the certificate which would be affected at fair market value and may exercise the right of eminent domain to determine fair market value. .For the full text, see AS 29.48.033(b), supra note 4. . After discussing the definition of "disposal" used by the Alaska Public Utilities Commission, we said: "We agree with this interpretation . Therefore, we hold that the Borough of Kenai is liable to the appellants for the fair market value of their certificates . or that portion . that would be affected." Id. at 177.

10396077

The ESTATE OF Gene ENSLEY, Deceased, Appellant, v. ANGLO ALASKA CONSTRUCTION INC. and Scott Wetzel Services, Inc., Appellees

Estate of Ensley v. Anglo Alaska Construction Inc.

1989-05-12

No. S-2670

955

960

773 P.2d 955

773

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

The ESTATE OF Gene ENSLEY, Deceased, Appellant, v. ANGLO ALASKA CONSTRUCTION INC. and Scott Wetzel Services, Inc., Appellees.

The ESTATE OF Gene ENSLEY, Deceased, Appellant, v. ANGLO ALASKA CONSTRUCTION INC. and Scott Wetzel Services, Inc., Appellees. No. S-2670. Supreme Court of Alaska. May 12, 1989. Chancy Croft, Anchorage, for appellant. Richard L. Waller and Alex Vasauskas, Stone, Waller & Jenicek, Anchorage, for appellees. Before MATTHEWS, C.J., and RABINO WITZ, BURKE, COMPTON and MOORE, JJ.

2579

15960

OPINION MOORE, Justice. The estate of Gene Ensley appeals from a superior court decision which affirmed a decision of the Alaska Workers' Compensation Board (Board) which terminated Ens-ley's temporary total disability (TTD) benefits as of February 10, 1984. The issue before this court is whether the board erred in denying Ensley continued TTD benefits for a work-related injury due to the fact he could no longer work as a result of medical treatments for nonwork-related cancer. For the reasons set forth below, we reverse the board's decision and remand the case to the board for determination as to the date when Ensley's back condition no longer constituted a TTD. I. Gene Ensley was a heavy equipment mechanic employed by Anglo Alaska Construction, Inc. (Anglo) on the North Slope. He injured his back on December 7, 1984 when he was knocked from a scraper, struck his right hip on a pull hitch in his descent, and landed on his back. After returning from the North Slope to Washington State, Ensley was treated by Dr. Lyzanchuk. Dr. Lyzanchuk diagnosed the injury, on February 16, 1985, as a traumatic dorsal thoracic lumbar strain, acute dorsal myospasm of the thoracic lumbar segments, sacroiliac strain and lumbar strain involving the low back. In mid-January of 1985, Ensley was diagnosed as having cancer which apparently commenced in the lungs and was unrelated to employment. Dr. Lyzanchuk stated on February 4, 1985 that although Ensley was unemployable because of the back injury, he was also unemployable because of the unrelated cancer condition predicted to end his life within three to six months. Ensley flew to the Bahamas where he underwent cancer treatment from February 10, 1985 through April 18, 1985. When Ensley returned home to Washington, he underwent radiation therapy until May 17, 1985. On May 18, 1985 he was hospitalized due to the effect of the cancer and its treatment. He returned to the clinic in the Bahamas for cancer treatment in early June 1985 and remained there until June 29, when he returned to Washington. Ensley died of cancer on July 11, 1985. The last physician's note in the record referring to treatment of Ensley's low back strain is dated April 25, 1985. Ensley's claim for workers' compensation benefits was originally controverted by Anglo on the ground that he had not sustained a disabling injury while on the job. Ensley filed an Application for Adjustment of Claim on January 23, 1985. Anglo later asserted the additional defense that Ensley was not working due to terminal cancer and not because of the work-related injury. A hearing was held before the Board on September 5, 1985. In its Decision and Order, the Board found that Ensley did suffer a disabling injury in the course of his employment. However, the Board only awarded TTD compensation through February 9, 1985, stating: We find that from December 22, 1984 to and including February 9, 1985, Employee was disabled as a result of his December 7, 1984 work-related injury. On February 10, 1985, Employee flew to Free-port, Grand Bahamas to undergo cancer treatment. As of that date his medical treatment was entirely directed toward the cancer. His back injury was no longer being treated. We conclude that as of February 10, 1985, Employee's "disability", as defined in AS 23.30.265(10), was due to his cancer not his work-related injury. Ensley's estate appealed this decision to the superior court, claiming that the Board erred in failing to award temporary disability benefits from February 10, 1985 until Ensley's death on July 11, 1985. The superior court affirmed the Board, holding that since the cancer would have forced Ensley into permanent retirement notwithstanding any back injury, he did not suffer any economic injury that could be redressed under the Alaska Workers' Compensation Act (the Act) after February 9, 1985. Ens-ley's estate appeals the superior court's decision. II. The estate argues that the Board erred as a matter of law in concluding that Ens-ley's disability as defined in AS 23.30.-265(10) was a result of his nonwork-related cancer and not his work-related back injury. While the Board justifies its conclusions by discussing whether the back injury was being treated, the board also impliedly found that Ensley's disability — i.e. his inability to earn wages — was due to the cancer. Id. As the superior court noted: From an analysis of the decision, it can be ascertained the board found that Mr. Ensley was no longer available for work as of February 10,1985. The cancer was a supervening cause analogous to death which terminated the employee's economic life. The board's finding is supported by substantial evidence, the uncontested treatment for cancer. We initially note that disability is specifically defined within the Act and, therefore, should be construed in light of the statutory definition. See Alaska Int'l Constructors v. Kinter, 755 P.2d 1103, 1104 (Alaska 1988). The Act defines disability as the "incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment." AS 23.30.265(10). In Vetter v. Alaska Workmen's Compensation Board, 524 P.2d 264, 266 (Alaska 1974), this court defined disability in terms of earning capacity: The concept of disability compensation rests on the premise that the primary consideration is not medical impairment as such, but rather loss of earning capacity related to that impairment. An award for compensation must be supported by a finding that the claimant suffered a compensable disability, or more precisely, a decrease in earning capacity due to a work-connected injury or illness. We believe the Board erred by failing to consider whether Ensley's back condition constituted a disability regardless of his treatment for cancer. Liability for workers' compensation benefits will be imposed when employment is established as a causal factor in the disability. Burgess Constr. Co. v. Smallwood (II), 623 P.2d 312, 317 (Alaska 1981). A causal factor is a legal cause if it is a substantial factor in bringing about the harm or disability at issue. Id. In the case of a preexisting condition associated with a disability, a claim is compensable upon a showing that employment (1) aggravated, accelerated, or combined with a preexisting condition so as to be (2) a substantial factor in bringing about the disability. Id. In this case, however, we are confronted with a unique situation. The medical records indicate that Ensley suffered from two independent conditions — one work-related and one not — either of which would have prevented him from working. We believe the Board erred in ignoring Ens-ley's temporary loss of earning capacity due to the work-related back injury. The fact that Ensley also suffered a concurrent total loss of earning capacity due to the cancer does not destroy the causal link between the work injury and his temporary total loss of earning capacity. Anglo cites a number of cases holding that an employee who voluntarily removes herself from the work force is no longer entitled to TTD benefits. For example, in Vetter, 524 P.2d 264, the employee suffered a work-related injury but did not return to work for personal reasons. The court held that [i]f a claimant, through voluntary conduct unconnected with his injury, takes himself out of the labor market, there is no compensable disability_ Total disability benefits have been denied when a partially disabled claimant has made no bona fide effort to obtain suitable work when such work is available. And, a claimant has been held not entitled to temporary total disability benefits even though she had a compensable injury when she had terminated her employment because of pregnancy and thereafter underwent surgery for the injury. Since the compensable injury was not the reason she was no longer working, temporary disability benefits for current wage losses were denied. 524 P.2d at 267 (footnotes omitted). The superior court concluded that Ens-ley's cancer in effect forced him into involuntary retirement. Analogizing this situation to the one in Vetter, the superior court concluded that .Ensley no longer suffered a loss of earning capacity after the onset of cancer. We conclude that Vetter does not control this case. An employee's voluntary departure from the work force is not analogous to the situation where a terminal illness prevents an already totally disabled individual from returning to work. A more appropriate analogy exists in Jones v. Alaska Workmen's Compensation Board., 600 P.2d 738 (Alaska 1979). In Jones, the employee suffered from a nonwork-related condition — atherosclerosis, or hardening of the arteries. As a result of a forced climb at work in cold conditions, the employee suffered an angina attack and subsequently underwent coronary artery surgery for the atherosclerosis. The Board denied his claim for TTD compensation on the grounds that his disability was caused solely by his atherosclerosis, and that the factors bringing on the angina attack did not affect this underlying condition. This court noted that the work exertion which produced the attack did not increase or accelerate the employee's need for the bypass operation. Id. at 739. However, we reversed the board's conclusion that Jones's angina did not constitute a basis for a TTD award and remanded the case to the board for a determination of how long Jones would have been disabled had he not undergone the bypass surgery. Justice Boochever, in his concurring opinion, specifically acknowledged that this period of compensation necessarily included any overlap with the time in which Jones underwent the operation for the independent disability. Id. at 741. The court in Jones therefore allowed an employee to receive temporary disability benefits during a period in which he was also totally disabled as the result of treatment for a nonwork-relat-ed medical condition. Although there is little case law on this question in other jurisdictions, the Washington Court of Appeals reached a similar result in Shea v. Department of Labor and Industries, 12 Wash.App. 410, 529 P.2d 1131 (1974). In Shea, the court considered whether an employee with two independent totally disabling conditions, one work-related and the other not, was entitled to permanent total disability benefits. The department argued that Shea was no longer entitled to benefits because several years prior to the time the department closed his claim, he was in fact totally and permanently disabled as a result of disabilities entirely unrelated to his work injury. Shea argued that he should not be denied benefits "where the evidence establishes that he is totally and permanently disabled as a result of his industrial injury[,] simply because another totally unrelated condition also rendered him totally and permanently disabled prior to the last closing of his industrial claim." Id. 529 P.2d at 1133 (emphasis added). The court agreed with Shea and remanded the case to the deparfcment to determine whether or not he was totally and permanently disabled as a result of the 1964 industrial injury. Id. In rejecting the department's position that the nonwork-related disability prevented an award of disability compensation, the court relied upon the notion that the compensation act was designed to provide benefits "not only to workmen with no prior physical or mental impediments, but also to workmen who may be afflicted with preexisting physical or mental infirmities or disabilities." Id. Secondly, the court stated that "the remedial and beneficial purposes of the act should be liberally construed in favor of workmen and beneficiaries." Id. We agree with the reasoning of Shea. The Act was designed to be a liberal remedial scheme to partially compensate workers for lost wages due to employment related disabilities. Hewing v. Kiewit & Sons, 586 P.2d 182, 187 (Alaska 1978). We conclude that the remedial policy of the Act is furthered by providing compensation for temporary disabilities even when a concurrent unrelated medical condition has also rendered the worker unable to earn his or her normal wages. To construe the Act so as to deny coverage would create a windfall to employers simply because of the employee's misfortune in developing an independent medical problem. In this case, the medical evidence indicates that Ensley may have suffered from a TTD as a result of his job-related back injury, regardless of whether he contracted cancer. We conclude that Ensley is entitled to TTD payments for the period in which his back condition would have prevented him from working regardless of the fact he was also undergoing cancer treatment. The Board did not make the factual finding that his back condition no longer prevented him from returning to work; rather the Board relied on the fact that he subsequently underwent cancer treatment to justify its decision that he was no longer disabled. III. We therefore REVERSE the superior court's affirmance of the Board's decision and REMAND to the superior court with directions to remand to the Board with directions to the Board to reverse and vacate its decision and for the Board to determine on which date Ensley's back condition no longer constituted a TTD. . Metastatic grade III squamous cell carcinoma. . The Board's statement that the back injury was no longer being treated after February 10, 1985 and that as of that date Ensley's medical treatment was "entirely directed toward the cancer" is contrary to the evidence in the record. The Board's findings are therefore not supported by substantial evidence. Thus, these findings are not an appropriate basis for the Board's conclusion that Ensley's disability was due to his cancer, not his work-related injury. . See also Ketchikan Gateway Borough v. Saling, 604 P.2d 590 (Alaska 1979). . See Vetter, 524 P.2d at 266; Electronic Assoc. v. Heisinger, 111 N.J.Super. 15, 266 A.2d 601 (N.J.App.1970); Karr v. State Acc. Ins. Fund, 79 Or.App. 250, 719 P.2d 35 (1986). . In Washington, as in Alaska, permanent total disability benefits are based upon "loss of earning power." Shea, 529 P.2d at 1134. Compare Electronic Assoc., 266 A.2d at 604 (New Jersey's permanent disability benefits based upon "physical disability suffered . irrespective of any loss of earning power"). . Arguably, coverage should be denied if the employee's disease or condition was known at the time of the industrial accident. In tort law, it has been held that an existing disease or a prior accident which reduces the plaintiffs life expectancy will limit accordingly the value of the life in an action for wrongful death. Then what is the value of a burning house which the defendant prevents a fire engine for extinguishing, or one in the path of a conflagration which the defendant destroys? What damage has the plaintiff suffered when defendant blocks the passage of the plaintiffs barge into a canal in which passage was already blocked by a landslide? Value is an estimate of worth at the time and place of the wrong. It is obvious that if such factors as these are to be considered as reducing value, they must be in operation when the defendant causes harm, and so imminent that reasonable persons would take them into account. W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser and Keeton on the Law of Torts § 52, at 353 (5th ed. 1984). . Since resolution of this issue resolves this case, we do not reach the issue as to whether the board erred by failing, to apply the presumption of compensability in this case.

10394380

Thomas Lee HALE, Appellant, v. STATE of Alaska, Appellee

Hale v. State

1988-11-25

No. A-1966

313

318

764 P.2d 313

764

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

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

CAP

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

Thomas Lee HALE, Appellant, v. STATE of Alaska, Appellee.

Thomas Lee HALE, Appellant, v. STATE of Alaska, Appellee. No. A-1966. Court of Appeals of Alaska. Nov. 25, 1988. Rex Lamont Butler, Anchorage, for appellant. Nancy R. Simel, Asst. Atty. Gen., Office of Sp. Prosecutions and Appeals, Anchorage, and Grace Berg Schaible, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and SINGLETON, JJ.

2440

15029

OPINION SINGLETON, Judge. Thomas Lee Hale was convicted by a jury of robbery in the first degree based on his role as an accomplice to an armed robbery by George Zito. AS 11.41.500(a)(1), AS 11.16.110. Robbery in the first degree is a class A felony. Hale received a sentence of fifteen years with five years suspended. He appeals his conviction and sentence. We affirm. FACTS While Thomas Lee Hale was living with Mr. and Mrs. George Zito, Hale and Mr. Zito planned the robbery of a restaurant where Hale had previously worked. Hale bought a gun for use in the robbery and gave the gun to Zito. According to plan, Zito would commit the robbery and Hale would drive the car. On April 2, 1986, Hale and Zito twice drove in the same car to the restaurant and spoke to one of the employees, Mr. Macalino. On the second occasion, Hale told Macalino that Zito had something to say. Zito showed Macalino the handgun and told him, "This is a holdup." Zito took Macalino to the back of the restaurant. Hale left the building, got in the car, and drove it across the street. Minutes later, the police arrived and arrested Zito. By the time of Zito's arrest,-Hale had fled. He was arrested later at Zito's apartment. DISCUSSION Hale challenges his conviction on two grounds. First, he contends that the trial court erred in failing to grant his motion for judgment of acquittal based on the theory of "renunciation." AS 11.16.-120(a)(1). Construing the evidence in the light most favorable to the state, as we must in considering a motion for judgment of acquittal, we are satisfied that reasonable jurors could differ on the question of whether guilt was established beyond a reasonable doubt. Deal v. State, 657 P.2d 404, 405 (Alaska App.1983). The evidence establishes that Hale solicited George Zito to commit a robbery in the first degree and that Hale furnished Zito with a firearm. Hale and Zito went together to the restaurant, and Hale abandoned Zito and fled the scene only after the robbery had commenced. Under these circumstances, the trial court did not err in denying the motion for judgment of acquittal. Hale next argues that he was denied his right to due process by the trial court's failure to instruct the jury properly on the issue of "renunciation." Hale argues that he was entitled to prevail on the defense of "renunciation" if he could show that he withdrew from the criminal enterprise prior to its being commenced or before it became inevitable. He argues that the trial court improperly instructed the jury that a person defending on the ground of "renunciation" must either inform the police of the criminal enterprise in advance of its commencement or make reasonable efforts to prevent the commission of the offense. He argues that under the circumstances, his withdrawal was so close to the onset of the offense that he could not have possibly complied with these additional requirements. The trial court concluded that this was a factual problem facing Hale's defense and not a legal problem to be addressed in the jury instructions. In addition, Hale argues that the trial court improperly placed the burden of proof on him. We are satisfied that the instructions given by the trial court were accurate. "Renunciation" is an affirmative defense. The burden was on Hale to prove it by a preponderance of the evidence. This burden differs from the burden appropriate to "defenses," such as self-defense, where a defendant need only raise some evidence of the defense, at which point the state has the burden of disproving the defense beyond a reasonable doubt. Cf. AS 11.81.-900(b)(1) (defining "affirmative defense") with AS 11.81.900(b)(15) (defining "defense"). We also hold that the court's instructions accurately conveyed the defense of "renunciation" to the jury. Hale challenges his sentence on three grounds. First, Hale contends that the trial court improperly rejected Hale's three proposed mitigating factors: (1) that he played a minor role in the commission of the offense, AS 12.55.155(d)(2), (2) that his conduct constituting the offense was among the least serious conduct included in the definition of the offense, AS 12.55.-155(d)(9), and (3) that the facts surrounding commission of the present offense and any previous offenses by the defendant established that the harm caused by the defendant's conduct was consistently minor and inconsistent with the imposition of a substantial period of imprisonment, AS 12.55.-155(d)(13). Hale, in effect, reiterates his claims made in support of his defense of "renunciation," arguing that he was not present at the time the bulk of the offense occurred. We are satisfied that the trial court was within its discretion in rejecting these mitigating factors. Construing the evidence in the light most favorable to the state, it appears that Hale planned the offense, procured the weapon, overcame Zito's objections, and was the driving force behind the offense. Significantly, the evidence establishes that Hale was present at the commencement of the offense. It is also significant that the robbery took place at an establishment where Hale had previously worked, which facilitated Hale's planning. These factors all militate against the finding that Hale's conduct was insignificant and that the primary participant was Zito. We are also satisfied that the facts surrounding this offense and Hale's other offenses do not indicate minor harm and do not militate against a substantial period of imprisonment. AS 12.55.155(d)(13). The trial court characterized Hale as an antisocial personality. The trial court's finding of an antisocial personality has substantial support in the record. The presentence report justifies characterization of Hale as a person totally devoid of conscience, who betrays virtually any person who befriends him and who exploits any relationship he is able to establish. Despite a number of past convictions, Hale appears immune to rehabilitation. Significantly, Hale has never expressed remorse or sorrow for his criminal activity. Under these circumstances, the trial court did not err in rejecting the mitigating factors. Second, Hale argues that the trial court erred in finding two aggravating factors: (1) that Hale's conduct created a risk of imminent physical injury to three or more persons other than accomplices, AS 12.55.155(c)(6), and (2) that Hale knew that his offense involved more than one victim, AS 12.55.155(c)(9). Hale relies in part upon his "renunciation" defense and in part upon his assertion that he terminated his involvement in the offense after only one employee of Jam's was contacted. It is undisputed that Hale was aware that a number of people, including other employees in the restaurant, were present at the time the robbery began. As we have seen, the trial court could find that there was no merit in Hale's "renunciation" defense. The trial court properly found that more than one employee and customer of the restaurant were placed in danger because of the risk created by Hale's participation in the robbery. Under these circumstances, the trial court did not err in finding the aggravating factors. Finally, Hale argues that a sentence of fifteen years with five years suspended is excessive. He contends that as a first felony offender he should have received a sentence more favorable than the ten-year presumptive term for a second felony offender. AS 12.55.125(c)(3). See Austin v. State, 627 P.2d 657, 657-58 (Alaska App.1981). The parties agree that Hale was subject to the seven-year presumptive term reserved for those who "possess a firearm." See AS 12.55.-125(c)(2). Hale was twenty-three years old at the time of this offense. He apparently had continuously and consistently engaged in theft-related offenses between 1983 and 1986, when the instant offense was committed. He had not, however, served any substantial term of imprisonment for these offenses. See Skrepich v. State, 740 P.2d 950, 955 (Alaska App.1987). Significantly, at least two of Hale's prior offenses, one in Oregon and one in Washington, resulted in felony convictions. Since the elements of the statutes involved differed in some respects from comparable statutes in Alaska at the time, Hale could not be termed a prior felony offender for purposes of presumptive sentencing. See, e.g., AS 12.55.-145(a)(2); Walsh v. State, 677 P.2d 912, 914-16 (Alaska App.1984). Although he was on probation for one of his prior felonies when he committed this offense, the trial court could not consider that probation as a statutory aggravating factor. See Kuvaas v. State, 696 P.2d 684 (Alaska App. 1985) (AS 12.55.155(c)(20) permits aggravation of a presumptive sentence where the defendant is on probation for another felony at the time of sentencing; the aggravating factor, however, does not apply to probation for an out-of-state felony which is not a prior felony for purposes of AS 12.-55.145(a)(2)). Nevertheless, Hale's two prior felony convictions and his probationary status are important, particularly when considered with the other misdemeanor theft convictions for which Hale was treated relatively leniently. It is significant that Hale absconded before sentencing on his most recent prior felony conviction in Oregon, and that a detainer has been placed on him for that offense. Equally significant is the trial court's well-substantiated conclusion that Hale has an antisocial personality rendering him virtually indifferent to the rights of others. As discussed above, it appears that Hale has consistently been ingratiating himself with people only to steal from them. The record reflects that Hale consistently stole from his parents, his siblings and his acquaintances. It appears that when Hale and the mother of his child lived with her mother, Hale stole from them. Finally, when Hale lived with Mr. Zito, his codefehdant for this offense, he apparently stole a ring from Mrs. Zito, pawned it, and used the proceeds to acquire the gun used in this robbery. We recognize that a sentence of fifteen years with five years suspended is extremely severe for a first felony offender convicted of armed robbery, a class A felo ny. Townsel v. State, 763 P.2d 1353, 1355-1356 (Alaska App., 1988); Williams v. State, 759 P.2d 575, 577-78 (Alaska App. 1988). See Pruett, 742 P.2d at 265 n. 9. Nevertheless, when we take into account Hale's substantial criminal record, and his total lack of remorse, we conclude that the sentence imposed was not clearly mistaken. McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974). The conviction and sentence are AFFIRMED. . Alaska Statute 11.16.120 states, in pertinent part: (a) In a prosecution for an offense in which legal accountability is based on the conduct of another person, (1) it is an affirmative defense that the defendant, under circumstances manifesting a voluntary and complete renunciation of criminal intent, (A) terminated the defendant's complicity before the commission of the offense; (B) wholly deprived the defendant's complicity of its effectiveness in the commission of the offense; and (C) gave timely warning to law enforcement authorities or, if timely warning could not be given to law enforcement authorities by reasonable efforts, otherwise made a reasonable effort to prevent the commission of the offense[.] Since the trial court instructed on this defense, it is unnecessary for us to decide whether the facts construed most favorably to Hale required an instruction. We specifically do not decide whether, given these facts, Hale's legal accountability "is based on the conduct of another person [Zito].'' Hale argues that the police arrived exactly as he was leaving so that timely warning could not be given to law enforcement authorities by reasonable efforts. Thus, he concludes that his case turned on whether he "otherwise made a reasonable effort to prevent the commission of the offense." The trial court rejected Hale's request that the phrase "reasonable efforts to prevent the commission of the offense" be further defined in an instruction. The trial court concluded that what efforts were reasonable was a factual question for the jury. We find no error. The trial court has broad discretion in determining what instructions are appropriate to convey a defense to the jury. See, e.g., Buchanan v. State, 561 P.2d 1197, 1207 (Alaska 1977) (whether to give a particular instruction is discretionary with trial judge); Sears v. State, 713 P.2d 1218, 1219 (Alaska App.1986) (generally, words and phrases which have a commonplace meaning need not be defined for the jury). Accordingly, we find that a determination of what was "reasonable" under the circumstances, was properly left to the jury. . We have held that, generally, a trial court should not enhance a sentence based upon a finding that the defendant "'demonstrated an antisocial nature or dangerous propensities posing a clear risk to the public' " without the aid of a psychiatric or psychological evaluation of the defendant. Salud v. State, 630 P.2d 1008, 1013-14 (Alaska App.1981) (citation omitted). Here, defense counsel requested a psychiatric or psychological evaluation of Hale as an aid in sentencing. Hale met with Dr. Sperbeck, a psychologist, but absolutely refused to participate in an evaluation, stating as a reason that he was dissatisfied with the result of his trial and was angry that his "renunciation" defense had been rejected. Under these circumstances, where a defendant refuses to cooperate in a psychological evaluation and the record would otherwise support a finding of a character disorder or an antisocial personality, it is not inappropriate for the trial court to make such a finding and consider it in determining an appropriate sentence. Pruett v. State, 742 P.2d 257, 260 n. 3 (Alaska App.1987). We stress that such a finding must be based upon the defendant's actions and criminal record and not solely on his or her refusal to be examined by a mental health professional. See Estelle v. Smith, 451 U.S. 454, 468 n. 11, 101 S.Ct. 1866, 1875 n. 11, 68 L.Ed.2d 359 (1984) (defendant should not be coerced into submitting to psychiatric examination). . Hale does not dispute the applicability of the seven-year presumptive term. In Dailey v. State, 675 P.2d 657 (Alaska App.1984), we held that this aggravating factor only applied to the person who actually possessed the firearm in connection with the robbery and not to his accomplices. In this case, Hale apparently acquired the firearm at a pawn shop and furnished it to Zito. Under these circumstances, we do not find application of the seven-year presumptive term to be plain error. Alaska R.Crim.P. 47(b).

10418291

Helmut B. BUBBEL, Appellant, Cross-Appellee, v. WIEN AIR ALASKA, INC., Appellee, Cross-Appellant

Bubbel v. Wien Air Alaska, Inc.

1984-04-27

Nos. 6019, 6100

374

383

682 P.2d 374

682

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

Helmut B. BUBBEL, Appellant, Cross-Appellee, v. WIEN AIR ALASKA, INC., Appellee, Cross-Appellant.

Helmut B. BUBBEL, Appellant, Cross-Appellee, v. WIEN AIR ALASKA, INC., Appellee, Cross-Appellant. Nos. 6019, 6100. Supreme Court of Alaska. April 27, 1984. Joseph W. Sheehan, Fairbanks, for appellant, cross-appellee. Max N. Peabody, Shimek & Peabody, Anchorage, for appellee, cross-appellant. Before BURKE, C.J., RABINOWITZ, MATTHEWS and COMPTON, JJ., and DIMOND, Senior Justice. Dimond, Senior Justice, sitting by assignment made pursuant to Article IV, section 11, of the Constitution of Alaska.

5164

32717

OPINION RABINOWITZ, Justice. This case arises from representations made by Wien Air Alaska (Wien) to Helmut B. Bubbel (Bubbel) that he would be hired as a permanent economic replacement during the 1977 Wien airline pilots' strike. The superior court granted a directed verdict in Wien's favor and this appeal followed. I. FACTUAL AND PROCEDURAL BACKGROUND The facts are not in dispute. The collective bargaining agreement between Wien and the Airline Pilots Association (ALPA), the certified bargaining agent representing Wiem pilots, expired on November 30, 1976. In the course of negotiations for a new contract, Wien and ALPA were unable to resolve the main issue of contention: the necessity of having three pilots operate Wien's Boeing 737 jets. After several months of unsuccessful negotiations, Wien pilots went on strike in May of 1977. During the strike Wien hired and trained replacement pilots. Bubbel was offered a position as a replacement pilot, which he accepted in October 1977. At that time, Bubbel was informed by Loren Tilman, a Wien flight operations assistant, that Wien intended to fight the striking pilots successfully and that the replacement pilots were to be hired permanently. Throughout the strike, Wien management personnel continued to make representations that the replacement pilots were permanent employees and that they would not lose their positions to the striking pilots if the strike was settled. With the help of the replacement pilots, Wien was able to resume full operations by the end of 1977. In late 1978 and early 1979, a Presidential Emergency Board met to discuss the main strike issues. In February 1979, the Presidential Emergency Board published its recommendations. It recommended a settlement providing that ALPA accept a two-pilot operation of Wien's Boeing 737 jets and that Wien displace the replacement pilots in favor of the striking pilots. Although the recommendations were not binding on Wien or the striking pilots, they were incorporated into the collective bargaining agreement negotiated between Wien and ALPA on March 1, 1979. As a result of this agreement, the striking pilots were rehired with seniority, and the replacement pilots were laid off based on seniority. Under this new collective bargaining agreement Bubbel was furloughed in March 1979 and placed on Wien's inactive pilots list. Thereafter, Bubbel filed a complaint in the superior court, alleging breach of an employment contract and intentional misrepresentation. Wien then moved for summary judgment. Wien argued that pursuant to the Railway Labor Act, 45 U.S.C.A. § 151-188 (1972), Bubbel's individual employment contract was superseded by the collective bargaining agreement executed between Wien and ALPA. Wien also contended that Bubbel's complaint should be dismissed for want of subject matter jurisdiction. The superior court rejected the latter contention, but granted summary judgment against Bubbel on his breach of contract claim. Wien did not seek review of the jurisdictional ruling, and Bubbel did not seek review of the dismissal of his breach of contract claim. Bubbel subsequently filed a second amended complaint. This pleading asserted claims based on equitable estoppel, quasi-estoppel and both negligent and fraudulent misrepresentation. The matter then went to trial and after presentation of Bub-bel's case in chief, Wien moved for a directed verdict arguing that as a matter of law Bubbel's evidence was insufficient to sustain a recovery under any of the alleged theories. Wien's motion for directed verdict was granted, and judgment was entered in its favor. Wien was awarded costs and attorney's fees. Bubbel's motion for a new trial was denied. II. STANDARD OF REVIEW In reviewing motions for directed verdict the proper role of this court "is not to weigh conflicting evidence or judge of the credibility of the witnesses, but is rather to determine whether the evidence, when viewed in the light most favorable to the nonmoving party, is such that reasonable men could not differ in their judgment." Holiday Inns of America, Inc. v. Peck, 520 P.2d 87, 92 (Alaska 1974) (footnote omitted); City of Fairbanks v. Nesbett, 432 P.2d 607, 609 (Alaska 1967). "The test is objective; and, if there is room for diversity of opinion among reasonable people, the question is one for the jury." City of Whittier v. Whittier Fuel & Marine Corp., 577 P.2d 216, 220 (Alaska 1978) (footnote omitted). We must therefore view the evidence in the present case in the light most favorable to Bubbel in determining whether the superior court erred in granting Wien's motion for a directed verdict as to Bubbel's estoppel and misrepresentation claims. III. CONTRACT AND ESTOPPEL In directing a verdict against Bubbel on his estoppel theory, the superior court relied upon its prior summary judgment ruling that Wien had not breached Bubbel's employment contract. The court reasoned that since Wien had not breached Bubbel's contract, it "could not be estopped from denying liability on that contract." Bubbel argues that under the recent opinion of the United States Supreme Court in Belknap v. Hale, — U.S. -, 103 S.Ct. 3172, 77 L.Ed.2d 798 (1983), the superior court's conclusion that Wien did not breach its employment contract with Bubbel is erroneous. However, while Bubbel included the superior court's adverse summary judgment on the contract claim in his amended statement of points on appeal, he failed to brief that issue in his opening and reply briefs to this court. In light of Bubbel's failure to brief the issue, Wien urges that the contract claim be treated as abandoned. Ordinarily we will not consider an issue omitted from a party's briefs, even if it was listed as a point on appeal. Wetzler v. Wetzler, 570 P.2d 741, 742 n. 2 (Alaska 1977). However, in this case the superior court's directed verdict against Bubbel on his estoppel claim was premised entirely on the prior summary judgment as to Bubbel's contract claim. Moreover, both parties addressed the contract claim, and the impact of Belknap v. Hale on that claim, in their supplemental briefs. For these reasons, we find it appropriate to address the merits of the superior court's ruling as to Bub-bel's breach of contract claim. The superior court concluded that insofar as Bubbel's contract with Wren conflicted with the subsequent collective bargaining agreement between Wien and ALP A, the collective bargaining agreement arrived at in settlement of the Wien-ALPA dispute superseded Bubbel's individual contract of employment. The superior court relied upon Rouse v. Anchorage School District, 613 P.2d 263 (Alaska 1980), where this court held that individual school teachers could not obtain a "vested" longevity bonus that their union had subsequently bargained away in obtaining a new collective bargaining agreement. The superior court also cited two federal cases. In J.I. Case Co. v. National Labor Relations Board, 321 U.S. 332, 64 S.Ct. 576, 88 L.Ed. 762 (1944), the Supreme Court ruled that an employer could not refuse to bargain with a properly-chosen union simply because it was bound by the terms of pre-existing individual employment contracts. In approving a NLRB "cease-and-desist" order which required the employer to stop giving effect to the individual contracts, the Court stated: Individual contracts, no matter what the circumstances that justify their execution or what their terms, may not be availed of . to forestall bargaining or to limit or condition the terms of the collective agreement. 321 U.S. at 337, 64 S.Ct. at 580, 88 L.Ed. at 767. In Lewellyn v. Fleming, 154 F.2d 211 (10th Cir.), cert. denied, 329 U.S. 715, 67 S.Ct. 45, 91 L.Ed. 620 (1946), the Tenth Circuit followed Case in construing the Railway Labor Act (RLA) (which also governs airlines). The court held that a collective bargaining agreement between a railroad and a conductors' union superseded a prior employment contract between the railroad and a non-union brakeman. The court affirmed the trial court's ruling that the brakeman had no cause of action to enforce the seniority rights he had acquired under his individual contract. 154 F.2d at 213. In applying J.I. Case and other relevant federal precedent to the instant case, we believe Belknap v. Hale, — U.S.-, 103 S.Ct. 3172, 77 L.Ed.2d 798 (1983), a Supreme Court case involving facts virtually identical to those before us, is controlling. In Belknap an employer hired "permanent" replacements for striking workers, and then laid them off when the strikers returned. The displaced replacements sued for misrepresentation and breach of contract. A Kentucky trial court granted summary judgment for the employer, ruling that the suit was pre-empted by the National Labor Relations Act (NLRA). The Kentucky Court of Appeals reversed, reasoning that the contract and misrepresentation claims were of only peripheral concern to the NLRA and were deeply rooted in state law. Affirming the Kentucky Court of Appeals, the Supreme Court of the United States addressed the same argument of superseding-union-agreements that the superior court relied on in granting Wien summary judgment on Bubbel's contract claim: It is said that respondent replacements are employees within the bargaining unit, that the Union is the bargaining representative of petitioner's employees, and the replacements are thus bound by the terms of the settlement negotiated between the employer and "their" representative. The argument is not only that as a matter of federal law the employer cannot be foreclosed from discharging the replacements pursuant to a contract with a bargaining agent, but also that by virtue of the agreement with the Union it is relieved from responding in damages for its knowing breach of contract . (Footnotes omitted.) — U.S. at -, 103 S.Ct. at 3181, 77 L.Ed.2d at 812. In rejecting this argument, the court in Belknap reasoned that while, in general, an individual contract of employment must give way to valid collective bargaining agreements, an action for breach of such an individual employment contract could still be maintained. In this regard, the Supreme Court stated: It is true that the federal law permits, but does not require, the employer to hire replacements during a strike, replacements that it need not discharge in order to reinstate strikers if it hires the replacements on a "permanent" basis within the meaning of the federal labor law. But when an employer attempts to exercise this very privilege by promising the replacements that they will not be discharged to make room for returning strikers, it surely does not follow that the employer's otherwise valid promises of permanent employment are nullified by federal law and its otherwise actionable misrepresentations may not be pursued. See, J.I. Case Co. v. NLRB, 321 U.S. 332 [64 S.Ct. 576, 88 L.Ed. 762] (1944) . We find unacceptable the notion that the federal law on the one hand insists on promises of permanent employment if the employer anticipates keeping the replacements in preference to returning strikers, but on the other hand forecloses damage suits for the employer's breach of these very promises. Even more mystifying is the suggestion that the federal law shields the employer from damages suits for misrepresentations that are made during the process of securing permanent replacements and are actionable under state law. Arguments that entertaining suits by innocent third parties for breach of con tract or for misrepresentation will "burden" the employer's right to hire permanent replacements are no more than arguments that "this is war", that "anything goes", and that promises of permanent employment that under federal law the employer is free to keep, if it so chooses, are essentially meaningless . — U.S. at-, 103 S.Ct. at 3177-3178, 77 L.Ed.2d at 807-808. The Supreme Court's holding on the contract claim was that there is "no basis for holding that permitting the contract cause of action will conflict with the rights of either the strikers or the employer or would frustrate any policy of the federal labor laws." — U.S. at -, 103 S.Ct. at 3184, 77 L.Ed.2d at 815-16. Wien argues that since Belknap involved the National Labor Relations Act, rather than the Railway Labor Act, the holding of Belknap does not control the breach of contract issue in this case. Wien relies exclusively on Brotherhood of Railroad Trainmen v. Jacksonville Terminal Co., 394 U.S. 369, 89 S.Ct. 1109, 22 L.Ed.2d 344 (1969), where the Court emphasized that "the National Labor Relations Act cannot be imported wholesale into the railway labor arena." 394 U.S. at 383, 89 S.Ct. at 1118, 22 L.Ed.2d at 357. The issue in Trainmen was whether a state could prohibit "secondary picketing" of a railroad terminal by striking railroad workers. Finding little guidance in the text and legislative history of the RLA, the Court looked to the NLRA for assistance in construing the RLA: [The NLRA] represents the only existing congressional expression as to the permissible bounds of economic combat. It has, moreover, presented problems of federal-state relations analogous to those at bar. The Court has in the past referred to the NLRA for assistance in construing the Railway Labor Act . and we do so again here. 394 U.S. at 383, 89 S.Ct. at 1118, 22 L.Ed.2d at 357 (citations omitted). As the Court's opinion in Belknap v. Hale reflects, the question of whether an employer can discharge "permanent" replacement employees without incurring liability likewise raises issues of the "permissible bounds of economic combat," and "federal-state relations." The Court's resolution of those issues in Belknap is not tied to any particular provision of the NLRA. Instead, the result derives from the Court's broad analysis of what types of economic weapons an employer should be allowed to wield free from state interference. Nothing in the Belknap opinion specifically or impliedly limits its rationale to cases arising under the NLRA. Nor has Wien directed our attention to any specific provisions of either the NLRA or the RLA that might call for different treatment of a Belknap -type claim under the RLA. Because the policies and considerations underlying the decision in Belknap are equally applicable to Wien's treatment of Bubbel, and because the Supreme Court has itself looked to the NLRA in determining the boundaries of economic combat protected by the RLA, we have decided that Belknap is apposite to the resolution of the contract claim issue in the instant case. We therefore hold that, in light of Belknap, the superior court erred in granting summary judgment against Bubbel on his breach of contract claim. Since the directed verdict against Bubbel on his es-toppel theory was premised on the superior court's own prior contract ruling, that directed verdict must also be set aside. We further hold that on remand Bubbel may pursue his breach of contract claim. IV. MISREPRESENTATION Bubbel also contends that Wien is liable for negligent and/or fraudulent misrepresentation. He argues that the representations made by Wien of the "permanency" of Bubbel's employment were false, that these representations were made to induce him to accept employment with Wien, and that he relied on these representations in accepting such employment. The Restatement (Second) of Torts § 552 succinctly defines the tort of negligent misrepresentation and sets out four elements to a cause of action predicated upon it. First, the party accused of the misrepresentation must have made the statement "in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest." Second, the representation must supply "false information." Third, there must be "justi-ficable reliance" on the false information supplied. Finally, the accused party must have failed "to exercise reasonable care or competence in obtaining or communicating the information." This court has recognized the tort of negligent misrepresentation in three prior cases. Clary Insurance Agency v. Doyle, 620 P.2d 194 (Alaska 1980); Transamerica Title Insurance Co. v. Ramsey, 507 P.2d 492 (Alaska 1973); Howarth v. Pfeifer, 443 P.2d 39 (Alaska 1968). In Howarth, we delineated the various factors which must be satisfied in order to present the question of negligent misrepresentation to the jury. Id. at 42. These factors reflect the basic elements which give rise to a traditional negligence claim, and are premised on the notion that the speaker has conveyed false information. In Howarth, and the subsequent cases, the representations in question all related to a present or past fact which was false at the time the representation was made. In Howarth and Clary, assurances were given regarding insurance coverage which, in fact, did not exist. In Ramsey, the defendant failed to discover that a pow er of attorney had been revoked, and treated it as valid. Study of the record in the instant case fails to reveal any evidence that the representation made by Wien of Bubbel's permanent status was false at the time it was made, or that it was made with any intent to deceive. On the contrary, the testimony of Victor Fondy, Vice President of Operations during the strike, and the deposition of Raymond Peterson, former Chairman of the Board, reflect Wien's position that the replacement pilots would be hired as permanent replacements. The record further indicates that Wien's position regarding the nature of the replacement pilots' employment did not change until Wien was pressured by the Presidential Emergency Board to settle the strike. Although Bubbel concedes that the negligent misrepresentation, to be actionable, must relate to a present or past fact, he argues that most torts of misrepresentation involve future loss. Bubbel further maintains that, under Alaska case law, future occurrences are treated as past facts when they were the subject under discussion at the time the misrepresentations were made. Clary Insurance Agency v. Doyle, supra; Transamerica Title Insurance Co. v. Ramsey, supra; Austin v. Fulton Insurance Co., 444 P.2d 536 (Alaska 1968); and Howarth v. Pfeifer, supra. Under these cases and the Restatement (Second) of Torts § 899, a cause of action for negligent misrepresentation is complete when the injured party has suffered a pecuniary loss as a result of the misrepresentation. To that extent, future occurrences can be related back to the time when the misrepresentation which resulted in the loss was made. However, to establish liability under this theory it is not enough to demonstrate that subsequent occurrences made an originally-accurate representation ultimately false. For a representation to be actionable, both under the Alaska cases cited above and under the Restatement, the representation must be false when made. Bubbel asks this court to hold, based on his subsequent furlough, that the representations of permanency made at the commencement of his employment with Wien were false when made. We decline. The evidence in this record does not show Wien's representations regarding the permanency of Bubbel's employment to have been false when made. Bubbel's contention that Wien is liable under the tort theory of fraudulent misrepresentation must also fail for the reason that statements as to Bubbel's permanency were not false at the times they were made. Unlike negligent misrepresen- ' tation, fraudulent misrepresentation requires proof that the maker knew of the untrue character of his or her representation. Restatement (Second) of Torts § 530 comment b (1977). The circumstances under which a misrepresentation is fraudulent are set forth in the Restatement (Second) of Torts § 526 (1977): A misrepresentation is fraudulent if the maker (a) knows or believes that the matter is not as he represents it to be, (b) does not have the confidence in the accuracy of his representation that he states or implies, or (c) knows that he does not have the basis for his representation that he states or implies. Thus, in order for Wien to be liable under the theory of fraudulent misrepresentation, Bubbel not only must adduce evidence that representations of permanent employment were false, but must also show proof of Wien's knowledge of and intent to misrepresent Bubbel's employment status with Wien. Given that Wien's statements were not false at the time they were made, we need not address the question of whether the other elements of a fraudulent misrepresentation claim have been demonstrated. One additional aspect of Bubbel's misrepresentation claim requires discussion: Bub-bel contends that Wien misrepresented its legal capacity to hire him as a permanent employee. Specifically, Bubbel argues that because Wien had the benefit of house counsel and outside attorneys, Wien knew that it had a unilateral right under the Railway Labor Act, and under federal cases, to renege on its promised "permanency" of employment. Bubbel reasons that in so far as Wien did not apprise him of that limitation on his permanent status, Wien misrepresented the permanency of his position. Bubbel's argument on this theory is a narrow one: he does not dispute that when it hired him, Wien had the legal capacity to hire permanent replacement employees. Bubbel concedes that Wien was not legally obliged to accept the settlement agreement proposed by the Presidential Emergency Board. Wien could have rejected the proposed settlement, defied the strikers, and continued to operate with its replacement pilots. Instead, Wien voluntarily chose to accept the settlement and furlough its replacement employees. This branch of Bub-bel's misrepresentation theory, then, turns solely on Wien's failure to inform its "permanent" replacement employees that Wien could voluntarily settle the strike and thus use the collective bargaining agreement reached to override inconsistent individual employment contracts. This court has not previously considered the question of whether a claim for relief may arise from a misrepresentation of law. Traditionally, courts have refused to recognize such representations as tortious, basing their conclusion upon the principle that "ignorance of the law is no excuse;" However, several recent decisions have held that this rule should be relaxed in appropriate circumstances, as for example, when the person making the misrepresentation "has superior means of information, professes a knowledge of the law, and thereby obtains an unconscionable advantage of another who is ignorant and has not been in a situation to become informed." Ford Motor Credit Co. v. Milburn, 615 F.2d 892, 895 (10th Cir.1980), quoting White v. Harrigan, 77 Okl. 123, 186 P. 224, syl. 1 (1919). Accord, White v. Mulvania, 575 S.W.2d 184, 192 (Mo.1978) (en banc); Nesbitt v. Home Federal Savings & Loan Ass'n, 440 P.2d 738, 743 (Okl.1968); see also National Conversion Corp. v. Cedar Building Corp., 23 N.Y.2d 621, 298 N.Y.S.2d 499, 246 N.E.2d 351 (1969). Recognizing the importance of the question, and the limited treatment it received in the briefing of this case, we decline to adopt a flat rule that misrepresentations of law are not actionable in this state. Instead, we hold, on the basis of this record, only that Wien did not misrepresent its hiring capacity. Central to our decision on this point is the character of the alleged misrepresentation. Wien did not tell Bubbel anything false, it merely failed to inform him of the legal consequences of something which might happen (i.e.: that Wien could possibly settle the ALPA strike). There is no evidence in the record suggesting that Wien anticipated such a settlement with the striking pilots at the time it hired Bub-bel. On the contrary, the record reflects Wien's intention to keep the replacement pilots in their jobs even after the strike ended. Moreover, as the holding in Belknap reflects, Wien's right to voluntarily breach its individual employment contracts was not absolute: the subsequent collective bargaining agreement does not relieve Wien of liability for breach of inconsistent individual contracts. In such circumstances, the appropriate remedy for Wien's breach of its commitment to keep the replacements is a suit for breach of contract, rather than for misrepresentation of Wien's capacity to enter into such contracts. Thus, we affirm the superior court's grant of a directed verdict against Bubbel on his misrepresentation claims. For the reasons set forth above, the judgment of the superior court is REVERSED and this case is REMANDED for further proceedings consistent with this opinion. . The Presidential Emergency Board was created pursuant to 45 U.S.C. 160 and Section 44 of the Airline Deregulation Act of 1978, Pub.L. No. 95-504, 92 Stat. 1705 (1978). . Wien argues in its supplemental brief that under Andrews v. Louisville and Nashville Railroad Co., 406 U.S. 320, 92 S.Ct. 1562, 32 L.Ed.2d 95 (1972), the Board of Adjustment created by the RLA provides the exclusive administrative remedy available to aggrieved employees. This is the same jurisdictional argument that Wien made below. We agree with the superior court's analysis of Andrews. Since resolution of Bubbel's dispute with Wien does not require interpretation of the collective bargaining agreement between ALPA and Wien, the superior court was correct in assuming jurisdiction. See Andrews, 406 U.S. at 324,-92 S.Ct. at 1565, 32 L.Ed.2d at 99. . See Vest v. First National Bank of Fairbanks, 659 P.2d 1233, 1234 n. 2 (Alaska 1983): "where . an issue that has not been raised involves a question of law that is critical to a proper and just decision, we will not hesitate to consider it, particularly after calling the matter to the attention of the parties and affording them the opportunity to brief the issue." . 29 U.S.C.A. § 151-69 (1973). . The Trainmen Court, while conceding the "fuzziness" of the distinction, described the difference between primary and secondary strikes as follows: The protected primary strike "is aimed at applying economic pressure by halting the day-to-day operations of the struck employer"; and protected primary picketing "has characteristically been aimed at all those approaching the situs whose mission is selling, delivering or otherwise contributing to the operations which the strike is endeavoring to halt," including other employers and their employees. "The gravamen of a secondary boycott," on the other hand, "is that its sanctions bear, not upon the employer who alone is a party to the dispute, but upon some third party who has no concern in it. Its aim is to compel him to stop business with the employer in the hope that this will induce the employer to give in to his employees' demands." 394 U.S. at 388, 89 S.Ct. at 1121, 22 L.Ed.2d at 360 (citations omitted). . For other cases where the Supreme Court has referred to the NLRA in construing the RLA, see Steele v. Louisiana & N.R. Co., 323 U.S. 192, 200-201, 65 S.Ct. 226, 231, 89 L.Ed. 173, 181 (1944); and Railroad Trainmen v. Toledo, P. & W.R. Co., 321 U.S. 50, 61 n. 18, 64 S.Ct. 413, 419 n. 18, 88 L.Ed. 534, 541 (1944). See also Pan American World Airways, Inc. v. International Brotherhood of Teamsters, 275 F.Supp. 986, 997-98 (S.D.N.Y.1967) aff'd sub nom Brotherhood of Railway, Airline and Steamship Clerks, Freight Handlers, Express and Station Employees v. Pan American World Airways, Inc., 404 F.2d 938 (2d Cir.1969); International Ass'n of Machinists and Aerospace Workers v. National Railway Labor Conference, 310 F.Supp. 905, 913 (D.D.C.1970). . Bubbel's reliance on the doctrines of equitable estoppel and quasi-estoppel may be misplaced insofar as he invoked them as the basis for an independent claim for relief. These species of estoppel operate only defensively, either as affirmative defenses or to preclude the assertion of otherwise valid defenses, acting as a "shield" rather than a "sword." See Tiffany Incorporated v. W.M.K. Transit Mix, Inc., 16 Ariz.App. 415, 493 P.2d 1220, 1224 (1972) (major distinction between equitable estoppel and promissory es-toppel is that equitable estoppel is available only as a defense); Gay Johnson's Wyoming Automotive Service Co. v. City of Cheyenne, 369 P.2d 863, 864 (Wyo.1962) (per curiam) (estoppel may be asserted as a matter of defense or for the protection of a right but not for the creation of a right); Annot., 56 A.L.R.3d 1037, 1041 (1974). See also Arctic Contractors, Inc. v. State, 564 P.2d 30, 40 (Alaska 1977). Thus, the merits of Bubbel's estoppel arguments can only be determined in the context of an analysis of his contract claim, which does provide an affirmative basis for recovery. . The Restatement (Second) of Torts § 552(1) (1977) provides: One who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information. . Restatement (Second) of Torts § 899, comment c at 442 (1977) states: "A cause of action for misrepresentation in a business transaction is complete when the injured person has been deprived of his property or otherwise has suffered pecuniary loss or has incurred liability as a result of the misrepresentation." . For example, Bubbel argues that There can be little doubt that if Wien had explained to Bubbel at the time of his employment hire that the employment was "permanent," but that Wien had the unilateral right at any time to settle the strike with ALPA; that the terms of the settlement may very well affect Bubbel's continued employment — Bub-bel would not have believed the employment was "permanent." . Wien had an obligation to advise and inform Mr. Bubbel that he was not a "permanent" employee_ . Following an economic strike "the employer may hire permanent replacements whom it need not discharge even if the strikers offer to return to work unconditionally." Belknap v. Hale,-U.S.-,-, 103 S.Ct. 3172, 3174, 77 L.Ed.2d 798, 803 (1983). In contrast, an employer hiring replacement employees during an unfair labor practice strike governed by the NLRA may lack the legal capacity to offer permanent employment to such replacements. Id., — U.S. -, -, 103 S.Ct. 3172, 3174, 77 L.Ed.2d 798, 803; NLRB v. International Van Lines, 409 U.S. 48, 93 S.Ct. 74, 34 L.Ed.2d 201 (1972). In such circumstances, the employer's representation of its capacity to hire permanent replacements might well be false and thus actionable. . See, e.g., Hamming v. Murphy, 83 Ill.App.3d 1130, 39 Ill.Dec. 435, 404 N.E.2d 1026 (1980), where the court refused to impose liability for misrepresentation upon a defendant-vendor of real estate who affirmatively assured a plaintiff-purchaser that a contemplated use of the property was permitted under the existing zoning ordinance. The Hamming court reasoned that [generally, one is not entitled to rely upon a representation of law as both parties are presumed to be equally capable of knowing and interpreting the law.... We conclude plaintiff was charged with knowledge of the permitted uses of this property under applicable zoning ordinances . 404 N.E.2d 1026 at 1030. . If a failure to warn a party of the possibility of a voluntary breach constitutes an actionable misrepresentation, then all contracts would involve misrepresentations. . We recognize that the Supreme Court's opinion in Belknap v. Hale, supra, contains language suggesting that an action for misrepresentation might be appropriate in factual circumstances similar to those before this court. However, the Supreme Court in Belknap held only that federal labor law does not preclude "otherwise actionable" misrepresentation suits. — U.S.at -, 103 S.Ct. 3172 at 3178, 77 L.Ed.2d 798 at 808. The Court recognized that state law determines whether an action for misrepresentation will lie in any particular case. Id. We conclude that our decision on Bubbel's misrepresentation claim is consistent with the holding of Belknap.

11113548

Thomas A. BROWN, Appellant, v. STATE of Alaska, DEPARTMENT OF ADMINISTRATION, DIVISION OF MOTOR VEHICLES, Appellee

Brown v. State, Department of Administration, Division of Motor Vehicles

2001-04-13

No. S-8716

586

589

20 P.3d 586

20

Pacific Reporter 3d

Alaska Supreme Court

Alaska

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

CAP

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

Thomas A. BROWN, Appellant, v. STATE of Alaska, DEPARTMENT OF ADMINISTRATION, DIVISION OF MOTOR VEHICLES, Appellee.

Thomas A. BROWN, Appellant, v. STATE of Alaska, DEPARTMENT OF ADMINISTRATION, DIVISION OF MOTOR VEHICLES, Appellee. No. S-8716. Supreme Court of Alaska. April 13, 2001. Brent R. Cole, Marston & Cole, P.C., Anchorage, for Appellant. Timothy W. Terrell, Assistant Attorney General, Anchorage, Bruce M. Botelho, Attorney General, Juneau, for Appellee. Before MATTHEWS, Chief Justice, EASTAUGH, FABE, BRYNER, and CARPENETI, Justices.

1109

7140

OPINION PER CURIAM. 1, A police officer arrested Thomas Brown for driving while intoxicated, handcuffed him, and took him to a police substation for processing. The officer then administered a chemical breath test which showed Brown's blood-alcohol level to be .109 percent, in excess of the legal limit of .10 percent. The police officer informed Brown that he was entitled to an independent chemical test of his breath or blood. Brown declined to seek an independent test, but he insisted that he did so only because the handcuffs were hurting him and he wanted them removed right away. The police officer revoked Brown's driver's license based on the results of the breath test. 2. Brown sought an administrative hearing to review the revocation of his license. The hearing officer denied Brown's request that the hearing be held in-person. At the outset of the hearing, Brown objected on the grounds that a telephone hearing "hinders our ability to present our case." This objection was overruled. After holding a telephone hearing, the hearing officer concluded that Brown had knowingly and voluntarily waived his right to an independent alcohol test, and the hearing officer upheld a one-year revocation of Brown's license. The superior court affirmed. 3. On appeal to this court, Brown argues that he did not voluntarily waive his right to an independent blood test and that the Division of Motor Vehicles violated his due process rights by conducting the hearing tele-phonically. 4. We review directly the factual determinations of the administrative agency under the substantial evidence test, deciding whether "the findings are supported by such evidence as a reasonable mind might accept as adequate to support a conclusion." We review questions of constitutional interpretation de novo. 5. Recently, in Whitesides v. State, Department of Public Safety, Division of Motor Vehicles, we held that the hearing officer may not deny an in-person hearing in driver's license revocation proceedings in cases that involve issues of the licensee's credibility. This case involves contested issues of fact as to whether Brown voluntarily waived his right to an independent blood test. Therefore, Brown was entitled to an in-person hearing. 6. Based on Whitesides, we VACATE the revocation of Brown's license and REMAND for an in-person hearing. CARPENETI, Justice, with whom EASTAUGH, Justice, joins, dissenting. EASTAUGH, Justice, dissenting. . See AS 28.35.030(a)(2). . See Handley v. State, Dep't of Revenue, 838 P.2d 1231, 1233 (Alaska 1992). . Borrego v. State, Dep't of Pub. Safety, 815 P.2d 360, 363 (Alaska 1991) (citation omitted). . See Walker v. Walker, 960 P.2d 620, 622 (Alaska 1998). . 20 P.3d 1130, Op. No. 5388, 2001 WL 366621 (Alaska, April 13, 2001).

11116416

STATE of Alaska, Petitioner, v. Hurist JOUBERT, Respondent

State v. Joubert

2001-04-13

No. S-9129

1115

1121

20 P.3d 1115

20

Pacific Reporter 3d

Alaska Supreme Court

Alaska

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

CAP

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

STATE of Alaska, Petitioner, v. Hurist JOUBERT, Respondent.

STATE of Alaska, Petitioner, v. Hurist JOUBERT, Respondent. No. S-9129. Supreme Court of Alaska. April 13, 2001. Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Bo- telho, Attorney General, Juneau, for Petitioner. Maria Babr and Michael Dieni, Assistant Public Defenders, and Barbara K. Brink, Public Defender, Anchorage, for Respondent. Before MATTHEWS, Chief Justice, EASTAUGH, FABE, BRYNER, and CARPENETI, Justices.

2926

17602

OPINION EASTAUGH, Justice. I. INTRODUCTION Under Alaska law, when an arrest is for an offense of which evidence could be concealed on a person, a police officer is permitted to conduct a warrantless search of the arrestee for evidence of the crime at the time of arrest. When the officer conducting this search feels a small, hard object near the watch pocket of the arrestee's jeans, is he permitted to lift the hem of the arrestee's sweatshirt to determine what the object is? The court of appeals, evaluating this search as a warrantless pat-down of the arrestee for weapons, answered "no." Concluding that the search was justified as a search for evi-denee of a erime which could be concealed on the person, we hold that the superior court did not err in denying defendant's suppression motion and reverse the decision of the court of appeals. II, FACTS AND PROCEEDINGS Hurist Joubert was detained on suspicion of auto theft by his parole officer, Stanley Shoop, who observed Joubert operating a Cadillac that had been reported stolen. Shortly thereafter Anchorage Police Department (APD) officers Philip Kantor and Mitch Kehr arrived. The officers radioed APD dispatch and received confirmation that the Cadillac was listed as stolen. Officer Kantor took Joubert from Parole Officer Shoop's car, handcuffed him, and conducted a pat-down search. During this search, Officer Kantor felt something small and hard in Joubert's right front pants pocket area but could not ascertain the nature of the object because he was feeling it through Joubert's bulky sweatshirt. Officer Kantor suspected that it might be a weapon so he lifted the hem of the sweatshirt "to see what it was." Officer Kantor testified that when he exposed Joubert's jeans by lifting the sweatshirt, he saw a white object protruding from the top of Joubert's jeans' watch pocket. The object appeared to be a rock of crack cocaine, and Officer Kantor seized it. He then reached into the watch pocket and retrieved a second object that also appeared to be a rock of crack cocaine. Officer Kantor testified that these objects were about the size of a pea. Officer Kantor then searched Joubert's sweatshirt pocket where he found a blue velvet bag containing what appeared to be numerous rocks of crack cocaine. Based on these discoveries, Officer Kantor arrested Joubert for cocaine possession and vehicle theft. Joubert later produced documentation that the Cadillac was registered in his name. The objects indeed were crack cocaine. Joubert was indicted on one count of third-degree misconduct involving a controlled substance (possession of cocaine with intent to deliver) under AS 11.71.030(a)(1). Joubert moved to suppress the crack cocaine rocks as fruits of an illegal search. The trial court held an evidentiary hearing during which Officer Kantor testified that he could not determine the nature of the object in Joubert's pocket. He did not believe that the object was a gun or a knife when he first felt it but thought it may have been a razor blade or possibly an extraordinarily small pocket knife. He testified that "my concern essentially was that I didn't know what [the object] was." The superior court initially dismissed Officer Kantor's testimony that the crack rocks could have been a weapon as "absolutely ludicrous." It reasoned that if it upheld the search on this basis there would "be no limit to the search for weapons exception." But the superior court upheld the search as a parole search conducted at the behest of Parole Officer Shoop. At trial, however, the superior court learned that Parole Officer Shoop neither directed nor requested Officer Kantor to search Joubert. Joubert therefore asked the court to reconsider its denial of his suppression motion. Before issuing his ruling on reconsideration, the superior court judge examined the rocks of cocaine admitted at trial. He then made the following findings: [Alt the time of the suppression hearing, relying on what I saw and heard but without the opportunity to feel the evidence which is a big difference, I ruled that Officer Kantor's stated suspicion that these two rocks of cocaine might be a small knife or razor was ludicrous. That's wrong. Considering that the defendant was wearing jeans(,] that these two so-called rocks of cocaine were in his watch pocket and that they were also covered by the thickness of his sweatshirt, there is no doubt in my mind at this point after having myself felt these two rocks of cocaine, physically, for the first time, there's no doubt in my mind that Officer Kantor's suspicion that this might be a small knife or a razor blade was reasonable. That's a reasonable suspicion based on articulable facts. Joubert was convicted as charged and sentenced to a presumptive term of six years. The court of appeals reversed Joubert's conviction, holding that Officer Kantor exceeded the scope of a weapons search incident to arrest because he did not have a reasonable and articulable suspicion that Joubert's pocket contained an atypical, le., unusually small, weapon. III. DISCUSSION A. Standard of Review We review a denial of a motion to suppress in the light most favorable to upholding the trial court's ruling. The trial court's findings of fact will not be disturbed unless they are clearly erroneous. We independently determine whether the trial court's factual findings support its legal conclusions. We will sustain the ruling of a trial court on any appropriate legal theory whether or not the theory was considered by the trial court. B. Searches Incident to Arrest for Crimes Evidence of Which May Be Found on the Person To be valid, a search incident to arrest must meet the standards set out in McCoy v. State: (1) the arrest must be supported by probable cause; (2) the search must be "roughly contemporaneous" with the arrest; (8) the arrest must not be a pretext for the search; and (4) the arrest must be for an offense, evidence of which could be concealed on the person. Under this exception to the warrant requirement, the police must have probable cause to make an arrest at the time the search takes place, but it is not necessary to formally place the suspect under arrest. Joubert does not dispute the timing of the search. 1. Jowubert's arrest was supported by probable cause. Probable cause to arrest exists if the facts and cireumstances known to the officer would support a reasonable belief that an offense has been or is being committed by the suspect subject to the search. Probable cause is determined objectively and " 'requires only a fair probability or substantial chanee of criminal activity, not an actual showing that such activity occurred.' " This court independently reviews probable cause determinations. The trial court concluded that probable cause existed to arrest Joubert based on the report that the Cadillac was stolen. Joubert argues that the police had no probable cause to arrest him because they "made no effort to verify [his] claim that he owned the Cadillac." The record supports the holding of the trial court. Parole Officer Shoop called to verify that the Cadillac was reported stolen before calling the police, and Officer Kan-tor called APD dispatch when he arrived at the scene to confirm that DMV records did not list Joubert as the Cadillac's owner. Joubert has presented no evidence that the police acted unreasonably in relying on either the report that the Cadillac was stolen or on the information given to them by the dispatcher. 2. Joubert's arrest was not a pretext for the search. Joubert alleges that the police used his arrest for vehicle theft as a mere pretext to search him for evidence of suspected narcotics activities. Joubert repeatedly refers to Parole Officer Shoop's suspicions that Jou-bert may have been involved in illegal drug activity as evidence of a pretextual motive, and asserts that Parole Officer Shoop relayed these suspicions to Officer Kantor. The evidence demonstrates that the police had probable cause to arrest Joubert on suspicion of vehicle theft. The car had been reported stolen, and this report was confirmed at the time of arrest. Evidence that the police may also have suspected Joubert of drug activities is not enough to demonstrate that this arrest was a sham. The evidence in the record is sufficient to uphold the trial court's finding of probable cause. 8. Auto theft is am offense evidence of which can be concealed on the person. Federal law permits a police officer to search a person and any possessions found upon that person incident to arrest. Alaska law is not so permissive. For a search incident to arrest to go beyond a weapons search, the arrest must be for an offense evidence of which may be found on the suspect's person. If the offense qualifies, the police may only search for evidence of that offense and the search must be reasonable. We upheld the trial court's holding that the police had probable cause to arrest Jou-bert for auto theft-third-degree criminal misconduct under AS 11.46.484(a). Joubert was not formally arrested for this offense, but a formal arrest is not necessary for this exception to apply. The trial court treated this search as a weapons search only because Officer Kantor "knew he was not going to find any keys on the defendant to serve as evidence of the crime of possession of this stolen car." The court of appeals did not address this theory. Evidence of auto theft can include keys altered to fit the vehicle, small tools used to break into the vehicle, or small tools used to alter the vehicle. Such evidence could be concealed on the person. It follows that auto theft fits into the category of crimes for which a search for evidence incident to arrest is permissible. The state argues that Officer Kantor's search was reasonable because the above evidence could have been concealed in Jou-bert's pocket. Joubert argues that there was little, if any, likelihood that such evidence could have been found on his person in this case because the officer knew that the car keys were still in the car. Joubert asserts that this search was unreasonable because under the particular circumstances of this case, it was unreasonable for the police to have believed that any evidence of vehicle theft could have been found on his person. He further notes that Officer Kantor testified that he was not searching for evidence of a stolen car. Officer Kantor's actions, however, are judged objectively, and his subjective beliefs are not the focus of our inquiry. Officer Kantor's authority to search Joubert stems from the lawful arrest, not from his subjective intentions regarding the suspect. It is noteworthy that Joubert was not arrested for a minor offense. McCoy and Zehrung limit full searches incident to arrest to offenses of which evidence could be found on the suspect in order to prevent the police from using a minor arrest as a pretext for a full search. Vehicle theft, even when couched as third-degree misconduct, is not a minor offense. One arrested for vehicle theft cannot maintain the same expectation of privacy as one arrested for failure to appear for a court date. We hold that the search of Joubert's watch pocket was valid as a search incident to arrest. The authority to search Joubert was established by the arrest itself, as the crime fell into the category of crimes evidence of which can be concealed on the person. Because we uphold this search as a valid search incident to arrest, we need not reach the question of whether this search exceeded the permissible boundaries of a warrantless pat-down. IV. CONCLUSION We conclude, although for different reasons than those announced by the superior court, that the superior court properly denied Joubert's suppression motion. We therefore REVERSE the decision of the court of appeals. . AS 11.71.030(a)(1) provides: A person commits the crime of misconduct involving a controlled substance in the third degree if the person manufactures or delivers any amount of a schedule IIA or IHA controlled substance or possesses any amount of a schedule IIA or IIIA controlled substance with intent to manufacture or deliver. . See Joubert v. State, 977 P.2d 753, 756 (Alaska App.1999). . See Joubert, 977 P.2d at 760. . See Castillo v. State, 614 P.2d 756, 765-66 (Alaska 1980) (citing Stumbaugh v. State, 599 P.2d 166, 172-73 (Alaska 1979)); Gray v. State, 596 P.2d 1154, 1158 n. 18 (Alaska 1979). . See Chilton v. State, 611 P.2d 53, 55 (Alaska 1980) (citing Gonzales v. State, 586 P.2d 178, 180 n. 9 (Alaska 1978)); Bobby v. State, 950 P.2d 135, 138 (Alaska App.1997) (citing Wilburn v. State, 816 P.2d 907, 911 (Alaska App.1991)). . See Troyer v. State, 614 P.2d 313, 318 (Alaska 1980); Wilburn, 816 P.2d at 911 (citing Juneby v. State, 641 P.2d 823, 834 (Alaska App.1982)). . See McGee v. State, 614 P.2d 800, 805-06 n. 10 (Alaska 1980) (citing Pistro v. State, 590 P.2d 884, 888 n. 13 (Alaska 1979)). . McCoy v. State, 491 P.2d 127, 138 (Alaska 1971) (citations omitted), modified on other grounds, 573 P.2d 858 (Alaska 1978). . See Uptegraft v. State, 621 P.2d 5, 9 (Alaska 1980). . See McCoy, 491 P.2d at 129 (quoting Brinegar v. United States, 338 U.S. 160, 175-76, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949)); Soolook v. State, 447 P.2d 55, 65 (Alaska 1968). . See Reeves v. State, 599 P.2d 727, 741 n. 44 (Alaska 1979) (citing Keller v. State, 543 P.2d 1211, 1215 (Alaska 1975) (quoting Berger v. New York, 388 U.S. 41, 55, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967))). . Van Sandt v. Brown, 944 P.2d 449, 452 (Alaska 1997) (quoting Murdock v. Stout, 54 F.3d 1437, 1441 (9th Cir.1995) (citing Illinois v. Gates, 462 U.S. 213, 232, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983))). . See In the Matter of J.A., 962 P.2d 173, 175 (Alaska 1998) (explaining that de novo standard of review applies to probable cause determination in criminal context and importing this standard to probable cause determinations in CINA proceedings) (citing Ornelas v. United States, 517 U.S. 690, 116 S.Ct 1657, 134 L.Ed.2d 911 (1996)). . See United States v. Robinson, 414 U.S. 218, 235-36, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973). . See Zehrung v. State, 569 P.2d 189, 199-200 (Alaska 1977). . See id. . At the time of Joubert's arrest AS 11.46.484(a) provided: A person commits the crime of criminal mischief in the third degree if, having no right to do so or any reasonable ground to believe the person has such a right (2) the person drives, tows away, or takes the propelled vehicle of another. Subsection (2) was repealed in 1996. See ch. 71, § 11, SLA 1996. . See Uptegraft, 621 P.2d at 9. . When officers searched the trunk of Joubert's Cadillac, they found a steering wheel and part of a steering column, presumably replaced to provide the driver with a set of working keys. . See Coleman v. State, 553 P.2d 40, 45 (Alaska 1976) (facts known to officer at time of search must be judged against objective standard in determining whether officer's actions were appropriate). . See 2 Wayne R. LaFave, Search & Seizure § 3.2(b), at 34-36 (3d ed.1987) (explaining that when officer makes declaration to the effect that he or she did not believe facts which he or she had at time of arrest or search were sufficient to establish probable cause, "this kind of declaration does not require a finding of no probable cause"); see also Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) ("Officer Johnson testified at the suppression hearing . that there was no probable cause to arrest until Royer's bags were opened, but the fact that the officers did not believe there was probable cause and proceeded on a consensual or Terry-stop rationale would not foreclose the State from justifying Royer's custody by proving probable cause .") (citing Peters v. New York, decided with Sibron v. New York, 392 U.S. 40, 61, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968) (characterizing seizure of Peters, an apparent prowler, as lawful arrest and search incident thereto where state had defended search as stop-and-frisk)). . See Robinson, 414 U.S. at 235-36, 94 S.Ct. 467. . See McCoy, 491 P.2d at 138-39 n. 58 (noting that exception will operate to prevent unlimited incidental searches in cases of arrests for minor offenses; while in most felony cases incidental search may well turn out to be reasonable, nexus between item seized and criminal behavior involved is more difficult to establish in cases involving arrest for minor offenses) (citing State v. Elkins, 245 Or. 279, 422 P.2d 250 (Or.1966)). . Cases applying this rule bear out the distinction between serious and minor offenses. Compare Zehrung, 569 P.2d at 198 (holding failure to appear and failure to pay fine not offenses, evidence of which may be found on suspect); Jackson v. State 791 P.2d 1023, 1024 (Alaska App.1990) (holding [ailure to appear not offense, evidence of which may be concealed on the suspect); with Nelson v. State, 781 P.2d 994, 1000 (Alaska App.1989) (holding evidence of sexual assault may be found on suspect); Dunn v. Alaska, 653 P.2d 1071, 1081 (Alaska App.1982) (holding evidence of armed robbery may be found on suspect).

11510577

David M. ODOM, M.D., Appellant, v. FAIRBANKS MEMORIAL HOSPITAL, Lutheran Health Systems, Inc., Western Health Network, Inc., James H. Gingerich, Susan McLane, Linda Smith, Ronald L. Bliss, Hoi P. Lee, M.D., Steve E. Mancill, M.D., Jerry A. Perisho, M.D., Randall K. McGregor, M.D., Lawrence W. Stinson, Jr., M.D., Anesthesia Associates, Inc., William F. Stoddard, M.D., Danny R. Robinette, M.D., Appellees

Odom v. Fairbanks Memorial Hospital

2000-03-17

No. S-8007

123

137

999 P.2d 123

999

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

David M. ODOM, M.D., Appellant, v. FAIRBANKS MEMORIAL HOSPITAL, Lutheran Health Systems, Inc., Western Health Network, Inc., James H. Gingerich, Susan McLane, Linda Smith, Ronald L. Bliss, Hoi P. Lee, M.D., Steve E. Mancill, M.D., Jerry A. Perisho, M.D., Randall K. McGregor, M.D., Lawrence W. Stinson, Jr., M.D., Anesthesia Associates, Inc., William F. Stoddard, M.D., Danny R. Robinette, M.D., Appellees.

David M. ODOM, M.D., Appellant, v. FAIRBANKS MEMORIAL HOSPITAL, Lutheran Health Systems, Inc., Western Health Network, Inc., James H. Gingerich, Susan McLane, Linda Smith, Ronald L. Bliss, Hoi P. Lee, M.D., Steve E. Mancill, M.D., Jerry A. Perisho, M.D., Randall K. McGregor, M.D., Lawrence W. Stinson, Jr., M.D., Anesthesia Associates, Inc., William F. Stoddard, M.D., Danny R. Robinette, M.D., Appellees. No. S-8007. Supreme Court of Alaska. March 17, 2000. David M. Odom, M.D., pro se, Fairbanks, and James Forbes, James Forbes, P.C., Anchorage, for Appellant. Howard A. Lazar, Delaney, Wiles, Hayes, Gerety & Ellis, Inc., Anchorage, and David L. White, White, Cummings & Longino, P.C., Phoenix, Arizona, for Fairbanks Memorial Hospital, Lutheran Health Systems, Inc., Western Health Network, Inc., James H. Gingerich, Susan McLane, Linda Smith, and Danny R. Robinette, M.D., Appellees. Leroy J. Barker, Robertson, Monagle & Eastaugh, Anchorage, for Ronald L. Bliss, Hoi P. Lee, M.D., Steve E. Mancill, M.D., Jerry A. Perisho, M.D., Randall K. McGre-gor, M.D., Lawrence W. Stinson, Jr., M.D., Anesthesia Associates, Inc., and William F. Stoddard, M.D., Appellees. Before MATTHEWS, Chief Justice, COMPTON, FABE, and BKYNER, Justices.

6557

42879

OPINION COMPTON, Justice. I. INTRODUCTION David M. Odom sued Fairbanks Memorial Hospital and various health care providers, asserting eleven separate claims for relief. All of Odom's claims were dismissed for failure to state a claim upon which relief may be granted. He seeks reversal on eight of the dismissed claims. We reverse the superior court's order dismissing those eight claims. II. FACTS AND PROCEEDINGS David M. Odom is a licensed physician. He was employed by Fairbanks Memorial Hospital (FMH) as an anesthesiologist from 1988 until his staff privileges were terminated in 1994. FMH is the only full service civilian hospital in Fairbanks. Anesthesiologists employed by FMH enter into an agreement (Anesthesiologist Agreement) with FMH which provides that each party to the Anesthesiologist Agreement will get a prorated share of the anesthesia practice at FMH. In December 1992 Odom informed FMH administrators of his intention to establish an outpatient surgery center. It was Odom's announcement of his plans to open the Fairbanks Surgery Center (FSC), in potential competition with FMH, that Odom argues precipitated the events that resulted in the termination of his staff privileges. In October 1993 Odom refused to work with nurse anesthetist Kay Wilson. FMH suspended Odom's staff privileges for twenty-four hours and his rights under the Anesthesiologist Agreement were terminated. Unable to exercise rights under the Anesthesiologist Agreement, Odom could get an anesthesiology assignment only if specifically requested by a patient or surgeon. His prorated share of the anesthesia work was distributed to the remaining five anesthesiologists. In December 1993 Odom's rights under the Anesthesiologist Agreement were reinstated. FMH continued to conduct an investigation into quality assurance issues surrounding Odom's medical practices that were raised by other anesthesiologists. A Special Investigative Committee (SIC) was formed to investigate these issues. Upon FMH's request for an opinion as to what should be done in regard to Odom's staff privileges, the American Medico-Legal Foundation (AMLF) recommended that Odom attend "extensive [Continuing Medical Education] or . repeat a period of anesthesia residency training." SIC,. however, recommended that FMH suspend Odom's staff privileges. In June 1994 the FMH Executive Committee recommended to its Governing Board that Odom's staff privileges be suspended until the earliest of one of the following occurred: 1. The request to the Governing Body that [Odom's] privileges be terminated is finally resolved; or 2. The Executive Committee approves a written proposal from [Odom] that [his] privileges be exercised only when [he is] accompanied by and supervised by an anesthesiologist with appropriate qualifications; or 3. [Odom] attend[s] further residency training or other proctored form of additional training which results in recommendations which satisfy the Executive Committee that [he has] identified and corrected the problems which have resulted in the substandard level of care reflected by the attached documents. On August 22, 1994, Odom entered a formal evaluation/retraining program at Loma Linda University Medical Center. On September 10, while he was still in the retraining-program, the Governing Board accepted the Executive Committee's recommendation to terminate Odom's medical staff membership and clinical privileges. Odom was informed of his termination on September 27. In compliance with 42 U.S.C. § 11133, FMH reported to a national reporting system that Odom's staff privileges had been terminated. The reasons given for Odom's termination were "Ineompetenee/Malpractice/Negli-gence." Persons who are the subjects of such a report are allowed to comment on the report; Odom did so. In his response, Odom alleged that the quality assurance investigation was a result of his announced intention to compete with FMH and that the information provided in the report was knowingly false. Upon Odom's completion of the program at Loma Linda, he reapplied for staff privileges at FMH and was denied. Odom, pro se, brought suit against FMH, Lutheran Health System; Western Health Network; Former FMH Administrator James H. Gingerich; FMH Assistant Administrator Susan McLane; FMH Quality Assurance Manager Linda Smith; FMH attorney Ronald Bliss; medical doctors Hoi P. Lee, Steve E. Mandil, Jerry A. Perisho, Lawrence W. Stinson and William F. Stod-dard; Anesthesia Associates, Inc.; and former Chief of the FMH Surgery Department, Danny R. Robinette (collectively FMH). Odom alleged eleven claims for relief: (1) unreasonable restraint of trade; (2) group boycott; (3) attempted monopolization; (4) defamation; (5) breach of contract; (6) unfair trade practices; (7) tortious interference with prospective economic advantages; (8) intentional infliction of emotional distress; (9) denial of due process and equal protection; (10) claim for declaratory relief; and (11) permanent injunction. The superior court granted FMH's motion to dismiss for failure to state a claim, pursuant to Alaska Rule of Civil Procedure 12(b)(6), dismissing all of Odom's claims. It awarded FMH attorney's fees and costs in the amount of $7,220.30. It awarded the doctors and Anesthesia Associates, Inc. attorney's fees and costs in the amount of $5,520.00. Odom appeals the ruling as to eight of the eleven claims. Odom also appeals the superior court's order granting attorney's fees. III. DISCUSSION A. Standard of Review An order dismissing a complaint for failure to state a claim is reviewed de novo. See Kollodge v. State, 757 P.2d 1024, 1026 n. 4 (Alaska 1988). For a complaint to survive a Rule 12(b)(6) motion, the complaint need only allege a set of facts "consistent with and appropriate to some enforceable cause of action." Linck v. Barokas & Martin, 667 P.2d 171, 173 (Alaska 1983). A complaint should be deemed sufficient, and a motion to dismiss denied, if "evidence may be introduced that will sustain a grant of relief to the plaintiff." Id. Because complaints should be liberally construed, "[mjotions to dismiss are viewed with disfavor and should rarely be granted." Kollodge, 757 P.2d at 1026. B. The Superior Court Improperly Dismissed All of Odom's Claims Alleging That FMH Violated Alaska's Antitrust Statute, AS 15.50562-596. Odom alleges that FMH violated two separate provisions of Alaska's antitrust act, AS 45.50.562 and AS 45.50.564. He raises three claims: (1) unreasonable restraint of trade, (2) group boycott, and (3) unlawful monopoly. We look to federal precedent when analyzing an antitrust claim. See West v. Whitney-Fidalgo Seafoods, Inc., 628 P.2d 10, 14 (Alaska 1981) ("The legislature intended that Alaska courts would look to Sherman Act cases in construing the [antitrust] Act."). Claims brought under AS 45.50.562 are also referred to as Sherman Act § 1 claims; claims under AS 45.50.564 have been termed Sherman Act § 2 claims. 1. Odom alleged injury to competition overall, as is necessary for Odom to have standing to sue FMH for antitrust violations. For a private litigant seeking treble damages to have standing, "[a] plaintiff must show not only the fact of injury from the alleged violation, but that the injury alleged is 'of the type the antitrust laws were intended to prevent and that flows from that which makes defendants' acts unlawful.' " KOS v. Alyeska Pipeline Serv. Co., 676 P.2d 1069, 1073-74 (Alaska 1983) (quoting Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 479, 97 S.Ct. 690, 50 L.Ed.2d 701 (1977)). Furthermore, the "plaintiff must demonstrate that the defendant's conduct was intended to or did have some anticompetitive effect beyond his own loss of business or the market's loss of a competitor." KOS, 676 P.2d at 1074 (quoting California Computer Prods., Inc. v. International Bus. Machs. Corp., 613 F.2d 727, 732 (9th Cir.1979)). Paragraphs 7 and 135 of Odom's complaint allege facts sufficient to establish standing to sue under Alaska's antitrust statute. In a similar case, the United States Court of Appeals for the Ninth Circuit found that a doctor proved injury to competition and had standing to sue for having his medical staff privileges terminated. See Pinhas v. Summit Health, Ltd., 880 F.2d 1108 (9th Cir. 1989). The doctor alleged that the "conspiracy was intended to boycott his attempts at providing patients with lower prices as a result of his ability to perform operations at a rate quicker than that of his competitors." Id. at 1116. The court held that Pinhas could prove injury to competition by showing "that his preclusion . substantially reduced total competition in the market." Id. Odom has alleged facts that, assuming them true, show that total competition of the Fairbanks market was reduced because of FMH's actions. If the trier of fact finds, as Odom's complaint alleges, that termination of Odom's staff privileges financially incapacitated him so that he could not continue with his plans to open FSC, the competitive market for anesthesiology services in Fairbanks was harmed by FMH's action. 2. Odom alleged a prima facie case of unreasonable restraint of trade. To establish a prima facie case of unreasonable restraint of trade under AS 45.50.562, Odom must set forth facts which if proven would establish that "the defendants combined or conspired with an intent to unreasonably restrain trade." Smith v. Northern Mich. Hosps., Inc., 703 F.2d 942, 949 (6th Cir.1983). Whether actions are tantamount to unreasonably restraining trade is determined by either the rule of reason test or the per se analysis. The rule of reason test should be applied to Odom's termination of staff privileges to determine whether FMH's conduct was unreasonable. See Miller v. Indiana Hosp., 843 F.2d 139, 144 n. 6 (3d Cir.1988) ("[I]n a hospital staff privilege case in which the hospital defends on lack of professional ability, the rule of reason test would apply."). To establish unreasonable restraint of trade under the rule of reason test, Odom must prove three elements: "(1) an agreement or conspiracy among two or more persons or distinct business entities; (2) by which the persons or entities intend to harm or restrain competition; and (3) which actually injures competition." Oltz v. St. Peter's Community Hosp., 861 F.2d 1440, 1445 (9th Cir.1988). Applying the rale of reason test, paragraphs 2, 7, and 135 of Odom's complaint allege a prima facie case of unreasonable restraint of trade. 3. Odom alleged facts sufficient to state a claim that FMH engaged in a per se group boycott. Group boycotts constitute per se violations of the Sherman Act § 1, and Alaska's statutory equivalent, AS 45.50.562. Id. at 1445 n. 1 ("Group boycotts or concerted refusals to deal constitute per se catego-ries_"). The three characteristics which are "indicative of per se illegal boycotts [are]: (1) the boycott cuts off access to a supply, facility, or market necessary to enable the victim firm to compete; (2) the boycotting firm possesses a dominant market position; and (3) the practices are not justified by plausible arguments that they enhanced overall efficiency or competition." Hahn v. Oregon Physicians' Serv., 860 F.2d 1501, 1509 (9th Cir.1988). See also Northwest Wholesale Stationers, Inc. v. Pacific Stationery & Printing Co., 472 U.S. 284, 294-95, 105 5.Ct. 2613, 86 L.Ed.2d 202 (1985). Paragraphs 3, 5, 50, and 52 of Odom's complaint allege facts sufficient to state a claim that FMH engaged in a group boycott. 4. Odom alleged enough facts to state a claim for attempted monopolization. Odom's final antitrust claim alleges that FMH violated AS 45.50.564. " '[A] prima facie case of attempt to monopolize is made out by evidence of a specific intent to monopolize "any part" of commerce, plus anti-competitive conduct directed to the accomplishment of that unlawful purpose.'" West v. Whitney-Fidalgo Seafoods, Inc., 628 P.2d 10, 15 (Alaska 1981) (alteration in original) (quoting Greyhound Computer v. International Bus. Machs., 559 F.2d 488, 504 (9th Cir.1977)). The court noted that "[t]he more market power that exists, the more likely it is that a given course of questionable conduct will suggest the existence of intent to monopolize." Id. Paragraphs 3, 7, 15, and 25 of Odom's complaint sufficiently allege an attempt to monopolize claim. C. . Odom Stated a Claim for Defamation. A prima facie case' of defamation requires the plaintiff to establish "(1) a false and defamatory statement; (2) an unprivileged publication to a third party; (3) fault amounting at least to negligence on the part of the publisher; and (4) the existence of either 'per se' actionability or special harm." French v. Jadon, Inc., 911 P.2d 20, 32 (Alaska 1996). For a statement to be libel per se, "the words used must be so unambiguous as to be reasonably susceptible of only one interpretation—that is, one which has a natural tendency to injure another's reputation." Fairbanks Publ'g Co. v. Pitka, 376 P.2d 190, 194 (Alaska 1962). Included in Odom's allegations of defamatory conduct is a claim that FMH defamed Odom in its reporting of the disciplinary action to the federally mandated National Practitioner Data Bank (Data Bank), a report FMH is required to make. Although a health care entity that is complying with the federal reporting requirement, pursuant to 42 U.S.C. § 11133(a)(1), is afforded a certain amount of immunity in reporting to the Data Bank, that immunity is limited. 42 U.S.C. § 11137(c) provides that "No person or entity . shall be held liable in any civil action with respect to any report made under this subchapter . without knowledge of the falsity of the information contained in the report." FMH, therefore, is immune from liability unless it had knowledge that the report was false. In our view "falsity" in this statute refers to a false report of the nature of or the stated reasons for the actions of a health care entity. Thus in Brown v. Presbyterian Healthcare Services, 101 F.3d 1324, 1334 (10th Cir.1996), a report was made to the Data Bank that Brown's obstetrical privileges had been suspended for the coded reasons "Incompetence/Malpractice/N egli-gence." But the reason stated by the health care provider in the suspension order was that Brown had failed to abide by an agreement to consult in handling certain types of cases. Since the stated reason relied on by the health care provider did not necessarily match the stated reason reported to the Data Bank, the court concluded that a jury question was presented as to whether the report to the Data Bank was false and whether the defendant who had made the report knew it to be so. That is not the situation here where the complaint and exhibits attached to the complaint demonstrate the facial truth of the report to the Data Bank — -that Odom was suspended for stated reasons expressed by FMH that fairly fell within the coded reasons. The statutory privilege would be meaningless if it meant that one who accu rately reported the stated reasons for a health eare provider's action would nonetheless have to defend the underlying validity of the stated reasons. Thus, to the extent that Odom's claim is based on the assertion that the stated reasons relied on by the health care provider were not those reported to the Data Bank, Odom's claim was properly dismissed. However, Odom's defamation claim asserts many communications other than the falsity of the stated reasons reported to the Data Bank. To the extent that it does so it alleges a prima facie case of defamation. Paragraphs 3, 5, 9, 50, and 146-150 of Odom's complaint allege a prima facie case of defamation. D. The Order of Suspension Does Not Preclude Odom from Suing FMH for Breach of an Oral Contract. Odom claims FMH breached an oral contract. The contract, he alleges, resulted from statements made by defendant Ronald Bliss, oh which Odom relied when he withdrew his request for an administrative hearing. Odom's complaint alleges: On August 30, 1994 Defendant Bliss entered into a verbal agreement with [Odom's] attorney Burbank authorizing [Odom's] course of study at LLUMC as a remedy which if satisfactorily completed, would fulfill the June 2, 1994 Order of Suspension and allow [Odom] to return to his practice at FMH. Bliss and Burbank further agreed that in light of [Odom's] participation in the training program at Loma Linda that the FMH medical staff administrative hearing scheduled for November, 1994 would not be required. The alleged oral contract was made subsequent to Odom receiving the Order of Suspension, which listed three options the Executive Committee could take in relation to Odom's suspension. The Order of Suspension, dated June 2,1994 is clear; Odom's suspension was to continue until "the earliest of one [of three] events." The existence of the Order of Suspension does not, however, preclude Odom from making a claim that there was a separate oral contract made and breached by FMH. Whether an oral contract exists is an issue for the trier of fact and was improperly dismissed by the superior court. See George v. Custer, 862 P.2d 176, 178 n. 3 (Alaska 1993) ("It is for the trier of fact to determine whether an oral contract exists and the contract's terms where the evidence conflicts."); B.B. & S. Constr. Co., Inc. v. Stone, 535 P.2d 271, 273 (Alaska 1975) ("Where the existence of an oral contract and the terms thereof are the points in issue and the evidence is conflicting, it is for the trier of the facts to determine whether the contract did in fact exist and, if so, the terms thereof."). E. Odom Stated a Claim for Violation of Alaska's Unfair Trade Practices Act. Odom sought relief for violation of AS 45.50.471(a), (b)(7), (11) and (12). Odom, as a private litigant, sued for violation of the Unfair Trade Practices Act pursuant to former AS 45.50.531. "Two 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." State v. O'Neill Investigations, Inc., 609 P.2d 520, 534 (Alaska 1980). "An act or practice is deceptive or unfair if it has the capacity or tendency to deceive. Actual injury as a result of the deception is not required.... All that is required is a showing that the acts and practices were capable of being interpreted in a misleading way." Id. at 534-35 (footnotes omitted). Paragraphs 3, 8, 15, 50, 73, 119, and 125 of Odom's complaint allege facts sufficient to state a claim under Alaska's Unfair Trade Practices Act. F. Odom Alleged Sufficient Facts to State a Claim that FMH Interfered with His Prospective Economic Advantage with the FSC. The tort of intentional interference with prospective economic advantage is analyzed under the same rubric as the tort of intentional interference with contractual relations. See Oaksmith v. Brusich, 774 P.2d 191, 198 (Alaska 1989). The elements a plaintiff must prove when alleging intentional interference with a prospective economic advantage are: [I]s [there] sufficient evidence that: 1) a prospective business relationship existed . 2) [the defendant] knew of the prospective relationship and intended to prevent its fruition, 3) the prospective business relationship did not culminate in pecuniary benefit to [the plaintiff], 4) [the defendant's] conduct interfered with the prospective relationship, 5) the interference caused [the plaintiffs] damages, and 6) [the defendant's] conduct was not privileged or justified. Id. Under the theory of intentional interference with prospective economic advantage, "a person who is involved in an economic relationship with another, or who is pursuing reasonable and legitimate prospects of entering such a relationship, is protected from a third person's wrongful conduct which is intended to disrupt the relationship." Ellis v. City of Valdez, 686 P.2d 700, 707 (Alaska 1984). Odom alleges facts which if proven state a claim that FMH intentionally interfered with his prospective business relationship with FSC. Odom alleges: (1) a prospective business relationship existed between him and the Fairbanks Surgery Center, Inc., a distinct and separate entity; (2) FMH knew of this relationship; (3) Odom has not been able to open the FSC because he was financially devastated when his staff privileges were terminated; (4) FMH intentionally interfered with his relationship with FSC by terminating his staff privileges; (5) terminating his staff privileges damaged him financially so as to be unable to open FSC; and (6) FMH's conduct was not privileged or justified. G. The Superior Court Abused Its Discretion in Making the Threshold Determination that FMH's Conduct Was Not Outrageous and Odom Did Not Suffer Severe Distress. The last claim Odom appeals is the dismissal of his claim for damages arising from intentional infliction of emotional distress. Odom alleges that the "[djefendants' conduct intentionally inflicted extreme emotional distress upon [him]." To establish a prima facie case of intentional infliction of emotional distress, the plaintiff must prove that the defendant "through extreme or outrageous conduct . intentionally or recklessly cause[d] severe emotional distress or bodily harm to another." Richardson v. Fairbanks N. Star Borough, 705 P.2d 454, 456 (Alaska 1985). This court has stated that a trial judge "should make a threshold determination whether the severity of the emotional. distress and the conduct of the offending party warrant a claim of intentional infliction of emotional distress." Id. A trial judge's threshold determination, should not be overruled by this court "absent an abuse of discretion." Id. This court has held that liability for intentional infliction of emotional distress should only be found when " 'the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.' " Hawks v. State, Dep't of Pub. Safety, 908 P.2d 1013, 1016 (Alaska 1995) (quoting Oaksmith v. Brusich, 774 P.2d 191, 200 (Alaska 1989)). The conduct in which FMH allegedly engaged reaches the level of outrageousness( necessary for Odom to state a claim for intentional infliction of emotional distress. Paragraphs 3, 7, 8, 35, 119, and 125 of Odom's complaint allege facts sufficient to state a claim of intentional infliction of emotional distress. IV. CONCLUSION • Odom's complaint alleges facts which if proven are sufficient to state a claim for unreasonable restraint of trade, group boycott, attempted monopolization, defamation, breach of oral contract,-unfair trade practices, interference with a prospective economic advantage, and intentional infliction of emotional distress. Accordingly, we REVERSE the superior court's dismissal of these claims and its awards of attorney's fees to'FMH and to the doctors and Anesthesia Associates, Inc. EASTAUGH, Justice, not participating. . Anesthesia Associates, Inc. is an Alaska corporation owned and operated by anesthesiologists Lee and McGregor. The corporation employs the certified registered nurse anesthetists (CRNAs) who work at FMH. . "Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce is unlawful." AS 45.50.562. . This is considered a per se violation of AS 45.50.562. . "It is unlawful for a person to monopolize, or attempt to monopolize, or combine or conspire with another person to monopolize any part of trade or commerce." AS 45.50.564. . Appendix A sets out the full text of the paragraphs of Odom's complaint needed to decide his appeal. . "It is unlawful for a person to monopolize, or attempt to monopolize, or combine or conspire with another person to monopolize any part of trade or commerce." AS 45.50.564. . Odom's Order of Suspension is dated June 2, 1994. . The three options the Executive Committee could take which were listed in the Order of Suspension are set out supra p. 127. . "Unfair 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(a). . (b) The terms "unfair methods of competition" and "unfair or deceptive acts or practices" include, but are not limited to, the following acts: (7) disparaging the goods, services, or business of another by false or misleading representation of fact; (11) engaging in any other conduct creating a likelihood of confusion or of misunderstanding and which misleads, deceives or damages a buyer or a competitor in connection with the sale or advertisement of goods or services; (12) using or employing deception, fraud, false pretense, false promise, misrepresentation, or knowingly concealing, suppressing, or omitting a material fact with intent that others rely upon the concealment, suppression or omission in connection with the sale or advertisement of goods or services whether or not a person has in fact been misled, deceived or damaged. AS 45.50.471(b). . (a) A person who suffers an ascertainable loss of money or property as a result of another person's act or practice declared unlawful by AS 45.50.471 may bring a civil action to recover actual damages or $200, whichever is greater. The court may, in cases of wilful violation, award up to three times the actual damages sustained. The court may provide other relief it considers necessary and proper. Former AS 45.50.531(a). . The Articles of Incorporation for the Fairbanks Surgery Center were recorded on March 9, 1994. On September 18, 1995, the State of Alaska granted the Fairbanks Surgery Center a "Certificate of Need."

10403164

In the Matter of A.S., A Minor Under the Age of Eighteen Years

In re A.S.

1987-07-17

No. S-1739

432

437

740 P.2d 432

740

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

In the Matter of A.S., A Minor Under the Age of Eighteen Years.

In the Matter of A.S., A Minor Under the Age of Eighteen Years. No. S-1739. Supreme Court of Alaska. July 17, 1987. Michael J. Walleri, Fairbanks, for Tana-na Chiefs Conference, Inc., appellant. D. Rebecca Snow, Asst. Atty. Gen., Fairbanks, Harold M. Brown, Atty. Gen., Juneau, for Div. of Family and Youth Services, Dept, of Health and Social Services, State of Alaska, appellee. D. Randall Ensminger, Fairbanks, for Natural Mother of A.S. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

3354

20401

OPINION RABINOWITZ, Chief Justice. The Native Village of Northway ["North-way"] appeals an order of the superior court which extended state custody of A.S., a child previously adjudicated to be in need of aid, for a period not to exceed two years. Northway contends that the applicable statutory standard for such an extension was not met and that the order violates the Indian Child Welfare Act ["ICWA"], 25 U.S.C. § 1901-1963. I. FACTS AND PROCEEDINGS BELOW. A.S. is a five-year old Athabascan child. She is a member of the Native Village of Northway by virtue of her parents' membership. When she was approximately four months old, the State, Department of Health and Social Services, Division of Family and Youth Services ["the Department"] took custody of her as a child in need of aid and placed her in foster care with a paternal aunt and uncle, the G's, because neither of her parents was willing and able to care for her. At that time, her mother had a severe alcohol abuse problem; A.S. had been hospitalized in Fairbanks for two months, during which time her mother visited her only infrequently and then left Fairbanks without notifying the hospital. A.S.'s father has never made any active effort to be a parent to her. In August 1985, the Department proposed to return A.S. to her mother, who had arrested her alcohol problem in 1983. The Department believed that the lack of extended contact between mother and child necessitated a process of gradual reunification in order to try to avoid emotional damage to A.S. Accordingly, in October, the Department implemented a graduated visi tation schedule designed to ease A.S.'s transition back to her mother. In September 1985, the G's commenced proceedings before the Northway Village Council to adopt A.S. After a hearing on October 15, an order of adoption was entered by the council over the natural mother's objection. The order stated that A.S. "shall be the child of [the G's] for all legal purposes" but did not terminate the natural parents' rights; it made them "subject to the primary parental rights of [the G's]." Subsequently, the G's filed an action in United States District Court in Anchorage for injunctive and declaratory relief, seeking to prevent the natural parents' and the Department's interference with the North-way tribal court order. On December 30, 1985, the federal court issued a preliminary injunction which enjoined the Department from effecting its proposed visitation schedule and enjoined the individual defendants from "taking any action inconsistent with the Village of Northway adoption order . pending a final order in this case." Because state custody of A.S. was due to expire on April 24, 1986, the Department petitioned the superior court on April 4 for an extension of custody for a period not to exceed two years. The Department contends that it sought this extension because the judge in the federal case stated specifically (during a discovery teleconference in which counsel for Northway and for A.S.'s mother participated) that he intended the preliminary injunction to "maintain the status quo," including continuation of state custody. Northway opposed the extension of custody; A.S.'s mother stipulated to it. After hearings, the superior court granted the requested extension. The court found in part that: "[b]ased on the pleadings before the court, [the mother's] stipulation to the extension of custody, and the arguments of counsel . it is in the best interests of [A.S.] and of the public that custody be extended . in order to permit continued movement toward return of A.S. to her mother's care." Northway subsequently filed this appeal. II. WAS THE APPLICABLE STATUTORY STANDARD FOR AN EXTENSION OF STATE CUSTODY OF A CHILD IN NEED OF AID MET? A. The Applicable Standard. The pivotal question underlying this appeal is whether the Department must show that the conditions which justified the commitment of a child in need of aid to state custody continue to exist in order to obtain an extension of custody pursuant to AS 47.10.080(c)(1)(A). AS 47.10.080(c)(1) provides in relevant part that: the [Department [of Health and Social Services] may petition for and the court may grant in a hearing (A) two-year extensions of commitment which do not extend beyond the minor's 19th birthday if the extension is in the best interests of the minor and the public; . [Emphasis added.] Northway contends that the superior court erred in granting the petition for extension in this case because the court could not find by a preponderance of the evidence that the basis upon which A.S. was adjudicated a child in need of aid continues to exist. Northway further argues that AS 47.10.083 governs the determination of whether A.S. should remain in the state's custody. That section provides: Review hearing information. In the case of a child in need of aid, the child shall be returned home at the review hearing under AS 47.10.080(f) unless the court finds by a preponderance of the evidence that the basis upon which the child was adjudicated under AS 47.10.-010(a)(2) continues to exist. AS 47.10.080(f), in turn, provides in part that the court shall review an order committing a child in need of aid to the Department for placement on an annual basis, and may review the order more frequently "to determine if continued placement, . as it is being provided, is in the best interest of the minor and the public." Given that both AS 47.10.080(c)(1)(A) and AS 47.10.080(f) contain the "best interests" standard, we think it reasonable to assume that the legislature intended the standard to have the same meaning with respect to each type of continuation of custody, namely a section .080(c)(1)(A) extension beyond the term of the original order and a section .080(f) "extension" beyond the first year of the order until its expiration. We do not think that "best interests" in AS 47.10.080(c)(1)(A) should be interpreted to require the state to show that the basis upon which a child was adjudicated in need of aid continues to exist when the statutes can be harmonized without such an inference. Had the legislature intended "best interests" in section .080(c)(1)(A) to mean that the conditions which previously resulted in the removal of the child must continue to exist, as specified in section .083, it could have said so specifically. The structure of the statutory scheme — placing the continuing conditions requirement in a separate section (AS 47.10.083), which then incorporates the section authorizing annual review (AS 47.10.080(f)) — lends support to our conclusion. The "continuing conditions of need" requirement for continued custody found in section .083 should be viewed as an additional requirement beyond "best interests," not as the equivalent thereof. Our conclusion that "best interests" should not be equated with a "continuing conditions of need" requirement is implicit in a definition of "best interests" which encompasses multi-faceted criteria. We have repeatedly held that no single factor should be allowed to outweigh all others in applying the "best interests of the child" standard which governs analogous child custody disputes. Therefore, we hold that "best interests" as used in AS 47.10.080(c)(1)(A) does not constitute a requirement that the state demonstrate the continuing existence of AS 47.10.010(a)(2) conditions of need in order to obtain an extension of custody. In a situation such as that present in this case, the state may require an extension of custody in order to implement a plan for reuniting the family without causing emotional trauma to the child by virtue of a sudden change of circumstances; the "best interests" of the child and the public are served by granting the extension even though presumably the conditions which necessitated removal no longer exist. B. Application of the Statutory Standard. Our review of the record persuades us that the superior court's finding that an extension of state custody under AS 47.10.-080(c)(1)(A) was in the best interests of A.S. is not clearly erroneous. Viewed in the light most favorable to the Department, the evidence supports the finding that the best interests of A.S. were met. The guardian ad litem stated that the extension of custody would be in A.S.'s best interests; the mother also favored the extension, although it does appear from the record that her position was primarily motivated by her self-interest in getting A.S. back. The caseworker assigned to A.S. explicitly stated in the petition for extension that returning the child to her mother without a gradual reunification process— for the implementation of which the extension was necessary — would be likely to cause emotional damage to the child, and that the degree of trauma which reunification might cause could not be determined since mother and child had not had extended or unsupervised contact for three years. Northway offered no evidence to rebut the state's contention regarding this likelihood of emotional damage. III. IMPACT OF THE UNITED STATES DISTRICT COURT'S PRELIMINARY INJUNCTION. As previously noted, the G's filed an action in federal district court for injunc-tive and declaratory relief against the state and the natural parents seeking to prevent their interference with the Northway tribal court's order of adoption. The overriding purpose of the injunction issued by the federal court was to maintain the status quo — specifically, to ensure that the state's custody would continue — pending a final order from that court. The state notes that the federal court's order left "the State and A.S. . in the conflicted [sic] position of being required under state statute and court order and under ICWA to try to reunite A.S. with her [mother], but being prevented from changing the 'status quo' by federal court order." Most compelling is the state's argument that unless the superior court found a basis for continuing custody in the state, state law and ICWA would compel the court to order A.S. returned to her mother. Given this circumstance, the order extending state custody under AS 47.10.080(c)(1)(A) in effect maintained the status quo in regard to the custody of A.S. and was not inconsistent with the order of the federal court. The judgment of the superior court extending the state's custody of A.S. is AFFIRMED. . Northway's failure to comply with established appellate procedure results in abandonment of its ICWA arguments. Northway asserted that the order extending custody violated 25 U.S.C. § 1912(a), which establishes notice requirements under ICWA. This claim and also the contention that the order violated 28 U.S.C. § 1360 (which requires that "full force and effect" be accorded tribal law) are deemed abandoned since Northway did not raise them below and does not argue them in either its opening or reply brief to this court. See Hitt v. J.B. Coghill, Inc., 641 P.2d 211, 213 n. 4 (Alaska 1982) (points argued only in reply brief and not in opening brief were waived); State v. O'Neill Investigations, 609 P.2d 520, 528 (Alaska 1980) (failure to argue a point in brief constitutes abandonment of it); Williams v. Alyeska Pipeline Serv. Co., 650 P.2d 343, 351 (Alaska 1982) (argument not considered on appeal because not raised below). Northway has additionally specified as error that the order extending custody failed to accord "full faith and credit" to the tribal court's order of adoption under .25 U.S.C. § 1911(d), and violated the requirements of 25 U.S.C. § 1912(e) because it was not supported by testimony of qualified expert witnesses and by clear and convincing evidence of serious emotional harm to the child. We hold that Northway has abandoned these points by its failure to raise them in the superior court. Williams, 650 P.2d at 351. Further, on appeal Northway's discussion of these points is limited to two conclusory paragraphs, which we also consider an abandonment of these points. O'Neill Investigations, 609 P.2d at 528. . A.S. has experienced severe medical and developmental problems as a result of having suffered from meningitis (the reason for her hospitalization) and fetal alcohol syndrome. . The defendants in the federal case are the State of Alaska; John Pugh, Commissioner of the Department of Health and Social Services; and the natural parents of A.S. The court granted Northway's motion to intervene as plaintiff. . The injunction interrupted the visitation schedule before any extended or unsupervised visits took place, but supervised visitation by the mother of two 1½ — 2-hour periods per week continued. . In his argument to the superior court, counsel for Northway agreed that the state is not enjoined from continuing its custody of A.S. but insisted that nothing in the federal court's order contemplates such continued custody. .Resolution of this question hinges on general statutory interpretation and thus is within the special competency of this court. State v. Dupere, 709 P.2d 493, 495 (Alaska 1985), modified, 721 P.2d 638 (Alaska 1986). As to such a matter we exercise our independent judgment and need not defer to the superior court's interpretation. See State, Dep't of Revenue v. Amoco Prod. Co., 676 P.2d 595, 599 n. 5 (Alaska 1984). . AS 47.10.010(a)(2) defines the circumstances in which the court should find a child in need of aid to include: the child having no parent caring or willing to provide care, including physical abandonment; the child being in need of medical treatment to cure, alleviate or prevent substantial physical harm, which treatment the parent has knowingly failed to provide; the child having suffered substantial physical harm, or there is an imminent risk that the child will suffer such harm as a result of actions done or conditions created by the parent or by the parent's failure adequately to supervise the child; and the child having suffered substantial physical abuse or neglect as a result of conditions created by the parent. . The order granting the extension did not indicate whether the court relied on section .083 or .080(f) but, as indicated at the outset, merely stated the court's finding that based on the pleadings, the mother's stipulation to the extension of custody, and the arguments of counsel, "it is in the best interests of [A.S.] and of the public that custody be extended . in order to permit continued movement toward return of A.S. to her mother's care." During the hearing, the court indicated its view that whether continued custody is in the best interests of A.S. was "the only consideration for the Court." We observe that sections .080(c)(1)(A) and .083 use "best interests," plural, whereas section .080(f) employs the singular form, best "interest." This difference is void of significance. . See People v. Dillon, 34 Cal.3d 441, 194 Cal. Rptr. 390, 405, 668 P.2d 697, 712 (1983) (en banc); Rodrigues v. State, 52 Hawaii 156, 52 Hawaii 283, 472 P.2d 509, 518 (1970) (words or phrases repeated in different sections of statute are presumed to be used in same sense throughout); see generally 2A C. Sands, Sutherland Statutory Construction ["Sutherland"] § 46.06 (rev. 4th ed. 1984). . See 2A Sutherland § 47.38, at 265 (cautioning against filling in text of statute from its purposes unless plainly necessary). . Cf. United Parcel Serv. v. State, Dep't of Revenue, 102 Wash.2d 355, 687 P.2d 186, 191 (1984) (en banc) (if legislature uses certain language in one instance and different language in another, then a difference in legislative intent exists). . S.O. v. W.S. (In re Adoption of J.D.S.), 643 P.2d 997, 1006 (Alaska 1982); Johnson v. Johnson, 564 P.2d 71, 74-75 (Alaska 1977), cert. denied, 434 U.S. 1048, 98 S.Ct. 896, 54 L.Ed.2d 800 (1978). . The father evidently supports the adoption of A.S. by the G's. The father failed to appear after being served with notice of the extension hearing. . Northway argues that denial of the Department's petition for an extension of custody would not require the superior court then to return A.S. to her mother, but rather that under AS 47.10.080(e) the court could release the child to the G's, who are A.S.'s parents under the tribal court order. Section .080(e) provides, "If the court finds that the minor is not . a child in need of aid, it shall immediately order the minor released from the department's custody and returned to the minor's parents, guardian, or custodian, and dismiss the case." If deemed proper under the statute, such an outcome would avert the possibility of emotional damage on which the Department relies. We believe, however, that the superior court correctly concurred in the state's position that, absent an extension, A.S. must be returned to her mother. .Northway simply asserted in its brief that "the record totally lacks any evidence which suggests the child is in any danger relative to either [her mother's or adoptive parents'] home." The Department argues that Northway cannot now assert that there would be no likelihood of emotional damage to A.S. if she is abruptly returned to her mother because the tribe induced the federal court to enjoin the Department's implementation of its visitation plan based on the probable harm to the child. Northway relied on the mother's apparent recovery from alcoholism (which the Department does not deny) as grounds for denial of the extension. It cited the Department's Report for Annual Review, which describes an increasingly positive relationship between A.S. and her mother. . In addition to enjoining the state from "effecting the visitation program" proposed in its petition for an extension of custody, the federal court's order further provided: That the individual Defendants, and all others acting in concert with them, are enjoined from taking any action inconsistent with the Village of Northway adoption order of October 15, 1985, pending a final order in this case. . That the foregoing should not be construed to prohibit supervised visitation of [A.S.] by her natural parents so long as such visits are not contrary to the instructions of health care professionals. . The state supported this assertion with a comparison of AS 47.05.060 with 25 U.S.C. § 1902, 1912(e), 1916(a) and (b), 1921, and 1922. AS 47.05.060 sets forth the purpose of Title 47 as it relates to children as [Tjo secure for each child the care and guidance, preferably in the child's home, that will serve the . welfare of the child and the best interests of the community; to preserve and strengthen the child's family ties whenever possible, removing the child from the custody of the parents only as a last resort when the child's welfare or safety or the protection of the public cannot be adequately safeguarded without removal.... The state elaborated that, as a consequence of the federal court's order, A.S.'s mother . could not pursue her rights under state law and ICWA and actually regain custody of her child. She could not even insist on progress in the plan agreed to by the state to provide a gradual transition for A.S. from her long time foster home to her mother's home, a plan developed to avoid possible emotional 'damage to A.S. The social worker's reason for seeking the extension of custody was to guard against any possible trauma to A.S.: from an abrupt change of caretakers or from being unable to bond to her mother. Moreover, the guardian ad litem concurred in that objective. . AS 47.10.083, .080(e). See also AS 47.05.060. . Inherent in this conclusion is our view that the federal court's order did not render this appeal moot. If the superior court's extension of custody pursuant to AS 47.10.080(c)(1)(A) is of no effect, then the state has no basis for its continuing custody of A.S. and would have to return her to her natural parent, a result antithetical to the federal court's intent to maintain the status quo with respect to her custody.

10343617

Ricky J. BURCINA, Appellant, v. CITY OF KETCHIKAN, Gateway Center for Human Resources and Russell A. Huffman, Jr., Appellees

Burcina v. City of Ketchikan

1995-09-22

No. S-5893

817

823

902 P.2d 817

902

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

Ricky J. BURCINA, Appellant, v. CITY OF KETCHIKAN, Gateway Center for Human Resources and Russell A. Huffman, Jr., Appellees.

Ricky J. BURCINA, Appellant, v. CITY OF KETCHIKAN, Gateway Center for Human Resources and Russell A. Huffman, Jr., Appellees. No. S-5893. Supreme Court of Alaska. Sept. 22, 1995. Caroline B. Crenna and Thomas W. Find-ley, Dillon & Findley, P.C., Juneau, for Appellant. A. Fred Miller and Kevin G. Miller, A. Fred Miller, Attorneys at Law, Ketchikan, for Appellees City of Ketchikan and Gateway Center for Human Resources. Geoffrey G. Currall, Keene & Currall, P.C., Ketchikan, for Appellee Russell A. Huffman, Jr. Before MOORE, C.J., RABINOWITZ, MATTHEWS, COMPTON and EASTAUGH, JJ.

3946

24140

OPINION RABINOWITZ, Justice. I. INTRODUCTION Ricky Burcina, who has a long history of mental illness and substance abuse, set fire to the Gateway Mental Health Drop-In Center and was subsequently convicted of arson. Thereafter, Burcina filed suit against the Gateway Center for Human Resources and his psychiatrist, Dr. Russell Huffman, claiming that he had received negligent treatment which aggravated his mental illness and caused him to set the fire. Burcina appeals from the superior court's grant of summary judgment in favor of both defendants. We affirm. II. FACTS AND PROCEEDINGS Following his release from prison in early 1986, Ricky Burcina began outpatient mental health care with Gateway Center for Human Resources (Gateway), a department of the City of Ketchikan. Burcina began seeing Dr. Wandal Winn, a psychiatric consultant to Gateway, who prescribed Navane (an anti-psychotic medication) as part of Burcina's treatment program. In February of 1987, Burcina requested that his medication be reduced. Dr. Winn believed that it was appropriate to begin to taper Burcina off his antipsychotic medication because Burcina's mental condition had stabilized and he was receiving vocational training that required fine motor coordination. Burcina began seeing Dr. Russell Huffman in June of 1987. Dr. Huffman provided "talk therapy" to Burcina, and may have had a role in monitoring Burcina's medication. However, Burcina continued to consult with and have his medication prescribed and monitored by Dr. Winn and Gateway. In July 1987, Dr. Winn informed Burcina that he could gradually reduce his medication with the goal of completely discontinuing it in about sixty days. However, by November, Dr. Winn became concerned about Burcina's conduct and suggested that he restart the medication. Burcina refused. Nancy Hunter, a social worker at Gateway, also suggested that Burcina restart his medication, but he again refused. .Over the next several months, Dr. Huffman, Dr. Winn, and Hunter continued to inform Burcina that he should be taking his medication. However, Burcina refused and thus became progressively more delusional. On February 5, 1988, Burcina set fire to the Gateway Mental Health Drop-In Center (Drop-In Center). Burcina explained that he "thought that alien forces were trying to capture and kill [him]," and that he "set fire to the Drop-In Center in order to get the FBI's attention so that the FBI could protect [him] and debrief [him]." Burcina was charged with arson in the first degree. Thereafter, the superior court ordered a psychological evaluation. Burcina revealed to the psychologist that he had been abusing various substances including street drugs prior to February 5. The psychologist concluded that Bureina's psychotic episodes were induced by substance abuse and indicated that he would not be willing to make a diagnosis of schizophrenia "unless it can be clearly proven that [Burcina] demonstrates symptoms of schizophrenia on an outpatient basis when not using euphorigenic or mind-altering street drugs." The psychologist concluded that Burcina was competent to stand trial. Burcina subsequently entered a plea of nolo contendere to arson and was sentenced to eight years of incarceration with five and one-half years suspended. On February 2, 1990, Burcina filed suit against Gateway and Dr. Huffman claiming that he had received negligent treatment which aggravated his mental illness and, during a psychotic episode, caused him to set fire to the Drop-In Center. Burcina alleged that as a result of his conviction for arson and subsequent imprisonment, he had suffered and continues to suffer mental anguish, loss of income, loss of enjoyment of life, and emotional distress. Before trial, Gateway and Dr. Huffman moved for summary judgment. The superior court granted Gateway's and Dr. Huffman's motions holding that Burcina's claims are prohibited by public policy. Specifically, the superior court relied upon the general rule that [a] person cannot maintain an action if, in order to establish his cause of action, he must rely, in whole or in part, on an illegal or immoral act or transaction to which he is a party. Also, he cannot maintain a claim for damages based on his own wrong or caused by his own neglect, . or where he must base his cause of action, in whole or in part, on a violation by himself of the criminal or penal laws. 1A C.J.S. Actions § 29, at 386-87 (1985). Burcina now appeals. III. DISCUSSION A. Burcina's Claims are Prohibited by Public Policy This court has recognized the public policy principle which precludes a person who has been convicted of a crime from imposing liability on others for the consequences of that antisocial conduct. Under this court's previous decisions, recovery is precluded at the "'very threshold of the plaintiffs application for judicial relief.'" Lord v. Fogcutter Bar, 813 P.2d 660, 663 (Alaska 1991) (quoting Barker v. Kallash, 63 N.Y.2d 19, 479 N.Y.S.2d 201, 203-05, 468 N.E.2d 39, 41-42 (1984)). The superior court granted summary judgment in favor of Gateway and Dr. Huffman on the ground that Burcina's suit is prohibited by public policy. On appeal, Bur-cina argues that his suit is not barred because he was insane at the time he committed the crime of arson. In effect, Burcina requests that an exception be created to Adkinson, Lord, Shaw, and Beilgard in the circumstance where the person is insane at the time he or she commits the criminal act. This court first held that, as a matter of public policy, a person who has been convicted of a crime is precluded from imposing civil liability on others for the consequences of his or her own criminal conduct in Adkinson v. Rossi Arms Co., 659 P.2d 1236 (Alaska 1983). We held that Adkinson, who was convicted of manslaughter for shooting and killing a person with a shotgun, had no claim for relief in tort against either the manufacturer or the seller of the shotgun. Id. at 1240. In holding that Adkinson's claims were barred by public policy, we stated that-"allowing a criminal defendant, who has been convicted of an intentional killing, to impose liability on others for the consequences of his own antisocial conduct runs counter to basic values underlying our criminal justice system." Id. Thus, we concluded that because Adkinson was convicted based on his intentional conduct, he alone was responsible for any resultant personal losses. In Lord v. Fogcutter Bar, 813 P.2d 660, 663 (Alaska 1991), we held that Lord, who was convicted of kidnapping, rape and assault which took place after he was served more than fourteen drinks at the Fogcutter Bar, was precluded from recovering in tort against the Fogcutter Bar. Lord alleged that the Fogcutter was liable for the damages he suffered as a result of his imprisonment because the Fogcutter and its employee violated Alaska's dram shop statute by selling Lord alcohol while he was a "drunken person." Id. at 662. We noted that "[c]ourts have consistently refused to aid those whose claims are based on their own illegal acts," and held that Lord's claim was barred for the same reason that summary judgment was affirmed in Adkinson. Id. at 663. In Shaw v. State, Department of Administration, 861 P.2d 566, 571 (Alaska 1993) (Shaw II), this court held that the public policy principle enunciated in Adkinson and Lord prevented recovery on the part of a plaintiff in a professional malpractice action against his former defense attorney where the plaintiff in fact engaged in the criminal conduct with which he was charged. We noted bur previous holdings "that civil recovery should not be a tool for shifting an individual's responsibility for the individual's criminal acts." Id. As in Adkinson and Lord, we held "that if plaintiffs engaged in the criminal conduct they are accused of, then they alone should bear full responsibility for the consequences of their acts, including imprisonment." Id. at 572. In Beilgard v. State, 896 P.2d 280 (Alaska 1995), we held that Beilgard, who was convicted of violating Alaska's game laws after requesting information and assistance from State employees as to what permits were required for his business, possessed no viable claim for relief in tort against the State. Our holding in Beilgard was grounded on the public policy principle enunciated in Adkinson, Lard, and Shaw II. Id. at 283-34. In recognizing and applying this public policy principle, we have favorably cited two eases which are factually similar to the present case. In Cole v. Taylor, 301 N.W.2d 766 (Iowa 1981), the Iowa Supreme Court held that Cole was prohibited from recovering in tort from her psychiatrist, Taylor, on her claim that Taylor negligently failed to prevent her from committing murder. Cole shot and killed her former husband, and was subsequently charged, tried and convicted of first-degree murder. Id. at 766. Cole alleged that during her course of treatment, Taylor became aware that she had violent inclinations and was thinking about killing her former husband. Id. at 767. Cole claimed that Taylor failed in his treatment of her, that he failed to restrain her by hospitalization, and that he failed to warn her former husband of any impending danger. Id. After recognizing the general policy rule that a person should not be able to rely on an illegal act to maintain a cause of action, the lower court dismissed Cole's suit. The Supreme Court of Iowa held that Cole's responsibility for her criminal conduct was established by her murder conviction, and "that it would be, plainly and simply, wrong as a matter of public policy to allow recovery." Id. at 768. Likewise, in Glazier v. Lee, 171 Mich.App. 216, 429 N.W.2d 857, 860 (1988), the Michigan Court of Appeals followed Cole and held that Glazier was precluded from recovering in tort from his psychologist, Lee, on his claim that Lee negligently failed to prevent him from committing murder. Glazier shot and killed his girlfriend and was subsequently convicted of voluntary manslaughter. Id. 429 N.W.2d at 858. Glazier claimed that Lee negligently failed to medicate or hospitalize him, suggested violence to him when he was in a volatile, dependent state of mind, and failed to warn Glazier's girlfriend of his potential for violence. Id. The court held that Glazier's claim was barred based on the rule articulated in Cole. Id. 429 N.W.2d at 859. The controlling factor was Glazier's own criminal responsibility as evidenced by his voluntary manslaughter conviction. Id. Based on the foregoing, we conclude that the public policy principle which precludes a person who has been convicted of a crime from imposing liability on others for the consequences of his or her own antisocial conduct applies here. Thus, we hold that Burci-na's claims against Gateway and Dr. Huffman are barred. B. Burcina's Plea of Nolo Contendere Has Collateral Estoppel Effect Burcina also asserts that summary judgment was inappropriate because there was a genuine issue of material fact as to whether he was legally insane when he set the fire. He argues that because he was insane, the policies discussed in the previous section should not preclude his claim. See Boruschewitz v. Kirts, 197 Ill.App.3d 619, 144 Ill.Dec. 73, 554 N.E.2d 1112 (1990). However, because a necessary element of Burcina's criminal conviction for arson was that he have the requisite intent, we conclude that he is collaterally estopped from relitigating the issue of his mental capacity. In Sun v. State, 830 P.2d 772, 777 & n. 9 (Alaska 1992), we held that AS 09.17.030 collaterally estops a civil plaintiff from denying a criminal act to which he plead nolo contendere. Although our holding was based on the express language of AS 09.17.030, we have noted that AS 09.17.030 embodies the public policy principle enunciated in Alaska case law. Lord, 813 P.2d at 663. We now combine and clarify these rules. We hold, based on public policy grounds, that a civil plaintiff is collaterally estopped from relitigating any element of a criminal charge to which he has pled nolo contendere. Such a conclusion is supported by Alaska rules and decisional law on the subject of nolo contendere pleas. Pletnikoff v. Johnson, 765 P.2d 973, 979-82 (Alaska 1988) (Matthews, C.J., dissenting). We note that had Bureina wished to avoid these collateral consequences of his nolo contendere plea, he could have asserted the defenses of either insanity or mental disease or defect, or he could have entered a plea of guilty but mentally ill. Based on the foregoing, we hold that Bur-cina's plea of nolo contendere has collateral estoppel effect in this subsequent civil litigation because his claim is prohibited by public policy. C. Burcina Waived Any Claims for Injuries Unrelated to the Arson Conviction Burcina argues that the superior court erred in dismissing his entire suit because public policy does not bar his claims for injuries unrelated to the arson conviction. Burcina contends that his injuries include mental anguish, loss of enjoyment of life and emotional distress which he suffered before he set fire to the Drop-In Center. We conclude that Burcina has waived this argument on appeal. As noted by Gateway and Dr. Huffman, Burcina failed to assert such a claim in his complaint, he failed to include it in his responses to interrogatories, he failed to include it in his statement of points on appeal, and he failed to oppose a motion for entry of final judgment dismissing his suit. In fact, Burcina suggested that his claims include injuries unrelated to the arson on only one occasion before the superior court. This appears in his memorandum in opposition to Dr. Huffman's motion for judgment on the pleadings. Burcina stated in a footnote as follows: Additionally, plaintiff suffered mental anguish prior to the February 5, 1988, arson, as he gradually became delusional during the period following Huffman's December, 1987, instruction to discontinue his anti-psychotie medication. As with the injury suffered by plaintiff after the arson, this mental anguish did not occur while plaintiff was engaged in the commission of a felony, and AS 09.17.030 cannot bar plaintiff's claim for these pre-arson damages. In Jeffries v. Glacier State Telephone Co., 604 P.2d 4 (Alaska 1979), we held that an issue was not properly before our court where the issue was not properly raised or briefed at the superior court level and was not included in the statement of points on appeal. Id. at 11. As in the present case, the only reference to the issue appeared in a memorandum in opposition to a motion for judgment on the pleadings. Id. at 11 n. 26. Thus, based on our holding in Jeffries, we hold that any claims for injuries unrelated to the arson conviction are not properly before this court. See also In re L.A.M., 727 P.2d 1057, 1059 (Alaska 1986); Wickwire v. McFadden, 633 P.2d 278, 281 n. 6 (Alaska 1981). IV. CONCLUSION For these reasons, we AFFIRM the superior court's grants of summary judgment dismissing Burcina's claims against Gateway and Dr. Huffman. . Burcina injured several police officers during a psychotic episode and was subsequently charged with six counts of assault, convicted and incarcerated. Burcina was then committed to the Alaska Psychiatric Institute where he was diagnosed as having paranoid schizophrenia and mixed substance abuse, "with primary drug abuse being LSD, but to include cocaine and marijuana." . During the period from 1986 through 1988, Dr. Huffman was engaged in the private practice of psychiatry in Ketchikan. In addition, he had a contract with the City for "referred emergency mental health patients . needing urgent care." . Under AS 11.46.400, "[a] person commits the crime of arson in the first degree if the person intentionally damages any properly by starting a fire or causing an explosion and by that act recklessly places another person in danger of serious physical injury." . A party is entitled to summary judgment if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Shanks v. Upjohn Co., 835 P.2d 1189, 1193 (Alaska 1992). In determining whether a party is entitled to judgment as a matter of law, all reasonable inferences of fact must be drawn against tire moving party and in favor of the non-moving party. Wright v. State, 824 P.2d 718, 720 (Alaska 1992). And where, as here, an appeal raises questions of law and public policy, we apply our independent judgment and adopt "the rule of law which is most persuasive in light of' precedent, reason and policy." Shanks, 835 P.2d at 1193. . Beilgard v. State, 896 P.2d 230, 233-34 (Alaska 1995); Shaw v. State, Dep't of Admin., 861 P.2d 566 (Alaska 1993) (Shaw 77); Lord v. Fogcutter Bar, 813 P.2d 660, 663-64 (Alaska 1991); Adkinson v. Rossi Arms Co., 659 P.2d 1236, 1240 (Alaska 1983). . Lord, 813 P.2d at 663; Adkinson, 659 P.2d at 1240. . Our holding that public policy bars Burcina's claims against Gateway and Dr. Huffman makes it unnecessary for us to consider whether Burci-na's claims are also prohibited by AS 09.17.030. . See supra note 3 for the text of AS 11.46.400 defining the crime of arson in the first degree. . Because we conclude that Burcina is collaterally estopped from relitigating the issue of his insanity, we need not decide whether to adopt the exception annunciated in Boruschewitz. . Former AS 09.17.030, subsequently renumbered as AS 09.65.210, provides: A person who suffers personal injury or death may not recover damages for the person al injury or death if the injuries or death occurred while the person was engaged in the commission of a felony, the person has been convicted of a felony, including conviction based on a guilty plea or a plea of nolo conten-dere, and the felony substantially contributed to the injury or death. This section does not affect a right of action under 42 U.S.C. 1983. .In Pletnikoff, this court expressly refrained from considering whether a conviction based on a plea of nolo contendere has collateral estoppel effect because the issue was not adequately briefed by the parties. Id. at 976 n. 2. In a dissent, Chief Justice Matthews reasoned that collateral estoppel should apply to the conviction at issue even though the subject was not adequately briefed. Id. at 979. Chief Justice Matthews noted that under federal law the rule of collateral estoppel does not apply to convictions based on pleas of nolo contendere. Id. He then discussed the differences between Alaska law and federal law, and why these differences justify applying the rule of collateral estoppel to convictions based on pleas of nolo contendere in Alaska: The Alaska Rules are significantly different from the Federal Rules on the question of the effect of a plea of nolo contendere. Rule 410 of the Federal Rules of Evidence explicitly states that nolo contendere pleas are inadmissible while Alaska Rule of Evidence 410 does not. Further, Federal Criminal Rule 11(b) provides that a defendant may plead nolo contendere only with the consent of the court and only then after the court has given "due consideration of the views of the parties and the interest of the public in the effective administration of justice." Alaska has no counterpart to this provision. Moreover, Federal Criminal Rule 11(e)(6)(B) explicitly makes inadmissible a plea of nolo contendere. Alaska Criminal Rule 11(e)(6) contains no such provision. Finally, Federal Evidence Rule 803(22) provides that "[ejvidence of a final judgment, entered after a trial or upon a plea of guilty (but not upon a plea of nolo contendere), adjudging a person guilty of a crime punishable by death or imprisonment in excess of one year" is not hearsay. This suggests by implication that a conviction based upon a plea of nolo contendere is hearsay. By contrast the Alaska Evidence Rules contain no exception to the hearsay rule for judgments of previous conviction. The commentary explains that this omission was made advisedly, since the effect of a judgment of conviction is properly a subject governed by the rules of collateral estoppel, rather than the rules of evidence. See Alaska Evidence Rule 803 and commentary at 390 (1988). As a matter of decisional law, Alaska law also differs from federal law concerning nolo pleas. In the federal system the trial judge has the discretion to reject a nolo plea. In Alaska a defendant may plead nolo rather than guilty as a matter of right. Miller v. State, 617 P.2d 516, 518 (Alaska 1980); Lowell v. State, 574 P.2d 1281, 1285 (Alaska 1978). Pletnikoff, 765 P.2d at 979-80 (Matthews, C.J., dissenting). . Alaska Statute 12.47.010(a) states as follows: In a prosecution for a crime, it is an affirmative defense that when the defendant engaged in the criminal conduct, the defendant was unable, as a result of a mental disease or defect, to appreciate the nature and quality of that conduct. . Alaska Statute 12.47.020(a) provides as follows: Evidence that the defendant suffered from a mental disease or defect is admissible whenever it is relevant to prove that the defendant did or did not have a culpable mental state which is an element of the crime. . Alaska Statute 12.47.030(a) provides as follows: A defendant is guilty but mentally ill if, when the defendant engaged in the criminal conduct, the defendant lacked, as a result of a mental disease or defect, the substantial capacity either to appreciate the wrongfulness of that conduct or to conform that conduct to the requirements of the law. A defendant found guilty but mentally ill is not relieved of criminal responsibility for criminal conduct and is subject to the provisions of AS 12.47.050. . In Count I of his complaint, Burcina alleges in part as follows: As a result of Defendant Gateway's failure to provide Plaintiff with medication, Plaintiff became psychotic. While in a psychotic state, Plaintiff set fire to the Mental Health Drop-in Center in Ketchikan, and as a consequence of this, he has suffered and will continue to suffer imprisonment, mental anguish, loss of income, loss of enjoyment of life and emotional distress. The allegations contained in Counts II, III and IV are essentially the same as Count I. Count I clearly states that Burcina's mental anguish, loss of enjoyment of life, and emotional distress are a consequence of Burcina setting fire to the Drop-In Center. Thus, Burcina's complaint does not advance any claims for injuries unrelated to the arson. . During discovery Gateway served interrogatories on Burcina. Interrogatory No. 7 asked: Please describe the loss of enjoyment of life that you allege you have sustained in paragraphs 8 and 12 of your Complaint. Burcina responded as follows: I became severely mentally impaired by psychosis and delusions of paranoid schizophrenia. I was in fear of my life and personal safety because of my paranoid delusions. I almost committed suicide on several occasions because I believed I was going to get a 22-year jail sentence. I was severely depressed during my jail time. I am still depressed because I lost my girlfriend because of. the complaint and I almost committed suicide over that. I have bad memories of the delusional psychosis that makes me have nightmares. I have nightmares about prison life. In prison other prisoners taunted me because I was an arsonist and called me crazy. In Ketchikan, I have a reputation as the insane arsonist and am unable to get dates with women in my age group. Thus, Burcina's response does not include claims for injuries unrelated to the arson conviction.

8172025

STATE of Alaska, Appellant, v. ALASKA STATE EMPLOYEES ASSOCIATION, AFSCME, AFL-CIO, Appellee

State v. Alaska State Employees Ass'n

2008-08-22

No. S-12686

720

725

190 P.3d 720

190

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T18:41:04.249156+00:00

CAP

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

STATE of Alaska, Appellant, v. ALASKA STATE EMPLOYEES ASSOCIATION, AFSCME, AFL-CIO, Appellee.

STATE of Alaska, Appellant, v. ALASKA STATE EMPLOYEES ASSOCIATION, AFSCME, AFL-CIO, Appellee. No. S-12686. Supreme Court of Alaska. Aug. 22, 2008. William E. Milks, Assistant Attorney General, Talis J. Colberg, Attorney General, Juneau, for Appellant. Bradley D. Owens, Jermain Dunnagain & Owens, P.C., Anchorage, for Appellee. Before: MATTHEWS, EASTAUGH, CARPENETI, and WINFREE, Justices.

3387

21608

OPINION MATTHEWS, Justice. The question presented is whether the State is protected by sovereign immunity from payment of prejudgment interest on an award made by an arbitrator under a collective bargaining agreement. The superior court decided that the State was not so protected and awarded prejudgment interest on the arbitrator's award. We largely affirm because the enforcement of the arbitrator's award in this case sounds in contract and is enforceable in a proceeding encompassed by the general statute applicable to contract claims against the State, which waives immunity as to prejudgment interest. I. FACTS AND PROCEEDINGS Wesley Thompson was an engineer and facilities manager for the State of Alaska and a shop steward for the Alaska State Employees Association, AFSCME Local 52, AFL-CIO (ASEA). On March 9, 2005, Thompson served as a union representative in an investigatory hearing regarding Lawrence Rodriguez, another union member. The State's representatives were Harold Riley, a supervisor, Dariee Walter, a human resource specialist, and Lieutenant - Colonel Craig Schreiber, a federal construction and facilities management officer. The meeting began with an argument over procedures. When Riley attempted to interrogate Rodriguez using a list of questions that he refused to disclose to Thompson, Thompson and Riley engaged in a heated argument. After both sides briefly caucused, Riley ordered Thompson to leave the premises. Another argument ensued and Thompson and Riley began shouting at one another. During this argument Thompson directed a profane statement at Riley. With the assistance of a third party, the argument subsided. The State initiated an investigation of Thompson's conduct at the meeting. It interviewed Thompson. Then it interviewed him again to determine if he was dishonest during the first interview. At the conclusion of its investigation, the State suspended Thompson without pay for thirty days for making "profane and provocative statements to a supervisor." The State also terminated Thompson's employment for dishonesty during the first interview. Thompson, represented by ASEA, filed a grievance and the parties went to arbitration. The arbitrator upheld the thirty-day suspension without pay but found that the State failed to show just cause to terminate Thompson. The arbitrator ordered the State to reinstate Thompson with back pay. The decision did not award, nor did it discuss, interest on Thompson's back pay. ASEA filed suit in superior court after the State failed to comply with the arbitrator's decision. ASEA sought a judgment directing the State to comply with the arbitrator's award and compensating Thompson in accordance with the award. In its answer and counterclaim, the State argued that the superior court should vacate part of the arbitrator's decision because the arbitrator considered evidence outside of the record. Both sides moved for summary judgment. The superior court rejected the State's summary judgment motion, but granted summary judgment in favor of ASEA. In the final judgment that followed, the court expressed as a sum certain the arbitrator's award of back pay damages, added $23,806.52 in prejudgment interest, and provided for post-judgment interest. The interest began aceruing on April 14, 2005, the date on which Thompson's thirty-day suspension without pay ended. The court combined principal with prejudgment interest for the purpose of calculating ASEA's Alaska Civil Rule 82 attorney's fees. On appeal, the State argues that it is immune as a sovereign from the award of prejudgment interest. It also asks that the award of Rule 82 attorney's fees to ASEA be recalculated to reflect deletion of the interest award. II. DISCUSSION A. AS 09.50.250 Applies and Waives Sovereign Immunity for Prejudgment Interest. The Alaska Constitution waives absolute sovereign immunity, but retains a restricted version of immunity. Under the latter, "[wle have consistently stated that prejudgment interest may not be assessed against the state unless specifically authorized by legislation." The applicability of sovereign immunity presents a question of law that we review de novo. The fundamental disagreement in this case is whether prejudgment interest is specifically authorized for claims of the type presented here. The State argues that this case is a suit to confirm an arbitrator's award and that it arises under the Public Employment Relations Act (PERA). The State contends that PERA does not waive sovereign immunity for awards of prejudgment interest. ASEA argues that the suit was brought to enforce the arbitrator's award and that the State had agreed by contract to be bound by such awards. ASEA therefore argues that its claim was a contract claim and as such fell within the general statute governing contract claims against the State, AS 09.50.250. For the reasons that follow, we conclude that the current litigation is a contract claim cognizable under AS 09.50.250. 1. The competing statutes Alaska Statute 09.50.250 contains a general consent to suit for a variety of contract, quasi-contract, and tort claims against the State. - Alaska Statute 09.50.280 allows awards of prejudgment interest against the State for claims brought under AS 09.50.250. The Public Employment Relations Act grants public employees "the right to share in the decision-making process affecting wages and working conditions" by authorizing collective bargaining. As part of the collective bargaining process, PERA mandates that a collective bargaining agreement (CBA) "shall include a grievance procedure which shall have binding arbitration as its final step." PERA provides that either party to a CBA "has a right of action to enforce the agreement by petition to the labor relations agency." A regulation promulgated by the Alaska Labor Relations Ageney provides that the agency can hear petitions to enforce an arbitrator's decision. The parties do not cite this regulation, nor did either party file a petition before the agency seeking to enforce or vacate the arbitration award. 2. The collective bargaining agreement The CBA sets forth a four-step process for resolving grievances between the union and the State. Arbitration is the final step of the dispute resolution process. If arbitration occurs, the CBA provides that "the decision or award of the arbitrator shall be final and binding." In this case, ASEA invoked the CBA's grievance procedure and took the dispute to arbitration. The arbitrator upheld the decision to suspend Thompson without pay but reversed the termination of his employment with back pay. The State did not abide by the award, contrary to the CBA's clause mandating that the arbitration be final and binding. The State's delayed compliance led to ASEA's suit in superior court. 3. ASEA's suit was a contract claim. The State contends that ASEA's suit in superior court was merely an extension of the arbitration proceeding. It argues that the action arose under PERA and that PERA says nothing about State lability for prejudgment interest. The State concludes therefore that sovereign immunity bars the award of prejudgment interest. In particular, the State argues that this case could not have been brought under AS 09.50.250-and, implicitly, that it was not brought under that statute. The State contends that "[this [clourt has recognized that claims that must be litigated through administrative procedures cannot be brought under AS 09.50.250 and thus cannot include awards of prejudgment interest." For this proposition, the State cites three cases, Hawken Northwest, Inc. v. State, Department of Admainistration, Quality Asphalt Paving, Inc. v. State, Department of Transportation & Public Facilities, and Samissa Anchorage, Inc. v. State, Department of Health & Social Services. The State compares administrative adjudication to arbitration and concludes, "as in the administrative appeals context . the parties must follow a statutorily required alternative procedure to resolve collective bargaining agreement disputes, and cannot take claims directly to superior court." Two of the cases relied on by the State, Hawken and Quality Asphalt, concerned claims that were explicitly excluded from coverage under AS 09.50.250. Both Hawken and Quality Asphalt involved claims filed against the State under the state procurement code, AS 36.30, and the claims were adjudicated administratively pursuant to the code. By the express terms of AS 09.50.250, an entity that may bring an action under the state procurement code may not bring an action under section .250. The Samissa claim, however, unlike the claims in Hawken and Quality Asphalt, was not per se excluded from coverage under AS 09.50.250. Samissa involved a medicaid rate appeal brought by a hospital under regulations promulgated by the Department of Health and Social Services. The appeal was prosecuted successfully and the department ruled that the rate should be recalculated and the hospital should receive retroactive compensation. But the department denied the hospital prejudgment interest. On appeal to the superior court, the court, after initially ruling to the contrary, denied prejudgment interest. The court ruled that the hospital could not have brought an action under AS 09.50.250 because the exclusive remedy for a challenge to medicaid rates was the remedy defined in the regulations. On appeal this court affirmed. We recognized that "this case turns on whether [the hospi-tall brought or could have brought an action under section .250." We held that such an action could not have been brought because the administrative remedy was exclusive "and did not permit a separate action under section .250." For Samissa to be persuasive analogous authority in this case, the State would have to establish that the regulation providing for labor agency enforcement of an arbitrator's decision is the exclusive remedy for enforcement of such a decision. But the State makes no such argument. Further, it did not object to the superior court's jurisdiction to hear ASEA's case. Instead it invoked the jurisdiction of the court to hear its counterclaim to vacate the award. Thus the State has waived any claim that ASEA was required to seek enforcement of the arbitrator's award before the Labor Relations Agency. Samissa, Hawken, and Quality Asphalt differ from this case in another important respect. In those cases the prescribed administrative adjudicative procedure was followed. The superior court in each of these cases acted as an appellate court from a final decision of an administrative agency. Review was conducted under part six of the Alaska Rules of Appellate Procedure. Here, by contrast, there was no administrative adjudication and no administrative appeal was possible. The arbitrator's decision in this case was not only not judicially reviewable under the appellate rules, it was likewise not judicially reviewable under any statute pertaining to arbitration. PERA also is silent on the subject of judicial review of arbitration awards. Since it is not contested in this case that a judicial remedy was available, and since no specific statute or rule prescribed or defined the remedy, it seems right to conclude that the remedy that was available had its source in decisional law. There are numerous authorities that hold that in the absence of statute a suit to confirm an arbitrator's award where arbitration has been contracted for is a suit to enforce a contract. At common law, an "arbitration award is not self-enforeing. An action at law such as a contract action is an appropriate vehicle for enforcing the award." ASEA's action to enforce the arbitrator's award in this case fits comfortably within these authorities. Since we conclude that ASEA's suit can properly be characterized as a contract claim recognized at common law, we conclude that it is encompassed by AS 09.50.250 which, as we have seen, generally applies to contract claims against the State. Since prejudgment interest is authorized for suits brought under AS 09.50.250, the State's sovereign immunity argument must be rejected. B. The Proper Award of Interest and Attorney's Fees Under the superior court's order, interest began accruing the day after Thompson's thirty-day suspension ended. At oral argument, ASEA conceded that the superior court lacked the power to award interest accruing before the arbitrator's award. In its brief, the State conceded that interest could accrue after the superior court's judgment. Thus the interest award for the time after the arbitrator's award but before the superior court's judgment is all that is in contention at this point. HI. CONCLUSION Because we conclude that ASEA stated a contract claim encompassed within AS 09.50.250, the waiver of sovereign immunity for interest contained in AS 09.50.280 applies and the award of interest should accrue from the date of the arbitrator's decision. The award of attorney's fees to ASEA should be modified to reflect the reduced judgment in favor of ASEA. We REMAND this case for further proceedings consistent with this opinion. FABE, Chief Justice, not participating. . The award was made May 11, 2006; suit was filed two months later on July 13. . Thus the interest award covered three time periods: (1) pre-arbitrator award interest, (2) post-arbitrator award, but pre-superior court judgment interest, and (3) post-superior court judgment interest. As discussed in Part II.B, the parties only dispute the award of interest for the second time period. . The State does not contest the superior court's award of post-judgment interest. . - Alaska Const. art. II, § 21; see generally Glover v. State, Dep't of Transp., Alaska Marine Highway Sys., 175 P.3d 1240, 1245-52 (Alaska 2008). . Hawken Nw., Inc. v. State, Dep't of Admin., 76 P.3d 371, 382 (Alaska 2003) (citation omitted). . - See Runyon ex rel. B.R. v. Ass'n of Vill. Council Presidents, 84 P.3d 437, 439 (Alaska 2004). . AS 23.40.070-.260. . AS 09.50.250 provides in relevant part: A person or corporation having a contract, quasi-contract, or tort claim against the state may bring an action against the state in a state court that has jurisdiction over the claim. A person who may present the claim under AS 44.77 may not bring an action under this section except as set out in AS 44.77.040(c). A person who may bring an action under AS 36.30.560-.695 may not bring an action under this section except as set out in AS 36.30.685. . AS 09.50.280 provides as follows: "If judgment is rendered for the plaintiff, it shall be for the legal amount found due from the state with interest as provided under AS 09.30.070 and without punitive damages." See also Stewart & Grindle, Inc. v. State, 524 P.2d 1242, 1245 (Alaska 1974) (section .280 provides for the payment of prejudgment interest but only in cases authorized under section .250). . AS 23.40.070. . AS 23.40.210(a). . Id. . See 8 Alaska Administrative Code (AAC) 97.510(a) (2004). The regulation provides: (a) A party to a collective bargaining agreement may file a petition with the labor relations agency to enforce the agreement. The petition must include (5) a copy of the grievance arbitrator's decision, if the petition is to enforce an arbitrator's decision.... . 76 P.3d 371 (Alaska 2003). . 71 P.3d 865 (Alaska 2003). . 57 P.3d 676 (Alaska 2002). . See supra note 8. There is one exception, but it did not apply in either Hawken or Quality Asphalt. . Samissa, 57 P.3d at 679. . Id. at 680. In Danco Exploration, Inc. v. State, Department of Natural Resources, 924 P.2d 432 (Alaska 1996), we reached a similar conclusion, holding that an administrative remedy for aggrieved oil and gas lease bidders was an exclusive remedy. Id. at 434. We distinguish Danco for the same reasons that we distinguish Samissa. . See, e.g., Gates v. City of Tenakee Springs, 822 P.2d 455, 460-61 (Alaska 1991) (claims that are not raised before the superior court or that are inadequately raised before this court are deemed waived). Given our conclusion concerning waiver we have no occasion to decide whether the exclusive method of enforcing arbitration awards made under collective bargaining agreements pursuant to PERA is by a petition to the Labor Relations Agency. We note that our jurisprudence contains numerous cases where the validity of such awards was litigated directly in court. E.g., Baseden v. State, 174 P.3d 233, 237 (Alaska 2008) (considering a suit challenging an arbitration award); Univ. of Alaska Classified Employees Ass'n v. Univ. of Alaska, 988 P.2d 105, 106-07 (Alaska 1999) (considering a suit to enforce an arbitration award); Fairbanks Police Dep't Chapter, Alaska Pub. Employees Ass'n v. City of Fairbanks, 920 P.2d 273, 274 (Alaska 1996) (arbitration enforcement). In none of these cases, however, was an objection raised that exclusive, or primary, jurisdiction lay in the Labor Relations Agency. In Carter v. Alaska Public Employees Ass'n, 663 P.2d 916, 922 (Alaska 1983), we recognized that PERA does not vest exclusive jurisdiction in the Labor Relations Agency for questions of whether a public employer must release information pertaining to employees whom a union sought to organize; but we do not suggest that Carter would necessarily control the question of agency jurisdiction to enforce arbitration awards. . - Alaska's two arbitration statutes, the Uniform Arbitration Act and the Revised Uniform Arbitration Act, both provide that they do not apply to labor - management - contracts. See - AS 09.43.010(a) and AS 09.43.300(c). . A section of PERA, AS 23.40.200(D), states that the parties to a CBA may provide that arbitration is to be conducted under the provisions of the Uniform Arbitration Act or the Revised Uniform Arbitration Act. In order to so provide the CBA must incorporate one of the acts into the agreement "'by reference." The CBA in this case does not incorporate either act by reference and the parties do not argue that either act applies. . 4 AmJur2p Alternative Dispute Resolution § 195 (2007) (footnotes omitted); accord 6 C.J.S. Arbitration § 192 (2004); Frank Erxourt & Enna Asper Erkour; How Armitration Works 97 (Alan Miles Rubin et al. eds., 6th ed. 2003) ("At common law, the issuance of an award generally bars any subsequent action on the original claim, but suit may be filed for enforcement of the award itself to the same extent as any contract."); Far weareEr's Practice anp ProcEpuURE In Lasor TION 455 (Ray J. Schoonhover, et al. eds., 3d ed.1991) (explaining that prior to the advent of arbitration statutes, "[clonfirmations of arbitration actions were previously made in state courts under the common law writ of assumpsit"). Other jurisdictions have applied this rule. See, e.g., Kentucky River Mills v. Jackson, 206 F.2d 111, 120 (6th Cir.1953) ("Prior to the enactment of the United States Arbitration Act, an action at law on the [arbitrator's] award was the proper method of enforcing it."); State Cent. Collection Unit v. Gettes, 321 Md. 671, 584 A.2d 689, 696 (1991) ("'Before statutes or court rules provided for confirmation . [sluit could be brought on the award against the party who lost the arbitration.... Basically the action was in assumpsit."); Policeman's Benevolent Ass'n, Local 292 v. Borough of N. Haledon, 158 N.J. 392, 730 A.2d 320, 326 (1999) (noting that the statute of limitations for a common law confirmation action was the statute of limitations for a common law contract action). . See Dorothy Dowell, Judicial Enforcement of Arbitration Awards in Labor Disputes, 3 Rureers L.Rev. 65, 70-71 (1949) ("'The award having been rendered, the parties are bound by their contract to abide by it; hence, the award partakes of the nature of a contract.... The enforcement of awards at common law, then . is governed by common law rules of contract and procedure."). . The State argues that any action for breach of the CBA was itself subject to compulsory arbitration per the CBA. But the State did not make this argument before the superior court. Rather, as already noted, the State accepted that the superi- or court could hear the case, defended its actions, and argued that the superior court should invoke its powers to vacate the arbitrator's award due to perceived improprieties in the arbitrator's consideration of evidence not presented during the arbitration hearing. The State cannot now argue that the proper procedure for treating ASEA's breach of contract claim was a new round of arbitration. See, eg., Hartman v. State, Dep't of Admin., Div. of Motor Vehicles, 152 P.3d 1118, 1122 n. 8 (Alaska 2007) (holding an argument waived for failure to raise it before the superior court). . See Ebasco Constructors, Inc. v. Ahtna, Inc., 932 P.2d 1312, 1317-18 (Alaska 1997) (holding that awards of pre-arbitration interest must be made by arbitrators). At oral argument, ASEA asked that we remand this case to the superior court with instructions to remand to the arbitrator for consideration of an award of pre-arbitration interest. We do not follow ASEA's proposed course of action because ASEA had an adequate opportunity to raise this issue before the arbitrator during the arbitration hearing.

11510695

John McCORMICK, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee

McCormick v. Municipality of Anchorage

2000-03-10

No. A-6557

155

169

999 P.2d 155

999

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

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

CAP

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

John McCORMICK, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee.

John McCORMICK, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee. No. A-6557. Court of Appeals of Alaska. March 10, 2000. Rehearing Denied June 2, 2000. Frederick T. Slone, Kasmar and Slone, Anchorage, for Appellant. Benjamin 0. Walters, Jr., Deputy Municipal Prosecutor, and Mary K. Hughes, Municipal Attorney, Anchorage, for Appellee. Before COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.

8083

50416

OPINION As Modified on Rehearing MANNHEIMER, Judge. John McCormick was involved in a motor vehicle accident. When the police arrived on the scene, an officer asked McCormick to perform field sobriety tests. McCormick agreed to perform a horizontal gaze nystag-mus test, and the results from all six segments of the test indicated that McCormick was under the influence of alcohol. The officer next asked McCormick to perform two other tests: the turn-and-walk test, and the stand-on-one-leg test. McCormick refused to perform these tests. The officer then arrested McCormick for driving under the influence. At McCormick's trial, the Municipality introduced evidence that McCormick had refused to perform the latter two field sobriety tests. In this appeal, McCormick contends that the Municipality should not have been allowed to introduce evidence of, or comment on, McCormick's refusal to perform these two field sobriety tests. At the police station, McCormick submitted to a breath test. He then exercised his right to obtain an independent blood test at a local hospital. Hospital personnel drew two vials of McCormick's blood. Soon thereafter, McCormick's attorney contacted the hospital and directed them to send both vials to a laboratory in Colorado. The Municipality was not notified of this action.. Some months later, thinking that the blood sample was still at the hospital, the Municipality obtained a search warrant for the blood sample, contacted the hospital, and discovered that the blood had been sent away at the defense attorney's direction. The Municipality then applied to the district court for an order directing the defense attorney to surrender any unused blood to the Municipality for testing. The district court issued this order. A portion of the blood was sent to the Municipality; when tested, this blood yielded a result of .125 percent alcohol. This test result was introduced at McCormick's trial. On appeal, McCormick contends that the district court should not have ordered McCormick's attorney to surrender the remaining blood. McCormick argues that the Alaska Constitution bars a court from ordering a DWI defendant to produce a portion of the blood drawn during an independent test; he contends that any such order impermissi-bly burdens the defendant's due process right to an independent test. McCormick also contends that, because the blood in question was in the possession of his attorney or his attorney's agents (the laboratory in Colorado), the district court's order infringed McCormick's attorney-client privilege. In addition, McCormick contends that the district court improperly prohibited him from arguing to the jury that they should distrust the government's blood-test results because McCormick's blood sample might have been mishandled or improperly preserved by the Colorado laboratory. Finally, McCormick challenges one aspect of his sentence: the forfeiture of his vehicle. For the reasons explained here, we reject all of McCormick's contentions and we affirm his conviction. Can the government introduce evidence of, and comment on, a motorist's refusal to perform field sobriety tests after the motorist is validly stopped on suspicion of driving while intoxicated? As described above, McCormick refused to perform two of the field sobriety tests requested by the police officer. Before trial, McCormick asked the district court to exclude all evidence of his refusal to perform these two tests and to prohibit the government from commenting on McCormick's refusal. The district court denied this request. On appeal, McCormick renews his argument that the Municipality should not have been allowed to mention his refusal to perform the two field sobriety tests. McCormick advances three theories as to why this evidence was inadmissible. McCormick first argues that the Alaska Legislature did not intend for the government to be able to use evidence of a motorist's refusal to consent to field sobriety tests. He points out that, in AS 28.35.032(e), the legislature has expressly allowed the government to use evidence of a motorist's refusal to submit to a breath test. McCormick argues that the lack of any similar statute concerning field sobriety tests means that the legislature did not intend for the government to be able to use evidence of a motorist's refusal to perform field sobriety tests. We do not interpret AS 28.35.032(e) as impliedly limiting the government's ability to introduce evidence of a motorist's refusal to take field sobriety tests. Rather, this statute was enacted in order to make sure that the government could introduce evidence of a motorist's refusal to submit to a breath test. AS 28.35.032(e) was apparently passed in response to the Alaska Supreme Court's decision in Puller v. Anchorage. In Puller, the supreme court interpreted a former version of AS 28.35.032 that did not expressly state that a motorist's refusal to take a breath test could be used as evidence against them. The court held that, in the absence of an express provision allowing the government to use evidence of a motorist's refusal, the court would presume that the legislature intended to bar the government from using this evidence. Two years later, the legislature enacted AS 28.35.032(e). Both Puller and AS 28.35.032(e) are based on the premise that a motorist's refusal to submit to the statutorily mandated breath test is a peculiar kind of evidence that should be treated differently for policy reasons. The government exerts unusual coercion on motorists to submit to the breath test, so unusual procedural safeguards should be satisfied before the government is allowed to use evidence of a motorist's refusal to take the test. But this policy is itself atypical. Ordinarily, the government does not need statutory authorization to introduce circumstantial evidence of a person's intoxication. Both the Puller court and the legislature (when it enacted AS 28.35.032(e) in response to the Puller decision) treated breath-test refusal as sui generis — as a special type of evidence unto itself. Once the supreme court decided Puller, it is hardly surprising that the legislature perceived the need to enact a special statute to authorize the use of this type of evidence. But the enactment of this statute does not imply that the legislature intended to bar evidence that an arrested motorist declined to cooperate with investigative efforts in some other way. For this reason, we conclude that AS 28.35.032(e) should not be read as broadly as McCormick suggests. This statute does not prohibit the government from introducing ev idence of a motorist's refusal to perform field sobriety tests. McCormick next asserts that he was exercising his right against self-incrimination under the Alaska Constitution when he refused to perform the two field sobriety tests. McCormick contends that the Municipality should have been barred from introducing evidence of his refusal to take the tests because this evidence constituted an adverse comment on his invocation of the right not' to incriminate himself. Although McCormick's argument is purportedly based on our state constitution, he fails to cite Alaska ease law. Instead, he cites three Oregon cases construing the Oregon Constitution. But even Oregon has rejected the claim that the right.against self-incrimination protects a motorist from performing non-testimonial field sobriety tests— that is, tests which involve only demonstrations of physical coordination and ability to concentrate. The majority of states agree with this conclusion. The Alaska Supreme Court has held that field sobriety tests are typically non-testimonial. In Palmer v. State , the defendant (who had been arrested for DWI) argued that the government should not have been allowed to introduce a videotape made at the police station. This videotape showed the defendant taking a breath test and performing various field sobriety tests. On appeal, the defendant contended that the videotape of the sobriety tests should have been suppressed because he was never advised of his Miranda rights. The supreme court rejected this contention, declaring that "[t]he fifth amendment offers no protection against compulsion to take the sort of tests administered to [the defendant] in this case." It is possible to argue that, even though the taking of field sobriety tests is non-testimonial, a motorist's refusal to take the tests should be deemed a testimonial communication' that is protected by the privilege against self-incrimination. But courts from other states have consistently rejected this contention. These courts hold that a defendant's refusal to take field sobriety tests is not testimonial; rather, the refusal (whether verbal or non-verbal) is conduct from which one may draw an incriminatory inference. McCormick provides no authority suggesting that the self-incrimination clause of the Alaska Constitution should be construed any differently. Accordingly, we hold that Article I, Section 9 of the Alaska Constitution does not bar the government from introducing evidence of a motorist's refusal to perform non-testimonial field sobriety tests. Finally, McCormick argues that field sobriety tests constitute a "search" for purposes of the- Fourth Amendment to the United States Constitution and Article I, Section 14 of the Alaska Constitution. He contends that, because field sobriety tests are a "search", a motorist necessarily possesses a constitutional right to refuse to cooperate in this search, and the constitution therefore bars any comment on a motorist's assertion of this right of refusal. McCormick provides scant legal authority to support his assertion that field sobriety tests are a "search". He cites two cases from Oregon, but these were decided under the Oregon Constitution. He also cites one decision of this court holding that a breath test is a "search" for constitutional purposes. Our own research shows that several state courts (in addition to Oregon) have held that field sobriety tests are "searches". But, with two exceptions , all of these states treat field sobriety tests as a form of Terry stop. Under this view, a police officer does not need probable cause before asking a motorist to perform field sobriety tests. Rather, the officer can conduct field sobriety tests based on a reasonable suspicion that the motorist is driving while intoxicated. In McCormick's case, it is fairly clear that by the time the officer asked McCormick to perform the turn-and-walk test and the stand-on-one-leg test, the officer had reasonable suspicion to believe that McCormick was driving while intoxicated. McCormick does not argue to the contrary. Indeed, because McCormick was arrested just after he refused to perform these two field sobriety tests, and because McCormick does not contest the legality of his arrest, McCormick implicitly concedes that the officer already had probable cause to arrest him when the officer asked McCormick to perform these two field sobriety tests. Thus, even if we accepted McCormick's premise that field sobriety tests are a "search" for constitutional purposes, the circumstances of McCormick's case justified the officer in conducting this search. But in McCormick's case, the search was not "conducted" — or, at least, it was not conducted to completion. McCormick refused to perform the two physical coordination tests. We are not faced with the issue of whether the results of the tests are admissible. Rather, we are asked to decide whether the Municipality could introduce evidence of McCormick's refusal to take the two tests. Although there is some disagreement among the states on this issue, most courts hold that a motorist has no constitutional right to refuse field sobriety tests as long as the requested field sobriety tests are non-testimonial (that is, the motorist is not required to supply verbal information but is merely required to demonstrate physical coordination and ability to concentrate), and as long as the officer's request for field sobriety tests is supported by the requisite reasonable suspicion (or, in Oregon and Colorado, by the requisite probable cause). In reaching this conclusion, courts generally rely on the rule that a lawfully-arrested suspect has no constitutional right to withhold blood and tissue samples or to refuse to demonstrate the physical characteristics of their body. McCormick does not dispute any of this; indeed, his brief does not discuss any of this. Instead, he asserts that it does not matter if he was legally obliged to perform the field sobriety tests. McCormick relies on Elson v. State for the proposition that the government can not rely on evidence of a defendant's refusal to consent to a search, , regardless of whether the search is legal or illegal. In Elson, the supreme court ruled that, even when a search is ultimately shown to be legal, the government should not be allowed to rely on evidence that the defendant refused to consent to the search. The court reasoned that if evidence of the defendant's non-cooperation were allowed, this might "inhibit individuals from exercising the right to refuse consent to some future illegal search". But in Srala v. Anchorage this court held that Elson did not apply to a case very similar to McCormick's. The defendant in Srala was arrested for driving while intoxicated and later refused to allow a blood test. At trial, the government introduced evidence of the defendant's refusal. On appeal, the defendant argued that introduction of this evidence was barred by Elson, but this court ruled that Elson was distinguishable from Srala's case: The present case is readily distinguishable from Elson. In contrast to Elson, a person legally arrested for driving while intoxicated does not have a fourth amendment right to refuse a breath or blood test. The only fourth amendment right such a person has is the right to be free of arrest on less than probable cause, [citations omitted] Consequently, [the government's] comment on the refusal of an offered blood test does not chill the exercise of fourth amendment rights, Srala was lawfully under arrest for DWI and had no constitutional right to refuse a search incident to his arrest aimed at establishing his blood alcohol level. See Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). To the extent that Srala had a right to refuse a blood test, . that right was a limited statutory right, [citations omitted] Evidence of his refusal thus did not amount to an impermissible comment on the exercise of a constitutional right. Srala, 765 P.2d at 105. We applied similar reasoning in Svedlund v. Anchorage , where we upheld the constitutionality of a municipal ordinance making it a crime for a person lawfully arrested for DWI to refuse to take a breath test. We concluded that this law did not violate a motorist's Fourth Amendment rights because the breath test is a search incident to arrest — and thus, if the motorist is lawfully arrested, the motorist has no Fourth Amendment right to assert. Using Srala, Burnett, and Svedlund as guides, even if field -sobriety tests are a "search", it appears that McCormick's only Fourth Amendment right was the right not to be asked to perform field sobriety tests unless the surrounding circumstances had already given the officer a reasonable suspicion that McCormick was driving while intoxicated. And if McCormick had no constitutional right to refuse to perform the field sobriety tests, then the constitution did not bar the government from introducing evi dence that McCormick refused the tests. The admission of this evidence would not chill the future assertion of constitutional rights, because no constitutional right is at issue. We admit that this issue is complex and that the resolution we have indicated here may not be entirely free from doubt. But we conclude that we need not resolve this issue in McCormick's case. As we indicated before, McCormick's briefing of this question is extremely terse. He devotes precisely one paragraph to this entire search and seizure issue. And although he cites Bison, he does not mention Srala, Burnett, or Svedlwnd. Given the complexity of this issue, we find that McCormick's briefing is inadequate to allow meaningful review. Accordingly, we deem the issue waived. In addition to his constitutional challenge, McCormick also argues that evidence of his refusal to take the two field sobriety tests should have been excluded under Evidence Rule 403 because it was more prejudicial than probative. McCormick contends that this evidence was unfairly prejudicial because "[tjhere was a real danger that the jury [might conclude] that McCormick's refusal to perform balance tests indicated that he was intoxicated." This asserted "unfair prejudice" is, in fact, the proper probative value of the evidence. McCormick's refusal to perform the balance tests does not directly tend to prove his intoxication, but it does tend to prove McCormick's belief that he would be unable to satisfactorily perform the tests. From McCormick's refusal to take the two field sobriety tests, the jury could reasonably infer that McCormick believed he was under the influence of intoxicants. This inference was not "prejudicial" for purposes of Evidence Rule 403.' To the extent that McCormick's refusal to perform the field sobriety tests suggests that McCormick was conscious of his own intoxication, this evidence does not "[tend] to suggest decision on an improper basis". Rather, this inference was a proper subject for the jury's consideration. For all of the above reasons, we hold the admission of evidence that McCormick refused to perform the final two field sobriety tests does not require reversal of McCormick's conviction. Did the district court violate McCormick's right to due process when the court ordered McCormick to turn over a portion of McCormick's blood sample to the Municipality so that the Municipality could test the blood for alcohol content? Shortly after McCormick's arrest, his blood was drawn at an Anchorage hospital. Several months later, the Municipality obtained a search warrant to test McCormick's blood sample. The Municipality served this warrant on the hospital, only to discover that McCormick's attorney had earlier directed the hospital to send the entire blood sample to a laboratory in Colorado. At the Municipality's request, the district court ordered McCormick to relinquish any unused portion of the blood sample to the Municipality. The Municipality tested the blood and introduced the test result at McCormick's trial. On appeal, McCormick argues that the district court violated his right to due process when the court ordered him to relinquish the blood to the Municipality. McCormick's argument is premised on two legal principles. First, motorists arrested for DWI have a due process right to have a sample of their blood preserved so that this blood will later be available as a potential means of rebutting the government's evidence that the motorist was intoxicated or had a blood-alcohol level of .10 percent or greater. Second, unless the motorist chooses to have blood drawn, the government has no authority to draw blood from them. Based on these principles of law, McCormick argues that motorists who choose to have a sample of their blood drawn should not have to face the possibility that the government will later obtain and test a portion of this blood sample. McCormick contends that motorists will be deterred from exercising their due process right to have a sample of their blood preserved if they know that this blood may one day become available to the government. According to McCormick, if courts are allowed to issue subpoenas and search warrants for the blood, this will "have a severe chilling effect on the exercise of [a motorist's] constitutional due process rights". McCormick's argument is answered by this court's decisions in Cunningham v. State and Birch v. State The defendant in Cunningham was arrested for driving while intoxicated. After he submitted to a breath test, he was informed that he had a right to an independent blood test. Cunningham exercised this right; he was transported to a hospital, where his blood was drawn and stored. Later, the State of Alaska obtained a search warrant for this blood; a state laboratory technician tested the blood for alcohol content, and the test result was used against Cunningham at his trial. On appeal, Cunningham argued that when a motorist exercises the right to an independent blood test, the resulting blood sample should be used only for the motorist's benefit and the State should not be able to obtain access to the blood. We rejected this argument. We noted that a motorist's right to an "independent" blood test does not mean that the resulting blood sample is privileged; rather, it means that the motorist is entitled to have the sample tested by people and methods that are not subject to government manipulation. We further noted that, although Alaska statutes forbid the government from obtaining a blood sample from a non-consenting motorist, no statute bars the government from using court process to obtain and test the blood sample 'of a motorist who does consent to a blood test. In Birch, the facts were similar to Cunningham except that the arrested motorist consulted an attorney before deciding to have a blood sample drawn and preserved. On appeal, Birch argued that the resulting blood sample was protected by the attorney-client privilege, but we rejected this argument. We held that, although the attorney-client privilege would protect the results of any defense-initiated testing of the blood sample, the sample itself was not privileged. Thus, if the court issued a search warrant for the blood, the government could seize a portion of the sample, test it, and use the results against the motorist. McCormick's case is different from Cunningham and Birch in one respect. McCormick's blood sample was not in the hands of a hospital or other third party; rather, it was being held by a laboratory hired by McCormick's attorney. But in Morrell v. State, the Alaska Supreme Court held that a defense attorney has no privilege to take delivery of physical evidence from third parties and then withhold the physical evidence from the government. Based on this court's decisions in Cunningham and Birch, and based on the supreme court's decision in Morrell, we hold that the district court acted lawfully when it ordered McCormick's attorney to surrender the unused portion of the blood sample so that the blood could be tested by the Municipality. Did the district court violate McCormick's right to dm process when the court prohibited McComick's attorney from arguing to the jury that the government's blood sample might have been tainted, or its alcohol content altered, while the blood was in the possession and control of McCormick's agents? As explained above, shortly after McCormick's arrest, his blood was drawn at an Anchorage hospital. A few days later, at the direction of McCormick's attorney (and unbeknownst to the Municipality), the blood was shipped to a laboratory in Colorado so that it could be tested by defense experts. Several months later, when the Municipality discovered that the blood was gone, the Municipality applied for a court order directing the defense attorney to return the blood to Anchorage so that it could be tested by the Municipality. At McCormick's trial, the Municipality introduced the result of this second blood test. That blood test showed McCormick's blood contained .125 percent alcohol. As the parties were preparing for opening statements at McCormick's trial, the defense attorney asked the trial judge to preclude the Municipality from introducing evidence of this blood test. McCormick's attorney argued that, because the blood had been in the possession of the Colorado laboratory for several months, the Municipality could not establish a proper chain of custody for this evidence. The defense objection was based on Alaska Evidence Rule 901(¿). This rule states that "[wjhenever the prosecution in a criminal case offers . [physical] evidence which is of such a nature . as to be susceptible to adulteration, contamination, modification, . or other changes in form attributable to accident, carelessness, error or fraud", the prosecution must, as a foundational matter, "demonstrate [to a] reasonable certainty that the evidence is . free of [these] possible taints". Defense Attorney: I would move to . to exclude evidence related to the blood on the assumption that the prosecution is not going to be able to provide any kind of evidence with respect to the chain of custody of the blood once it [was sent to Colorado] until it was returned to [Anchorage], and to ensure . [the] integrity [of the] blood sample.... Our position would be that [the blood evidence] simply shouldn't come in because the prosecution is going to be unable to link the chain of custody [during this] time [.] Now, the court could either do one of two things, I suppose. [The court could rule] that since [the blood] was sent out [of state] at the request of the defense, . perhaps that should excuse the prosecution from establishing the integrity of the sample between the time that it left [Anchorage] and the time that it was returned 10 months later. Or, the court could preclude the prosecution from seeking to admit it. But I just wanted to get a ruling on [this issue] now, because if the court is inclined not to allow the blood [evidence] . based on that [chain of custody] issue alone, then . I'd ask for an order precluding the prosecution from even talking about the blood in [their] opening [statement]. The real issue here is just whether or not the [blood] test evidence [will] be admissible over [our] objection [based on] the lack of chain of custody. The trial judge ruled that, given the facts of the case — particularly, the fact that the blood had been sent to Colorado at the behest of McCormick's attorney and had been stored there in the custody of a laboratory hired by the defense attorney — the Municipality would be excused from establishing the integrity of the blood sample during the months it was in the custody of the defendant's agents. The Court: I find [that the blood evidence] will be [admissible]. I find [that] it should be.... I find that, because the only entity that would be able to address the issue of [the integrity of the blood sample] is [under] the control of [the defense attorney] and Mr. McCormick, [the government] does not have to address the issues of chain of custody with respect to the time [the blood sample] left the [Anchorage hospital] lab and the time it came back to the lab.... They should not be put in the position of having to necessarily fill that link of the chain, because it wasn't a chain link that they put 'in place in the first place. This issue came up again when the defense attorney'was delivering' his summation to the jury. During his summation, McCormick's attorney attempted to cast doubt on the validity of the Municipality's blood test by pointing out that the jury had heard no evidence concerning the methods used to preserve the blood during its transportation and its months of storage and handling in Colorado. The municipal prosecutor immediately objected: Defense Attorney: Now, the blood test. What we have is a situation where Mr. McCormick had his blood drawn willingly. He was requested to do so, and he' did it. And the blood was shipped out of state. We don't know what it was — •[.] . [It has been] stipulated that it's the same blood that came back, -but we do not know what happened to the blood while it was gone. Absolutely no . Prosecutor: I object to this, Your Honor The Court: Sustained. McCormick's attorney offered no counterargument at the time. However, after the parties completed their summations to the jury, the defense attorney responded to the court's ruling: Defense Attorney: [An] issue, Your Honor, [that] I wanted to bring up is there was an objection during my closing [argument], when I was attempting to argue that nobody knows what happened to this . blood while it was at the lab out of state. The Court: Yes. Defense Attorney: And my understanding of your prior rulings on this issue is that you were going to instruct the jury that . [the] blood sample that was sent out of the state was the same sample that came back . to [Anchorage]. But . I did not understand there to be any preclusion from arguing as to what may or may not have happened to that sample in the interim. The Court: . [I]n my view, there was a preclusion as to . what was done to [the blood] at the lab [in .Colorado]_ [The prosecutor] requested [that], if [the integrity of the blood sample was going to be disputed], then we'd need to get into the issue of your sending it out [of state], that you sent out two samples instead of one, that the lab was [of your choosing] — if there was some problem with what the lab did, it's because it was a lab that you selected, [whether] you . selected a good lab or a bad lab. All of those sorts of issues were precluded by basically saying that this is the same sample that came back [to Anchorage], and we're not going to , discuss what- .happened [to the blood] when it . went out, or . what happened [when] it was out of state. So, . in my view, . there was a preclusion of discussion of those issues. And maybe that wasn't as clear as it should have been, but that was . part and parcel of [my ruling] — all of that ball of wax. Defense Attorney: Okay. All right. I didn't understand that to be the case. That's why I started arguing to that effect. The Court: All right. On appeal, McCormick argues that the trial judge's ruling denied him due process of law. McCormick contends that, because the Municipality relied on the result of the Anchorage blood test, McCormick was entitled to attack that test result by pointing out, first, that the blood sample was tested many months after it was drawn from McCormick's body, and second, that the Municipality failed to present evidence concerning the precautions (if any) that were taken to ensure the chemical integrity of the blood sample during this time. From the portions of the record quoted above, it is clear that McCormick did not preserve this issue in the district court. At the beginning of trial, McCormick's attorney attempted to exclude the blood evidence, arguing that the Municipality would be unable to prove that the blood sample had not become tainted or altered during the many months that it was in the hands of the defense attorney's agents (the Colorado laboratory). But the trial judge excused the Municipality from establishing the integrity of the blood sample during the months that it was in Colorado. The judge noted that the break in the chain of custody was caused by McCormick, and that the blood was held in the custody of the defendant's agents. McCormick has not challenged this ruling on appeal. At the end of trial, the defense attorney attempted to use this ruling against the government — by asking the jury to view the Municipality's blood-test evidence with suspicion because the Municipality had introduced no evidence to establish the integrity of the blood while it was stored in Colorado. The trial judge sustained the prosecutor's objection to this argument. When McCormick's attorney later asserted that his argument had been proper, the trial judge responded that the defense attorney's argument was precluded by the earlier chain-of-custody ruling. Hearing this, the defense attorney did not disagree with the trial judge, nor did he seek reconsideration of that prior ruling. He merely stated, "Okay. All right. I didn't understand that to be the case." In other words, McCormick's attorney never told the trial judge that he believed the judge's ruling was wrong, nor did he assert that the judge had imposed an unconstitutional restriction on McCormick's argument to the jury. McCormick thus failed to preserve an objection to the trial judge's ruling regarding the scope of his argument. This being so, McCormick can prevail on appeal only if he demonstrates that the trial judge's ruling was plain error. We find no plain error here. The trial judge ruled at the beginning of McCormick's trial that the Municipality would be excused from establishing the integrity of the blood sample during its transportation to and from Colorado and during the many months that it was stored there by a laboratory working under contract for the defense attorney. In reliance on this ruling, the Municipality did not introduce evidence pertaining to the shipment, storage, and testing of the blood sample during its Colorado sojourn. Then, in final argument, the defense attorney tried to take unfair advantage of this ruling' — by arguing to the jury that they should view the government's evidence with suspicion because the government made no attempt to account for the integrity of the blood sample while it was in Colorado. We are not saying that McCormick had no right to question whether the blood sample might have become tainted while it was in the hands of his own agents. But McCormick chose not to litigate this issue. Instead, he accepted the trial judge's ruling that the government was excused from establishing the integrity of the sample during those months. McCormick implicitly concedes that the ruling was correct or, at least, that it was a proper exercise of the judge's discretion. Under these circumstances, the trial judge did not violate McCormick's right to procedural fairness when he precluded McCormick from attacking the sufficiency of the government's proof on this issue during final argument. Does the mandatory forfeiture provision of AMC § 9.28.020(C)(5) violate state law? At McCormick's sentencing, the district court ordered forfeiture of the motor vehicle he drove while intoxicated. This forfeiture was ordered pursuant to AMC § 9.28.020(C)(5)(b), an ordinance that governs sentencing for the municipal crime of driving while intoxicated. This ordinance declares that if a defendant has previously been convicted of driving while intoxicated (or breath-test refusal) within the preceding ten years , and if the defendant has any interest in the vehicle that was used in the commission of the offense, the court shall order forfeiture of the defendant's interest in the vehicle. McCormick claims that this provision of municipal law violates the Alaska Constitution. He points out that, when a defendant is convicted of DWI under state law, the sentencing court has the power to order forfeiture of the defendant's vehiclé'only if the defendant has previously been convicted two or more times. Moreover, while the sentencing court has the power to order forfeiture of the defendant's vehicle, forfeiture is not mandatory. Based on these differences in the sentencing provisions of state and municipal law, McCormick argues that the municipal forfeiture provision violates the rule that state law takes precedence over municipal law. McCormick relies on the Alaska Supreme Court's decision in Kodiak v. Jackson. In Jackson, the supreme court struck down a provision of a municipal assault statute which required a mandatory minimum sentence of imprisonment for a person convicted of as-: saulting a police officer. The court held that this mandatory minimum punishment was inconsistent with the power to suspend sentences of imprisonment given to sentencing judges by state statute (AS 12.55.080 — 085). McCormick argues that the rule applied in Jackson likewise calls for invalidation of the Anchorage forfeiture provision. However, Jackson itself recognizes that a municipal ordinance is not necessarily illegal simply because it is inconsistent with state law. Rather, as Jackson acknowledges, the true test is whether the municipal ordinance is irreconcilably at odds with state law, so that enforcement of the municipal provision defeats the operation of state law. . That is not the case here. The Alaska Legislature has enacted AS 28.35.038, which specifically provides that, "[njotwithstanding other provisions of [Title 28], a municipality may adopt an ordinance providing for the impoundment or forfeiture of a motor vehicle <.involved in the commission of [DWI or breath-test refusal]", and that such an ordinance "is not required to be consistent with [Title 28 of the Alaska Statutes] or regulations adopted under [that] title". Because the legislature has explicitly granted municipalities the power to enact forfeiture ordinances that are inconsistent with the corresponding provisions of state law, municipalities do not violate state law when they exercise this power. McCormick presents an alternative argument. He contends that, even though AS 28.35.038 may authorize municipalities to impose harsher forfeitures than would be imposed under state law for the offense of driving while intoxicated, AS 28.35.038 only authorizes municipalities to ignore the provisions of Title 28 and the state regulations promulgated under it. The statute says nothing about authorizing municipalities to ignore the provisions of Title 12 — specifically, the provisions of AS 12.55.080 and 085 that empower sentencing judges to suspend the imposition or the execution of sentence. It is true that ÁS 28.35.038 does not specifically mention these two provisions of Title 12. However, the statute must be interpreted in the context of the various DWI and breath-test refusal statutes contained in AS 28.35. As we recently stated, The guiding principle of statutory construction is to ascertain and implement the intent of the legislature. When a statutory provision is part of a larger framework, even seemingly unambiguous language must be interpreted in the context of the other portions of the [whole]. Millman v. State, 841 P.2d 190, 194 (Alaska App.1992). Sakeagak v. State, 952 P.2d 278, 284 (Alaska App.1998). With regard to the offenses of driving while intoxicated and refusing to submit to a breath test, the Alaska Legislature has enacted a series of escalating mandatory minimum punishments (both imprisonment and fines) for all offenders, even first offenders. Thus, for these two crimes, the legislature has taken away a sentencing court's power to suspend imposition of sentence and has substantially abridged a sentencing court's power to suspend execution of sentence. Municipalities are generally authorized under AS 28.01.010 to enact traffic laws consistent with Title 28. Because of this authorization, a municipality does not violate the sentencing provisions of AS 12.55.080 — 085 if it follows the lead of the Alaska Legislature and enacts mandatory jail sentences and mandatory fines for the offenses of DWI and breath-test refusal. We must interpret AS 28.35.038 against this backdrop. Had the legislature never enacted AS 28.35.038, municipalities would still be authorized to impose vehicle im-poundments and forfeitures for the offenses of driving while intoxicated and refusing a breath test, providing these impoundments and forfeitures were consistent with the corresponding state penalties. By enacting AS 28.35.038, it appears that the legislature intended to authorize municipalities to impose impoundments and forfeitures for these two offenses that are harsher than those that can be imposed under state law. In his brief to this court, McCormick suggests that the final sentence of AS 28.35.038 was not intended to authorize municipalities to impose harsher penalties than the ones provided under state law. McCormick suggests instead that the purpose of that final sentence was to authorize municipalities to make impoundment and forfeiture of vehicles a part of the punishment for violations of municipal DWI and breath-test refusal laws. McCormick's interpretation ignores AS 28.01.010, which authorizes municipalities to enact their own traffic laws, so long as those laws are consistent with state law. As indicated above, we believe that even if AS 28.35.038 had never been enacted, municipalities would have been authorized to enact sentencing provisions for DWI and breath-test refusal that included discretionary forfeiture of vehicles. McCormick's interpretation also overlooks the first sentence of AS 28.35.038, which declares that municipalities may adopt ordinances "providing for the impoundment or forfeiture of a motor vehicle . involved in the commission of an offense under AS 28.35.030, 28.35.032, or an ordinance with elements substantially similar to AS 28.35.030 or 28.35.032." That is, AS 28.35.038 not only authorizes municipalities to adopt ordinances for the forfeiture of a vehicle used in violation of a municipal DWI or breath-test refusal law; the statute also expressly authorizes municipalities to adopt ordinances for the forfeiture of vehicles used in violation of the state DWI or breath-test refusal laws. Given this legislative context, we conclude that the purpose of the final sentence of AS 28.35.038 is to authorize municipalities to enact vehicle impoundment and vehicle forfeiture laws that are harsher than their state-law counterparts. We further conclude that these harsher penalties can include the mandatory forfeiture of a vehicle involved in either the offense of driving while intoxicated or the offense of breath-test refusal. The legislature has enacted mandatory minimum punishments for these two offenses, thus restricting the courts' authority to suspend sentence for these two crimes. Given this legislative policy, and given our conclusion that the final sentence of AS 28.35.038 was intended to authorize municipalities to impose even more onerous impoundments and forfeitures, we conclude that the legislature's failure to specifically mention AS 12.55.080— 085 in the wording of AS 28.35.038 does not manifest a legislative intent to bar municipalities from enacting mandatory forfeitures. McCormick raises two final attacks on the mandatory forfeiture provision. First, he notes that his vehicle was worth more than $5000, and that he received a separate fine ($1500 with $750 suspended). McCormick therefore argues that he was subjected to a total monetary penalty exceeding the maximum fine for driving while intoxicated ($5000). We rejected this same argument in Hillman v. Anchorage. In Hillman, we held that a vehicle forfeiture is not the equivalent of a fine, nor is a vehicle forfeiture to be combined with a fine for purposes of determining whether a defendant's fine exceeds the $5000 limit.' We reaffirm our decision in Hillman. Second, McCormick asserts that forfeiture of a $5000 vehicle is grossly disproportionate to the offense of driving while intoxicated, and that therefore the forfeiture represents an "excessive fine" of the kind prohibited by the Eighth Amendment. In Hillman, we held that forfeiture of a vehicle worth $8000 did not represent an excessive punishment for a defendant convicted of his third DWI. We noted that the Ohio courts had upheld the forfeiture of a vehicle valued at between $23,000 and $30,-000 when the defendant was convicted of his fourth DWI. Here, McCormick is a repeat DWI offender who has suffered forfeiture of a vehicle worth $5000. This forfeiture is not so "grossly disproportionate" as to run afoul of the Eighth Amendment. Conclusion The judgement of the district court is AFFIRMED. .AS 28.35.032(e) reads: "The refusal of a person to submit to a chemical test authorized under AS 28.33.031(a) or AS 28.35.031(a) or (g) is admissible evidence in a civil or criminal action or proceeding arising out of an act alleged to have been committed by the person while operating . a motor vehicle or . aircraft or watercraft while intoxicated." . 574 P.2d 1285 (Alaska 1978). . See id. at 1288. . SLA 1980, ch. 129, § 12. . We note that courts from other states have reached this same conclusion. See, e.g., State v. Wright, 116 N.M. 832, 867 P.2d 1214, 1216-17 (App.1993), cert. denied, 111 N.M. 121, 869 P.2d 820 (1994); City of Seattle v. Stalsbroten, 138 Wash.2d 227, 978 P.2d 1059, 1064 (1999). . Alaska Constitution, Article I, Section 9. . State v. Fish, 321 Or. 48, 893 P.2d 1023 (1995); State v. Gilmour, 136 Or.App. 294, 901 P.2d 894 (1995); State v. Green, 68 Or.App. 518, 684 P.2d 575 (1984). . See State v. Nielsen, 147 Or.App. 294, 936 P.2d 374, 379-380, 382-83 (1997). . See State v. Superior Court, 154 Ariz. 275, 742 P.2d 286, 289 (App.1987); State v. Taylor, 648 So.2d 701, 704 (Fla.1995); People v. Roberts, 115 Ill.App.3d 384, 71 IIl.Dec. 16, 450 N.E.2d 451, 453-54 (1983); Commonwealth v. Blais, 428 Mass. 294, 701 N.E.2d 314, 318 (1998) ("It is well-settled that roadside sobriety tests are considered analogous to physical (as opposed to testimonial) evidence."); State v. Wright, 116 N.M. 832, 867 P.2d 1214, 1215-17 (App.1994) (listing cases); State v. Hoenscheid, 374 N.W.2d 128, 130 (S.D.1985); Farmer v. Commonwealth, 12 Va.App. 337, 404 S.E.2d 371, 373 (1991); City of Seattle v. Stalsbroten, 138 Wash.2d 227, 978 P.2d 1059, 1062 (1999); State v. Mallick, 210 Wis.2d 427, 565 N.W.2d 245, 246-48 (App.1997). . 604 P.2d 1106 (Alaska 1979). . Id. at 1107-08. . See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). . Palmer, 604 P.2d at 1109. . See the cases listed in footnote 7, supra. . State V. Nagel, 320 Or. 24, 880 P.2d 451, 455 (1994); State v. Lowe, 144 Or.App. 313, 926 P.2d 332, 334(1996). . Leslie v. State, 711 P.2d 575, 576-77 (Alaska App.1986). . See State v. Superior Court, 149 Ariz. 269, 718 P.2d 171, 176 (1986); People v. Carlson, 677 P.2d 310, 316-17 (Colo. 1984); State v. Lamme, 19 Conn.App. 594, 563 A.2d 1372, 1374 (1989), aff'd, 216 Conn. 172, 579 A.2d 484 (1990); State v. Taylor, 648 So.2d 701, 703 (Fla.1995); State v. Golden, 171 Ga.App. 27, 318 S.E.2d 693, 696 (1984); State v. Wyatt, 67 Haw. 293, 687 P.2d 544, 550-54 (1984); State v. Ferreira, 988 P.2d 700, 705 (Idaho App.1999); State v. Stevens, 394 N.W.2d 388, 390-91 (Iowa 1986), cert. denied, 479 U.S. 1057, 107 S.Ct. 935, 93 L.Ed.2d 986 (1987); State v. Little, 468 A.2d 615, 617 (Me. 1983); Commonwealth v. Blais, 428 Mass. 294, 701 N.E.2d 314, 316-17 (1998); Hulse v. State, 289 Mont. 1, 961 P.2d 75, 86-87 (1998); Dixon v. State, 103 Nev. 272, 737 P.2d 1162, 1163-64 (1987); People v. Califano, 255 A.D.2d 701, 680 N.Y.S.2d 700, 701 (1998); State v. Gray, 150 Vt. 184, 552 A.2d 1190, 1193-95 (1988). . State v. Nagel, 320 Or. 24, 880 P.2d 451 (1994), and People v. Carlson, 677 P.2d 310 (Colorado 1984). . See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). . See Superior Court, 718 P.2d at 176; Lamme, 563 A.2d at 1374; Taylor, 648 So.2d at 703; Blais, 701 N.E.2d at 317; Hulse, 961 P.2d at 86-87; County of Dane v. Campshure, 204 Wis.2d 27, 552 N.W.2d 876, 878-79 (App.1996). . See Superior Court, 742 P.2d at 288; Taylor, 648 So.2d at 703-04; Wyatt, 687 P.2d at 549; Blais, 701 N.E.2d at 317; State v. Wright, 116 N.M. 832, 867 P.2d 1214, 1217 (App.1993); Stalsbroten, 978 P.2d at 1062; Campshure, 552 N.W.2d at 878-79. . See, e.g., Superior Court, 742 P.2d at 289; State v. Burns, 661 So.2d 842, 849 (Fla.App. 1995); Stalsbroten, 978 P.2d at 1062. . 659 P.2d 1195, 1199 (Alaska 1983). . Id. at 1199. . 765 P.2d 103 (Alaska App.1988). . See also Burnett v. Anchorage, 678 P.2d 1364, 1369-1370 (Alaska App. 1984) (rejecting the contention that Elson bars the government from relying on evidence that a lawfully arrested defendant refused to take a breath test). . 671 P.2d 378, 384 (Alaska App. 1983). . See id. See also Jensen v. State, 667 P.2d 188 (Alaska App. 1983) (upholding the constitutionality of a nearly identical state statute). .See Katmailand, Inc. v. Lake and Peninsula Borough, 904 P.2d 397, 402 n. 7 (Alaska 1995); Wren v. State, 577 P.2d 235, 237 n. 2 (Alaska 1978); Kristich v. State, 550 P.2d 796, 804 (Alaska 1976); Lewis v. State, 469 P.2d 689, 691-92 (Alaska 1970). . Commentary to Evidence Rule 403, fifth paragraph. . See Snyder v. State, 930 P.2d 1274 (Alaska 1996); Anchorage v. Serrano, 649 P.2d 256 (Alaska App.1982). . See Pena v. State, 684 P.2d 864 (Alaska 1984). The Pena decision was later modified by the enactment of AS 28.35.035, but this statute does not apply to McCormick's case. . 768 P.2d 634 (Alaska App.1989). . 825 P.2d 901 (Alaska App.1992). . Cunningham, 768 P.2d at 634-35. . See id. at 636. . See id. . . Birch, 825 P.2d at 902-03. . 575 P.2d 1200, 1210-11 (Alaska 1978). .Hagans, Brown, & Gibbs v. First Nat'l Bank of Anchorage, 783 P.2d 1164, 1166 n. 2 (Alaska 1989) ("Issues not properly raised . at trial are not properly before this court on appeal."); Wettanen v. Cowper, 749 P.2d 362, 364 (Alaska 1988). . Burford v. State, 515 P.2d 382, 383 (Alaska 1973); Lumbermens Mutual Casualty Co. v. Continental Casualty Co., 387 P.2d 104, 109, 111-12 (Alaska 1963). . AMC § 9.28.020(E)(4) limits relevant convictions to those within the ten years preceding the date of the present offense. . See AS 28.35.036(a). . See AS 28.35:036(c). . 584 P.2d 1130 (Alaska 1978). . Id. at 1133. . Id. at 1132 (quoting Jefferson v. State, 527 P.2d 37, 43 (Alaska 1974)). .For the same reason, the Anchorage forfeiture provision does not -violate AS 28.01.010(a), which states that "[a] municipality may not enact an ordinance that is inconsistent with the provisions of this title or the regulations adopted under this title." . 941 P.2d 211, 217 (Alaska App.1997). . See Alexander v. United States, 509 U.S. 544, 558-59, 113 S.Ct. 2766, 2775-76, 125 L.Ed.2d 441 (1993) (holding that in personam forfeitures are limited by the Eighth Amendment); Harmelin v. Michigan, 501 U.S. 957, 996-1005, 111 S.Ct. 2680, 2702-07, 115 L.Ed.2d 836 (1991) (interpreting the Eighth Amendment to forbid only "extreme sentences that are grossly disproportionate to the crime"). .Hillman, 941 P.2d at 217.

10403283

John PHILLIPS, Jr., Appellant, v. NABORS ALASKA DRILLING, INC., State of Alaska Workers' Compensation Board and the Superior Court for the State of Alaska, Appellees

Phillips v. Nabors Alaska Drilling, Inc.

1987-08-07

No. S-1694

457

462

740 P.2d 457

740

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

John PHILLIPS, Jr., Appellant, v. NABORS ALASKA DRILLING, INC., State of Alaska Workers’ Compensation Board and the Superior Court for the State of Alaska, Appellees.

John PHILLIPS, Jr., Appellant, v. NABORS ALASKA DRILLING, INC., State of Alaska Workers’ Compensation Board and the Superior Court for the State of Alaska, Appellees. No. S-1694. Supreme Court of Alaska. Aug. 7, 1987. William J. Soule, Clark, Walther & Flani-gan, Anchorage, for appellant. Michael Budzinski, Stone, Waller & Jeni-cek, Anchorage, for appellee Nabors. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

2537

15542

OPINION MOORE, Justice. I. INTRODUCTION Alaska Statute 23.30.155(e) imposes a penalty on employers who fail to pay or controvert, within certain time limits, an employee's workers' compensation claim that is "payable without an award". The issue posed by this appeal is whether an employer who paid compensation calculated under AS 23.30.220(a)(1) can be penalized if the Alaska Workers' Compensation Board (AWCB) later determines that a higher rate of compensation (calculated under AS 23.30.220(a)(2)) is appropriate. We hold that compensation calculated under AS 23.30.220(a)(2) is not "payable" for the purpose of the penalty until awarded by the AWCB; therefore, no penalty can be imposed under AS 23.30.155(e) on an employer who pays compensation calculated under AS 23.30.220(a)(1). II. FACTS AND PROCEEDINGS John Phillips, Jr. was injured while working as an oil field employee of Nabors Alaska Drilling, Inc. (Nabors). He was totally disabled from January 18,1985 until June 11, 1985. Phillips was classified as having a temporary total disability (TTD). TTD benefits are calculated at 80% of the employee's "spendable weekly wage" as determined under AS 23.30.220. AS 23.30.-185. Based on wage information for prior years provided by Phillips, Nabors calculated his spendable weekly wage under AS 23.30.220(a)(1), except that it used the years 1982 and 1983 rather than the years 1983 and 1984 as called for by statute. The use of his 1982 and 1983 earnings increased Phillips' benefits because his 1984 income was "negligible" in documented earnings and totalled only $10,000 in undocumented earnings. On March 19, 1985, Phillips submitted a claim for adjustment of his compensation to reflect his actual wage at the time of the injury, pursuant to AS 23.30.220(a)(2). Nabors responded with an answer denying the claim on April 1. The AWCB ruled in favor of Phillips. It also awarded Phillips the 20% penalty pursuant to AS 23.30.155(e), plus costs and attorney's fees. Nabors appealed the penalty decision, but not the compensation award, to the superior court. The court reversed the AWCB on the penalty issue, holding that Nabors did not fail to pay or controvert a claim "due without an award" because Na-bors was not obligated to pay the higher rate as calculated under subsection (a)(2) before the AWCB awarded the higher sum. The court also held that Nabors had adequately controverted the claim within the statutory time limit. Phillips appeals. III. DISCUSSION Alaska Statute 23.30.155(e) is one of several provisions in the Alaska Workers' Compensation Act that directly penalize employers for failure to comply with the Act's requirements. The statute provides: (e) If any installment of compensation payable without an award is not paid within seven days after it becomes due, as provided in (b) of this section, there shall be added to the unpaid installment an amount equal to 20 percent of it. This additional amount shall be paid at the same time as, and in addition to, the installment, unless notice is filed under (d) of this section or unless the nonpayment is excused by the board after a showing by the employer that owing to conditions over which the employer had no control the installment could not be paid within the period prescribed for the payment. Subsection (d) requires notice as follows: (d) If the employer controverts the right to compensation the employer shall file with the board and send to the employee a notice of controversion on or before the 21st day after the employer has knowledge of the alleged injury or death. If the employer controverts the right to compensation after payments have begun, the employer shall file with the board and send to the employee a notice of controversion within seven days after an installment of compensation payable without an award is due. The statute imposes the penalty if (1) the employee is entitled to compensation with out an award; (2) the employer does not pay it within seven days of the time it becomes due; (3) the employer does not controvert the employee's right to compensation within 21 days or within seven days if the employer has previously made compensation payments, and (4) the AWCB has not excused nonpayment due to circumstances beyond control of the employer. The AWCB imposed the penalty against Nabors without significant explanation. The board found that "a penalty is warranted . because the defendant neither paid nor controverted the claim after being notified on March 19, 1985 (AS 23.30.-155(e))." On appeal, the superior court held that the increased compensation granted to Phillips was not "payable without an award" because the grant was dependent on a "board determination." The court stated that "[penalties are to be strictly construed, even when the ameliorative benefit of the ultimate goal of the penalty is to be encouraged," and found that the statute was not intended to be applied where payments were not due automatically. The court also held that Nabors had adequately controverted the claim. We find that the increased compensation was not payable without an award; therefore, we affirm. Phillips argues that case.law construing AS 23.30.220 establishes clearly that an employee whose past years' earnings in a field reflect lower wages paid in the "Lower 48," but who earned higher wages in Alaska in the same field at the time of the injury, must have his weekly spendable wage calculated under subsection (a)(2) based on his wages at the time of the injury. Phillips asserts that employers and their workers' compensation carriers are fully aware of this requirement, but refuse to pay the higher rate unless the employee takes the matter before the AWCB. Injured employees will thus be subject to the delay and expense of a board hearing, or may simply accept the lower rate of compensation, unaware that they may be entitled to the higher rate. Phillips argues that by attaching the risk of the penalty to the employer's decision, this court will motivate him to pay the injured employee fairly from the start. The statutory penalty applies only if the compensation in dispute before the AWCB was "payable without an award." Although this court has reviewed penalties assessed under AS 23.30.155(e) in the past, we have not previously construed this language. Alaska Statute 23.30.220(a)(2) states: If the board determines that the gross weekly earnings at the time of the injury cannot be fairly calculated under (1) of this subsection, the board may determine the employee's gross weekly earnings for calculating compensation by considering the nature of the employee's work and work history. (Emphasis added.) Although Johnson and its progeny require the AWCB to apply subsection (a)(2) in cases like Phillips', the statute plainly imposes the duty to determine whether to use the subsection (a)(2) method of calculation, and if so, how to calculate the result, solely upon the AWCB. There are two reasons for this conclusion. First, the statute states that the AWCB is empowered to "determine[] that the gross weekly earnings at the time of injury cannot be fairly calculated under (1) ." AS 23.30.220(a)(2). This provision does not prevent an employer from choosing to pay benefits at a higher rate than the calculation of (a)(1) would give. In order to impose a penalty, however, we must find that the statute requires an employer to pay the higher benefit. The statute does not do so. Moreover, the determination of whether the subsection (a)(1) benefit is "unfair" cannot reasonably be placed on the employer, whose interest in the matter conflicts with the employee's. Second, the resulting calculation under subsection (a)(2) is not mechanical, but demands that the AWCB "consider[] the nature of the employee's work and work history." Although an employee's weekly wage for a given week may be easy to calculate, this does not mean that his "work and work history" would substantiate a finding that that wage would have continued for the duration of a disability. Phillips earned about $2,100 during an 84-hour work week. Because he worked a two-week on, one-week off schedule, his average weekly wage was calculated at one-third less, $1,375.46. The purpose of the subsection (a)(1) calculation was evidently to average out temporary highs and lows in a wage employee's earnings. Frequently an issue of fact will arise as to whether an employee would have maintained long hours or high wages throughout the term of the disability. The statute authorizes the AWCB, not the employer, to make this finding. See also AS 23.30.-110(a) ("the board may hear and determine all questions in respect to the claim"). Phillips argues that Nabors did not dispute his proposed subsection (a)(2) calculation in good faith. We do not find this argument persuasive. Nabors presented evidence that Phillips' wage could not be expected to continue at that rate. For one thing, that rate would yield an annual wage of over $71,500, almost $17,000 more than Phillips had ever actually earned in a year. For another, Phillips' work history included discipline reprimands and termination for cause; he was suspended without pay for 90 days for discipline shortly after he returned to work after recovery from the injury involved here. Although the AWCB did not find this evidence persuasive, we find it sufficient to defeat a claim that Nabors acted in bad faith. Moreover, the fact that there is reasonable evidence against awarding the employee compensation based on his full weekly wage underscores the need for an impartial factfinder to make these decisions. Phillips also argues that the availability of a penalty where no award has been made is itself evidence that the employer must act promptly to pay claims for which a prima facie case is made out. The answer to this argument is simply that the only compensation due on the facts presented to the employer was that calculated in accordance with subsection (a)(1). Had Nabors failed to pay or controvert that amount, a penalty under AS 23.30.-155(e) would be properly assessed. We have previously stated that "the whole purpose of the workmen's compensation informal procedures is to get away from cumbersome procedures and reach a correct decision by the shortest and quickest possible route_" Wilson, 477 P.2d at 1002. Admittedly AWCB hearings could be avoided if employers always calculated benefits at higher rather than lower rates. Nevertheless, we find that the plain language of the statute and fairness to the employer preclude imposition of a penalty here. Cf. State v. Gronroos, 697 P.2d 1047, 1049 (Alaska 1985) (in fairness to the employer, wages of a part-time employee should be calculated based on his current earnings, not on his past earnings as a full-time employee). We conclude that the superior court correctly ruled that the higher compensation sought by Phillips was not payable without an award. Thus, the court correctly reversed the penalty award made by the AWCB. The superior court's decision is affirmed on this ground. . AS 23.30.155(f) provides a similar penalty for failure to pay compensation which is payable under the terms of an award. Nabors undisput-edly paid the higher compensation when the Alaska Workers' Compensation Board ordered it. . AS 23.30.220(a)(1) provides in part: The gross weekly earnings shall be calculated as follows: (1) The gross weekly earnings are computed by dividing by 100 the gross earnings of the employee in the two calendar years immediately preceding the injury. .AS 23.30.220(a)(2) provides: If the board determines that the gross weekly earnings at the time of the injury cannot be fairly calculated under (1) of this subsection, the board may determine the employee's gross weekly earnings for calculating compensation by considering the nature of the employee's work and work history. . Phillips, an oil field employee since 1974, had abandoned oil field employment in 1983 and 1984 in order to attempt to go into business for himself. He was unsuccessful. Nabors' decision to use 1982-1983 earnings was gratuitous. . Others include AS 23.30.155(c) (civil penalty of up to $1000 for failure to file reports); AS 23.30.155(f) (20% penalty on unpaid awards payable under the terms of an award); AS 23.-30.145 (awarding attorney's fees to claimants); AS 23.30.255 (felony liability for failure to pay compensation due). . The AWCB order originally stated that the penalty was denied. However, this order was corrected by a signed "errata sheet" dated September 30, 1985. . In Johnson v. RCA-OMS, Inc., 681 P.2d 905 (Alaska 1984), we construed an earlier version of AS 23.30.220 in which the alternative wage calculation was stated as "the usual wage for similar service rendered by paid employees under similar circumstances." AS 23.20.220(3) repealed by ch. 70, § 12, SLA 1983. We held that the AWCB must use subsection (3) to calculate the spendable weekly wage of an employee whose wage at the time of his injury was significantly higher than the calculation based on past wages (under then subsection (2)) would reflect. See also Deuser v. State, 697 P.2d 647 (Alaska 1985); Brunke v. Rogers & Babler, 714 P.2d 795 (Alaska 1986). Because both the former statute and the current statute provide for use of the alternative wage calculation "[i]f the board determines that the wage at the time of the injury cannot be fairly calculated under [the mechanical-historical wage method]," we endorse the use of the Johnson analysis to determine whether the alternative wage calculation of AS 23.30.-220(a)(2) is to be used. However, while the earlier version of the statute provided that the alternative wage calculation was to be based on "the usual wage for similar service rendered by paid employees under similar circumstances," former AS 23.30.-220(3), the new statute provides that "the board may determine the employee's gross weekly earnings for calculating compensation by considering the nature of the employee's work and work history." AS 23.30.220(a)(2). The distinction emphasizes the point that the AWCB has considerable discretion to determine gross weekly earnings under subsection (a)(2). .In Wilson v. Erickson, 477 P.2d 998, 1004 (Alaska 1970), this court upheld the penalty where the employer had ceased making payments (earlier version of statute). We reversed the penalty award in Morrison-Knudsen Co. v. Vereen, 414 P.2d 536, 545-46 (Alaska 1966). In Stafford v. Westchester Fire Ins. Co. of New York, Inc., 526 P.2d 37, 42 (Alaska 1974), we held that the penalty provision of AS 23.30.-155(e) did not preempt tort remedies. . In cases where it is clear that the AWCB will calculate employees' benefits under subsection (a)(2), the employer should provide this rate without a hearing. If the employee must proceed to a board hearing to receive the higher benefit, the employer may be liable for the employee's costs and attorney's fees. AS 23.30.-145. . Because this ground is sufficient to reverse the penalty award, we do not reach Phillips' contention that Nabors failed to controvert his claim in a timely manner.

10403203

Stephen S. DeLISIO, Appellant, v. ALASKA SUPERIOR COURT, Appellee

DeLisio v. Alaska Superior Court

1987-07-21

No. S-608

437

446

740 P.2d 437

740

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

Stephen S. DeLISIO, Appellant, v. ALASKA SUPERIOR COURT, Appellee.

Stephen S. DeLISIO, Appellant, v. ALASKA SUPERIOR COURT, Appellee. No. S-608. Supreme Court of Alaska. July 21, 1987. Kirsten Tinglum, Douglas B. Baily, Baily & Mason, Anchorage, for appellant. Susan D. Cox, Asst. Atty. Gen., Harold M. Brown, Atty. Gen., Juneau, for appellee. Before RABINOWITZ, C.J., and BURKE, COMPTON and MOORE, JJ.

5861

36557

OPINION BURKE, Justice. In this appeal we have been called upon to reconsider the question of whether a private attorney may be compelled to represent an indigent criminal defendant without just compensation. We now conclude that Article I, section 18 of the Alaska Constitution requires a negative answer to this important question. While we strongly affirm the attorney's time-honored ethical obligation to provide cost-free representation to those in need and the corresponding obligation to accept court appointment on similar terms, Alaska's constitution will not permit the state to deny reasonable compensation to an attorney who is appointed to assist the state in discharging its constitutional burden. I Stephen DeLisio, an attorney in private practice in Anchorage, was in 1984 appointed by superior court judge Beverly Cutler to represent Stephen Ningeok, an indigent charged with sexual abuse of a minor. DeLisio refused the appointment. At a non-jury hearing before the Honorable Mark C. Rowland, then Presiding Judge of the Third Judicial District, DeLisio's appointment was confirmed and he was ordered to commence representation by a specified date or be jailed for contempt until such time as he undertook the representation. We stayed the contempt citation pending DeLisio's motion for reconsideration and another attorney was appointed to represent Ningeok. On reconsideration, the contempt was reaffirmed. This appeal followed. II Initially, we reject DeLisio's contention that he is incompetent to represent a criminal defendant. At the contempt hearing before Judge Rowland, DeLisio stated that he had not handled a criminal case of any magnitude for at least fifteen years. He acknowledged, however, that he had served as a court-appointed criminal defense attorney from 1962 to 1963, had worked as a prosecutor for a year and a half, and had handled occasional criminal appointments between 1965 and 1967 or 1968. While criminal practice and procedure has undoubtedly changed since DeLisio was active in the criminal bar, the assertion that an attorney with DeLisio's trial experience is unable to provide adequate representation is at best disingenuous and need not be seriously considered. DeLisio's assertion that he should have been afforded a jury trial on the contempt citation is similarly without merit. While it is true that a jury trial may be required when considering a criminal contempt, incarceration, per se, does not make the contempt criminal. See E.L.L. v. State, 572 P.2d 786, 789 (Alaska 1977). "[Tjhere is no right to a jury trial in a civil contempt proceeding when the sole purpose of the proceeding is to compel the contemnor to perform some act that he or she is capable of performing." Pharr v. Fairbanks North Star Borough, 638 P.2d 666, 668 (Alaska 1981). See also Gwynn v. Gwynn, 530 P.2d 1311 (Alaska 1975). Here, the record amply demonstrates the nonpunitive, coercive nature of the sanction. In denying DeLisio's request for a jury trial Judge Rowland explained: The Superior Court did not and does not now intend to punish Mr. DeLisio for his refusal to undertake the responsibilities of representation_ The responsibilities he was ordered to undertake have been assumed by another. If the Supreme Court dissolves its stay or upholds the Superior Court's order appointing Mr. DeLisio, Mr. DeLisio will be appointed to another case, and will be incarcerated only if he refuses to follow this Court's lawful order and only until he agrees to do so. The Court's order of incarceration was purely coercive and in the nature of a civil contempt. No element of punishment was intended. Under the circumstances Mr. DeLisio is not entitled to a jury trial. We agree. DeLisio was not wrongfully denied a jury trial. Ill DeLisio next argues that requiring an attorney to represent an indigent defendant without reasonable compensation is a taking of private property for a public use under the fifth and fourteenth amendments of the United States Constitution and article I, section 18 of the Alaska Constitution. We have rejected this argument on two prior occasions. In Jackson v. State, 413 P.2d 488, 490 (Alaska 1966), we held that an attorney appointed to represent an indigent prisoner in a criminal matter has no constitutional right to receive compensation for his services. He has a right to compensation only to the extent that a statute or court rule may so provide. In Wood v. Superior Court, 690 P.2d 1225 (Alaska 1984), we reaffirmed that ruling, stating that an order requiring an attorney to represent a criminal defendant [does not] necessarily take that attorney's private property without just compensation. . It may be that in some extreme cases an assignment would cripple an attorney's practice and thus rise to the level of a taking. But Wood has not shown that this is an extreme case. Id. at 1229 (citations omitted). We are now persuaded that our prior rulings are in error. A Alaska's "takings clause" prohibits the taking of private property for a public purpose without just compensation. The underlying intent of the clause is to ensure that individuals are not unfairly burdened by disproportionately bearing the cost of projects intended to benefit the public generally. State v. Hammer, 550 P.2d 820, 826 (Alaska 1976); see also L. Tribe, American Constitutional Law, § 9-4, at 463-65 (1978). In order to effectively fulfill this purpose, a liberal construction of the clause in favor of the private property owner is required. E.g., Alsop v. State, 586 P.2d 1236, 1239 & n. 7 (Alaska 1978). With these general principles in mind, an examination of the several justifications for denying compensation is in order. We note initially that the great weight of authority favors the denial of compensation. See e.g., Williamson v. Vardeman, 674 F.2d 1211, 1214-15 (8th Cir.1982), and cases cited therein. First, it is averred that the appropriation of an attorney's service can raise no issue under the takings clause because the practice of law is a privilege conferred by the state rather than a protected property interest. See, e.g., Ruckenbrod v. Mullins, 102 Utah 548, 133 P.2d 325, 330-31 (1943). Assuming, arguendo, that we are here concerned with appropriation of "the practice of law" as opposed to appropriation of an individual's labor, the argument nonetheless is unconvining. In Frontier Saloon v. Alcoholic Beverage Control Board, 524 P.2d 657 (Alaska 1974), we noted that It has long been recognized that an interest in a lawful business is a species of property entitled to the protection of due process. This interest may not be viewed as merely a privilege subject to withdrawal or denial at the whim of the state. Neither may this interest be dismissed as de minimis. A license to engage in a business enterprise is of considerable value to one who holds it. Id. at 659-60 (citations & footnotes omitted). We have recognized that membership in the state bar entitling one to engage in the practice of law deserves the same protection. In re Butterfield, 581 P.2d 1109, 1110-12 (Alaska 1978); Application of Peterson, 459 P.2d 703, 710 (Alaska 1969); In re Mackay, 416 P.2d 823, 850 (Alaska 1964), cert. denied, 384 U.S. 1003, 86 S.Ct. 1907, 16 L.Ed.2d 1016 (1966). Thus, a license to practice law is not a mere privilege, granted or revoked at the whim of the state, but is a substantial interest protected by the due process clause of the Alaska Constitution. Notwithstanding the above, however, we reject the basic premise that it is the practice of law which is at issue. No one has argued that DeLisio would have had taken from him his ability to practice law. Rather, DeLisio would have had taken from him his labor. Thus, whether a license to practice law is a "mere privilege" or a "substantial property right" is irrelevant to the issue at hand. A related argument is that personal services, such as those provided by attorneys, are not "property" within the meaning of the takings clause. See generally, D. Shapiro, The Enigma of the Lawyer's Duty to Serve, 55 N.Y.U.L.Rev. 735, 771-77 (1980). Whatever the merit of this argument under the federal Constitution, we reject it as it applies to the Alaska Constitution. We see no language in our takings clause to indicate that services should be excluded from the section's protections, and are unaware of any constitutional convention history indicating such exclusive intent. Consequently, we perceive no reasoned basis for excluding such services. Indeed, excluding personal services from the clause's provisions is manifestly unreasonable. It has long been recognized that "[ljabor is property. The laborer ha[s] the same right to sell his labor, and to contract with reference thereto, as any other property owner." Coffeyville Vitrified Brick & Tile v. Perry, 69 Kan. 297, 76 P. 848, 850 (1904). This axiom applies with no less force to an attorney's services than it does to any other labor. As early as 1854 the Supreme Court of Indiana stated that To the attorney, his profession is his means of livelihood. His legal knowledge is his capital stock. His professional services are no more at the mercy of the public, as to remuneration, than are the goods of the merchant, or the crops of the farmer, or the wares of the mechanic. Webb v. Baird, 6 Ind. 13, 17 (1854), quoted in State ex rel. Scott v. Roper, 688 S.W.2d 757, 762 (Mo.1985) (en banc). We accept this characterization and, accordingly, hold that an attorney's services are "property" within the meaning of article I, section 18. A second argument is that the traditional/historical position of the attorney as an "officer of the court" requires the provision of free services when demanded. As we stated in Jackson: The requirement of the attorneys' oath and Canon 4 reflect a tradition deeply rooted in the common law — that an attorney is an officer of the court assisting the court in the administration of justice, and that as such he has an obligation when called upon by the court to render his services for indigents in criminal cases without payment of a fee except as may be provided by statute or rule of court. 413 P.2d at 490. We are now convinced, however, that the attorney may not be denied reasonable compensation solely on the basis of this tradition. As previously noted, and as our dissenting colleague argues, there is a longstanding tradition in the United States of compulsory representation of indigent defendants without full compensation. However, this practice is neither as traditional nor as venerable as had been previously supposed. More importantly, we believe that tradition alone, regardless of its venerability, cannot validate an otherwise unconstitutional practice. In holding that the court does not have authority to appoint counsel in civil cases, the Supreme Court of Missouri recently performed an exhaustive analysis of the historical foundation for uncompensated appointment of counsel. State ex rel. Scott v. Roper, 688 S.W.2d 757 (Mo.1985) (en banc). That court's opinion dispels many assumptions which have been frequently repeated in cases addressing this issue. The court first discussed the doctrine often attributed to the common law of England that lawyers are officers of the court. Id. at 761. English "attorneys" were indeed treated as officers of the court, but the English "attorney" resembled a court clerk whose primary functions were ministerial. Id. at 765. The court had direct control over these officers and granted them important privileges, such as exemption from suit in another court, serving in the militia and being compelled to hold another office. Id. at 766. o These privileges are not now available to the American attorney and have been unavailable for some time. The Indiana Supreme Court determined over a century ago that the role of attorneys in the United States is not comparable to that of English attorneys: The legal profession having been thus properly stripped of all its odious distinctions and peculiar emoluments, the public can no longer demand of that class of citizens any gratuitous services which would not be demandable of every other class. Webb v. Baird, 6 Ind. at 16-17, quoted in Scott, 688 S.W.2d at 761-62. English serjeants-at-law may have been called upon to perform gratuitous services, but their role is also unmatched in current U.S. practice. Their elite position was akin to that of a public office holder. Scott, 688 S.W.2d at 766. The role of the English barrister, on the other hand, appears to have been similar to that of today's trial attorney. Barristers have never been treated as officers of the court and it is doubtful whether they could be compelled to represent a party. Id. at 765-66. The Missouri court also discredits the rationale that lawyers have a traditional professional obligation to provide gratuitous service. Id. at 763. Prior to 1969, the Code of Professional Responsibility did not even mention pro bono representation. Id.; see also, Proceedings of the Second National Conference on Legal Services & the Public, December 7 & 8,1979, at 21 (1981). The American Bar Association recently re jected a proposed provision for mandatory-pro bono representation. Id. Currently, the Model Rules of Professional Responsibility merely encourage such service. See Model Rule of Professional Conduct 6.1 (1983). Thus, the history of court appointment of attorneys is hardly as clear or as consistent as is sometimes indicated and cannot by itself justify the practice advocated. Related to this argument is the assertion that attorneys are not entitled to compensation for their court appointments because the license to practice carries with it certain conditions, one of which is the obligation to represent indigent criminal defendants gratuitously. By accepting the license to practice, it is argued, the attorney implicitly accepts these conditions. Again in Jackson we stated that An applicant for admission to practice law may justly be deemed to be aware of the traditions of the profession which he is joining, and to know that one of these traditions is that a lawyer is an officer of the court obligated to represent indigents for little or no compensation upon court order. Thus, the lawyer has consented to, and assumed, this obligation and when he is called upon to fulfill it, he cannot contend that it is a "taking of his services." 413 P.2d at 490, (quoting United States v. Dillon, 346 F.2d 633, 636 (9th Cir.1965), cert. denied, 382 U.S. 978, 86 S.Ct. 550, 15 L.Ed.2d 469 (1966)). The Supreme Court of Utah, in rejecting the same argument, stated that While the right of personal liberty and the right to earn a livelihood in any lawful calling are subject to the licensing power of the state, a state cannot impose restrictions on the acceptance of the license which will deprive the licensee of his constitutional rights. If states have the power to impose the duty to render gratuitous services on the license of an attorney, that power must be based on more than the mere right of the state to license. Ruckenbrod, 133 P.2d at 327 (citation omitted). We agree. Imposing upon the attorney as a condition to practice a requirement which would demand the rendering of personal services without just compensation would in itself be an impermissible infringement of Alaska's due process clause and, thus, may not serve as the basis for avoiding the provisions of the takings clause. Finally, it is urged that denial of compensation is justified because the duty to render gratuitous representation is nothing more than a generalized duty to aid the state, a duty owed by all citizens equally. Thus, it is argued, the state is under no obligation to provide compensation for the provision of the service. We cannot agree. It is certainly true, however, that there are services which all citizens are obliged to render without compensation. For example, it has long been held that absent statute there is no right to compensation for compelled jury service. Maricopa County v. Corp., 44 Ariz. 506, 39 P.2d 351 (1934). The appropriation of such a service will not constitutionally require compensation for several reasons, most notably because such services are broad-based, applying to the citizenry as a whole rather than to any discrete or identifiable class of persons. The service appropriated in the present action, by contrast, is not one which may be provided by the citizenry in general, but only by a specifically identifiable class of persons. B After considering and rejecting these various arguments, we are persuaded that a court appointment compelling an attorney to represent an indigent criminal defendant is a taking of property for which just compensation is required. First, as discussed above, the attorney's service is undeniably property within the meaning of the takings clause. Second, the appropriation of that property is a taking. We have indicated that a taking will be accomplished when the state deprives the owner of the economic advantages of ownership. Grant v. State, 560 P.2d 36, 39 (Alaska 1977); City of Anchorage v. Nesbett, 530 P.2d 1324, 1335 (Alaska 1975); Stewart & Grindle, Inc. v. State, 524 P.2d 1242, 1246 (Alaska 1974). When the court appropriates an attorney's labor, the court has prevented the attorney from selling that labor on the open market and has thus denied to the attorney the economic benefit of that labor. Finally, the taking is accomplished for a public use. Counsel is appointed not out of a desire to benefit any individual defendant, but to ensure that all defendants are treated equally before the law, that all defendants will receive a fair trial before an impartial tribunal. See Gideon v. Wainwright, 372 U.S. 335, 344, 83 S.Ct. 792, 796, 9 L.Ed.2d 799, 805 (1963). Because the appointment thus benefits all persons equally, the cost of providing such representation must be equally borne rather than shunted to specific persons or specifically identified classes of persons. We thus conclude that requiring an attorney to represent an indigent criminal defendant for only nominal compensation unfairly burdens the attorney by disproportionately placing the cost of a program intended to benefit the public upon the attorney rather than upon the citizenry as a whole. As such, the appropriation of the attorney's labor is a "taking" under the provisions of Alaska Constitution article I, section 18. IV Having so decided, we are faced with determining the measure of the mandated compensation. In other contexts we have indicated that just compensation is measured by the fair market value of the property appropriated, or the "price in money that the property could be sold for on the open market under fair conditions between an owner willing to sell and a purchaser willing to buy with a reasonable time allowed to find a purchaser." State v. 7.026 Acres, 466 P.2d 364, 356 (Alaska 1970) (real property); see also Stroh v. Alaska State Housing Authority, 459 P.2d 480, 486 (Alaska 1969) (personal property). Thus, a determination of "market value" differs from "market price" in that "market value" includes elements of "intelligence," "knowledge" and "willingness" in ascertaining the actual worth of the property. Market price, on the other hand, indicates only the price which the property could command in an imperfect market. Dash v. State, 491 P.2d 1069, 1075 (Alaska 1971). We see no reason for a different rule in the present action. We emphasize, however, that the measure of value will not necessarily reflect any specific attorney's normal rate of compensation, but rather will reflect the compensation received by the average competent attorney operating on the open market. V Model Rule of Professional Conduct 6.1 (1983) provides that: A lawyer should render public interest legal service. A lawyer may discharge this responsibility by providing professional services at no fee or a reduced fee to persons of limited means or to public service or charitable groups or organizations, by service in activities for improving the law, the legal system or the legal profession, and by financial support for organizations that provide legal services to persons of limited means. The Model Rules thus express a policy favoring public service and affirming the profession's ethical obligation to ensure representation of those in need. We cannot emphasize too strongly our support for this position. Attorneys should be willing to undertake pro bono representation. We applaud those attorneys who voluntarily accept this obligation and deeply regret that there are those who refuse to do so. Yet we are reluctantly persuaded that this ethical obligation, important as it is cannot justify the practice of compelled gratuitous representation. Because of the disposition above, we need not consider Delisio's other arguments. To the extent that our holding today is inconsistent with our prior decisions, those decisions are overruled. The judgment of the trial court is REVERSED. MATTHEWS, J., not participating. . The public defender agency was unable to represent Ningeok because of a conflict of interest. . DeLisio has practiced law in Alaska for many years and is an experienced trial attorney. .Alaska Const, art. I, § 18 provides that: Private property shall not be taken or damaged for public use without just compensation. We have held that the term "damages" affords the property owner broader protection than that conferred by the Fifth Amendment of the Federal Constitution. See State v. Doyle, 735 P.2d 733, 736 (Alaska 1987); State v. Hammer, 550 P.2d 820, 823-34 (Alaska 1976). Consequently, we need not consider DeLisio's federal constitutional claims. . Alaska Const., art. I, § 18, set forth in note 3. . Professor Tribe describes the the compensation requirement of the takings clause as an attempt to limit arbitrary sacrifice of the few to the many. . Alaska Const, art. I, § 7 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. . We recognize that the Missouri decision was rendered in a case involving a civil, rather than a criminal, appointment. However, the histori-caí analysis contained in Scott applies as well to criminal appointments. . We need not at this time decide whether former Administrative Rule 12 provided "market value" compensation for DeLisio's services. Because another attorney was appointed to represent Ningeok, DeLisio performed no services meriting compensation. . There is no counterpart of Rule 6.1 in our state disciplinary code. Ethical consideration (EC) 2-25, however, states that "[t]he basic responsibility for providing legal services for those unable to pay ultimately rests upon the individual lawyer.... Every lawyer, regardless of professional prominence or professional workload, should find time to participate in serving the disadvantaged. The rendition of free legal services to those unable to pay reasonable fees continues to be an obligation of each lawyer...." EC 8-9 states that "[t]he advancement of our legal system is of vital importance in maintaining the rule of law and . lawyers should encourage, and should aid in making, needed changes and improvements." EC 8-3 states that "[t]hose persons unable to pay for legal services should be provided needed services." See also Model Rule 6.2 ("A lawyer shall not seek to avoid appointment by a tribunal to represent a person except for good cause.").

10359617

Thomas S. MILLMAN, Appellant, v. STATE of Alaska, Appellee

Millman v. State

1992-11-13

No. A-4138

190

197

841 P.2d 190

841

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

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

CAP

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

Thomas S. MILLMAN, Appellant, v. STATE of Alaska, Appellee.

Thomas S. MILLMAN, Appellant, v. STATE of Alaska, Appellee. No. A-4138. Court of Appeals of Alaska. Nov. 13, 1992. Walter W. Mason, Jamin, Ebell, Bolger, & Gentry, Seattle, for appellant. Peter C. Gamache, Dist. Atty., Kodiak, and Charles E. Cole, Atty. Gen., Juneau, for appellee. Before BRYNER, C.J., and COATS and MANNHEIMER, JJ.

3702

22820

OPINION MANNHEIMER, Judge. The Alaska Department of Fish and Game regulates the taking of crab by dividing the state's waters into various areas. Vessels fishing for crab must register for particular areas and particular types of crab; once registered, vessels are authorized to take crab only within their specified areas. 5 AAC 34.020 (governing king crab); 5 AAC 35.020 (tanner crab). Normally, a vessel that has caught king crab must not take the unprocessed crab outside the vessel's registration area, 5 AAC 34.090(a), and must land the crab (i.e., off-load the crab for sale) within its registration area. 5 AAC 34.030(c). A vessel may land the crab in another registration area only if the vessel complies with 5 AAC 34.030(d)-(e): (d) [The vessel] must contact by radio a local representative of the department [of Fish and Game] prior to leaving the statistical area encompassing the [registration] area for which the vessel is registered, and shall submit to . inspection [if the department requires]. The [department] representative contacted by the vessel must be located in the registration area for which the vessel is validly registered at the time.... (e) A vessel making radio contact pursuant to (d) of this section shall state to the local representative of the department the amount of king crab on board at the time. When a vessel secures permission to land king crab at a location outside its registration area, the amount of crab landed must comport with the amount of crab the vessel had when it left the registration area. If the department exercises its power under 5 AAC 34.030(d) to board and inspect the vessel, then the amount of crab ultimately landed must be no greater than the amount of crab observed during the inspection. 5 AAC 34.030(d). If the department fore-goes physical inspection and allows the vessel to simply report its catch under 34.-030(e), then the amount of crab landed cannot vary more than ten percent from the amount of crab reported to the department representative under section 030(e). 5 AAC 34.097. In November and December of 1988, Millman participated in the Adak area commercial crab fishery. Wishing to land the crab in Kodiak (outside the Adak registration area), Millman brought his boat to port in Dutch Harbor on December 5, 1988 and telephoned Fish and Game biologist Kenneth Griffin (the department representative in Dutch Harbor) to report the amount of king and tanner crab Millman had aboard his vessel. Even though 5 AAC 34.030(d) states that a vessel must contact the department representative "by radio", Griffin testified that he routinely accepted vessels' reports of their crab catches by both radio and telephone. Millman told Griffin that his vessel contained 1300 king crab. Eight days later, on December 13, Millman delivered his crab to All-Alaskan Seafoods in Kodiak. Debra Sundberg, a company employee, filled out a fish ticket recording the amount of king crab that Millman had landed. Millman delivered 3398 king crab to All-Alaskan Seafoods, 2098 more than he had reported to Griffin. Millman was charged with violating 5 AAC 34.097, the regulation that prohibits any variance of ten percent or greater between the amount of crab reported under 5 AAC 34.030(e) and the amount of crab ultimately landed. Following a bench trial in the Kodiak district court, Millman was convicted. The district court fined Millman $3000, of which $1500 was suspended, and also imposed a forfeiture of over $93,000. Mill-man appeals his conviction, contending both that the district court should have granted him a judgement of acquittal and that the court should have dismissed the prosecution because of the State's delay in bringing the charge. Millman also challenges the forfeiture imposed on him by the district court. We affirm Millman's conviction, but we modify the amount of the forfeiture. At the conclusion of Millman's trial, he moved for a judgement of acquittal. The regulation Millman was charged with violating — 5 AAC 34.097 — prohibits a ten-percent variance between the amount of crab landed and the amount of crab reported to the department representative under 5 AAC 34.030(e). Millman pointed out that 5 AAC 34.030(e) apparently requires a vessel to report the amount of its catch only if the vessel makes "radio contact" with the department's local representative. Mill-man argued that, because he had contacted Griffin by telephone rather than by radio, Millman's report of his catch had not been made under 5 AAC 34.030(e). Thus, according to Millman, he could not possibly have violated 5 AAC 34.097. We reject Millman's reading of 5 AAC 34.030(e). Even though the regulation refers to reports made by radio, it must be read to encompass reports made by telephone. As explained above, the Department of Fish and Game has attempted to regulate and maintain Alaska's crab fishery by dividing the state's waters into registration areas and restricting a vessel's crab operations to specific areas. Not only must a vessel restrict its crab operations to specified registration areas, but it is illegal for a fishing vessel even to possess unprocessed crab outside its registration area unless that vessel has secured prior approval under 5 AAC 34.030(d)-(e) to transport its catch to a seafood processor outside the registration area. 5 AAC 34.-090(a). This regulatory framework clarifies the purpose behind section 34.030(e)'s requirement that a vessel must render a strict account of its catch before leaving the registration area. A vessel that has obtained the department's permission to leave the registration area with unprocessed crab on board (ostensibly to deliver its catch to an out-of-area processor) must not be permitted to continue to take crab outside its specified area of operations. To prevent this abuse, 5 AAC 34.097 requires that the amount of crab ultimately sold by the vessel must agree (within a ten-percent tolerance) with the amount of crab declared by the vessel when it left its specified fishing area. For this purpose, it is irrelevant whether the skipper reports the catch by radio, or whether the vessel comes to port and the skipper makes the report by telephone (as Millman did), or, indeed, whether the skipper comes to the department office and makes the report in person. As the trial judge pointed out, the regulations' reference to "radio contact" appears to serve two functions. First, a vessel is allowed to remain at sea rather than come to port to report its catch and request permission to leave the registration area. Second, the local representative can be away from the office, on the water or in the field, and still receive the vessel's report. In the present case, however, Mill-man chose to bring his vessel to port in Dutch Harbor and to use a telephone to contact the resident department representative. The local representative, Griffin, was present in his office to receive Mill-man's call, and he chose to accept Mill-man's telephone report rather than hew to the strict language of 34.030(d) by ordering Millman to return to his vessel to make his report by radio. Millman does not argue that, under these circumstances, there is any rational distinction to be drawn between radio reports and telephone reports. He nonetheless contends that, because 34.030(e) clearly specifies "radio" contact, a skipper cannot be punished for a later non-conforming sale of crab unless the original report of the catch was made by radio. Millman argues that, when the wording of a statute or regulation is so clear, a court cannot redraft the statute even when the legislature's (or agency's) choice may have been unwise or even irrational. Copelin v. State, 659 P.2d 1206, 1211 (Alaska 1983); Belarde v. Anchorage, 634 P.2d 567, 568 (Alaska App.1981). We agree with Millman that it is not a court's function to rewrite bad statutes. However, we reject Millman's argument that a court can do nothing when a statute's wording is "plain". The guiding principle of statutory construction is to ascertain and implement the intent of the legislature or agency that promulgated the statute or regulation. Identifying the "plain meaning" of a word or phrase used in a regulation does not end the process of statutory construction: Once the "plain meaning" of a term is determined, however, the court should not apply it mechanically. Alaska Public Employees Assn. v. Fairbanks, 753 P.2d 725, 727 (Alaska 1988). Instead, the court uses a sliding scale approach to statutory interpretation in which it also considers the legislative history of the statute and whether the history reveals a legislative intent and meaning that is contrary to the plain meaning. Stephan v. State, 810 P.2d 564, 566 (Alaska App.1991). When a statute or regulation is part of a larger framework or regulatory scheme, even a seemingly unambiguous statute must be interpreted in light of the other portions of the regulatory whole. Lake v. Construction Machinery, Inc., 787 P.2d 1027, 1030 (Alaska 1990); Hafling v. Inlandboatmen's Union of the Pacific, 585 P.2d 870 (Alaska 1978); Hotel, Motel, Restaurant, Construction Camp Employees & Bartenders Union, Local 879 v. Thomas, 551 P.2d 942 (Alaska 1976). As noted earlier in this opinion, 5 AAC 34.030(d)-(e) are indeed part of a larger regulatory framework that maintains and preserves Alaska's crab resources by restricting the operations of fishing vessels. The regulatory requirement that a vessel report its catch is designed to insure that a vessel does not continue to take crab after it has been granted permission to land its catch outside its registration area. Local representative Griffin's acceptance of Millman's telephone report was a common-sense and reasonable approach to the problem posed by Millman's non-compliance with the strict "radio" language of subsections (d) and (e) of the regulation. When the department's local representative receives a vessel's report by telephone, it would appear that all regulatory concerns of the department are satisfied. Notably, the testimony presented in this case shows that, when the department receives a telephone report of a vessel's catch, the department views the telephone report as compliance with 34.030(d)-(e). When the construction of a regulation presents a question of law involving an area of agency expertise or policy-making responsibility, courts will defer to the agency's construction of the regulation. Alaska Public Employees' Assn. v. State, 831 P.2d 1245, 1247 (Alaska 1992); Homer Electric Assn. Inc. v. City of Kenai, 816 P.2d 182, 184 n. 10 (Alaska 1991); Tesoro Alaska Petroleum Co. v. Kenai Pipe Line Co., 746 P.2d 896, 903 (Alaska 1987). Here, we must defer to the Department of Fish and Game's willingness to accept a telephone report as compliance with the regulatory requirement. Adoption of Millman's view of the regulation would lead to absurd consequences. A local department representative like Griffin who received a telephone report of a vessel's catch would have to tell the skipper to re-board his vessel and make the same report by radio, else the department would forfeit its right to insist that the reported catch conform to the vessel's later delivery of crab at the processor. Moreover, under Millman's construction of the law, Millman would himself be guilty of violating 5 AAC 34.030(d), because his telephone call to the local department representative did not constitute "contact by radio". This, in turn, would mean that Mill-man's subsequent act of taking the unprocessed crab out of the registration area and landing his catch in Kodiak would violate 5 AAC 34.090(a), because Millman would not have been acting "pursuant to the authori zation of 5 AAC 34.030(d)". We find it inconceivable that the law would support prosecution of a skipper who accurately reported his or her catch but who made the report by telephone instead of radio. When the department's local representative receives a vessel's report by telephone, punctilious observance of a distinction between a radio report and a telephone report serves no purpose, either for the department or for the skipper of the vessel. Indeed, such close adherence to the strict wording of the regulation would actually impede the functioning of the regulatory scheme. Even though criminal statutes generally must be construed in favor of the accused, a court is nevertheless obliged to avoid construing statutes in a way that leads to patently absurd results or to defeat of the obvious legislative purpose behind the statute. Sherman v. Holiday Construction Co., 435 P.2d 16 (Alaska 1967); Wylie v. State, 797 P.2d 651, 657 (Alaska App.1990); Belarde, 634 P.2d at 568. We therefore conclude that, although 5 AAC 34.030(d) and 030(e) specify that a vessel shall make its report to the department's local representative by "radio", the regulations are satisfied when the department's local representative receives the vessel's report by telephone. A report received by telephone is equivalent to a report received by radio for purposes of determining whether the vessel's reported catch conforms to the delivered catch under 5 AAC 34.097. Millman advances one additional argument. He notes that the district court denied his motion for judgement of acquittal on other grounds; in fact, the district court explicitly rejected the argument that 5 AAC 34.030(d)-(e) could be construed to encompass telephone reports as well as radio reports. Millman asserts that the State is therefore precluded from arguing that the district court's ruling should be upheld under the reasoning contained in this opinion; he argues that the district court's strict construction of the regulation must be considered the law of the case. Because it is within the special competence of an appellate court to interpret statutes, this court need not defer to the district court's interpretation of the regulations at issue in this appeal. Conner v. State, 696 P.2d 680 (Alaska App.1985). Moreover, an appellee can defend a trial court's decision on any legal theory supported by the record. Russell v. Anchorage, 626 P.2d 586, 588 n. 4 (Alaska App.1981). This rule applies not only to legal theories that went unvoiced in the trial court, but even to theories that were explicitly rejected by the trial court. See Ransom v. Haner, 362 P.2d 282, 285 (Alaska 1961), where a trial court's evidentiary ruling was upheld on appeal under a legal theory that the trial court had rejected. This court is therefore authorized to rely upon our construction of 5 AAC 34.030(d)-(e) to uphold the district court's decision, even though the district court considered and rejected this same construction of the regulations. Millman raises a second attack on his conviction, arguing that the State's delay in filing the charges against him violated his constitutional right to due process. Millman delivered his non-conforming crab catch to the seafood processor in Kodiak on December 13, 1988; the State did not file charges against him until February 5,1991. The district court found that this 26-month delay was unreasonable, but the court denied Millman's motion to dismiss because Millman had failed to show that he had been prejudiced by this delay. The due process clauses of the United States and the Alaska Constitutions protect the accused against unreasonable pre-accusation delay. See United States v. Marion, 404 U.S. 307, 324; 92 S.Ct. 455, 465; 30 L.Ed.2d 468 (1971); State v. Mouser, 806 P.2d 330, 336 (Alaska App.1991). But to prevail on a claim of pre-accusation delay, the accused must establish both that the delay was unreasonable and that it actually prejudiced the accused's defense of the case; a showing of potential or possible prejudice will not suffice. By actual prejudice we mean a particularized showing that the unexcused delay was likely to have a specific and substantial adverse impact on the outcome of the case. . [T]he generalized prospect of . lost witnesses does not amount to actual prejudice.... At the very least, the accused must show that[,] but for the delay, he would have been able to present favorable evidence. Mere speculation about the loss of favorable evidence is insufficient. Mouser, 806 P.2d at 337-38 (quotations and citations omitted). Millman's sole claim of prejudice concerns the potential testimony of Debra Sundberg, the All-Alaskan Seafoods employee who filled out the fish tickets with the amount of crab Millman presented for processing in Kodiak. (A seafood processor receiving seafood from a vessel must fill out fish tickets that accurately record the amount of the delivered catch. 5 AAC 34.096.) Sundberg did not testify at trial, having left the Kodiak area before the start of the proceedings. Millman claims that Sund-berg would have presented "potentially exculpatory information" at trial regarding the accuracy of the fish tickets. Millman maintains that the accuracy of the fish tickets was called into question at trial because the fish tickets contained, in addition to the information recorded by Sund-berg, notations written by other people. Millman also contends there was some confusion at trial over the type of crab recorded on each fish ticket. Millman has failed to specify precisely how Sundberg's testimony would have established that the fish tickets were in error. As noted above, 5 AAC 34.096 requires the processor to accurately describe the quantity of crab presented by the vessel. Moreover, since the quantity of crab determines how much money the processor will pay to a crab fisherman, it is reasonable to assume that Millman took some interest in the accuracy of Sundberg's notations when she filled in the fish ticket. The district court admitted the fish tickets into evidence at trial, and Millman does not challenge this ruling on appeal. Millman's conclusory allegation that Sundberg might potentially have "exculpatory information" hardly qualifies as the "particularized showing" of "specific and substantial" prejudice required by Mouser. Accordingly, we find no error. Millman challenges the forfeiture imposed by the district court. The court ordered Millman to pay the market value of the difference between the amount of crab he landed at All-Alaskan Seafoods and the smaller amount of crab he reported to Griffin before he left Dutch Harbor. Millman points out that AS 16.05.722(b) requires forfeiture "of any fish, or its fair market value, taken or retained as a result of the commission" of a commercial fishing violation. Millman argues that his offense did not involve the illegal taking or retention of crab, but only the underreporting of his catch. We disagree. Millman was convicted of violating 5 AAC 34.097, which prohibits "any vessel acting pursuant to the authority of 5 AAC 34.030(d) to land an amount of king crab 10 percent greater . than the amount stated under 5 AAC 34.030(e)." The offense is committed, not by making a false report, but by the act of landing a non-conforming quantity of crab. When Millman presented these extra crab to the processor, this extra portion of his catch, or its equivalent value in money that Millman received from the processor, was "retained as a result of the commission of the violation." It was therefore subject to forfeiture. Millman further faults the district court for ordering forfeiture in the amount of $93,151.20. The district court arrived at this figure by subtracting the number of king crab Millman reported when he left Dutch Harbor (1300) from the number of king crab he later presented to the processor in Kodiak (3398), then multiplying this difference (2098) by the average weight of the crab on Millman's vessel (8 lbs.) and by the market price the processor paid for the crab ($5.55 per lb.). Millman argues that this $93,151.20 was not all profit. He asserts that he was only a fifty-percent shareholder of the company that owned the vessel, and that, by the time his expenses for fuel, food, and bait are considered, his actual profit was no more than $30,465.00. AS 16.05.022(b) specifies that the sentencing court shall order forfeiture of the fair market value of the illegal catch. The statute makes no provision for offsetting this fair market value with the violator's operating costs. We believe that the legislature is free to impose a forfeiture that reflects the loss to the state's resource rather than the amount of profit ultimately reaped by the violator. Millman also claims the forfeiture order must be vacated because the district court did not issue the order until approximately thirty-two months after the commission of the violations. He argues that it is unfair to order a forfeiture when the proceeds from the illegal catch have long ago been spent. Millman has cited no authority establishing that a forfeiture order must be imposed within a certain period of time after the commission of the offense. The case he relies on, United States v. Eight Thousand Eight Hundred and Fifty Dollars in United States Currency, 461 U.S. 555, 103 S.Ct. 2005, 76 L.Ed.2d 143 (1983), is not on point; that case involved a delay in the institution of civil forfeiture proceedings, akin to Millman's pre-accusation delay argument that we have already rejected. Given our conclusion that Millman s prosecution was not barred by the State's delay in bringing charges, and because the additional time between the filing of charges and the imposition of the forfeiture was due entirely to the normal demands of adjudicating those charges, we find no legal impediment to the district court's imposition of the forfeiture. We do, however, believe that the district court's forfeiture order must be modified. The district court arrived at the amount of forfeiture by calculating the fair market value of 2098 crab; this figure of 2098 crab represented the number of crab Millman delivered (3398) minus the number of crab he reported (1300). However, under 5 AAC 34.097, the quantity of illegal crab was the difference between the amount delivered and the amount reported, adjusted upward by ten percent. Thus, the district court should have based its calculations on an illegal landing of 1968 crab [3398 — (1300 + 130) ]. Using the same figures for the average weight of the crab and their market value, the forfeiture should have equaled $87,379.20. • With this modification, the judgment of the district court is AFFIRMED. . United States Constitution, Fourteenth Amendment; Alaska Constitution, Art. I § 7.

8172091

Eric J. HOLDEN, Appellant, v. STATE of Alaska, Appellee

Holden v. State

2008-08-15

No. A-10073

725

732

190 P.3d 725

190

Pacific Reporter 3d

Alaska Court of Appeals

Alaska

2021-08-10T18:41:04.249156+00:00

CAP

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

Eric J. HOLDEN, Appellant, v. STATE of Alaska, Appellee.

Eric J. HOLDEN, Appellant, v. STATE of Alaska, Appellee. No. A-10073. Court of Appeals of Alaska. Aug. 15, 2008. Eric J. Holden, in propria persona, Wasil-la, for the Appellant. Susan S. McLean, Chief Assistant Attorney General, Criminal Division, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee. Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.

3768

23398

OPINION MANNHEIMER, Judge. This case is an appeal from the decision of the superior court in an administrative appeal (ie., an appeal to the superior court from the final decision of an administrative agency). Under AS 22.05.010(c) and Alaska Appellate Rule 202(a), appeals of this nature are to be taken to the Alaska Supreme Court. The Appellant, Eric J. Holden, initially filed his appeal in the supreme court. Soon after, however, the State filed a motion seeking transfer of Holden's appeal to this Court. The State's motion was granted by a single justice of the supreme court, and Holden's appeal was then docketed in this Court. The transfer of Holden's appeal to this Court by a single member of the supreme court does not relieve this Court of its duty to examine whether we have jurisdiction to decide Holden's appeal. As we noted in Higgins v. Briggs, 876 P.2d 539, 541 (Alaska App.1994), an appellate court has both the authority and the obligation to determine whether particular litigation falls within its subject-matter jurisdiction. As we explain more fully in this opinion, we conclude that we have no jurisdiction to decide Holden's appeal, and that we must transfer Holden's case to the appellate court that does have jurisdiction to decide his appeal: the Alaska Supreme Court. The background and procedural history of Holden's case In 1977, Erie J. Holden was convicted of assault with intent to commit rape under Alaska's former criminal code. The Alaska Supreme Court affirmed his conviction in Holden v. State, 602 P.2d 452 (Alaska 1979). In June 2005, the Alaska Department of Public Safety notified Holden that the Department viewed his offense as an "aggravated sex offense" for purposes of the Sex Offender Registration Act (AS 12.68)-and that, as a consequence, Holden was required to register as a sex offender for life and report quarterly to the Department. See AS 12.63.020(a)(1)(A). After he received this notification, Holden filed an appeal to the Commissioner of Public Safety. In this appeal, Holden contested the Department's conclusion that his offense was an "aggravated sex offense" within the meaning of the Sex Offender Registration Act. Holden's argument was based on the wording of AS 12.68.100(1), the statute that defines "aggravated sex offense". In June 2005, the pertinent portion of that statute-subsection (C)-declared that the term "aggravated sex offense" meant a crime, or an attempt . to commit a crime, under AS 11.41.410 [the first-degree sexual assault statute], AS 11.41.4384 [the first-degree sexual abuse of a minor statute], or a similar law of another jurisdiction[.] Holden noted that his offense was committed before Alaska's current criminal code took effect. That is, he was not prosecuted or convicted under AS 11.41.410, but rather under the now-repealed former AS 11.15.160 ("assault with intent to kill or commit rape or robbery"). For this reason, Holden argued that his offense did not qualify as an "aggravated sex offense" within the statutory definition just quoted. On July 28, 2005, the Deputy Commissioner of Public Safety issued a written decision rejecting Holden's argument and affirming the Department's initial determination that Holden's offense was an "aggravated sex offense" for purposes of the registration act. In essence, the Deputy Commissioner concluded that even though the definition of "aggravated sex offense" listed only two Alaska criminal statutes (AS 11.41.100 and AS 11.41.4834), the definition actually applied to all persons convicted of violating any Alaska criminal statute if the person's underlying conduct was similar to the conduct proscribed by either AS 11.41.100 or AS 11.41. 484. Twenty days later, Holden appealed the Commissioner's decision to the superior court. See AS 22.10.020(d)-(e) and Alaska Appellate Rule 601(b), which authorize the superior court to hear appeals from the final decisions of administrative agencies. While Holden's appeal to the superior court was pending, the Alaska Legislature amended the definition of "aggravated sex offense". See SLA 2006, ch. 14, § 8. The 2006 amendment added the following language to AS 12.63.100(1)(C): a crime, or an attempt . to commit a crime, under AS 11.41.410 [the first-degree sexual assault statute], AS 11.41.484 [the first-degree sexual abuse of a minor statute], or a similar law of another jurisdiction or a similar provision under a former law of this state [.] In other words, the legislature amended the statute to make the definition cover people in Holden's situation. In May 2006, following the enactment of this amended definition of "aggravated sex offense", the superior court issued its decision in Holden's administrative appeal. Based on the recent amendment to the statute, the superior ruled that Holden's issue on appeal was now moot. In other words, the court concluded that it did not matter whether the statute, as formerly written, might not have applied to Holden-because the statute as currently written clearly did apply to him. On this basis, the superior court affirmed the Department's decision. In addition, the superior court denied Holden's request for court-appointed counsel to help him prosecute the administrative appeal. Following these two adverse rulings (the ruling that Holden's claim was moot, and the denial of his request for an attorney), Holden appealed the superior court's final decision to the Alaska Supreme Court. See AS 22.05.010(c) and Alaska Appellate Rule 202(a), which specify that the supreme court is the proper appellate court to hear appeals from the final decisions of the superior court in administrative appeals. Holden's appeal was docketed in the supreme court as File No. S-12389. However, shortly after Holden's appeal was docketed, the State filed a motion to transfer his appeal to this Court. In its motion, the State argued that this Court (rather than the supreme court) had jurisdiction over Holden's appeal. To support this jurisdictional argument, the State relied on this Court's decision in State v. Beltz, Alaska App. Memorandum Opinion No. 5079 (June 14, 2006), 2006 WL 1627918. In Beltz, this Court ruled that we had jurisdiction to resolve a question concerning the application of the Sex Offender Registration Act that was raised in the context of a criminal prosecution, even though we acknowledged that sex offender registration is a civil regulatory matter rather than a erimi-nal punishment. 2006 WL 1627918 at *1-2 (lead opinion) & *3-5 (Mannheimer, J., concurring). Based on this Court's decision in Beltz, the State took the position that the supreme court was not the proper court to hear Holden's appeal of the superior court's decision in this case, and that Holden's appeal should be transferred to this Court. Holden opposed the State's motion, but he was representing himself and he was obviously at a disadvantage when trying to respond to the State's fairly technical argument. The State's motion was granted by a single justice of the supreme court, and Holden's case was transferred to this Court. When Holden's case was sent to our Central Staff for screening and judicial assignment, the staff attorney who reviewed Holden's case perceived the jurisdictional problem and brought it to our attention. We then ordered the parties to file supplemental briefs on this jurisdictional question. Holden did not respond to our order, but the State filed a six-page brief on this issue. In its brief, the State has backed away from its earlier position that this Court clearly is the court to hear Holden's appeal. Instead, the State acknowledges that there are reasons to believe that Holden's appeal should be decided by the supreme court. The State suggests, however, that it would be better to have a sole appellate court decide all issues relating to the sex offender registration laws. For this reason, the State asks us to issue an opinion or order identifying which appellate court-this Court or the Alaska Supreme Court-should handle these legal duties. As we explain in the next section of this opinion, the State's proposal (to have one appellate court decide all issues relating to sex offender registration) is inconsistent with Alaska law. The jurisdiction of our state's two appellate courts is not defined by the types of legal issues presented in an appeal. Rather, the jurisdiction of the two appellate courts is defined by the type of proceeding that gives rise to the appeal. For this reason, the supreme court sometimes has jurisdiction over appeals where the primary issue is "criminal", and this Court sometimes has jurisdiction over appeals where the primary issue is "civil". This, in a nutshell, is why both appellate courts have in the past decided questions regarding Alaska's sex offender registration laws, and why both appellate courts will continue to decide questions concerning these laws. Why we lack jurisdiction to decide Holden's appeal Holden is appealing the final decision rendered by the superior court in an administrative appeal. The pertinent Alaska statutes and appellate rules specify that such appeals must be taken to the supreme court. AS 22.05.010(c) declares that "[a] decision of the superior court on an appeal from an administrative agency decision may be appealed to the supreme, court as a matter of right." Alaska Appellate Rule 202(a) contains the corollary that "(aln appeal may be taken to the supreme court from a final judgment entered by the superior court . in the cireumstances specified in AS 22.05.010." | Both this statute and this rule use the word "may". But the statute and the rule are permissive only in the sense that it is up to the parties to decide whether to pursue an appeal. Once a litigant decides to appeal the superior court's decision, Alaska law does not give the litigant a choice as to whether the supreme court or this Court will hear the appeal. Moreover, we appellate courts have no choice in this matter either. Instead, the provisions of AS 22.05 and AS 22.07 specify whether the appeal will be heard by the supreme court or by this Court. AS 22.05.010 declares that, even though the Alaska Supreme Court retains final appellate authority in all litigation conducted in the courts of this state, superior court litigants are not entitled to choose whether to file their appeals in the supreme court as opposed to the court of appeals. Rather, for all cases within the jurisdiction of the court of appeals, litigants are obliged to file their appeals in the court of appeals, and in all other cases, litigants are obliged to file their appeals in the supreme court. Subsection (a) of AS 22.05.010 states that litigants have "only one appeal as a matter of right from an action or proceeding commenced in . the superior court." And subsection (b) of the statute declares that litigants have a right to pursue an appeal in the supreme court "only in those actions and proceedings from which there is no right of appeal to the court of appeals under AS 22.07.020. ." In other words, a litigant's appeal will be heard by this Court-and not by the supreme court-if, under AS 22.07.020, the litigant has a right of appeal to this Court. In all other cases (that is, in all instances where a litigant has no right of appeal to this Court under AS 22.07.020), the litigant's appeal will be heard by the supreme court-and not by this Court. | When the legislature created this Court, the legislature declared in AS 22.07.020(a) that we would have appellate jurisdiction over certain specified types of superior court litigation. In particular, AS 22.07.020(a)(1) states that this Court has jurisdiction over all "actions and proceedings commenced in the superior court" that involve . criminal prosecution, post-conviction relief, juvenile delinquency (including waiver of juvenile jurisdiction under AS 47.12.100), extradition, habeas corpus,. probation and parole, and bail. For present purposes, the most important aspect of our jurisdictional statute is that it describes. our jurisdiction in terms of the types of litigation that might give rise to an appeal, rather than in terms of the types of legal issues that we might have to decide. From time to time, the types of litigation listed in AS 22.07.020(a) will give rise to appeals (and petitions) which present issues that might normally be considered "civil". For instance, in Martin v. State, 797 P.2d 1209 (Alaska App.1990), the issue was whether this Court had jurisdiction to hear the defendant's appeal of an order holding him in civil contempt for failing to furnish handwriting exemplars to the state troopers (pursuant to a search warrant authorizing the taking of these exemplars). The State argued that we had no jurisdiction to hear the defendant's appeal because the contempt action was civil rather than criminal Id. at 1216-17. But this Court gave a broad construction to the phrase "involving . criminal prosecution". We held that, because the civil contempt action arose out of a criminal prosecution, and because "judicial efficieney [would] be greatly promoted" if this Court heard the appeal, our acceptance of jurisdiction was "consistent with the legislative intent [behind] AS 22.07.020." Id. at 1217. Similarly, in Weidner v. State, 764 P.2d 717, 719-21 (Alaska App.1988), this Court confirmed its jurisdiction to hear the appeal of an attorney who was subjected to civil fines for disobedience to court orders during a criminal trial. Our decisions in Martin and Weidner can be viewed as examples of the rule identified by Judge Singleton in his concurrence in Webber v. Webber, 706 P.2d 829 (Alaska App.1985): that when a criminal case involves civil or quasi-civil supplemental or ancillary proceedings, these proceedings "are really part and parcel" of the underlying eriminal proceeding. Webber, 706 P.2d at 383. This conclusion is borne out by our decision in R.L. v. State, 894 P.2d 683 (Alaska App.1995). The appellant in RJ was adjudicated a juvenile delinquent. As one of the conditions of his probation, he was ordered to make restitution in the amount of approximately $3000. Later, because of various violations of his probation (including his failure to make restitution), the superior court revoked RL.'s probation and institutionalized him. In addition, because it appeared likely that RL. would remain institutionalized until the court's juvenile jurisdiction over him ended, the superior court entered a civil judgement against R.I. (in favor of the victims of his crimes) for the amount of the unpaid restitution. On appeal, we held that the superior court lacked authority to convert the restitution order into a civil judgement. We acknowledged that the superior court acted for the purpose of "ensur[ing] that RI. eventually paid the restitution, even if payment did not oceur until after RLI.'s release from juvenile supervision". However, we held that "in attempting to achieve this goal, the [superi- or] court acted beyond its legal powers." Our decision in RJ. confirms the legal principle recognized in Martin, Weidner, and Webber: the principle that this Court has jurisdiction to decide appeals or petitions that raise issues that might be viewed as "civil", so long as these issues arise from the types of litigation listed in our jurisdictional statute. On the other hand, the fact that the matter being litigated involves a question of criminal procedure, or hinges on the interpretation of a criminal statute, or arises as a consequence of a criminal conviction, does not necessarily mean that this Court has jurisdiction over the appeal. Indeed, the Alaska Supreme Court has repeatedly adjudicated issues that are primarily "criminal" when those issues arose in the types of legal proceedings that are directly appealable to the supreme court. Here are several examples from the last three years: State of Alaska & Alaska Office of Victims' Rights v. Murtagh et al., 169 P.3d 602 (Alaska 2007) (construing and adjudicating the constitutionality of various provisions of the Victims' Rights Act governing defense attorneys and defense investigators); Gabrielle v. Dept. of Public Safety, 158 P.3d 813 (Alaska 2007) (interpreting various statutes that limit or prohibit a felon's possession of a concealable firearm); Hartman v. Division of Motor Vehicles, 152 P.3d 1118 (Alaska 2007) (adjudicating the lawfulness of an in vestigative stop); Cooper v. Cooper, 144 P.3d 451 (Alaska 2006) (interpreting the elements of the offenses of stalking and violating a protective order); Crawford v. Kemp, 189 P.3d 1249 (Alaska 2006) (adjudicating the lawfulness of an arrest for disorderly conduct); Saltz v. Division of Motor Vehicles, 126 P.3d 183 (Alaska 2005) (adjudicating the lawfulness of an investigative stop for driving under the influence). In fact, on July 25th of this year, the Alaska Supreme Court issued an opinion deciding the question of whether the Sex Offender Registration Act imposes a "punishment" for purposes of the Alaska Constitution's ex post facto clause (Article I, Seetion 15). See Doe v. State, 189 P.3d 999 (2008). In Doe, the supreme court held that sex offender registration is punishment for ex post facto purposes-and, thus, the registration requirement can not lawfully be imposed on a defendant whose offense predates the enactment of the registration law. Because the supreme court's decision in Doe appears to require reversal of the superior court's underlying decision in this case, we will speak more of the Doe decision later. For present purposes, however, Doe is important because it provides yet another illustration that the Alaska Supreme Court will decide "criminal" issues if those issues are presented in the types of civil litigation that are appealable to that court. We addressed this jurisdiction issue in Higgins v. Briggs, 876 P.2d 539 (Alaska App.1994). Higgins involved a prisoner who sought judicial review of the Department of Corrections' decision to take away his good time credit for alleged misbehavior. After the superior court denied relief, Higgins filed an appeal in this Court. We ruled that the underlying superior court litigation should have been filed as an administrative appeal. Id. at 542. We further ruled that, because the underlying superior court litigation should have been treated as an administrative appeal, Higgins's appeal of the superior court's decision should have been taken to the supreme court under AS 22.05.010(c). Thus, we concluded that we did not have jurisdiction to hear Higgins's appeal of the superior court's decision. Id. at 548-44. It is true that this Court has previously decided issues involving the proper interpretation and application of Alaska's sex offender registration laws. See State v. Beltz, Alaska App. Memorandum Opinion No. 5079 (June 14, 2006), 2006 WL 1627918; State v. Otness, 986 P.2d 890 (Alaska App.1999). It is also true that the duty to register as a sex offender arises as a consequence of a criminal conviction. But the reason this Court had jurisdiction over the appeals in Beltz and in Otness is not that sex offender registration is "quasi-criminal", or that the requirement of sex offender registration arises as a consequence of a criminal conviction. Rather, our jurisdiction in Beltz and Otness was based on the fact that both cases were appeals from orders entered in criminal prosecutions. If these same legal issues had arisen in appeals of final decisions issued by the superior court in administrative appeals (or in any other type of civil litigation where the parties have a right of appeal to the supreme court), this Court would have lacked jurisdiction over the appeals despite the "quasi-criminal" nature of the issues raised. In Holden's case, the decision being appealed is the final decision issued by the superior court in an administrative appeal. AS 22.05.010(c) declares that this type of appeal must be pursued in the supreme court, and Higgins v. Briggs squarely holds that this Court has no jurisdiction to hear this type of appeal. Nevertheless, when a litigant has a right of appeal (as Holden does in this case), and the problem is that the appeal has been filed in the wrong appellate court (i.e., filed in the appellate court that lacks jurisdiction over the appeal), AS 22.05.015(c) declares that the appeal "[must] not be dismissed". Rather, "tlhe case shall be transferred to the proper court." Accordingly, we TRANSFER Holden's appeal to the Alaska Supreme Court. The Clerk of the Appellate Courts is directed to re-open File No. S-12389. The decision to transfer this case to the supreme court would normally be our final word in an appeal. However, we would be remiss if we did not alert the parties to the fact that the supreme court's recent decision in Doe-i.e., the decision that sex offender registration is a "punishment" for purposes of our state constitution's ex post facto clause-means that the superior court's decision in Holden's case was wrong. As explained above, Holden argued to the superior court that his offense (assault with intent to commit rape under Alaska's former criminal code) was not covered by the definition of "aggravated sex offense" codified in the former version of AS 12.63.100(1). The superior court ruled that Holden's claim was moot-because, while Holden's litigation was pending, the legislature amended the definition of "aggravated sex offense" so that it now applies to offenses committed under Alaska's former criminal code. The underlying legal premise of the superior court's ruling is that the new version of the statute (the version enacted while Holden was litigating in the superior court) can lawfully be applied to Holden. But in Dog, the Alaska Supreme Court declared that this premise is wrong. The supreme court held that sex offender registration is a form of punishment for ex post facto purposes, and thus the registration requirement can not be imposed on defendants whose sexual offense pre-dates the enactment of the law. Because the Sex Offender Registration Act was first enacted in 1994, and because Holden's offense was committed in the mid-1970 , it appears that Holden is exempt from the registration requirement. And certainly, with respect to the precise issue litigated in the superior court in this case, Holden is exempt from the expanded definition of "aggravated sex offense" that the legislature enacted after Holden initiated his administrative appeal. Because of this, the parties may wish to discuss whether this case can be resolved in the superior court without the necessity of an appeal to the supreme court. . Former AS 11.15.160 provided: "A person who assaults another with intent to kill, or to commit rape or robbery upon the person assaulted, is punishable by imprisonment in the penitentiary for not more than 15 years nor less than one year." . R.I., 894 P.2d at 684. . 894 P.2d at 685. . Id. . See SLA 1994, ch. 41, § 4. . See Holden v. State, 602 P.2d 452 (Alaska 1979).

11113380

Joyce LOPEZ, Appellant, v. ADMINISTRATOR, PUBLIC EMPLOYEES' RETIREMENT SYSTEM, Appellee

Lopez v. Administrator, Public Employees' Retirement System

2001-04-06

No. S-9294

568

576

20 P.3d 568

20

Pacific Reporter 3d

Alaska Supreme Court

Alaska

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

CAP

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

Joyce LOPEZ, Appellant, v. ADMINISTRATOR, PUBLIC EMPLOYEES' RETIREMENT SYSTEM, Appellee.

Joyce LOPEZ, Appellant, v. ADMINISTRATOR, PUBLIC EMPLOYEES' RETIREMENT SYSTEM, Appellee. No. S-9294. Supreme Court of Alaska. April 6, 2001. Michael J. Jensen, Law Offices of Michael J. Jensen, Anchorage, for Appellant. Kathleen Strasbaugh, Assistant Attorney General, Bruce M. Botelho, Attorney General, Juneau, for Appellee. Before FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.

4463

28279

OPINION MATTHEWS, Justice. I, INTRODUCTION Joyee Lopez appeals the Public Employees' Retirement Board's denial of her claim for occupational disability benefits. Lopez argues that the Board's decision was not supported by substantial evidence, that the Board applied the incorrect legal standard to its factual findings, that the Board improperly excluded Lopez's compromise agreement with the State from evidence, and that the Board improperly failed to take judicial no tice of the past testimony in other cases of one of Lopez's examining physicians. Because substantial evidence supported the Board's conclusion that Lopez's disability was caused by a degenerative hip condition unrelated to her work, because the Board correctly considered whether an occupational injury had been a "substantial factor" in Lopez's disability, and because the Board did not abuse its discretion in making its eviden-tiary decisions, we affirm the Board's decision. II, FACTS AND PROCEEDINGS Joyee Lopez began work as a resident aide at the State's Harborview Developmental Center in early 1976. Her job was strenuous, as many of the center's developmentally disabled patients needed to be lifted and moved every two hours. Although Lopez endured several on-the-job injuries and suffered from chronic lower back pain, neither her injuries nor her back pain permanently affected her ability to do her job. On April 9, 1996, however, Lopez injured her lower back while lifting a Harborview resident; she never returned to work after that injury. Lopez applied for occupational disability benefits in November 1996. Because Harborview was closing, Lopez was able to retire under a retirement incentive program while her application for disability benefits was pending. Lopez's application for occupational disability benefits was denied, but she was approved for non-occupational disability benefits on the basis of her inability to work as a resident aide and the lack of alternate employment opportunities with her employer. f Lopez appealed the denial of occupational disability benefits to the Public Employees' Retirement Board. On appeal, Lopez testified that since her injury she had suffered from extreme pain in her back, radiating through her hip, that made it impossible for her to return to work as a resident aide. Relying on the report of one of Lopez's examining physicians, however, the Board found that Lopez's disabling pain was caused by degenerative arthritis in her hip, a condition which did not have a substantial relationship to any job hazard or incident. The Board thus rejected Lopez's appeal, finding that Lopez had not established that a condition or hazard undergone in the course of her employment was a substantial factor in causing her disability. Lopez appealed the Board's decision to the superior court, which affirmed the Board's decision. This appeal follows. III. STANDARD OF REVIEW When the superior court acts as an intermediate court of appeal, we review the agency's decision directly. We review questions of law involving ageney expertise under the "reasonable basis" test, where we defer to the ageney's interpretation of a law unless it is unreasonable. Questions of law not involving ageney expertise are reviewed under the "substitution of judgment" standard. We review an administrative board's factual findings to determine whether they are supported by substantial evidence Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support [the Board's] conclusion." We determine only whether such evidence exists and do not choose between competing inferences or evaluate the strength of the evidence. In determining whether evidence is substantial, however, we "must take into account whatever in the record fairly detracts from its weight. This court reviews the exclusion of evidence by administrative boards for abuse of discretion. IV, DISCUSSION A. Substantial Evidence Supported the Board's Finding that Lopez's Disability Was Caused by a Degenerative Hip Condition Unrelated to Her Work. Lopez argues that the Board's conclusion that her disability was caused by a degenerative hip condition unrelated to her work was not supported by substantial evidence. Specifically, Lopez attacks the Board's reliance on the report of an examining physician, Dr. Bryan Laycoe, contending that Dr. Laycoe's conclusions were contradicted by all of the other physicians who examined Lopez. The Public Employees' Retirement System (PERS) argues, however, that the Board was justified in relying on Dr. Layeoe's report because his conclusions were based on a thorough examination of Lopez, supported by objective evidence, and consistent with the conclusions of other doctors who examined Lopez. Our review of the record convinces us that the Board did not err in basing its conclusion upon Dr. Lay-coe's report. "An employee is eligible for an occupational disability benefit if employment is terminated because of a total and apparently permanent occupational disability, as defined in AS 39.35.680.... Alaska Statute 39.35.680 defines an "occupational disability" as a physical or mental condition that . presumably permanently prevents an employee from satisfactorily performing the employee's usual duties for an employer .; however, the proximate cause of the condition must be a bodily injury sustained, or a hazard undergone, while in the performance and within the scope of the employee's duties.[ ] The conclusion that a work-related injury or hazard is not the "proximate cause" of an employee's disability must be supported by substantial evidence. We have held that an administrative agency may not reasonably base its conclusion solely upon the opinion of a doctor who did not examine the patient in any depth and disagreed with the opinions of all of the patient's treating physicians. But we have also held that it is not unreasonable for an administrative board to rely upon the testimony of a reviewing physician whose testimony is consistent both with the opinion of an examining doctor and with the objective evidence. In making its findings, the Board relied most heavily on the report of Dr. Laycoe. Dr. Layeoe, an orthopedic surgeon, examined Lopez on January 11, 1997. He took a personal history, conducted a physical examination, and reviewed Lopez's previous X-rays and medical records. His examination lasted for an hour and twenty-five minutes. Dr. Layeoe tested Lopez's range of motion in her back, but the results were not valid because of guarding. He also performed a Waddell's compression test and a rotation test, which were meant to measure whether Lopez "hald] . an emotion[al] overlay or psychological factor to treating [her] back pain." During both tests, Lopez complained of pain in her back, results which suggested that Lopez "expresse[d]) more pain [in her back] than [was] truly there." The X-rays of Lopez's back showed evidence of osteoporosis, but no evidence of any significant abnormalities or degenerative changes. Dr. Ken Smith, the Division of Retirement and Benefits' reviewing physician, later testified that "osteoporosis doesn't, in itself, give pain, unless it causes fractures" and that Lopez's X- rays did not show evidence of any fractures. On the basis of his examination, Dr. Layeoe concluded that Lopez had not suffered a permanent back injury. The X-ray of Lopez's hip, by contrast, showed clear evidence of abnormalities asso-clated with degenerative arthritis Lopez's MRI was also consistent with arthritic changes in her hip. In the absence of any objective evidence of a permanent back injury, Dr. Laycoe concluded that the pain Lopez "felt" in her back was actually referred from, and caused by, her degenerative hip. Dr. Layeoe also concluded that Lopez's hip problem, like the degenerative arthritis in the basal joints of both her thumbs, was the "natural progression of a degenerative arthritis with genetic predisposition," rather than the result of a work-related injury. Dr. Laycoe's examination of Lopez lasted for an hour and twenty-five minutes, substantially longer than the twenty minute interview and brief examination we criticized in Black. In addition, Dr. Layeoe's conclusions were consistent with the objective evi-denee of Lopez's X-rays and MRI. Although Dr. Laycoe's conclusions were contradicted by Lopez's reports of increased back pain, Lopez's complaints of back pain were not validated by her range of motion test, and her Waddell's compression test and rotation test suggested that her feelings of back pain were exaggerated. Additionally, Dr. Laycoe's conclusions were consistent with the reports of some of the other physicians who examined Lopez. After his examination of Lopez, Dr. Michael James, like Dr. Layeoe, concluded that the X-rays of Lopez's back were within normal limits, that Lopez's MRI revealed no evidence of a degenerative back condition, and that some of Lopez's range of motion tests were invalid. After discovering an "(inflammatory reaction of [Lopez's] right hip . unrelated to her industrial injury," Dr. James recommended that Lopez be placed on light duty "based upon her hip more so than her lumbar spine." Dr. Gerald Morris also examined Lopez. He concluded that Lopez's joint complaints, while not fully explained, were "consistent with inflammatory disorder," and did not exclude psoriatic arthritis as a possible cause. Dr. Smith did not examine Lopez himself, but did review all of her medical records. In his testimony before the Board, Dr. Smith supported Dr. Laycoe's conclusions. Although supported by Dr. James, Dr. Morris, and Dr. Smith, Dr. Laycoe's conclusions were challenged by Dr. Leland Olkjer, Lopez's chiropractor. Dr. Olkjer testified that Lopez had not reported symptoms in, or been treated for, her hip or lower back prior to April 1996, but had experienced problems in those areas after that time. Dr. Olkjer believed that Lopez had suffered a serious back sprain in April 1996, and that her hip pain was referred from her back injury. Dr. Olkjer thus concluded that Lopez's disability was caused by her April 1996 work injury. But Dr. Olkjer's testimony was contradicted by other facts in the record. Dr. James reported that Lopez had received chiropractic treatment for lower back pain for the past twelve years. Dr. Olkjer denied that he had provided that care. However, when asked whether she had received chiropractic care for lower back pain over the past twelve years, Lopez herself testified that she had received such care. Having heard Dr. Olkjer's testimony, Dr. Smith did not change his opinion that Lopez's disability was caused by her arthritic hip rather than by her 1996 injury or a degenerative back condition. Dr. Olkjer was the only medical expert whose opinion clearly contradicted Dr. Lay-coe's. Dr. Steven Tower's original one-page report stated that the "probable cause" of Lopez's hip pain was "lifting residents." Dr. Coyle felt that Lopez's MRI possibly represented some local trauma to the hip or a possible stress fracture. Dr. Kathleen Todd stated that Lopez's 1996 injuries "were the predominant cause for her right hip and low back condition," but qualified that statement by noting that she had not seen or even spoken to Lopez for three months, and that "[her] evaluation at that time was based quite extensively on what [Lopez] said that the doctors in Anchorage said, so is really hearsay, and not [her] own observation." Lopez briefly argues that if her disability was in fact caused by an arthritic hip, the Board erred by failing to rule out the possibility that her arthritis had. been caused by her work. Unlike the employees in the workers' compensation cases that Lopez cites in support of her argument, however, Lopez bore the burden of proving a relationship between her work and her disability. Until her brief before the superior court, Lopez never argued that her work bore any relationship to her degenerative hip condition. The uncontradicted evidence before the Board was that Lopez's hip condition was not caused by her work. The Board's finding that Lopez's hip problems were not caused by her work was thus supported by substantial evidence. Dr. Layeoe's conclusions were not only the product of a thorough examination, but were also consistent both with the objective evidence and with the reports of some of Lopez's other examining doctors. Accordingly, his report provided the substantial evidence needed to support the Board's conclusion that Lopez's disability was caused by a degenerative hip condition unrelated to her work. B. The Board Applied the Correct Legal Standard in Considering Whether an Occupational Injury Was a "Substantial Factor" in Lopez's Disability. Lopez also argues that the Board applied the incorrect legal standard in denying her claim for occupational «disability benefits. Highlighting the Board's factual finding that her 1996 injury "was not so significant in and of itself to have been a substantial factor in her current state of disability," (emphasis added) Lopez contends that the Board erred as a matter of law either by requiring her to prove that her 1996 injury was the sole cause of her disability, or by requiring her to prove that her 1996 injury worsened her underlying condition rather than merely worsening its symptoms. PERS contends, however, that the Board only required Lopez to prove that her work-related injuries were a "substantial factor" in her disability. Upon review, we find that the Board correctly required Lopez to prove only that a work-related injury or condition was a "substantial factor" in her disability. An employee will be eligible for occupational disability benefits if a work-related injury or hazard is the "proximate cause" of a disability that prevents her from working. In State, Public Employees' Retire ment Board v. Cacioppo, we held that "[ilf one or more possible causes of a disability are occupational, benefits will be awarded where the record establishes that the occupational injury is a substantial factor in the employee's disability regardless of whether a nonoccupational injury could independently have caused disability." In Hester, we further held that a work-related injury can be a "substantial factor" in an employee's disability if it aggravates the symptoms of an underlying health condition, even if it has no effect on the underlying health condition itself. Correctly citing Cacioppo as the controlling legal authority, the Board found that Lopez's 1996 injury simply masked the ongoing referral of pain from her degenerating hip, that Lopez was not suffering from a degenerative back condition, and that the cause of Lopez's disability was the degenerative arthritis in her hip, which had no substantial relationship to any job hazard or incident. The Board did not, in other words, find that Lopez would have been disabled either by her arthritic hip or by her back, but instead found that the sole cause of Lopez's disability was her arthritic hip. Accordingly, because not even "one . possible cause[ ] of [Lopez's] disability was occupational," the Board correctly applied our holding in Cacioppo in finding that Lopez's occupational injury was not a substantial factor in her disability. Although a work-related injury can be a "substantial factor" in a disability if it aggravates the symptoms of an underlying health condition, the injury must have a causal connection to the worsening of those symptoms for the injury to "aggravate" them. The Board found, however, that the lasting pain Lopez experienced after her 1996 injury was caused by her hip problems rather than by the injury, and that the 1996 injury simply served to "mask"-rather than to aggravate-the ongoing referral of pain from Lopez's degenerating hip. Because the 1996 injury did not cause the "aggravated symptoms"-the lasting and severe pain-that disabled Lopez, the Board did not err in finding that the 1996 injury was not a "substantial factor" in Lopez's disability. C. The Board Did Not Abuse Its Discretion by Excluding the Compromise and Release Agreement from Evidence. Lopez also contends that the Board erred by not admitting into evidence the compromise and release agreement reached between Lopez and the State (her former employer). Lopez argues that because it was contrary to the State's interests for it to admit that Lopez's disability was work-related, the agreement was reliable enough to be considered by the Board. PERS argues, to the contrary, that the agreement represented nothing more than a compromise settlement of a disputed claim, and was thus not the kind of evidence upon which the Board could have responsibly relied. We find that the Board did not abuse its discretion in exelud-ing the compromise agreement from evidence. The rules governing the hearing before the Board state: The hearing will not be conducted according to technical rules relating to evidence and witnesses. Relevant evidence, including hearsay evidence, will be admitted if it is evidence on which responsible persons are accustomed to rely in the conduct of serious affairs. Irrelevant and unduly repetitious evidence will be excluded or curtailed.[ ] Although hearings before the Board are governed by 2 AAC 85.160(c) rather than by the Alaska Rules of Evidence, both parties appeal to the rules as persuasive authority. Lopez contends that the agreement was reliable either as an admission by a party opponent (Evidence Rule 801(d)(2)), or as a statement against interest (Evidence Rule 804(b)(8)). PERS argues, to the contrary, that the compromise agreement was, by its own terms, an unreliable compromise agreement (Evidence Rule 408). Rules 801(d)(2) and 804(b)(8) both provide exceptions to the general bar on hearsay. Rule 801(d)(2) states that hearsay does not include admissions by a party opponent or a party opponent's agent. But we have held that because PERS and the State (as an employer) are not in privity, the State's actions do not bind PERS as would the acts of one of PERS's agents. Where a declarant is unavailable, Rule 804(b)(8) provides an exception to the hearsay rule for 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 . liability, . that a reasonable person in the declarant's position would not have made the statement unless believing it to be true. Regardless of the statements it makes, however, the State bears broad potential liability to a disabled worker under workers' compensation law, where compensability is presumed. Evidence Rule 408 bars the introduction of "[evidence of . offering . a valuable consideration in compromising . a [disputed] claim . to prove lability for or invalidity of the claim," and also bars "[elvi-dence of conduct or statements made in compromise negotiations." Rule 408 is meant both to facilitate the settlement of disputes, and to bar the introduction of irrelevant evidence reflecting "a desire for peace rather than . any concession of weakness of position." Rule 408 clearly bars admission of a compromise between the litigant and a third party against a litigant, as litigants would be less willing to make compromises with third parties if those compromises could be used against them in later litigation. Unlike introduction of a settlement agreement with a third party against a litigant, however, permitting a litigant to introduce evidence of his or her own compromise with a third party generally should not be a deterrent to settlement. But in such a case the compromise settlement is still ordinarily of little probative value, reflecting, not the litigant's, but the third party's desire for peace rather than any concession of a weak position. The agreement contains a lengthy recitation of facts about Lopez's injury, taken from Lopez's medical reports. 'To settle Lopez's controverted workers' compensation claims, the State agreed to pay her $20,000 in exchange for a release from future lability. Lopez argues, and the State implicitly concedes, that various elements of the agreement represent "admissions" by the State that Lopez's disability was caused by a work-related injury. The facts about Lopez's disability are the most relevant part of the agreement. But those facts merely repeat the information contained in the medical reports already before the Board. Admission of this portion of the agreement would thus be "unduly repetitious." What makes the agreement unique is the State's admission that Lopez's disability was caused by a work-related injury. But the reliability of that admission is suspect for three reasons. First, the agreement's reliability is not secured by its being an admission of a party opponent or a party opponent's agent. The State, of course, was not a party to this case. Moreover, the State is not PERS's agent, and so the admissions of the State cannot be attributed to PERS. It is not insignificant, too, that no representative of the State could have testified as an "author" of the agreement. Lopez does not rebut PERS's assertion that the agreement was actually authored by Lopez's counsel. Second, the State's admission of liability was not "so far contrary" to the State's interests as to make the agreement reliable. Most obviously, use of this admission against the State in a subsequent proceeding would be barred by Evidence Rule 408. In addition, under workers' compensation law, the State already faced a presumption that Lopez's injury had been caused by a work-related incident. In the face of such a presumption, contesting 'Lopez's claim was certain to be costly. At the time of settlement, then, conceding the work-relatedness of Lopez's disability for settlement purposes was not "so far contrary to the [State's] pecuniary . interest," and did not "so far tend[ ] to subject the [State] to civil . liability," that reasonable people would not have made the concession unless they believed it to be true. Third, the State had a substantial financial incentive to settle Lopez's disputed claims. Although the claim was controverted at the time of settlement, the State was still paying Lopez $361.33 a week in vocational rehabili tation benefits. Admitting liability relieved the State from this continuing financial obligation. Moreover, the costs of the settlement were relatively low, representing only fourteen weeks of PPI benefits plus rehabilitation benefits for an additional thirty-seven weeks. The reliability of such a compromise settlement is similarly low, for it could easily represent the State's desire to buy peace rather than an acknowledgment of a weak position. Lopez also implicitly argues that this court should discount Dr. Layeoe's testimony because these decisions reveal his pro-PERS bias. PERS argues, in reply, that Dr. Lay-coe's credibility was a matter for the Board's determination rather than this court's. Lopez's attempt to reopen the question of Dr. Laycoe's credibility is unavailing: "Weighing the evidence is the role of the board, not this court." Because the relevant portions of the agreement were unduly repetitious, and its unique aspects were unreliable, the Board did not abuse its discretion in excluding the agreement from evidence. D. The Board Did Not Err by Not Taking Judicial Notice of Alaska Workers' Compensation Board Decisions in Which Dr. Layeoe's Opinions Were Reported. Lopez argues that the Board should have taken judicial notice of Dr. Layeoe's previous pro-employer testimony in reported decisions of the Alaska Workers' Compensation Board. PERS argues, in reply, that Lopez failed to present this evidence to the Board, and that the Board thus did not err in failing to take judicial notice of it. The rules applicable to the proceeding before the Board do not discuss the issue of judicial notice; instead, they provide generally for the admission of relevant, reliable, and non-repetitious evidence. Under the Rules of Evidence, a judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within Alaska or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. A court may take notice of such facts whether or not it is requested to do so. A court must take notice of such facts "if the requesting party furnishes sufficient information and has given each party notice adequate to enable the party to meet the request." Lopez first requested judicial notice of Dr. Layeoe's prior testimony in her brief to the superior court. As Lopez made no request for judicial notice to the Board, the Rules of Evidence would not have required the Board to take such notice. The Board thus did not abuse its discretion by failing to take judicial notice of Dr. Layeoe's past testimony. V. CONCLUSION Because the Board applied the correct legal standard in concluding that Lopez was disabled by a degenerative hip condition unrelated to her work-a conclusion supported by substantial evidence-and did not abuse its discretion in its evidentiary rulings, we AFFIRM the Board's decision. . See Handley v. State, Dep't of Revenue, 838 P.2d 1231, 1233 (Alaska 1992). . See id.; State, Dep't of Revenue v. Atlantic Richfield Co., 858 P.2d 307, 308 (Alaska 1993). . See Handley, 838 P.2d at 1233. . See Hester v. State, Public Emp. Retirement Bd., 817 P.2d 472, 476 (Alaska 1991). . Id. (internal quotation omitted, brackets in original). . See Handley, 838 P.2d at 1233. . Hester, 817 P.2d at 477 n. 8 (Rabinowitz, C.J., dissenting). . See DeYonge v. NANA/Marriott, 1 P.3d 90, 94 (Alaska 2000). See also Bonneville Auto. Ins. Co. v. Insurance Div., Dep't of Commerce, 53 Or.App. 440, 632 P.2d 796, 802 (1981). . AS 39.35.410(a). . AS 39.35.680(26). . See Hester, 817 P.2d at 476. . See Black v. Universal Services, Inc., 627 P.2d 1073, 1075-76 (Alaska 1981). . See Childs v. Copper Valley Elec. Ass'n, 860 P.2d 1184, 1189-90 (Alaska 1993). . 627 P.2d at 1076 n. 9. . See State, Pub. Emp. Retirement Bd. v. Cacioppo, 813 P.2d 679, 682-83 (Alaska 1991). . See AS 39.35.410(a); AS 39.35.680(26). . 813 P.2d at 683 (emphasis added). . 817 P.2d at 475. . Cacioppo, 813 P.2d at 683. . See Hester, 817 P.2d at 475. . 2 AAC 35.160(c). . See Holmberg v. State, Div. of Risk Management, 796 P.2d 823, 827-29 (Alaska 1990) (finding no privity, and therefore no collateral es-toppel effect to PERS decisions in workers' compensation proceedings, because "[the PERS constituency is not represented at all in a workers' compensation proceeding"). . See Hester, 817 P.2d ar 476. . Commentary to Evidence Rule 408. . See McInnis v. A.M.F., Inc., 765 F.2d 240, 247 (1st Cir.1985). . See Bulaich v. AT & T Information Systems, 113 Wash.2d 254, 778 P.2d 1031, 1036 (1989); 23 Charles A. Wright & Kenneth W. Graham, Jr., Federal Practice & Procedure: Evidence § 5303, at 194 (1980). But see Pierce v. F.R. Tripler & Co., 955 F.2d 820, 828 (2d Cir.1992) (barring admission of settlement agreement even when offered by settlor, noting that testimony as to terms of settlement agreement by lawyers involved would prevent those lawyers' representation of the parties at trial). . See 2 AAC 35.160(c). . See Holmberg, 796 P.2d at 827-29. . See Hester, 817 P.2d at 476. . Alaska R. Evid. 804(b)(3). . See Commentary to Evidence Rule 408. . Hester, 817 P.2d at 477 (rebutting appellant's contention that the administrative board "gave inordinate weight to the testimony of [a doctor}, considering his bias as a member of the DRB, his lack of personal medical knowledge of {appellant] and his lack of special expertise relating to [appellant's disorder)."). . See 2 AAC 35.160(c). . See Alaska R. Evid. 201(b). . See Alaska R. Evid. 201(c). . Alaska R. Evid. 201(d). . See id.

11113247

Craig B. LEUTHE, Appellant, v. STATE of Alaska, COMMERCIAL FISHERIES ENTRY COMMISSION, Appellee

Leuthe v. State, Commercial Fisheries Entry Commission

2001-03-30

No. S-9343

547

553

20 P.3d 547

20

Pacific Reporter 3d

Alaska Supreme Court

Alaska

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

CAP

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

Craig B. LEUTHE, Appellant, v. STATE of Alaska, COMMERCIAL FISHERIES ENTRY COMMISSION, Appellee.

Craig B. LEUTHE, Appellant, v. STATE of Alaska, COMMERCIAL FISHERIES ENTRY COMMISSION, Appellee. No. S-9343. Supreme Court of Alaska. March 30, 2001. C. Michael Hough, Homer, for Appellant. John T. Baker, Assistant Attorney General, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee. Before FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.

3190

19780

OPINION FABE, Chief Justice. I,. INTRODUCTION Craig Leuthe applied to the Alaska Commercial Fisheries Entry Commission (CFEC) for an entry permit three years after the 1975 deadline. CFEC accepts late applications if the applicant was misadvised about eligibility prior to the 1975 deadline. CFEC considered Leuthe's claim in several proceedings and rejected his claim on several grounds, including the fact that Leuthe had not been misadvised. Leuthe appealed, and the superior court again rejected his claim. Because Leuthe has not met his burden of showing that he was misadvised about his eligibility, we affirm the superior court's decision. II. FACTS AND PROCEEDINGS In 1978 the Alaska Legislature enacted the Limited Fisheries Entry Act, AS 16.48.010-990. The Act established the Commercial Fisheries Entry Commission, and charged it with protecting distressed fisheries by granting a limited number of actess permits to commercial fishers Under the Act, only persons who had already held a gear license prior to the Act were eligible for permits. CFEC was directed to rank permit applicants based on the degree of hardship they would suffer if excluded from the fishery; this in turn depended on how financially reliant on the fishery an applicant had been in past years CFEC established a complex point system for ranking applicants, and for the fishery at issue in this case, set up an initial application period of December 19, 1974 through March 18, 1975. This deadline was later extended to April 18, 1975,6 with an additional extension to May 18, 1975 for good cause shown. The CFEC apparently granted the May 18 "good cause" extension to every applicant who requested it. It also made considerable effort to notify eligible persons of the impending change in the law, using mass mailings, individual phone calls, and television, radio, and newspaper announcements. Craig Leuthe worked as a drift gill net fisher in Cook Inlet beginning around 1966. He held a gear license from 1967 to 1970, but made no recorded deliveries under those license numbers for two of those years. Leuthe and his partner sold their boat in 1970. In 1975 Leuthe worked as a teacher in Anchorage. In early May of that year, after the initial permit application deadline, but before the May 18 "good cause extension" deadline, he visited the Alaska Department of Fish and Game to inquire about an entry permit. A Fish and Game employee told him that he did not qualify for enough points under CFEC's ranking system to receive a permit, and advised him not to bother applying. Leuthe did not apply, but later learned that friends with similar fishing experience had received permits. Therefore, in June of 1978, three years after the deadline, Leuthe filed an application for a Cook Inlet salmon drift gill net entry permit. He initially claimed nine points, but amended his application the next day to claim eighteen. Only persons who showed eligibility for at least sixteen points could receive the Cook Inlet entry permits. CFEC initially denied the application, and Leuthe requested a hearing. After numerous delays, the hearing took place in September of 1981. Leuthe was represented by counsel and presented testimony of a witness, as well as documentary evidence. At his request, the record was kept open through January 7, 1982 so that Leuthe could submit additional evidence relating to his point claims. Under CFEC's "misadvice policy," CFEC could accept Leuthe's late application only if Leuthe showed that (1) he spoke to the CFEC agent before the deadline, (2) he received bad advice from the agent, and (3) he missed the deadline as a result of this misad-vice. The hearing officer found Leuthe ineligible for this "misadvice policy" exception to the deadline on several grounds. First, he concluded that April 18, 1975 was the applicable deadline. Leuthe was not eligible for the May deadline because he made no showing of good cause-in fact, the hearing officer concluded, Leuthe's lateness was caused by his own lack of due diligence. Even if this problem were set aside, the hearing officer reasoned, Leuthe would not be eligible for the "misadvice policy" exception to the deadline because the agent who spoke to Leuthe correctly advised him that he did not have enough points to obtain an entry permit. The hearing officer reviewed Leuthe's point claims, and found him eligible for only nine of the sixteen points necessary to obtain a permit. He recommended that CFEC deny Leuthe's application. CFEC notified Leuthe of this recommendation, and of his right to respond and request an oral hearing before CFEC. Leuthe did not respongi. In 1986 CFEC considered the hearing officer's recommendation and issued a decision denying Leuthe's application. CFEC concluded without discussion that Leuthe's application was barred for late filing. It explicitly declined to consider or adopt the hearing officer's analysis of Leuthe's point claims. Leuths petitioned for reconsideration of this decision, listing specific grounds that he challenged, and CFEC agreed to review the decision on those grounds. Twelve years later, in 1998, CFEC issued its decision on reconsideration of Leuthe's claims. The decision reviewed Leuthe's case history in detail. CFEC concluded that, because Leuthe had not alleged any good cause, the applicable deadline was April 18, 1975. Leuthe missed this deadline, it found, because of his own lack of interest in fishing, and not because of any advice received. In addition, CFEC recalculated Leuthe's claimed points and concluded that the agent's advice had been correct: Leuthe was ineligible for a permit. CFEC again denied Leuthe's application. Leuthe appealed to the superior court. Judge Harold M. Brown affirmed CFEC's denial of a permit, holding that because Leuthe was substantively ineligible for a permit, his procedural and timeliness arguments were moot. Leuthe now appeals to this court. Throughout the pendency of his application, Leuthe has maintained an interim use permit for the Cook Inlet salmon drift gill net fishery. III STANDARD OF REVIEW Because the superior court acted in this case as an intermediate court of appeal, we will review the merits of the underlying administrative decision independently, without deferring to the superior court's decision. We may affirm the decision below on any ground supported by the record. When an agency's interpretation of statutory terms "implicates agency expertise or the determination of fundamental policies within the scope of the agency's statutory functions," we apply the "reasonable basis" standard of review. When the agency's specialized knowledge and experience would not be particularly probative of the meaning of the statute, we apply the independent judgment standard and reach our own interpretation of the statute. When an agency applies its discretionary power to waive or uphold a deadline, we will overturn its decision only upon a showing of abuse of disceretion. Finally, we apply the "substantial evidence" standard to agency findings of fact. We review issues of constitutional law under the independent judgment standard. IV. DISCUSSION Because Leuthe filed his application three years after the 1975 deadline, CFEC need not consider the application unless Leuthe shows that he is eligible for the "misadvice" deadline exception. Leuthe's required factual showing for this exception can be broken down into three elements: (1) that Leuthe spoke to the CFEC agent prior to the deadline, (2) that the CFEC agent misadvised him, and (8) that Leuthe missed the deadline as a result of this misadvice. It is Leuthe's burden to show that the exception applies to his case; unless he proves all elements of the misadvice exception, he cannot receive a permit. Leuthe has not met the second element of this burden because he has not shown that the CFEC agent gave him misad-vice. At no time since his 1981 hearing has Leuthe proven or even argued why he should qualify for more than the nine points awarded by the hearing officer. Because Leuthe has not shown that the advice he received in 1975 was wrong, his late application cannot be accepted under the "misadvice" exception. Leuthe's ineligibility for a license has been determined in proceedings which comported with due process. Therefore, we affirm the superior court and reject Leuthe's application. A. Leuthe Has Not Shown Eligibility for Emough Points to Receive a Pernut. Both the hearing officer and CFEC on 'reconsideration considered Leuthe's point claims in detail. Both concluded that Leuthe is ineligible for an entry permit. In his recommendation, the hearing officer stated that Leuthe had demonstrated eligibility for only nine of the sixteen points necessary to receive a permit. Although Leuthe claimed additional points, the hearing officer found the claims unsupported by evidence and applicable regulations. But even if the additional points had been granted, the hearing officer concluded that Leuthe could receive at most fifteen points; he would still not be eligible for an entry permit. In its decision on reconsideration, CFEC recaleu-lated Leuthe's point claims and also concluded that he was eligible for, at most, nine points. Leuthe has not directly argued before this court that CFEC erred in determining his point claims. In fact, at no point since the initial hearing has Leuthe made arguments, presented evidence, or suggested that evidence existed to show that he is entitled to more than the nine points awarded by CFEC. We therefore conclude that Leuthe has not met his burden of showing eligibility for an entry permit. B. Leuthe Received Due Process in the Procedures Considering His Point Claims. Leuthe raises a number of due process objections to the proceedings below. Fishery entry permit applicants are entitled to due process in the adjudication of their claims. However, Leuthe has not demonstrated any violation of his right to due process. 1. Leuthe has had adequate opportunity to prove his point claims. Leuthe has had ample opportunity to prove his point claims over the past nine teen years. He could have done so in 1982, when he was notified of his right to respond to the hearing officer's recommendations, again in 1986 when he petitioned CFEC for reconsideration, and yet a third time in 1999, when he appealed CFEC's decision to the superior court. Despite these opportunities, he has never advanced any argument that he is eligible for sufficient points to qualify for an entry permit and was therefore misad-vised by the CFEC agent in 1975. Leuthe argues that CFEC did not afford him due process because the "[clommissioners refused [to] consider such point issues except to determine whether Mr. Leuthe was misad-vised by an agent of CFEC." He claims that due process requires a separate hearing on point claims after the timeliness of his application has been determined. However, calculation of the point claims was a necessary step in resolving the misadvice question. Both the hearing officer and CFEC on reconsideration fully considered the claims as part of that inquiry. Leuthe does not explain, nor can we discern, any reason why due process should require separate hearings on logically intertwined issues. We find no due process violation in CFEC's treatment of Leuthe's point claims. 2. Leuthe has not shown that changes in the law affected his point claims. While CFEC's 1986 decision on the hearing officer's recommendation was pending, we issued a series of decisions that prompted significant changes in CFEC regulations governing point claims. Leuthe claims that he advanced new arguments in light of these changes, but was denied a hearing. This allegation, if substantiated, might support remand for a new hearing. However, Leuthe neither explains any new point claims, nor documents his alleged communications with CFEC regarding the new claims. The record before us shows no sign of such claims; CFEC's seemingly exhaustive list of all communications with Leuthe does not indicate that Leuthe advanced any new arguments in light of changes in the law, or that CFEC denied a hearing to consider such arguments. Moreover, it appears that CFEC independently reviewed all pending cases at the time of the changes, and found no reason to change its assessment of Leuthe's claims. Because this allegation of due process violation is unsupported by the record or any detailed argument, we reject it. 3. CFEC's proposal to supplement the record did not violate due process. Five months after CFEC submitted its certified record to the superior court, CFEC moved to supplement the record with new documentary evidence. The superior court never ruled on this motion, and CFEC's new documents were not admitted as evidence in this case. Leuthe raises numerous arguments why the documents should not be admissible. Because they were never admitted, we need not consider this issue. v. CONCLUSION Because Leuthe has not shown that he was misadvised about his eligibility for a permit, despite procedurally adequate opportunities for him to make this showing, we reject his appeal and AFFIRM the decision of the superior court. . See Vik v. Commercial Fisheries Entry Comm'n, 636 P.2d 597, 598-99 (Alaska 1981). . See AS 16.42.020; AS 16.43.240. . See AS 16.43.260(a). Later cases and regulatory changes amended this requirement. See, e.g., Isakson v. Rickey, 550 P.2d 359 (Alaska 1976); State, Commercial Fisheries Entry Comm'n v. Templeton, 598 P.2d 77, 80-81 (Alaska 1979). These changes do not affect Leuthe's case. See Part IV.B.2, below. . See AS 16.43.250. . See AS 16.43.260(b); 20 AAC 05.600-804 (1974). . See 20 AAC 05.510(a). . See 20 AAC 05.510(e). . See Wickersham v. State, Commercial Fisheries Entry Comm'n, 680 P.2d 1135, 1143-45 (Alaska 1984). . See Usibelli Coal Mine, Inc. v. State, Dep't of Natural Resources, 921 P.2d 1134, 1141 (Alaska 1996). . See Mackie v. Chizmar, 965 P.2d 1202, 1207 n. 4 (Alaska 1998). . Matanuska-Susitna Borough v. Hammond, 726 P.2d 166, 175 (Alaska 1986). . See id. . See Forquer v. State, Commercial Fisheries Entry Comm'n, 677 P.2d 1236, 1244 (Alaska 1984). . See Jones v. Commercial Fisheries Entry Comm'n, 649 P.2d 247, 249 n. 4 (Alaska 1982). . See Sonneman v. Knight, 790 P.2d 702, 704 (Alaska 1990). . Under the "misadvice or lost in the mail" policy, CFEC accepts late entry permit applications only upon a showing that the applicant filed late because of misadvice received from a CFEC agent, or because the application was lost in the mail. We discussed this policy in Estate of Miner v. Commercial Fisheries Entry Commission, 635 P.2d 827 (Alaska 1981) (rejecting equal protection and due process challenges to the policy as applied to deny the late application of a mentally ill applicant) and Wickersham v. State, Commercial Fisheries Entry Commission, 680 P.2d 1135, 1140 (Alaska 1984) (rejecting statutory challenge to the policy because appellants lacked standing). See also Vik v. Commercial Fisheries Entry Comm'n, 636 P.2d 597, 600 (Alaska 1981). The "lost in the mail" prong of the policy is not at issue in this case; Leuthe has not claimed that his application was lost in the mail. . Although the hearing officer initially concluded that the Fish and Game employee who advised Leuthe was not an agent of CFEC, CFEC no longer advances this argument and it is not a part of this appeal. . See 20 AAC 05.520(a) ("Every applicant shall have the burden of establishing his qualifications for an entry permit."); 20 AAC 05.1820(d) ('The applicant or other party shall bear the burden of proving by a preponderance of the evidence that a determination of the commission is errone-m ous."). . We reach this conclusion on grounds that Leuthe has not met his burden of proving misad-vice. Therefore, we do not reach the question of what deadline should apply to his 1975 conversation with the CFEC agent. Leuthe argues that his 1978 application should be considered timely because he spoke to the CFEC agent prior to the May 18, 1975 "good cause" deadline. As he points out, CFEC in its briefing for an unpublished superior court case, Wassillie v. Adasiak, 3AN-75-506 Civ., conceded that it never held any applicants to the April 18 deadline, but instead applied the May 18 deadline to all applicants without requiring a good cause showing. This argument is not without merit. However, no matter when Leuthe spoke to the agent, he cannot qualify for the misadvice exception without showing misadvice. Because we do not reach the issue of timeliness, we also need not address the estoppel and equal protection arguments advanced by Leuthe regarding his timeliness claims. . Leuthe's "point claims" are his claims that he had enough points under CFEC's point system to qualify for an entry permit. . Leuthe implied before the superior court and again before this court that the point claims were part of his appeal. However, he never discussed the claims themselves. Given this cursory treatment, we cannot consider the claims as part of this appeal. See Adamson v. University of Alaska, 819 P.2d 886, 889 n. 3 (Alaska 1991) ("where an argument is given only cursory statement in the argument portion of a brief, the point will not be considered on appeal"); see also Nenana City School District v. Coghill, 898 P.2d 929, 934 (Alaska 1995) (issue on appeal from administrative agency waived or abandoned when inadequately briefed before superior court). . See Wickersham v. State, Commercial Fisheries Eniry Comm'n, 680 P.2d 1135, 1144 (Alaska 1984). The due process entitlement in CFEC hearings is subject to the exception that one need not hold a hearing if there is nothing to hold a hearing about. . Thus, if an application is rejected because it is outside valid time limits and this lateness appears on the face of the application and is not contested by the applicant, then there would be no substantial and material issue which could be resolved at a hearing, and thus no need to hold the hearing at all. Miner, 635 P.2d at 834. . In his reply brief, Leuthe argues that CFEC on reconsideration should not have considered his point claims, because he had asked for reconsideration of the timeliness issue only. Because this argument was raised for the first time in a reply brief before this court, it is waived. See Conam Alaska v. Bell Lavalin, Inc., 842 P.2d 148, 158 (Alaska 1992); Alaska R.App. P. 212(c)(3). We note, however, that because of the misadvice policy, reconsideration of timeliness necessarily included reconsideration of Leuthe's points eligibility. . Leuthe also argues in his reply brief that all other late applicants were allowed a hearing on their point claims after the timing issue was resolved. Although Leuthe made the same unsupported factual assertion in the introduction of his opening brief, the argument appears only in the reply brief. Because the issue is not argued in the opening brief and appears only in the reply brief, it is waived. See Conam, 842 P.2d at 158; Alaska R.App. P. 212(c)(3). . See 20 AAC 05.525-526, 20 AAC 05.630(b)(4) (regulations governing point calculations for persons who held gear licenses in partnership or who claimed alternative occupation points). . See Cashen v. State, Commercial Fisheries Entry Comm'n, 686 P.2d 1219 (Alaska 1984) (requiring new hearings for fishery entry permit applicants based on changes in the law).

11116548

Frank A. WHITESIDES, Appellant, v. STATE of Alaska, DEPARTMENT OF PUBLIC SAFETY, DIVISION OF MOTOR VEHICLES, Appellee

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

2001-04-13

No. S-8431

1130

1141

20 P.3d 1130

20

Pacific Reporter 3d

Alaska Supreme Court

Alaska

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

CAP

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

Frank A. WHITESIDES, Appellant, v. STATE of Alaska, DEPARTMENT OF PUBLIC SAFETY, DIVISION OF MOTOR VEHICLES, Appellee.

Frank A. WHITESIDES, Appellant, v. STATE of Alaska, DEPARTMENT OF PUBLIC SAFETY, DIVISION OF MOTOR VEHICLES, Appellee. No. S-8431. Supreme Court of Alaska. April 13, 2001. Michael J. Zelensky, Ketchikan, for Appellant. Marilyn J. Kamm, Assistant Attorney General, Bruce M. Botelho, Attorney General, Juneau, for Appellee. Before MATTHEWS, Chief Justice, EASTAUGH, FABE, BRYNER, and CARPENETI, Justices.

6541

41062

OPINION MATTHEWS, Chief Justice. The question presented is whether licensed drivers are entitled to in-person hearings before a hearing officer concerning the revocation of their licenses, or whether telephone hearings satisfy due process. We hold that where drivers' credibility is material in-person hearings are required. 'The right to drive is important, in-person communications are more effective in transmitting a sense of whether a party is telling the truth, and added costs do not outweigh the value of in-person hearings. Facts At approximately 11:00 pm. on January 28, 1996, Ketchikan Police Officer Brian Kertz was alerted to a possible car fire in downtown Ketchikan. Upon investigation, Kertz saw a "large amount of smoke billowing from the engine" of the pickup truck in which Frank Whitesides and his friend were sitting. Whitesides was sitting in the driver's seat, and the keys were in the ignition. Whitesides and his friend ignored Kertz's command to exit the vehicle. Kertz used his fire extinguisher to put out flames coming from beneath the vehicle and pulled the two out of the truck. According to Kertz, Whitesides exuded a "very strong odor of intoxicants" and his eyes were "bloodshot, and watery." Based on his observations, Kertz administered field sobriety tests to Whitesides; based on Whitesides's performance during these tests, Kertz placed him under arrest for driving while intoxicated (DWT). Kertz took Whitesides to the police station, where he began "processing" Whitesides for DWI. Kertz read Whitesides the "implied consent warning," in which Kertz informed Whitesides that he was being asked to submit to a chemical test of his breath. Kertz explained the operation of the Intoximeter 3000 (the apparatus that would measure the amount of alcohol in Whitesides's breath) as well as the possible consequences of refusing to take the breath test. He also offered Whitesides access to a telephone and telephone directory so that he could call an attorney. Eventually, Kertz prepared the Intoxime-ter to receive a sample of breath and asked Whitesides, "Did you want to submit a sample of breath?" Whitesides responded by protesting that he "wasn't driving anywhere." At that point, Kertz repeated his recitation of the potential consequences for refusing to submit to a chemical test. Kertz asked Whitesides to submit to the test several more times; Whitesides's responses to these requests were ambiguous and poorly focused. For example, on one occasion, Whitesides agreed to take the test but then protested that he had not been driving. On another occasion, Whitesides asked to review information that Kertz had already read to him. Kertz eventually concluded that White-sides had refused to take the test and notified him that, if he changed his mind before Kertz finished with the rest of the process, he would be allowed to submit a sample. Disregarding Whitesides's protestations that he had not refused to take the test, Kertz asked Whitesides whether he wanted to sign a form saying that he refused. Whitesides asked if he needed a lawyer to read the form before he signed it. After some discussion with Kertz, Whitesides decided not to call an attorney. Kertz then allowed Whitesides to read a document detailing the refusal offense and its attendant consequences while Kertz prepared the Intoximeter for a second time. Kertz then told Whitesides that "[ilf you refuse this time, this is the second time that I've run the machine, you are going to be charged." Whitesides responded by asking Kertz to "[wlait a minute," and repeated that he wasn't driving. Kertz then told White-sides that "[this is your last opportunity. You've got to give me yes or no. Do you want to submit a sample of breath on the Intoximeter?" Whitesides, however, did not reply with a "yes" or "no"; rather, he asked Kertz whether he would be arrested for DWI if he submitted to the test. Kertz then read Whitesides a "notice and order of revocation" for his refusal to submit to the breath test. Following Whitesides's question as to the consequences of taking and passing the test, his comment about the difficulty of the situation he faced, his refusal to sign a form indicating his refusal to take the test, and various other comments by Whitesides, Kertz asked one last time, "Do you want to submit a sample of breath in the Intoximeter 80007" When Whitesides gave an indiscernible answer, the officer declared the process over and turned off the video recorder. Kertz then issued Whitesides a "notice and order of revocation" advising him that his driver's license would be revoked for refusing to submit to testing. At the administrative hearing several months later, Whitesides testified that he had agreed to take the test about "ten see-onds" after Kertz turned off the video recorder. Kertz testified that he could not remember whether Whitesides had made this offer. Kertz was also asked if he would have permitted Whitesides to take the test if Whitesides had agreed to take it just after Kertz turned off the video recorder. He indicated uncertainty because "I guess I've never had it actually happen that I can remember before, in my career." Proceedings Whitesides sought administrative review of the "notice and order of revocation" of his driver's license on grounds that included his claim that he did not refuse to take a breath test. Whitesides requested that the hearing be conducted in person. On March 1, 1996, the Department of Public Safety gave White-sides notice of an administrative hearing scheduled "at the discretion of D.M.V." Whitesides was also charged with the criminal offenses of DWI and Refusal. A criminal trial commenced but ended in a mistrial. The criminal charges were later dismissed by the district attorney's office. The Division of Motor Vehicles (DMV) never scheduled an in-person hearing. Meanwhile, effective July 4, 1996, the legislature amended AS 28.15.166(e) to require that revocation hearings "be held by telephone unless the hearing officer finds that a telephonic hearing would substantially prejudice the rights of the person involved in the hearing or that an in-person hearing is necessary to decide the issues to be presented in the hearing." Consequently, the Department of Public Safety scheduled a telephone hearing for October 2, 1996. Whitesides objected to the telephone hearing, arguing that "[the failure to allow a hearing in-person would substantially prejudice [his] rights . in that he is a witness . along with, if necessary, the arresting officer and potentially another witness...." Whitesides also objected to the extensive delay in scheduling his hearing. . The hearing officer overruled Whitesides's objections, and the DMV proceeded with its revocation action against Whitesides's license. The hearing officer heard White-sides's challenge to the revocation in a series of three telephone hearings involving White-sides, his attorney, and the hearing officer, beginning on October 2, 1996-some eight months after the arrest. After hearing argument from Whitesides's attorney and testimony from Whitesides, Kertz, and the dis trict attorney who dismissed the criminal charges, the hearing officer found that Whitesides refused to submit to a breath test. Whitesides's license was ordered revoked for a period of one year from the date of the hearing officer's decision. Whitesides appealed this decision to the superior court, which upheld the hearing officer's determination. On appeal to this court, Whitesides argues (1) that the DMV violated his right to due process by denying an in-person hearing; (2) that the DMV's delay in holding the license revocation hearing violated Whitesides's right to due process; (8) that the "lack of regulations" governing administrative license revocation hearings violated Whitesides's due process rights; (4) that the hearing officer's findings that Whitesides refused the breath test were unsupported by the evidence; and (5) that the hearing officer erred in finding that there were reasonable grounds to believe that Whitesides was guilty of DWI when he was arrested. We decide that only the first issue has merit and suromarily determine the other issues adversely to Whitesides. The DMV's Denial of an In-person Hearing Constituted a Due Process Violation. Arguing that credibility was crucial to the central issue in this case, whether he agreed to take the breath test, Whitesides contends that his license revocation should be "reversed for failure to grant an in-person hearing." Without a chance to observe Whitesides's demeanor, he states, the hearing officer could not "fairly and meaningfully" assess his credibility. He contends that since his credibility was at issue in the hearing, the due process clause of the Alaska Constitution affords him the right to present his testimony in person to the trier of fact. The standard of review applicable to this issue is de novo. We apply the framework of Mathews v. Eldridge when evaluating whether administrative proceedings satisfy due process. We consider: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.[ ] We proceed to review these considerations in the context of this case. 1. A driver's license is an important property interest. Whitesides's interest is in retaining his right to drive. Both federal and state courts have recognized that a driver's license is an important property interest. In Bell v. Bur-son, the United States Supreme Court explained that, "[oJnee licenses are issued . their continued possession may become essential in the pursuit of a livelihood." Issued licenses are "important interests of the licensees, . [which] are not to be taken away without that procedural due process required by the Fourteenth Amendment." In Berlinghieri v. Department of Motor Vehicles, the California Supreme Court explained at length the practical importance of a driver's license: In our present travel-oriented society, the retention of a driver's license is an important right to every person who has obtained such a license. . . [T)he reality of contemporary society is that public transportation systems may not meet the needs of many travellers [sic] and other forms of transportation, such as taxicabs, are not economically feasible for a large portion of the population. Whether a driver's license is required only for delivering bread, commuting to work, transporting children or the elderly, meeting medical appointments, attending social or political functions, or any combination of these or other purposes, the revocation or suspension of that license, even for a six-month period, can and often does constitute a severe personal and economic hardship. For plaintiff, as a route driver, her ability to drive a delivery truck affects her very livelihood and the suspension of her license obviously will affect her directly, immediately, and adversely. Further, as a single working parent, she is faced with the numerous responsibilities of child rearing, many of which necessitate a speedy and reliable means of transportation. The suspension of plaintiff's license, even for only six months, may have profound and obvious effects on her "life situation" and thus, . constitutes "quasi-judicial" administrative decisions that have an impact on the individual "sufficiently vital . to compel full and independent review" by the court.! [ ] This court has likewise recognized that "[a] driver's license is an important property interest." Calling driver's lieense revocation hearings quasi-criminal, we have held that the right to test the reliability of a breath test applies in civil driver's license revocation proceedings as well as in criminal prosecu tions for DWI. And we have applied a prophylactic rule to exclude from a license revocation proceeding the results of a Breathalyzer test secured in violation of the defendant's right to counsel. These cases underscore the importance of the right to drive. 2. In-person testimony is a valuable tool for evaluating the credibility of witnesses. Here we deal with the second of the Mathews factors. In terms applicable to this case, do telephone hearings create an unacceptable risk of an erroneous deprivation of a person's right to drive? This turns in large part on the value of the live testimony of a party. The significance of live testimony and demeanor evidence has been long recognized. Blackstone explained that, "[by] examination of witnesses viva voce, in the presence of all mankind, . and this [method] only, the persons who are to decide upon the evidence have an opportunity of observing the quality, age, education, understanding, behaviour, and inclinations of the witness." This method "was also indeed familiar among the antient Romans . [alnd this, or somewhat like it, was continued as low as the time of Hadrian." Courts have emphasized the advantages inherent in a traditional hearing in which witnesses testify in the presence of the trier of fact. For example, in Mattox v. United States, the United States Supreme Court noted that personal examination and cross-examination of the witness provides the accused with an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.[ ] In this state, we have also recognized the uniqueness of the trial court's position to judge credibility. In Alaska Foods, Inc. v. American Manufacturer's Mutual Insurance Co., we held that when there has been oral testimony, and the trial judge has observed the witnesses in person, we must pay some deference to his judgment as to credibility to the extent that his findings are based on such oral testimony . because . we cannot have the advantage that the trial judge has had of basing a judgment as to credibility on the demeanor of the witnesses that appear before him.[ ] Other states have long traditions acknowledging the special abilities of the fact finder. In Durant v. Rogers, the Tilinois Supreme Court held: "It is a rule, that the jury shall be the sole judges of the credibility of a witness. They see them on the stand, mark their demeanor, perceive many small matters which escape less observant eyes, and are in the best position to judge of eredibility, and they have an undoubted right to find in favor of the testimony of one when weighed against that of the other.[ ] The unique ability of the hearing officer or trial court to evaluate credibility has, for example, a strong influence on the standard of review. According to Evans v. Evans, this court reviews findings of fact for substantial evidence because the trier of fact is "in the best position to evaluate the witnesses' credibility and their testimony." Deference to those who actually observe witnesses is codified at Alaska Civil Rule 52(a): "Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." This court consistently grants deference to trial courts where credibility is at issue, as for example in Kohl v. Legoullon, where we not ed that "[the trial court is in the best position to assess the credibility of witnesses." Similarly, in Crook v. Mortenson-Neal, we recognized that "the superior court was in the best position to evaluate the defendants' demeanor and credibility. We, therefore, defer to the court's view as expressed in the quoted finding. This case law indicates that in-court testimony has persuasive characteristics absent from testimony given out of the presence of the trier of fact. Where the witness's truthfulness is disputed, demeanor can be important. In such cases, denying an in-person hearing denies a party an opportunity to present evidence in the most effective way possible. We do not wish to overstate the benefits of communicating in person, nor the drawbacks of telephone communication. We live in an era when efficiency often dictates that many communications be machine-facilitated. When the technology employed is operating well, such communications are at least good enough to transmit basic information. But the potential for empathy and nuanced understanding is much greater in person-to-person communications than in any of the various forms of telecommunicating. Likewise, when a party is denied an in-person hearing before a trier of fact, there is a risk that the party will be less able to convey the message that his story is the truth. We recognize that legal authority supports the use of telephone hearings and testimony in many circumstances. For example, Alaska Civil Rule 99 allows one or more parties, counsel, witnesses, or even the judge "to participate telephonically in any hearing or deposition for good cause and in the absence of substantial prejudice to opposing parties. In Matter Involving Triem, we rejected the contention that a committee chairperson's telephone participation in a bar disciplinary hearing violated the defendant's due process rights, adding that "[the routine nature of such appearances belies [the litigant's] due process concerns." Most recently, in Silvers v. Silvers, we found an abuse of discretion where the trial court refused to allow the defendant to testify by telephone in a civil trial. These authorities show that the convenience afforded by telephone participation is not generally outweighed by the values associated with in-person participation. But, except for Triem, which is distinguishable on other grounds, they do not hold that a party who desires to present testimony in person to the trier of fact does not have that right. 3. The government's interest in cost saving and public safety will not be greatly prejudiced by granting in-person hearings where credibility is at issue. The Mathews v. Eldridge construct next requires that we consider the nature of the government's interest, how it is affected by the challenged procedure, and how it might be affected if the procedure were changed. We turn to these questions. The foremost government interest involved in driver's license revocation proceedings is public safety. Intoxicated drivers kill and injure others. One can reasonably conclude that revoking the licenses of those who refuse to take breath tests is an important part of the state's program to reduce instances of driving while intoxicated. The state also has an interest in providing hearings at a reasonable cost. Public safety will not be prejudiced by providing a person who is under threat of license revocation with an in-person hearing. Such hearings were the norm until the 1996 passage of AS 28.15.166(e). There is no suggestion in the legislative history of the 1996 act that its purpose was to increase the revocation rate of those accused of refusing breath tests. Indeed, if the revocation rate were increased by prohibiting in-person hearings, this would tend to prove that this reform increased the risk of the erroneous deprivation of driving rights. Cost saving is at the root of the presumptive prohibition of in-person hearings. The length of a hearing conducted by telephone should not be significantly different than a hearing conducted in person. But if hearing officers are to travel to the DMV offices closest to where respondents reside, then travel costs and travel time for hearing officers will be greater for in-person hearings than for telephone hearings. But greater costs are only incurred in cases in which the hearing officer must travel. In most cases no travel is necessary. Most revocations arise in Anchorage. DMV has a large number of employees in Anchorage and could require some hearing officers to maintain offices there. Similarly, in cases arising in Juneau there is no justification for refusing an in-person hearing, since DMV hearing officers have offices there. As to other locations without resident hearing officers, economies could be effected in other ways. Ad hoc hearing officers can be appointed. Or magistrates might be authorized to serve. Alternatively, hearing officers can limit their travel to times when they have several cases for hearing. Further, respondents requesting an in-person hearing might be required to travel to a location served by a resident hearing officer, or to pay a share of the cost of the hearing officer's travel. We do not minimize the legitimacy of cost savings as an objective of government. But given the cireumstances and alternatives discussed above, we do not think that providing in-person hearings to parties who want them, in cases where their credibility is at issue, must be significantly more costly than the present system. Considering then the importance of the driving privilege, the greater potential for effective communication in an in-person context, the need for effective communication where the credibility of a party is at issue, and the limited nature of the prejudice that the state would suffer by providing in-person hearings in such cases, we conclude that such hearings should be provided where requested by the party. Subsection .166(e) Should Be Construed So as to Avoid Unconstitutionality. Alaska Statute 28.15.166(e) requires telephone hearings "unless the hearing officer finds that a telephonic hearing would substantially prejudice the rights of the person involved in the hearing or that an in-person hearing is necessary to decide the issues to be presented in the hearing." This does not specify the circumstances under which a telephone hearing may substantially prejudice a defendant's rights or when an in- person hearing is necessary to decide the issues presented. "Where it is reasonable to do so, we will construe a statute to avoid constitutional problems." In keeping with our conclusion that in-person hearings are required by due process in cases where the credibility of a party is in question, we construe subsection .166(e) to require in-person hearings where a party requests such a hearing and material questions depend on the credibility of the party's testimony. In the present case, Whitesides made a timely request for an in-person hearing and objected when a telephone hearing was scheduled instead. This case involves material issues of his credibility. Therefore, an in-person hearing should have been held. Conclusion The decision of the superior court is REVERSED and this case is REMANDED to the superior court with instructions to VACATE the revocation of Whitesides's driver's license and to REMAND the case to the Division of Motor Vehicles for an in-person license revocation hearing. . AS 28.35.030(a) defines operating a vehicle while intoxicated as follows: A person commits the crime of driving while intoxicated if the person operates or drives a motor vehicle or operates an aircraft or a watercraft (1) while under the influence of intoxicating liquor, or any controlled substance; (2) when, as determined by a chemical test taken within four hours after the alleged offense was committed, there is 0.10 percent 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 grams 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 controlled substance. . The Ketchikan Police Department's unofficial transcript contains an erroneous version of this exchange. We have characterized Whitesides's comment based on our review of the tape. . See ist Sp. Sess. Ch. 6, § 8 SLA 1996. Former AS 28.15.166(e) provided for an in-person hearing held "at the office of the department nearest to the residence of the person requesting the hearing." Current law provides for the same locations for in-person hearings when they are found to be required. . Concerning his delay claim, Whitesides likens this case to United States v. $8,850 in United States Currency, 461 U.S. 555, 103 S.Ct. 2005, 76 L.Ed.2d 143 (1983), in which the United States Supreme Court held that delay in initiating a civil forfeiture case may violate due process and suggested a test similar to that used to determine whether an accused's right to a speedy trial in a criminal case is violated. Id. at 564, 103 S.Ct. 2005. But this case is different from civil forfeiture cases because Whitesides was not deprived of his right to drive pending the hearing, whereas in civil forfeiture cases the property to be forfeited has typically been removed from the possession and use of the respondent pending the hearing. Id. Further, although Whitesides claims that the eight-month delay resulted in Officer Kertz's lack of memory concerning what was said after the video recorder was shut off, this claim is not supported by the record. At White-sides's criminal trial in June 1996, within speedy trial limits, Kertz was already unable either to verify or to directly contradict Whitesides's account of events after the video camera was turned off. Whitesides's lack of regulations argument is fully addressed by the decision of the superior court. Procedures for carrying out administrative review of license revocations are set forth in AS 28.15.166. These procedures, as supplemented by pertinent case law, afford a licensee due process. Whitesides claims that the hearing officer's determination that he had refused to take the breath test is unsupported by substantial evidence; such a claim juxtaposes his refusals while the video camera was running with the alleged cure of these refusals just after the video camera was turned off. The video tape itself is substantial evidence that Whitesides refused to take the test. Likewise, the video tape supports an inference that it is unlikely that Whitesides cured his prior refusals, given the behavior shown by the tape. As the hearing officer stated: Mr. Whitesides is asking me to take a leap of faith. I have to believe that two people transformed their demeanor as soon as the videotape was turned off. In that instance, Mr. Whitesides changes his negative attitude to a positive one and Officer Kertz changed from trying to get a breath sample to trying to prevent one. I don't believe this happened. Further, Kertz's statement that he did not remember anyone ever recanting also supports the conclusion that a recantation did not take place in Whitesides's case. As to the argument that there were not reasonable grounds to believe that Whitesides had been guilty of DWI, Whitesides argues that the vehicle in which he was sitting was inoperable because it had caught fire while he was sitting in it. But the evidence is uncontradicted that the vehicle was operable when Whitesides turned it on, and Officer Kertz's observations of Whitesides's condition reasonably suggested that Whitesides was intoxicated. . Article I, section 7, of the Alaska Constitution provides, in part, that person shall be deprived of life, liberty, or property, without due process of law." . See Barcott v. State, Dep't of Pub. Safety, 741 P.2d 226, 228 (Alaska 1987) (court will adopt the rule most persuasive in light of precedent, reason, and policy). . 424 U.S. 319, 96 S.Ct 893, 47 L.Ed.2d 18 (1976). . See Noden v. Commercial Fisheries Entry Comm'n, 680 P.2d 493, 499 (Alaska 1984). . Mathews, 424 U.S. at 335, 96 S.Ct. 893, 47 L.Ed.2d 18. . 402 U.S. 535, 539, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971). . Id. . 33 Cal.3d 392, 188 Cal.Rptr. 891, 657 P.2d 383, 387-88 (1983) (citations omitted); see also Shavers v. Kelley, 402 Mich. 554, 267 N.W.2d 72, 87 (1978), cert. denied, 442 U.S. 934, 99 S.Ct. 2869, 61 L.Ed.2d 303 (1979) ("In Michigan the independent mobility provided by an automobile is a crucial, practical necessity; it is undeniable that whether or not a person can obtain a driver's license or register and operate his motor vehicle profoundly affects important aspects of his day-to-day life."). . Champion v. Department of Pub. Safety, 721 P.2d 131, 133 (Alaska 1986). . See id. at 132-33. . See Whisenhunt v. State, Dep't of Pub. Safety, 746 P.2d 1298, 1299 (Alaska 1987). . 3 William Blackstone, Commentaries "373. . Id. *374. . 156 U.S. 237, 242-43, 15 S.Ct. 337, 39 L.Ed. 409 (1895). . 482 P.2d 842, 845 (Alaska 1971). . 87 Ill. 508, *3 (Ill.1877) . 869 P.2d 478, 481 (Alaska 1994). . 936 P.2d 514, 518 n. 5 (Alaska 1997) . 727 P.2d 297, 306 (Alaska 1986). . See, e.g., Monsma v. Williams, 385 P.2d 107, 111 (Alaska 1963) ("In a case, heavy with demeanor evidence as this was, i was the task of the trial court, not ours, to resolve the apparent conflict between the evidence of the plaintiff and that of the defendant."); Awes v. Walker, 370 P.2d 187, 190 (Alaska 1962) ("In reviewing the findings of the trial court, we do not have before us evidence of Walker's demeanor while testifying."). . Cf. McBride v. State, 368 P.2d 925, 926 (Alaska 1962), cert. denied, 374 U.S. 811, 83 S.Ct. 1702, 10 L.Ed.2d 1035 (1963), modified by Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968) (" 'demeanor evidence' is acknowledged to be highly desirable and an advantage to be insisted upon whenever it can be bad and where an accused considers it important" (footnote omitted)). . Alaska R. Civ. P. 99. Notably, there is no provision whereby a juror may participate tele-phonically. . 929 P.2d 634, 642 (Alaska 1996), cert. denied, 520 U.S. 1198, 117 S.Ct. 1555, 137 L.Ed.2d 703 (1997). . 999 P.2d 786, 790 (Alaska 2000). . Triem is distinguishable because the objection there concerned the inability of one committee member participating by telephone in a second hearing to assess the demeanor of witnesses, not the party. The party had testified in person before the whole committee at an earlier hearing. Further, only one committee member participated by telephone. The other members heard the witnesses in person. . 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). . See Mathews v. Eldridge, 424 U.S. at 348, 96 S.Ct. 893. . See AS 22.15.100(10) (granting district judges and magistrates authority "to review administrative revocation of a person's driver's license or nonresident privilege to drive . when designated as a hearing officer by the commissioner of administration and with the consent of the administrative director of the court system."). . See Chenega Corp. v. Exxon Corp., 991 P.2d 769, 785 (Alaska 1999).

11510652

Dan JERREL and Viola Jerrel, Appellants, v. STATE of Alaska, DEPARTMENT OF NATURAL RESOURCES, Appellee

Jerrel v. State, Department of Natural Resources

2000-03-24

No. S-8436

138

150

999 P.2d 138

999

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

Dan JERREL and Viola Jerrel, Appellants, v. STATE of Alaska, DEPARTMENT OF NATURAL RESOURCES, Appellee.

Dan JERREL and Viola Jerrel, Appellants, v. STATE of Alaska, DEPARTMENT OF NATURAL RESOURCES, Appellee. No. S-8436. Supreme Court of Alaska. March 24, 2000. Rehearing Denied May 1, 2000. Robert C. Erwin, Law Offices of Robert C. Erwin, Anchorage, for Appellants. John T. Baker, Assistant Attorney General, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee. Before MATTHEWS, Chief Justice, EASTAUGH, FABE, BRYNER, and CARPENETI, Justices.

7546

48238

OPINION FABE, Justice. I. INTRODUCTION State regulations require that holders of state grazing leases mark their livestock. When neighbors complained about the horses on Dan and Viola Jerrel's grazing leases, the Department of Natural Resources terminated the leases on the ground that the Jerrels had failed to brand their horses. Yet neithpr Alaska statutes nor relevant regulations require that horses be marked with a brand so that these marks may be .visible at twenty feet. Because DNR's ad hoc interpretation of the livestock marking requirement is a regulation that was not adopted in accordance with the Administrative Procedure Act, we reverse. II. FACTS AND PROCEEDINGS Dan and Viola Jerrel have ranched horses in Alaska since 1963. In that year, the Jer-rels entered into a lease with the State for use of ranch land in the Ohlson Mountain area northwest of Homer. During the next eleven years, the Jerrels signed three other leases for land in the same area. Each lease obligates the Jerrels to abide by state land use regulations. In 1987 Ohlson Mountain area landowners complained to authorities about loose horses causing property damage and posing a safety hazard on their lands. They alleged that these horses belonged to the Jerrels, but the horses could not be identified definitively because they were not marked. In January 1988 three. DNR officials met with the Jerrels and the complaining landowners to discuss various problems, including identification of the horses. In March DNR notified the Jerrels of the complaints and recommended that they deal with the roaming horses, perhaps by fencing. In April and June DNR officials met with the Jerrels to discuss land conditions and compliance with the lease terms, but they did not discuss marking of the Jerrels' horses. In November 1989 a neighboring landowner, Ed Bailey, threatened to sue the State for failure to hold the Jerrels responsible for their horses. In December Bailey complained to the State's ombudsman investigator. Bailey also complained to DNR that the Jerrels had not complied with an Alaska regulation requiring that livestock on state grazing leases be marked or branded. In reply DNR informed Bailey that it did not enforce the marking requirements because of the lack of personnel and funding: You referred to the requirement under regulations [sic] 11 AAC [Alaska Administrative Code] 60.070 to properly identify animals on grazing leases. This regulation has been in effect since 4/16/70 but due to lack of personnel and funding has never been enforced. Statewide enforcement of this regulation would affect reindeer herds as well as conventional grazing, requiring a significant increase in staffing and funding to administer. In February and March 1990 Bailey wrote to DNR's commissioner requesting that it take action against the Jerrels. On May 14, DNR officials met with Bailey and other area residents to "discuss their concerns." As a result of its investigation, the state ombudsman chastised DNR for inefficient enforcement of the Jerrels' lease requirements. The ombudsman recommended that DNR review the lease files for violations, and, "[i]f remedial action as stipulated in the lease agreements (30 days after notification) is not taken by the Jerrels, termination proceedings should begin and be followed through diligently." Prior to receiving the ombudsman's final report, DNR sent notice to the Jerrels on June 28, requiring them to comply with 11 AAC 60.070 by marking their horses and registering the mark with the State Division of Agriculture. The letter further elaborated that the marks must be visible from a distance of twenty feet: The Division of Land and Water Management requires (regardless of the method used) that [the] mark must be plainly distinguishable from a distance of 20 feet. Failure to comply within 30 calendar days after service of this written notice shall result in appropriate action including, but not limited to, forfeiture of your leases. The Jerrels received the letter on July 13. Shortly after receiving DNR's letter, David Jerrel, the son of Dan and Viola, met with a DNR official to discuss tagging the horses. David proposed a marking system consisting of large plastic tags attached to the horses' manes with monofilament fishing line. The DNR official believed that David Jerrel was acting in good faith to comply with the regulations, and the hearing officer later agreed that "David Jerrel appears to have put a lot of effort into developing this means of marking and it seems like a feasible method." But on August 10, in response to the ombudsman's report, DNR informed the ombudsman that if the Jerrels did not register a brand, it would terminate their leases. And just two weeks later, on August 24, the agency informed the Jerrels that it had terminated the Jerrels' leases because they had not marked their horses. The termination letter informed the Jerrels that they could request reconsideration if they registered a mark with the Division of Agriculture and proved that their animals were marked. In September the Jerrels requested an agency hearing and notified DNR that they had marked their horses and registered the mark with the Division of Agriculture. But the Division of Agriculture rejected the Jer-rels' method of marking — plastic tags — as impermanent and informed them that they would have to brand or tattoo their horses instead. The director of the Division of Agriculture specified use of a hot brand "that must be burned into the hide of the animal," but added that if the Jerrels were opposed to branding, "the animals may be permanently tattooed, which satisfies the requirement." In response, the Jerrels then proposed an ear tattoo to satisfy the marking requirement. But after writing to inform the neighboring landowners of this proposal and expressing "hope [that] you find this acceptable," the Division of Agriculture rejected the tattoo proposal. It cited concerns of the neighboring landowners that an ear tattoo was unacceptable because it was not clearly visible from a "distance. After a tworday hearing, Hearing Officer Timothy Middleton issued a decision suggesting that DNR give the Jerrels two months to brand or mark their horses. If they failed to do so, he recommended forfeiture of the leases. The decision discussed the merits of a number of marking and branding methods, including hot branding, "freeze dry" branding, ear and lip tattooing, and tagging. The hearing officer acknowledged testimony presented by the Jerrels that branding decreased the value of show horses. Hearing Officer Middleton proposed that DNR require the Jerrels to hot brand the bulk of their horses but permit them to mark up to eight horses with a plastic tag and a lip tattoo. He also invalidated DNR's requirement that all marks be visible from twenty feet, noting that DNR had never validly promulgated this distance visibility requirement as a regulation. In November 1993 the Jerrels informed DNR that they had marked the horses. But they failed to provide proof of these markings and eventually said that they had moved the horses to Montana. They offered no verification of the move, and state investigations indicated that the horses probably remained in Alaska. On November 23, 1994, the commissioner of DNR rejected a number of Hearing Officer Middleton's findings and conclusions and terminated the Jerrels' leases. After they requested reconsideration and their request was denied, the Jerrels appealed the ruling to the superior court. Superior Court Judge Peter A. Michalski affirmed the commissioner's decision. The Jerrels appeal. III. DISCUSSION A. Standard ofRevieiv In this case we review whether DNR was required to comply with the procedures prescribed in Alaska's Administrative Procedure Act (APA). This inquiry requires us to examine the meaning of the term "regulation" as defined by the APA in AS 44.62.640(a)(3). Statutory interpretation is a question of law to which we apply our independent judgment. "The standard is appropriate where the knowledge and experience of the agency is of little guidance to the court or where the case concerns 'statutory interpretation or other analysis of .legal relationships about which courts have specialized knowledge and experience.' " The dissent argues for the application of the deferential standard of review that is appropriate when we review an agency's interpretation of its own regulation. But the threshold question in this case is whether the APA applies to DNR's action. Because we must decide' whether DNR's twenty-foot visibility requirement is a regulation, we do not defer to the agency's interpretation. B. Principles of Estoppel Do Not Bar DNR from Enforcing Marking Requirements. The Jerrels first argue that DNR's failure to enforce the marking regulation for twenty years estops DNR from enforcing it now. DNR responds that it cannot be es-topped from enforcing the regulation merely because of its previous inaction. We agree with DNR on this point. First, the statutory terms of the grazing leases bar the Jerrels' estoppel claims. Each of the leases includes a clause providing that "[n]o failure on the part of Lessor to enforce any covenant or provision herein contained . shall discharge or invalidate such terms or covenants or affect the right of the Lessor to enforce the same in the event of any subsequent breach or default." Second, Alaska law does not support the Jerrels' claim that DNR is foreclosed from enforcing the marking provisions. To prove a claim of equitable estoppel, a plaintiff must show: "(1) assertion of a position by conduct or word, (2) reasonable reliance thereon, and (3) resulting prejudice." The Jerrels fail to meet the first requirement. Although DNR stated several times that it had not enforced the marking requirement in the past, it never affirmatively asserted by word or conduct that it would never enforce the marking requirement. In fact, DNR notified the Jerrels several times that it was currently enforcing the requirements and that they should mark their horses. Consequently, there was no basis for the Jerrels' reliance on DNR's past nonenforcement. Finally, the superior court correctly noted that the policy implications of allowing the Jerrels' estoppel claim to proceed would be disturbing: "[I]t would be a dangerous precedent to rule that because a statute or regulation went unenforced in the past, for whatever reason, present and future violations could not be sanctioned." Accordingly, we hold that DNR's failure to enforce the regulation in the past did not estop it from enforcing the marking regulations. C. DNR Did Not Promulgate the Twenty-Foot Visibility Requirement in Accordance with the APA. The Jerrels entered into four grazing leases with the State of Alaska and concede that the marking requirements of 11 AAC 60.070 apply to the three most recent leases. We must consider whether DNR acted within its authority in its interpretation and enforcement of the marking requirements. DNR relied on 11 AAC 60.070 in requiring the Jerrels to mark their horses. That regulation requires that holders of state grazing leases mark their animal in accordance with AS 03.40.010-03.40.270 and allows DNR to require that the holders mark the livestock through tagging, dyeing, or another marking method: All livestock permitted on a state grazing lease shall be properly identified and such identification registered in accordance with AS 03.40.010-03.40.270. In addition, the director may require that the livestock be tagged, dyed, or otherwise marked as a control on numbers permitted on a lease in accordance with the annual operating plan. In turn, AS 03.40.020 deals generally with marking of livestock and sets out procedures for recording a unique brand or mark with the State. If an owner wishes to establish a record of ownership, "[t]he owner may brand or mark an animal on either side with the owner's brand or mark. The animal shall be branded or marked so that the brand or mark shows distinctly." The regulation contains neither a requirement of minimum visibility nor a mandate of permanence. Yet, in its June 28, 1990 letter to the Jerrels, DNR stated that the Jerrels must use a mark "plainly distinguishable from a distance of twenty feet." When the Jerrels responded by proposing plastic mane tags, which would have been -visible from twenty feet, they were informed by DNR that the tags were insufficiently permanent. At the point that it informed the Jerrels of this permanence requirement, however, DNR retreated from its twenty-foot visibility requirement, informing the Jerrels that if they opposed branding, permanent tattoos would be an acceptable substitute. Yet when the Jerrels proposed ear tattoos, DNR again reversed its position in response to complaints from the neighboring landowners and insisted on brands that would meet the twenty-foot visibility requirement. The Jerrels contend that in creating the twenty-foot visibility rule, DNR did not interpret its existing marking regulations but rather "established new ones without following the proper procedures." DNR responds that 'its expertise allows it the power to make policy rules interpreting regulations. We agree with the Jerrels. Administrative agencies must comply with the APA guidelines when issuing regulations pursuant to delegated statutory authority. The label an agency places on a policy or practice does not determine whether that rule falls under the APA; the legislature intended for the term "regulation" to encompass a variety of statements made by agencies. Rather, we look to the character and use of the policy or rule. In determining which policies fall under the APA, one of the statutory "indicia of a regulation is that it implements, interprets or makes specific the law enforced or administered by the state agency." A regulation also "affects the public or is used by the agency in dealing with the public." Under these standards, we believe that the twenty-foot visibility requirement is a regulation. DNR concedes that it did not promulgate the twenty-foot visibility requirement in accordance with the APA. It claims that it Bid not need to comply with the APA because the twenty-foot visibility requirement is an informal "policy rule" rather than a regulation. But the requirement includes both core characteristics of a regulation. First, DNR developed the visibility requirement precisely in order to interpret, make specific, and implement the statutory requirement that a mark or brand "show[] distinctly." Second, the agency used this requirement hot as an internal guideline but rather as a tool in dealing with the public. It actually based its decision to terminate the Jerrels' leases upon the fact that the Jerrels did not comply with its "policy." Since the twenty-foot visibility regulation did not satisfy the procedural standards of the APA, it is invalid. The dissent appears to draw comfort from the fact that DNR's response was "tailored to the Jerrels' livestock," and thus did not affect the public. But it is the fact that DNR has singled out the Jerrels that concerns us in this case. An agency should not have unfettered discretion to vary the requirements of its regulations at whim. The APA accordingly requires state agencies to follow a rule-making procedure before they may alter or amend the substance of their regulations. "The courts have usually rejected arguments that . discretion to proceed by ad hoc orders rather than by rules is necessary to permit an agency to make decisions finely tuned to the facts and circumstances of an individual case." When an agency is freed from the requirement of having to make general rules, this invites the possibility that state actions may be motivated by animosity, favoritism, or other improper influences. The dissent also argues that because DNR had already issued a marking regulation, its adoption of the twenty-foot visibility requirement "did not alter the substance of what the Jerrels were already required to do" but merely "specified how they were to comply with the regulation." But the APA does not recognize the dissent's proposed distinction between promulgating new regulations and supplementing or making more specific existing ones. Indeed, the statute defines regulations subject to the act as including "the amendment, supplement, or revision" of a rule or regulation in order to "make specific" the law enforced. Because the twenty-foot requirement "supplemented," "revised," and "made specific" the marking requirements of 11 AAC 60.070, DNR was required to follow APA procedures. DNR argues in the alternative that even if the twenty-foot visibility requirement is invalid, it acted within its authority in terminating the Jerrels' leases because they did not mark their horses at all. But DNR's shifting interpretations of the meaning of the marking requirements hampered the Jerrels' attempts at compliance. And although the dissent argues that the Jerrels' failure "to follow any reasonable, effective alternative" to branding justified DNR's cancellation of the leases, this statement ignores the finding of the hearing officer. Hearing Officer Middleton found that the tagging method proposed by the Jerrels "seem[ed] like a feasible method." Indeed, until August of 1990, DNR believed that the Jerrels had worked in good faith with DNR to come up with a feasible marking method. Moreover, the Director of Agriculture offered the Jerrels the option of tattoos in lieu of brands in October 1990 and withdrew that offer only after learning that it would be unacceptable to the neighboring landowners. As Greek Taylor, Natural Resource Manager with the State Division of Lands, testified at the June 1992 hearing: Q: At any time during the course of your dealing with David [Jerrel], over the course of that summer, did he seem less than cooperative? A: Absolutely not. Q: Did he seem like he was sincerely working toward fulfilling the requirements concerning marking the livestock? A: Yes. Thus, the evidence does not support the dissent's* view that the Jerrels failed to make a good faith attempt to comply with the regulation. IV. CONCLUSION We hold that DNR was not estopped from enforcing the marking requirement. But because DNR's requirement that the Jerrels brand their horses so that the marks may be visible at twenty feet was not promulgated under the APA, we REVERSE the decision of the superior court to terminate the Jer-rels' leases for noncompliance with that requirement. . Lease 19581 is dated November 18, 1963. It covers 1,015 acres and extends until November 2018. . Lease 21412 is dated January 3, 1964. It covers 440 acres and extends until July 2001. Lease 52922 is dated October 28, 1970. It covers 290 acres and extended until April 1998. Lease 59221 is dated January 12, 1974. It covers 2,040 acres and extends until July 2001. . 11 AAC 60.070 (1997) requires that: All livestock permitted on a state grazing lease shall be properly identified and such identification registered in accordance with AS 03.40.010 — 03.40.270. In addition, the director may require that the livestock be tagged, dyed, or otherwise marked as a control on numbers permitted on a lease in accordance with the annual operating plan. . AS 44.62. . See Matanuska-Susitna Borough v. Hammond, 726 P.2d 166, 182 (Alaska 1986). . See Payton v. State, 938 P.2d 1036, 1041 (Alaska 1997) ("[I]nsofar as our review [of an agency's regulation] requires us to determine the meaning of [a statute], we exercise our independent judgment."). . Madison v. Alaska Dep't of Fish & Game, 696 P.2d 168, 173 (Alaska 1985) (quoting Earth Resources Co. v. State, Dep't of Revenue, 665 P.2d 960, 965 (Alaska 1983)). . Dissent at 145-146 (citing Board of Trade, Inc. v. State, Dep't of Labor, Wage & Hour Admin., 968 P.2d 86, 89 (Alaska 1998)). . See Kelly v. Zamarello, 486 P.2d 906, 911 (Alaska 1971). In Kelly, we set out a procedure for the interpretation of administrative regulations. That procedure calls for the deferential standard of review only after a determination that "an administrative regulation has been adopted in accordance with the procedures set forth in the Administrative Procedure Act." Id. . Municipality of Anchorage v. Schneider, 685 P.2d 94, 97 (Alaska 1984). . The Jerrels contest the regulations' applicability to the first lease, Lease 19581. We need not reach the merits of this question, however, because we ultimately conclude that DNR was without authority to require the Jerrels to brand their horses as a requirement of any of their leases. .AS 03.40.020. . The Jerrels also argue that an employee — and not the director — of DNR made the 20-foot visibility requirement, making the decision invalid. But the Jerrels did not raise this issue in their opening brief. Under Alaska Rule of Appellate Procedure 212(c)(3), the reply brief*"may raise no contentions not previously raised in .either the appellant's or appellee's briefs." We accordingly find that the Jerrels have waived this employee-director argument. . AS 44.62.640 defines "regulation" as: [E]very rule, regulation, order, or standard of general application or the amendment, supplement, or revision of a rule, regulation, order, or standard adopted by a state agency to implement, interpret, or make specific the law enforced or administered by it, or to govern its procedure, except one that relates only to the internal management of a state agency; . "regulation" includes "manuals," "policies," "instructions," "guides to enforcement," "interpretative bulletins," "interpretations," and the like, that have the effect of rules, orders, regulations, or standards of general application, and this and similar phraseology may not be used to avoid or circumvent this chapter; whether a regulation, regardless of name, is covered by this chapter depends in part on whether it affects the public or is used by the agency in dealing with the public. See also Kenai Peninsula Fisherman's Coop. Ass'n, Inc. v. State, 628 P.2d 897, 904 (Alaska 1981). . See, e.g., Gilbert v. State, Dep't of Fish & Game, 803 P.2d 391, 396-97 (Alaska 1990) (rejecting agency's argument that its mixed stocks regulation management was a "policy" and instead classifying it as a regulation subject to the APA because it contained indicia of regulations). . See Messerli v. Department of Natural Resources, 768 P.2d 1112, 1117 (Alaska 1989) (noting that Alaska law takes an "expansive view" of the term "regulation"), overruled on other grounds by Olson v. State, Dep't of Natural Resources, 799 P.2d 289 (Alaska 1990); see also Kenai Peninsula, 628 P.2d at 905. . Kenai Peninsula, 628 P.2d at 905; see also AS 44.62.640(a)(3); Gilbert, 803 P.2d at 396. . AS 44.62.640(a)(3); see also Gilbert, 803 P.2d at 396; Kenai Peninsula, 628 P.2d at 905. . AS 03.40.020. . See Messerli, 768 P.2d at 1118 (acknowledging the internal management exception to the requirements of APA). . See Wickersham v. State Commercial Fisheries Entry Comm'n, 680 P.2d 1135, 1140 (Alaska 1984) ("When a policy is invalidly promulgated under the APA, generally the appropriate remedy is to invalidate the offending policy until the procedures required by the APA are observed."). . Dissent at 147. . Alfred C. Aman, Jr. & William T. Mayton, Administrative Law § 3.2, at 78 (1993). . See Alfred C. Aman, Jr. & William T. Mayton, Administrative Law § 3.1, at 73 (1993) (quoting Yick Wo v. Hopkins, 118 U.S. 356, 373, 6 S.Ct. 1064, 30 L.Ed. 220 (1886)). . Dissent at 148. . AS 44.62.640. . See AS 44.62.640; Gilbert, 803 P.2d at 396-97 (When "the Board policy makes more specific the law enforced or administered and the policy affects the public, . we conclude that the policy in question falls squarely within the definition of a 'regulation' contained in AS 44.62.640(a)(3) and, therefore, it is required to be implemented pursuant to the APA.") (internal punctuation omitted). . Dissent at 149. . Although the hearing officer required branding of some horses, he recognized the decrease in value that branding causes and recommended that the Jerrels be allowed to mark up to eight potential show horses with plastic tags and lip tattoos. . Our conclusion that DNR did not comply with the APA makes it unnecessary to reach the Jer-rels' claims that the branding requirement conflicted with applicable statutes, that termination of their leases violated their due process rights under both the Alaska and Federal Constitutions, or that the May 14 meeting with neighboring landowners violated the Open Meetings Act.

10354594

Rudy PAVLIK and Thomas Schmidt, Appellants, v. STATE of Alaska, Appellee

Pavlik v. State

1994-03-11

Nos. A-4767, A-4768

496

499

869 P.2d 496

869

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

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

CAP

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

Rudy PAVLIK and Thomas Schmidt, Appellants, v. STATE of Alaska, Appellee.

Rudy PAVLIK and Thomas Schmidt, Appellants, v. STATE of Alaska, Appellee. Nos. A-4767, A-4768. Court of Appeals of Alaska. March 11, 1994. Rehearing Granted in Part and Opinion Amended April 11, 1994. Walter Share, Seattle, Jeffrey M. Feld-man,- Young, Sanders & Feldman, and Michael J. Keenan, Anchorage, for appellants. Thomas E. Wagner, Asst. Dist. Atty., and Charles E. Cole, Atty. Gen., Juneau, for ap-pellee. 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.

1624

9796

OPINION BRYNER, Chief Judge. Rudy Pavlik and Thomas Schmidt were convicted, following a joint jury trial, of operating more than one set net each in violation of 5 Alaska Administrative Code (AAC) 30.-331(a)(1)(H). On appeal, they argue that the evidence at trial was insufficient and that the trial court erred in admitting evidence of prior misconduct. We reverse and remand for a new trial. On September 17, 1991, Fish and Wildlife Officer Robert Beasley and Park Ranger Alan Peck were conducting surveillance along the banks of the Spoon River, in the Yakutat District. As Beasley and Peck watched from hiding, they saw Pavlik, Schmidt, and a third man, John Matsko, in a skiff. Four set nets had been deployed in the river near the skiff; no one else was in the area. From their vantage point, Beasley and Peck observed the men remove three of the four nets from the water, pick fish from them, and replace them in the river. The officers' view of the fishing activities at two of these nets was unobstructed; their view of the third was partially obstructed, but the officers saw enough to enable them to testify that the three men appeared to be picking fish from the net and "were operating that net for sure." As the officers continued to watch, the men drove the skiff toward the fourth net, which was out of view. By the time the officers made their way to a point where the fourth net would have been visible, the skiff had already departed and the net was gone. Beasley and Peck were able to determine that Pavlik and Schmidt each had a permit for one set net, but Matsko had only a crew member's license. Based on their observations, the officers charged Pavlik and Schmidt with operating more than one set net each, in violation of 5 AAC 30.-331(a)(1)(H). Pavlik and Schmidt first argue that the evidence was insufficient to prove that they fished more than the one net each for which they had permits. They suggest that the evidence left open the possibility that someone else might have operated the net at which their skiff was never actually seen, and that the officers' limited and partially obscured observations of their activities at one of the other three nets left open the possibility that they had only manipulated that net to get their skiff past it. In considering a motion for judgment of acquittal, however, the trial court must view the evidence and the inferences to be drawn therefrom in the light most favorable to the state. The motion must be denied if the court determines that fair-minded jurors in the exercise of reasonable judgment could differ on the question of whether guilt had been established beyond a reasonable doubt. Des Jardins v. State, 551 P.2d 181, 184 (Alaska 1976); Snyder v. State, 661 P.2d 638, 641 (Alaska App.1983). The same standard applies whether the evidence of guilt is direct or circumstantial. Des Jardins, 551 P.2d at 184; Snyder, 661 P.2d at 641. In arguing that the evidence below was insufficient to establish their guilt, Pav-lik and Schmidt mistakenly construe the evidence in the light most favorable to their own case and implicitly suggest that circumstantial evidence cannot support a finding of guilt. Our review of the record convinces us that fair-minded jurors considering the totality of direct and circumstantial evidence in the light most favorable to the state could reasonably conclude that the state had met its burden of proving guilt beyond a reasonable doubt. The trial court did not err in finding sufficient evidence to submit the case to the jury. Pavlik and Schmidt separately argue that the trial court abused its discretion in admitting evidence of prior bad acts at trial. Over Pavlik and Schmidt's objections, the trial court allowed Beasley to testify that his pres ence with Beck at the Pavlik family's Spoon River fishing site was prompted by a report that the Pavliks had fished illegally there the previous year. Beasley testified that a former crew member of the Pavliks had reported to the state troopers that during the 1990 fishing season the Pavliks had repeatedly engaged in illegal fishing practices similar to those charged in this case. The trial court ruled that this evidence was relevant to explain the officers' presence in the area and was not unduly prejudicial. On appeal, Pavlik and Schmidt dispute this ruling, arguing, as they did below, that the evidence of prior bad acts was inadmissible under Alaska Rule of Evidence 404(b). Under Rule 404(b)(1), Evidence of other crimes . is not admissible if the sole purpose for offering the evidence is to prove the character of a person in order to show that the person acted in conformity therewith. It is, however, admissible for other purposes, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. This rule has consistently been interpreted to require exclusion of prior bad acts evidence unless it is relevant to a material fact other than propensity. Oksoktaruk v. State, 611 P.2d 521, 524 (Alaska 1980); Lerchenstein v. State, 697 P.2d 312, 315 (Alaska App.1985), aff'd, 726 P.2d 546 (Alaska 1986). Here, the trial court admitted the disputed evidence to explain the officers' presence in the area of the Pavlik family's fishing site. Yet evidence explaining the officers' presence at the site had no direct bearing on any element of the offenses charged; nor did such evidence tend to advance any other issue that was actually in dispute. Significantly, Pavlik and Schmidt alleged no bias or impropriety on the part of the officers stemming from their presence at the Spoon River fishing site. Quite to the contrary, Pavlik and Schmidt specifically offered to stipulate that the officers were properly in the area to look for possible fishing violations. The state argues that the disputed evidence also might have been admissible to show preparation, plan, knowledge, identity or absence of mistake or accident. But the trial court did not address or rely on these alternative rationales. Nor does it appear that they could conceivably have applied. Preparation and identity were not disputed issues at trial. Neither did Pavlik and Schmidt place their intent in issue: they did not claim accident, mistake or lack of knowledge. And while evidence of prior similar crimes will always be relevant to establish the possibility of a common scheme or plan in the broad sense — that is, in the sense of showing the defendant's general willingness to engage in an ongoing pattern of similar criminal acts — proof of a common scheme or plan will itself have no material value unless it tends to elucidate identity or intent, or to establish some other disputed point apart from the defendant's general tendency to commit similar crimes. Standing alone, the mere showing of a tendency to commit similar crimes amounts to nothing more than the inference of propensity prohibited under A.R.E. 404(b)(1). See Velez v. State, 762 P.2d 1297 (Alaska App.1988). Here, the disputed testimony had no relevance to any issue actually in dispute and could only have served to establish Pavlik and Schmidt's propensity for criminal misconduct. Admission of this evidence was barred under A.R.E. 404(b)(1). In the context of the present case, the error in admitting this evidence cannot be dismissed as harmless. The evidence against Pavlik and Schmidt, though legally sufficient to support their convictions, was not overwhelming. Moreover, in his closing argument, the prosecutor actively encouraged the jury to use the report of prior misconduct as propensity evidence. Responding to defense counsel's argument that the evidence as a whole showed only that the defendants had been present at the scene, the prosecutor argued: It's not just that they happened] to be there. This is what was happening here. These three gentlemen were working together conducting this entire illegal fishing operation at night. That was what the troopers went over there to investigate. They had a report that this is what was happening at night at this site, and they went over there to investigate, and that's what happened. And then daytime comes, or flying weather improves, everything's taken out and one legal net is left. We cannot fairly say that the improper admission of evidence of prior illegal fishing did not appreciably affect the jury's verdict. See Love v. State, 457 P.2d 622, 632 (Alaska 1969). The judgments of conviction against Pavlik and Schmidt are REVERSED. MANNHEIMER, J., not participating. . Oksoktaruk and Lerchenstein were decided under the originally enacted version of A.R.E. 404(b) and construed the provision as a rule of exclusion. In 1991, the Alaska legislature amended A.R.E. 404(b), recharacterizing it as a rule of inclusion rather than exclusion. Ch. 79, § 1(c) SLA 1991. Although the present case is governed by the amended version of the rule, the. state has not argued that the 1991 amendment would have any significance in the factual circumstances presented here. We have no occasion to consider the extent to which the 1991 amendment to A.R.E. 404(b) might affect the continuing validity of Oksoktaruk and Lerchen-stein in other factual settings.

10353777

Daniel V. COX, Appellant, v. PROGRESSIVE CASUALTY INSURANCE COMPANY, Appellee

Cox v. Progressive Casualty Insurance Co.

1994-03-04

No. S-5372

467

470

869 P.2d 467

869

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

Daniel V. COX, Appellant, v. PROGRESSIVE CASUALTY INSURANCE COMPANY, Appellee.

Daniel V. COX, Appellant, v. PROGRESSIVE CASUALTY INSURANCE COMPANY, Appellee. No. S-5372. Supreme Court of Alaska. March 4, 1994. Wm. Grant Callow, Law Offices of Wm. Grant Callow, P.C., Anchorage, and Patrick G. Ross, Law Office of Patrick G. Ross, Anchorage, for appellant. Robert L. Griffin, Mason & Griffin, Anchorage, for appellee. Before MOORE, C.J., and RABINOWITZ, MATTHEWS and COMPTON, JJ.

1630

10273

OPINION MOORE, Chief Justice. INTRODUCTION This case arises out of a motorcycle accident that occurred in July 1989. The issue presented before this Court concerns the interpretation of the phrase "immediate medical treatment" in a motorcycle liability insurance policy. The insurer argues that "immediate medical treatment" means only "first aid type treatment immediately in time." The accident victim, a third-party beneficiary, interprets the phrase to cover "all the expenses incurred for medical treatment required by others who the insured injures while operating his motorcycle." The superi- or court agreed with the insurer. We now reverse and remand with instructions. FACTS AND PROCEEDINGS In July 1989, while driving a motorcycle in Anchorage, Daniel Cox was struck by another motorcyclist, Joe Egemo. Cox sustained numerous injuries, including a closed head injury, as well as fractures of the left leg, the left elbow, and a rib. He was transported from the scene of the accident to the hospital, where he underwent surgery the same day for external fixation of the left leg fracture. Four days later, he underwent a second surgery on the leg utilizing a bone graft from his iliac crest. Twelve days later, Cox underwent surgery a third time to remove and replace one of the external fixation pins. He was discharged from the hospital eighteen days after the accident. In October 1989, Cox was rehospitalized for removal of the external fixation device and for casting of the left leg. Physical therapy and numerous outpatient visits followed. In September 1990, Cox was again hospitalized for additional internal fixation and an additional iliac graft. His final hospitalization from the accident occurred in March 1991, when he was admitted for repair of a pseudarthrosis and for more internal fixation. Cox incurred medical bills in excess of $100,000 as a result of the accident. At the time of the accident, Egemo was insured by Progressive Insurance Company. Egemo's policy provided liability coverage for bodily injury in the amount of $50,000 per person and $100,000 per occurrence. Progressive paid Cox $50,000 for his personal injuries and settled Cox's claim for damage to his motorcycle. Egemo's policy further provided: In addition to our limit of liability, we will pay on behalf of a covered person: 5. Expenses incurred for immediate medical treatment required by others you injure with your cycle except for passengers on your cycle. (Emphasis omitted). Cox moved for a declaratory judgment, asking the superior court to resolve the meaning of "immediate medical treatment." Following discovery, Cox and Progressive filed cross-motions for summary judgment on this issue. The superior court ruled that the language in [Progressive's] policy of insurance obliging [Progressive] to pay "immediate medical care" [sic] obligates [Progressive] to pay any first-aid expenses incurred by [Cox] up to but excluding [Cox's] admission into Humana Hospital on July 9, 1989. Cox now appeals. DISCUSSION Cox argues that the policy provides coverage for all treatment he required as a result of his injuries. Progressive responds by arguing that the superior court was correct in holding that "immediate medical treatment" in its policy was limited to the first aid care administered to Cox prior to his admission into the hospital. We conclude that both of these interpretations are erroneous. Instead, we hold that the language found in this policy provides coverage for all medical care up until that point where treatment becomes recuperative or rehabilitative in nature. See 8A John A. Appleman, Insurance Law and Practice § 4901, at 222 (1981) ("In determining what is immediate surgical relief, it has been held that the chain of causation is broken when such relief begins to partake of the character of recuperative medical treatment_"). This interpretation of the policy language is consistent with case law from other jurisdictions construing comparable provisions. For example, in Alsam Holding Co. v. Consolidated Taxpayers' Mutual Insurance Co., 167 Misc. 732, 4 N.Y.S.2d 498, 510-13 (Mun.Ct.1938), the New York Municipal Court interpreted a similar clause in a landlord's liability policy. The clause prohibited an insured from incurring any expense other than for "immediate surgical relief' except at the insured's own cost. In Alsam Holding, an elderly tenant tripped and fell, breaking his femur. Id. 4 N.Y.S.2d at 503. The insured landlord assisted the man to his bed, where he remained overnight. Id. The next day, a doctor examined him and found him to be in shock. Id. He was given bedside X-rays, then removed to a hospital. Id. In the hospital, he was placed in traction for four days before the doctors were able to operate. Id. After the operation, he remained in the hospital for treatment for more than two months. Id. 4 N.Y.S.2d at 504. The court held that the "immediate surgical relief' clause authorized the insured to compensate an accident victim for all of the medical expenses incurred until the relief "beg[an] to partake of recuperative medical treatment." Id. 4 N.Y.S.2d at 512. Thus, the court concluded that the insurer was obligated to pay for all of the medical costs incurred until the patient was able to move about on crutches, one month after his operation. Id. In Laidlaw v. Hartford Accident & Indemnity Co., 254 N.Y. 391, 173 N.E. 557 (1930), the New York Court of Appeals followed a similar approach. In Laidlaw, the insured struck a four and one-half year old boy with his automobile. Id. 173 N.E. at 558. The insured was without fault in the accident. Id. By the terms of the policy the insurer agreed "to pay for such immediate medical or surgical aid as was imperative at the time of the accident." Id. The court held that under this clause, the insurer was obligated to pay for the victim's skull operation the day after the accident and for his two week hospital stay. Id. 173 N.E. at 559. The court concluded, however, that the clause did not require the insurer to cover expenses incurred for nursing the child after he left the hospital. Id. Other jurisdictions have reached similar conclusions. See generally 8A John A. Appleman, Insurance Law and Practice § 4901 (1981), and cases cited therein. For example, in Employers' Liability Assurance Corp. v. Manget Bros., 45 Ga.App. 721, 165 S.E. 770 (1932), an automobile policy authorized the insured to provide "such immediate medical or surgical relief as may be imperative at the time any such injuries are sustained." Id. 165 S.E. at 772. The Georgia Court of Appeals concluded that this language covered hospitalization and nursing expenses for the few days the accident victim remained in the hospital prior to his death. Id. Likewise, in Employers' Liability Assurance Corp. v. Light, Heat & Power Co., 28 Ind.App. 437, 63 N.E. 54 (1902), the policy at issue authorized the insured employer to render "immediate medical assistance" at the insurer's expense. Id. 63 N.E. at 55-56. The court interpreted this provision to require the insurer to pay "for necessary medical attention rendered within a reasonable time after the accident, and not for any subsequent services." Id. The court held that coverage extended to five weeks of two to four doctor's visits per day, "continuous" service for the next three weeks, and periodic visits thereafter. Id. As stated above, we conclude that the disputed provision at issue here covers all medical care up until that point where treatment becomes recuperative or rehabilitative in nature. We recognize, however, that the terms "recuperative" and "rehabilitative" are not self-defining. The extent of coverage under such a provision is necessarily dependent on the particular circumstances of any given case. Whether medical care is recuperative or rehabilitative in nature and thus outside the scope of coverage is a fact-based inquiry; a strict bright-line test is therefore inappropriate. See, e.g., Laidlaw, 173 N.E. at 559 ("[The] intent and scope [of the clause] must depend on the nature and circumstances of the accident, in the absence of more definite terminology."). Nonetheless, we do offer the following general guidelines to assist the trial courts in construing the phrase "immediate medical treatment." We are satisfied that this language clearly contemplates on-site first aid treatment and emergency room-type care. We also find that a policy such as the one at issue here generally will cover any medical treatment, directly attributable to the insured event and without any intervening cause, reasonably believed necessary to prevent loss of life, serious impairment to body functions, serious or permanent dysfunction of any body part or organ, or any other serious medical consequence. CONCLUSION In the present case, the determination of when Cox's treatment turned from "immediate medical treatment" to recuperative or rehabilitative medical treatment is a question of fact, properly left to the superior court. We reverse the superior court's determination that this policy language limits coverage to first aid care administered prior to hospital admission and remand to the superior court for proceedings consistent with the standard set forth in this opinion. REVERSED AND REMANDED. BURKE, J., not participating. . The interpretation of contract language is a question of law, subject to de novo review by this Court. Jackson v. Barbero, 776 P.2d 786, 788 (Alaska 1989); Langdon v. Champion, 745 P.2d 1371, 1372 n. 2 (Alaska 1987). This Court interprets insurance contracts by looking to the language of the disputed policy provisions, the language of other provisions of the policy, and to relevant extrinsic evidence. Stordahl v. Government Employees Ins. Co., 564 P.2d 63, 66 (Alaska 1977). In addition, we also refer to case law interpreting similar provisions. Id.

10350728

Sidney R. HERTZ, Appellant, v. STATE of Alaska, DEPARTMENT OF CORRECTIONS; Richard Franklin, Director, Division of Institutions; Larry Kincheloe, Superintendent, Spring Creek Correctional Center; and Michael Daly, Compliance Officer, Spring Creek Correctional Center, Appellees

Hertz v. State, Department of Corrections

1994-02-18

No. S-5431

154

155

869 P.2d 154

869

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

Sidney R. HERTZ, Appellant, v. STATE of Alaska, DEPARTMENT OF CORRECTIONS; Richard Franklin, Director, Division of Institutions; Larry Kincheloe, Superintendent, Spring Creek Correctional Center; and Michael Daly, Compliance Officer, Spring Creek Correctional Center, Appellees.

Sidney R. HERTZ, Appellant, v. STATE of Alaska, DEPARTMENT OF CORRECTIONS; Richard Franklin, Director, Division of Institutions; Larry Kincheloe, Superintendent, Spring Creek Correctional Center; and Michael Daly, Compliance Officer, Spring Creek Correctional Center, Appellees. No. S-5431. Supreme Court of Alaska. Feb. 18, 1994. Sidney R. Hertz, pro se. Timothy W. Terrell, Asst. Atty. Gen., Office of Sp. Prosecutions and Appeals, Anchorage, and Charles E. Cole, Atty. Gen., Juneau, for appellees. Before MOORE, C.J., and RABINOWITZ, BURKE and COMPTON, JJ.

882

5795

ORDER IT IS ORDERED: 1. Memorandum Opinion and Judgment No. 0698, issued on December 22, 1993, is WITHDRAWN. 2. Opinion No. 4056 is issued on this date in its place. Entered by direction of the Court at Anchorage, Alaska, on February 18, 1994. OPINION PER CURIAM. Sydney Hertz, an inmate at the Spring Creek Correctional Center, appeals the judgment of the superior court dismissing his administrative appeal. Hertz alleged that the Department of Corrections and other appellees were in non-compliance with the Final Settlement Agreement (Agreement) in Cleary v. Smith, 3AN-81-5274 Civil. Because the facts are uncontroverted, we review de novo the superior court's interpretation of the Agreement. Martech Constr. Co. v. Ogden Envtl. Servs., 852 P.2d 1146, 1149 (Alaska 1993). We agree with the superior court's conclusion that Hertz did not comply with the procedures set forth in Section IX.B of the Agreement to challenge Department of Corrections action for noncompliance. Section IX.B.l of the Agreement states that the Cleary court shall retain jurisdiction for the purpose of enforcement of the Agreement. Section VILE.10 of the Agreement allows a compliance challenge, after exhaustion of administrative remedies, to be brought as "a direct action before the court in this case." We interpret these provisions to require that an inmate bring an action for non-compliance in the Cleary case. Hertz did not comply with this requirement. Furthermore, Section IX.B.2 of the Agreement provides that an inmate must bring any action seeking enforcement by the court through counsel for the plaintiff class, unless the court grants leave to proceed pro se. Philip Volland, counsel for the plaintiff class, declined to represent Hertz in this case. Thus, to bring his compliance action, Hertz must obtain leave from the superior court to proceed pro se. Hertz failed to comply with the Agreement by not obtaining such leave. Based on Hertz's failure to comply with the procedural requirements of the Agreement, we affirm the dismissal of his administrative appeal. AFFIRMED. RABINOWITZ, J., concurring in part, dissenting in part. MATTHEWS, J., not participating. . The Department of Corrections also argues that Hertz failed to exhaust his administrative remedies within the Department by failing to file a copy of his appeal, and the response of the Director of Institutions, with the Department's Grievance and Compliance Administrator. Hertz counters that Section VII.E.6 of the Agreement requires the Department, not the inmate, to file the copy of the appeal and response. We agree with Hertz's interpretation. Section VII.E.6 of the Agreement states: The regional director shall provide the inmate with a written response to the appeal within 15 working days of receipt with a copy to the institutional grievance coordinator. The response shall state the affirmance or reversal of any decision by the superintendent, and any corrective action to be taken, and contain findings and conclusions sufficient to permit further review. A copy of the inmate's appeal, and of the appeal response, shall be filed with the Department's Grievance and Compliance Administrator. An inmate who feels that a grievance has not been handled consistent with Department policy may seek review by the Grievance and Compliance Administrator after final disposition by the regional director. (Emphasis added.) The parties agree that, after the 1991 reorganization within the Department of Corrections, all references to "regional director" in the Agreement should now be considered to read "director of institutions." It is not clear from the disputed language who has the burden of filing the appeal and response. The two sentences prior to the disputed one discuss obligations of the director, including the specific obligation to file a copy of the response with the institutional (as opposed to department-wide) grievance coordinator. Not until the sentence following the disputed language does the Agreement discuss the inmate's right to appeal to the Grievance and Compliance Administrator. Thus the copies "shall be filed" with the Administrator regardless of whether the inmate seeks further review. This context leads us to conclude that the responsibility was on the director of institutions, and therefore Hertz did comply with all of the Agreement's procedures for administrative review within the Department of Corrections.

10366676

STATE of Alaska, Appellant, v. Gary NEWCOMB, Appellee

State v. Newcomb

1994-03-11

No. A-4772

1193

1195

869 P.2d 1193

869

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

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

CAP

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

STATE of Alaska, Appellant, v. Gary NEWCOMB, Appellee.

STATE of Alaska, Appellant, v. Gary NEWCOMB, Appellee. No. A-4772. Court of Appeals of Alaska. March 11, 1994. Cynthia L. Herren, Asst. Atty. Gen., Office of Sp. Prosecutions and Appeals, Anchorage, and Charles E. Cole, Atty. Gen., Juneau, for appellant. Suzanne Weller, Asst. Public Defender, and John B. Salemi, Public Defender, Anchorage, 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.

958

6081

OPINION BRYNER, Chief Judge. On March 3, 1987, Anchorage police officers located and arrested Gary Newcomb, a fugitive who had escaped from the Wildwood Correctional Center. In the course of the arrest, Newcomb shot and wounded two officers. After taking Newcomb into custody, the police discovered $666 in cash on his person and seized it. Newcomb was charged with attempted murder, first-degree assault, misconduct involving weapons, and escape. While these charges were pending, Newcomb moved for return of the funds seized from him upon his arrest. The superior court denied this motion, ruling that the matter was under investigation and that the money was being properly held as potential evidence. Newcomb was eventually convicted; this court affirmed his conviction and sentence in Newcomb v. State, 800 P.2d 935, 937 (Alaska App.1990). While his appeal was pending, Newcomb requested the District Attorney's Office to return his money. The Anchorage Police Department, which had control of the money, declined to return it based on an investigating officer's belief that it might be stolen. On June 24, 1992, more than a year after his conviction had become final, Newcomb filed a motion in his closed criminal case, seeking return of the money. The state opposed the motion, arguing that the superi- or court lacked jurisdiction and that New-comb's proper remedy would be a civil action against the municipality. Superior Court Judge Milton M. Souter initially denied New-comb's motion, but subsequently granted a motion to reconsider his ruling and ordered the money returned. The state appeals, renewing the jurisdictional arguments it raised below. Newcomb rejoins that the trial court has broad ancillary powers over the disposition of property seized in connection with a criminal case. See, e.g., United States v. Elias, 921 F.2d 870, 872 (9th Cir.1990); United States v. Maez, 915 F.2d 1466, 1468 (10th Cir.1990); United States v. Wingfield, 822 F.2d 1466, 1470 (10th Cir.1987); United States v. LaFatch, 565 F.2d 81, 83 (6th Cir.1977); United States v. Wilson, 540 F.2d 1100, 1104 (D.C.Cir.1976). He argues that the court did not abuse its discretion in this case. Although a trial court unquestionably exercises authority over the disposition of evidence upon the conclusion of a criminal case, the court's involvement in such issues typically does not extend beyond assuring that property submitted to the court in the course of the litigation be returned to the submitting party. See, e.g., Criminal Rule 26.1(g), (h); Alaska Court System Office of the Administrative Director, Administrative Bulletin No. 9 § VIII(4) (July 15, 1991). In the interest of judicial economy and fairness, however, a trial court may also exercise authority to decide ancillary issues regarding the disposition of property involved in a criminal proceeding, particularly when the decision of such ancillary issues is incidental to the court's decisions on issues squarely presented in the course of the proceeding. See, e.g., Wilson, 540 F.2d at 1103-04. See also United States v. Martinson, 809 F.2d 1364, 1367-68 (9th Cir.1987). Nevertheless, in matters calling for an exercise of ancillary jurisdiction, the scope of the trial court's discretion is necessarily circumscribed by the principles from which its ancillary powers derive: judicial economy, procedural fairness, and sound public policy. Wilson, 540 F.2d at 1103-04; Martinson, 809 F.2d at 1367-68. In this ease, prior to Newcomb's trial, the court was required to determine the state's right to retain possession of the money seized from Newcomb upon his arrest. However, prior to the termination of the criminal proceedings, the trial court was never called upon to resolve the competing claims of New-comb and the Municipality of Anchorage as to ownership of the money. This issue is in no sense incidental to issues addressed or decided by the trial court during the cqurse of the criminal litigation; rather, Newcomb belatedly raised it long after his criminal case had been finally resolved. Newcomb could as readily have pursued his claim in a separate civil action. Because his conviction had long since become final and his criminal case had been closed, and because his motion raised issues that the trial court had not been required to resolve during the pendency of the prosecution, adjudication of Newcomb's claim in the context of the closed criminal case offered no advantage of efficiency. To the contrary, as evidenced by the expenditure of state resources vastly disproportionate to the value of the funds in controversy, the superior court's exercise of its equitable powers of ancillary jurisdiction in this case can hardly be defended in the name of judicial economy. We further fail to see how the interest of fairness was served by allowing Newcomb to proceed in a forum where the Municipality of Anchorage — which has actual possession and control of Newcomb's money and is primarily responsible for the resistance he has encountered in seeking its return — is not formally a party. Finally, we think it highly questionable whether public policy favors allowing Newcomb to pursue what is essentially a private civil action for money in a procedural setting where he is served by court-appointed counsel at public expense. Under the circumstances, we conclude that the superior court abused its discretion in entertaining Newcomb's motion and deciding it on its merits in the context of his closed criminal case. The order entered below is VACATED. MANNHEIMER, J., not participating.

10376387

HOMER ELECTRIC ASSOCIATION, Petitioner, v. Lydia TOWSLEY, Personal Representative of the Estate of Herschell Ray Towsley, (Deceased), Respondent

Homer Electric Ass'n v. Towsley

1992-11-27

No. S-4563

1042

1049

841 P.2d 1042

841

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

HOMER ELECTRIC ASSOCIATION, Petitioner, v. Lydia TOWSLEY, Personal Representative of the Estate of Herschell Ray Towsley, (Deceased), Respondent.

HOMER ELECTRIC ASSOCIATION, Petitioner, v. Lydia TOWSLEY, Personal Representative of the Estate of Herschell Ray Towsley, (Deceased), Respondent. No. S-4563. Supreme Court of Alaska. Nov. 27, 1992. Bill Mellow, Juneau, for petitioner. Jeffrey M. Feldman and Kristen Young, Young, Sanders & Feldman, Anchorage, Jeffrey D. Jefferson, Nordstrom Steele & Jefferson, Kenai, for respondent. Toby N. Steinberger, Asst. Atty. Gen., Anchorage, Charles E. Cole, Atty. Gen., Juneau, for amicus curiae State of Alaska. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

4954

30968

OPINION MATTHEWS, Justice. I. INTRODUCTION The Estate of Herschell Towsley (the Estate) is suing Homer Electric Association (HEA) for wrongful death. The sole issue presented by this petition concerns the interpretation of AS 18.60.670(1) which prohibits the placement of "any type of . equipment . that is capable of lateral, vertical, or swinging motion, within 10 feet of a high voltage overhead electrical line or conductor." The trial court ruled that AS 18.60.670(1) prohibits placing a crane where it is capable of extending its boom to within ten feet of a power line. HEA disagrees, arguing that AS 18.60.670(1) only prohibits placing a crane within ten feet of a power line even if it is possible for the boom to extend into the ten-foot area. We granted HEA's petition for review. We agree with HEA and reverse the trial court. II. FACTS Decedent Herschell Towsley worked as a laborer for Rollins Truck and Tractor, a subcontractor on a project near Homer. In May 1987 Towsley was holding the tag line of a pile driver as a crane's lift line was moving the pile driver. The lift line hit a power line owned and maintained by HEA. Towsley was electrocuted. The Estate claims that prior to the accident the general contractor on the project advised HEA that the project would require use of a crane near one of HEA's power lines. The Estate claims that HEA advised the contractor that the work could legally proceed as long as there was a ten-foot clearance between the power lines and the crane. After the accident the Estate sued HEA for wrongful death. One theory of liability is that HEA was negligent per se in failing to prevent persons working near HEA's power lines from violating AS 18.60.670(1). The Estate moved for a ruling that AS 18.60.670(1) prohibits placing equipment closer to power lines than the maximum extension of the equipment plus ten feet. The trial court so ruled. We granted HEA's petition for review. III. DISCUSSION A. Contentions of the Parties Alaska Statute 18.60.670 provides in relevant part that "[a] person . may not (1) place . machinery . that is capable of lateral, vertical, or swinging motion, within 10 feet of a high voltage overhead electrical line or conductor." The trial court interpreted this language to prohibit placing equipment in a location where any part of the equipment could potentially come within ten feet of the power line. HEA argues that the statute allows equipment to be placed where it is possible for a part of the equipment to extend into the ten-foot area, so long as no part of the equipment actually does. Specifically, HEA argues that the trial court's interpretation of AS 18.60.670(1) is wrong because it conflicts with the plain meaning of the statute, conflicts with AS 18.60.675, runs contrary to federal interpretations of similar federal laws, runs contrary to industry and Alaska Department of Labor interpretations of AS 18.60.670, and would cause excessive and unwarranted burdens on the construction industry. Amicus Curiae, the State of Alaska, favors HEA's interpretation. It argues that the plain meaning of AS 18.60.670 does not prohibit the placement of and operation of cranes just outside of the 10-foot protective area.... If the legislature wanted to prohibit the placement and operation of cranes anywhere in the vicinity of power lines so that the crane could not possibly invade the 10-foot protective area, it would have done so. The State also argues that HEA's interpretation is consistent with the Department of Labor's two-decade-old interpretation. The Estate argues that the trial court's interpretation is correct because safety laws should be broadly construed, HEA's interpretation would render AS 18.60.670 superfluous, and the trial court's interpretation is consistent with the Department of Labor's longstanding construction of the statute. B. Plain Meaning Generally, the most reliable guide to the meaning of a statute is the words of the statute construed in accordance with their common usage. Lagos v. City & Borough of Sitka, 823 P.2d 641, 643 (Alaska 1991). However, even where the statutory language considered alone seems to leave room reasonably for only one meaning, we nonetheless may consult legislative history and the rules of statutory construction, realizing that sometimes language that seems clear in the abstract takes on a different meaning when viewed in context. North Slope Borough v. Sohio Petroleum Corp., 585 P.2d 534, 540 (Alaska 1978); State v. Alex, 646 P.2d 203, 208 n. 4 (Alaska 1982). In such cases the legislative history and rules of construction must present a compelling case that the literal meaning of the language of the statute is not what the legislature intended. University of Alaska v. Geistauts, 666 P.2d 424, 428 n. 5 (Alaska 1983) ("Where a statute's meaning appears clear and unambiguous, . the party asserting a different meaning has a correspondingly heavy burden of demonstrating contrary legislative intent."); State v. Alex, 646 P.2d at 208 n. 4 (under Alaska's sliding-scale approach to statutory interpretation, the more plain the language of the statute the more convincing the evidence of contrary legislative intent must be). As noted, the trial court interpreted AS 18.60.670(1) to prohibit the placing of equipment in a location where any part of the equipment could come within ten feet of a power line. A literal reading of the statute does not support this interpretation. Read literally, AS 18.60.670(1) merely prohibits equipment from being within ten feet of a power line. The Estate does not cite to, and we have not found, any direct evidence that the legislature intended a contrary meaning. Although, as discussed below, the Estate argues that there is implicit evidence that the legislature intended a contrary meaning, we believe this evidence does not present a compelling case that the legislature did not intend AS 18.60.670(1) to be interpreted literally. Thus, we conclude that AS 18.60.670(1) should be interpreted literally. First, the Estate argues that the existence of section 312-20 of the 1969 Alaska General Safety Code is evidence that when the legislature enacted AS 18.60.670(1) in 1972 it intended the statute to provide the same protection as the code. Section 312-20 provided: "The operation of [equipment] when it is possible to bring any part of the equipment within ten (10) feet of high voltage lines is prohibited...." (Emphasis supplied.) Section 312-20 was repealed in 1973 by the Department of Labor. The Estate's assertion seems unlikely in view of the language of AS 18.60.670(1). If the legislature had intended to provide the same protection as the code provision it probably would have copied the code provision verbatim or used similarly clear language. Second, the Estate argues that the purpose of the statute is evidence that the legislature did not intend AS 18.60.670 to be interpreted literally. Specifically, the Estate argues that the literal interpretation of the statute "is not consistent with the policy of promoting public safety which underlies the statute." Thus, the Estate argues that the trial court's interpretation is the only "construction which preserves [the statute's] usefulness." We disagree. While the trial court's interpretation promotes a higher degree of safety than the literal interpretation, the latter does not render this statute useless. Section 670's requirements, as with most safety rules, are a compromise between competing safety and efficiency concerns. Although the literal interpretation of the statute does not eliminate the possibility of contact with a power line, it provides some margin of safety. It also provides the construction industry with a greater degree of flexibility when working near power lines than the trial court's interpretation. This may be the balance that the legislature intended when it enacted AS 18.60.670. Since the plain meaning interpretation is not unreasonable, the fact that the trial court's interpretation better promotes safety does not justify departing from the literal interpretation of the statute. Third, the Estate argues that the literal interpretation of subsection (1) renders it meaningless in view of subsection (2). The Estate argues that this provides evidence that the legislature did not intend AS 18.60.670 to be interpreted literally. To begin, we note that the Estate's analysis may fairly be disputed. Its argument only succeeds if "placing" equipment is comprehended in "storing, operating, erecting, maintaining, moving, or transporting" it. But if that is true, then the Estate's interpretation of subsection (1) suffers from the same defect: it makes subsection (2) functionless for if equipment can not be placed where it may come within ten feet of a power line it is not necessary to prohibit its storage or operation within ten feet of a power line. For the purpose of evaluating the Estate's argument, however, we assume that the Estate is correct in urging that the literal interpretation of subsection (1) is redundant because subsection (2) also prevents equipment from coming within ten feet of a power line. While this would be a valid argument that the legislature intended a different meaning than the literal meaning, we conclude that it is not sufficiently strong to overcome the presumption that the legislature intended the statute to be interpreted literally. See State v. Alex, 646 P.2d 203, 208 n. 4 (Alaska 1982). As a general rule, a " 'statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant.' " Alascom, Inc. v. North Slope Borough, Bd. of Equalization, 659 P.2d 1175, 1178 n. 5 (Alaska 1983) (quoting 2A C. Sands, Statutes & Statutory Construction § 46.06 (4th ed. 1973)). Application of this rule suggests that the trial court's interpretation of subsection (1) is correct because the court's interpretation avoids redundancy. Nonetheless, it is our view that even in light of the rule of construction disfavoring redundant interpretations, section 670(1) cannot reasonably be read as the trial court read it. The actual language of subsection (1) falls so seriously short of expressing a prohibition on placement of equipment where it potentially might come within the ten-foot protected zone that the fact that it may be redundant if construed literally is an insufficiently compelling reason to persuade us that the statute has another meaning. Redundancy in legislative drafting, as in other writing, is not uncommon. White v. Roughton, 689 F.2d 118, 120 (7th Cir.), cert. denied, 460 U.S. 1070, 103 S.Ct. 1524, 75 L.Ed.2d 947 (1982). The rules governing use of the doctrine of negligence per se warn against adopting a statute as a negligence standard if its meaning is so obscure because of, for example, imprecise wording, that the standard of care is not known to reasonable people in the same position or trade as the defendant. Northern Lights Motel, Inc. v. Sweaney, 561 P.2d 1176, 1184, aff'd on rehearing, 563 P.2d 256 (Alaska 1977); Ferrell v. Baxter, 484 P.2d 250, 263 (Alaska 1971). Care thus should be taken that the rule disfavoring redundant interpretations is not used mechanistically. It should not be employed in a manner that attributes obscure and unintended meanings to a statutory provision. See 2A Norman J. Singer, Sutherland Statutory Construction § 46.06, at 120 (5th ed. 1992) (stating that though a court should generally give effect to every provision in a statute, it should disregard a provision resulting from legislative inadvertence). Moreover, a comparison to another section suggests that the literal meaning of subsection (1) of section 670 is the intended one. Alaska Statute 18.60.675 provides: A person individually or through an agent or employee may not operate a crane, derrick, power shovel, drilling rig, hoisting equipment, or similar apparatus, any part of which is capable of vertical, lateral, or swinging motion, unless the operator or the operator's employer posts and maintains in plain view of the operator, a durable warning sign legible at 12 feet, that reads as follows: "It is unlawful to operate this equipment within 10 feet of high voltage lines." Section 675 applies only to equipment covered by section 670(1). The warning mandated by 675 is the literal meaning of section 670(1), namely that the equipment may not come closer than ten feet of a high voltage line. If the legislature had intended 670(1) to express a prohibition on placement of cranes where they might be extended to within ten feet of a power line, it might have mandated a sign stating that, for example, "[i]t is unlawful to place or operate this equipment where it is possible for any part of this equipment to come within ten feet of high voltage lines." See State, Dep't of Highways v. Green, 586 P.2d 595, 603 n. 24 (Alaska 1978) ("In some circumstances, the interpretation of one provision is properly influenced by the content of another provision addressing similar purposes or objects."). Fourth, the Estate claims that the Department of Labor's longstanding construction of AS 18.60.670(1) provides evidence that the legislature did not intend it to be interpreted literally. "When an agency's interpretation of a statute is long-standing . it is entitled to some deference by this court." State, Dep't of Revenue v. Alaska Pulp America, Inc., 674 P.2d 268, 277 (Alaska 1983). However, HEA also claims that the Department of Labor's longstanding construction of AS 18.60.670(1) supports its respective construction. Both parties cite to conflicting affidavits of Department of Labor employees and construction industry experts to support their arguments. The affidavits are not helpful because they are in conflict. However, regu lations promulgated by the Department of Labor imply that the Estate is wrong. Section 05.140(a)(2)(D)(v)(b) of the Construction Code provides: (a) Crane and derricks. (2) Crawlers, Locomotive and Truck Cranes. (D) Operating Crew. (v) The operating crew shall consist of the designated operator plus an attendant who shall act only as a safety observer when the crane is in operation if any one of the following criteria exists: (b) If the equipment is operating where any part is capable of reaching within 15 feet of an overhead power line in which case the provisions of AS 18.60.670-695 apply[.] This regulation and a similar one in the General Safety Code are the only regulations addressing whether equipment can be located where any part is potentially capable of touching an overhead power line. They require a safety observer when that potential is present. They do not, however, bar placement of the equipment in such a position. If the Department interpreted section 670(1) to prohibit the placement of equipment where any part of the equipment might come in contact with a power line, one would expect a regulation expressing such a prohibition. IY. CONCLUSION Alaska Statute 18.60.670(1) should be interpreted literally to prohibit placing a crane within ten feet of a high voltage electrical line. The statute does not prohibit placing a crane where some parts of it might be moved to come within the ten-foot zone. Respondent has not presented a compelling case that this is not what the statute means. We therefore reverse the order of the trial court. COMPTON, J., dissents. . HEA is an electric cooperative which provides power on the Kenai Peninsula. . AS 18.60.670 provides: Prohibition against placement of equipment near electrical power lines and conductors. A person individually or through an agent or employee may not (1) place any type of tool, equipment, machinery, or material that is capable of lateral, vertical, or swinging motion, within 10 feet of a high voltage overhead electrical line or conductor; (2) store, operate, erect, maintain, move, or transport tools, machinery, equipment, supplies, materials, apparatus, buildings, or other structures within 10 feet of a high voltage overhead electrical line or conductor. . In Wallace v. State, 557 P.2d 1120 (Alaska 1976), a violation of this regulation led to an accident very similar to the one underlying this case. The State was sued in April of 1973 for failing to enforce the regulation. Id. at 1122. . HEA notes that the trial court's interpretation might create heavier burdens for the construction industry. One of HEA's experts, Michael Harbaugh, testified in an affidavit that the trial court's interpretation is not required for safety.... In most cities, it is not feasible to de-energize or barricade all the overhead lines that it is possible for a crane or drag line to reach while working.... Extending the prohibited area by adding to it the distance the equipment is capable of moving would either eliminate the use of mechanical equipment or might force the use of an unsafe location. Another expert, Terry Miller, testified in an affidavit that the trial court's interpretation "is unworkable and would prevent the use of backhoes and cranes on most construction sites in Alaska." . Subsection (2) provides that a person may not "store, operate, erect, maintain, move, or transport . equipment . within 10 feet of a high voltage . line or conductor." . We are unpersuaded by the Estate's argument that the language "within 10 feet of a high voltage overhead electrical line or conductor" modifies "capable of lateral, vertical, or swinging motion," instead of the verb "place." This interpretation would result in a grammatically incorrect and ineffective sentence as there would be no object of the verb "place" describing where the equipment may not be placed. Further, in subsection (2) the phrase "within 10 feet" clearly modifies verbs at the beginning of the subsection in that it tells the reader that equipment may not be stored or operated within ten feet of an electrical line. The phrase does not describe the equipment. Since the same phrase is used in a parallel location in both subsections, it seems most unlikely that it would have a grammatical function in the first subsection which is different from its function in the second. . The Estate principally relies on the affidavit of an electrical inspector for the State Department of Labor, Preston Williams. Williams is responsible for providing advice about Alaska electrical statutes. Williams testified that the Department of Labor interprets AS 18.60.670(1) as requiring that equipment capable of movement "be placed so that at its furthest possible extension toward a high voltage overhead electrical line or conductor, it maintains the required minimum ten feet of clearance." Williams testified that the Department of Labor has given the statute this interpretation since it was enacted in 1972. In addition, Williams testified in a deposition that he contacted his supervisor and two other Department electrical inspectors. According to Williams, they all agreed with his affidavit. In response, HEA relies on numerous affidavits. One of the affidavits is from Jody Vick. Since August 1988, Vick has worked as a voluntary compliance officer for the Division of Labor Standards and Safety of the Department of Labor. From 1971 to 1988 Vick worked as an electrician in Alaska. Vick testified that AS 18.60.670 is not enforced in the manner suggested by Williams. In addition HEA relies on a number of construction industry employees who testified that they have much experience working near power lines and the Department of Labor has not interpreted AS 18.60.670 in accordance with Williams' affidavit. . See Alaska General Safety Code § 01.-0705(i)(l)(E)(ii).

10403316

CITY OF VALDEZ, Alaska, a municipal corporation, Appellant, v. COPPER VALLEY ELECTRIC ASSOCIATION, INC., State of Alaska, Alaska Power Authority, and Alaska Public Utilities Commission, Appellees; COPPER VALLEY ELECTRIC ASSOCIATION, INC., Appellant, v. CITY OF VALDEZ, State of Alaska, Alaska Power Authority, and Alaska Public Utilities Commission, Appellees

City of Valdez v. Copper Valley Electric Ass'n

1987-08-07

Nos. S-1561, S-1562

462

466

740 P.2d 462

740

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

CITY OF VALDEZ, Alaska, a municipal corporation, Appellant, v. COPPER VALLEY ELECTRIC ASSOCIATION, INC., State of Alaska, Alaska Power Authority, and Alaska Public Utilities Commission, Appellees. COPPER VALLEY ELECTRIC ASSOCIATION, INC., Appellant, v. CITY OF VALDEZ, State of Alaska, Alaska Power Authority, and Alaska Public Utilities Commission, Appellees.

CITY OF VALDEZ, Alaska, a municipal corporation, Appellant, v. COPPER VALLEY ELECTRIC ASSOCIATION, INC., State of Alaska, Alaska Power Authority, and Alaska Public Utilities Commission, Appellees. COPPER VALLEY ELECTRIC ASSOCIATION, INC., Appellant, v. CITY OF VALDEZ, State of Alaska, Alaska Power Authority, and Alaska Public Utilities Commission, Appellees. Nos. S-1561, S-1562. Supreme Court of Alaska. Aug. 7, 1987. Kenneth P. Jacobus, Hughes, Thorsness, Gantz, Powell & Brundin, Anchorage, for appellant City of Valdez. Andrew E. Hoge and David S. Johnson, Hoge and Lekisch, Anchorage, for appellant Copper Valley Elec. Ass’n, Inc. Carolyn E. Jones, Asst. Atty. Gen., Anchorage, and Ronald W. Lorenson, Acting Atty. Gen., Juneau, for appellees. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

2257

13904

OPINION COMPTON, Justice. This appeal is from the denial of summary judgment motions filed by the City of Valdez (Valdez) and the Copper Valley Electric Association (CVEA) respectively, and from the granting of cross-motions for summary judgment filed by the State of Alaska (State), the Alaska Power Authority (APA) and the Alaska Public Utilities Commission (APUC). The motions were predicated upon the discontinuance of the state's Power Cost Assistance (PCA) payments to the CVEA for a period of months in 1981. The state discontinued these payments because it believed that Valdez's independently created Electric Consumer Assistance (ECA) program, which provided fuel cost assistance payments directly to Valdez customers, ran afoul of certain eligibility requirements for receipt of PCA funds contained in former AS 44.56.162 (now AS 44.83.162). In granting the cross-motions, the trial court concluded that 1) Valdez lacked standing to bring this action; and 2) CVEA was barred from bringing this action by the two-year statute of limitations the court found to be applicable. For the reasons that follow, we affirm the judgment of the superior court in granting the cross-motions for summary judgment, but reverse regarding the issue of attorney's fees awarded the state against Valdez and CVEA. I. FACTUAL AND PROCEDURAL BACKGROUND The Alaska Legislature responded to a rapid increase in fuel costs between 1978 and 1981 by instituting a program aimed at equalizing the costs of power in rural Alaska to the cost of power in major Alaskan cities. This program, now called the Power Cost Equalization Program (formerly the Power Cost Assistance Program) is administered by the APUC. Once an applicant utility is deemed qualified for relief by the APUC, the APA issues assistance to that utility. The utility then uses the full amount received to credit the monthly utility bill of its customers. CVEA, an electrical cooperative serving the electric power customers of Valdez, received PCA payments through December 1980. Valdez's ECA program entitled Valdez residents to direct payments from the city for one-third of their electric bill after the bill was paid. In December 1980, at the request of the APA, the attorney general for the State of Alaska rendered an opinion concluding that Valdez's ECA program payments constituted "other power production cost assistance" under AS 44.56.162(j)(2) which, under the statute, the APA was required to deduct from the PCA payments otherwise due CVEA. Ch. 83, § 42, SLA 1980. Accordingly, PCA payments were withheld from CVEA for the months of January through July 1981. Valdez terminated its ECA program in April 1981. In response to the termination of PCA funds, counsel for Valdez and CVEA worked jointly to resolve the problem at minimal expense by requesting reconsideration of the attorney general's opinion. Valdez and CVEA filed this suit November 15,1983, requesting a declaratory judgment that the power cost equalization statute does not authorize a deduction from the PCA payments to which CVEA was entitled because of payments that Valdez made to customers pursuant to its ECA program. Valdez and CVEA further requested recovery of payments withheld from CVEA from January through mid-July 1981 in the amount of $114,509.30, plus interest and costs. Valdez moved for summary judgment on the ground that it was entitled to judgment on the question of the APA's obligation to make PCA payments. The APA opposed Valdez's motion and cross-moved for summary judgment, arguing that Valdez lacked standing to sue the state and the APA for wrongfully withholding PCA payments from the CVEA. The trial court denied Valdez's motion and granted the APA's cross-motion, concluding that Valdez lacked standing to bring this action. Valdez filed a motion for reconsideration which was also denied. CVEA filed a separate motion for summary judgment in which it argued that the language of then AS 44.56.162(j)(2) clearly stated that payments under Valdez's EPA program should not be subtracted from the PCA payments. The APA opposed CVEA's motion and cross-moved for summary judgment, arguing inter alia that CVEA's complaint was time barred under the allegedly applicable statute of limitations, AS 09.10.070(3). The trial court denied CVEA's motion and granted the APA's motion, concluding that the applicable statute of limitations was AS 09.10.070(3), which requires commencement of an action within two years from the date the cause of action arises. The trial court further rejected CVEA's other arguments, which it urged in order to bring this action within the six-year statute of limitations contained in AS 09.10.050. CVEA filed a motion for reconsideration which was also denied. The trial court awarded $2,850.50 in attorney's fees to APA. In doing so, the court rejected Valdez's and the CVEA's argument that this case qualified as public interest litigation and no award of fees should be made. This appeal ensued. II. DISCUSSION A. VALDEZ'S ELECTRIC POWER CONSUMERS WERE INELIGIBLE TO RECEIVE THE BENEFITS OF THE STATE'S PCA PROGRAM BETWEEN JANUARY AND JULY, 1981. CVEA argues that it is not barred by the applicable statute of limitations from maintaining this action. Valdez argues that it has standing to bring this action and that it is not barred by the applicable statute of limitations from maintaining this action. For the purposes of this appeal we assume that both parties have standing to bring this action and that the action is not barred by any statute of limitations. We do so because we conclude that on the ultimate question of statutory interpretation presented here, the state prevails. AS 44.56.162, renumbered AS 44.-83.162 in 1980, was controlling at the time this cause of action arose. AS 44.56.162(a) provided: There is established a separate fund to provide financial assistance to eligible electric utilities in the state, the power production cost assistance fund which shall be administered by the [APA] authority as a fund distinct from other funds of the [APA] and which is composed of money appropriated for the purpose of providing power production cost assistance to an eligible utility. Ch. 83, § 42, SLA 1980. AS 44.56.162(j)(2) provided: [A]ctual power production costs are the expenses and costs prescribed in this subsection less any other power production cost assistance provided to the electric utility. Id. (emphasis added). Valdez argues that its ECA program was not "power production cost assistance" within the meaning of AS 44.56.162(j)(2). It contends that its program provided payments to customers directly, not to the utility, (CVEA), and therefore its program did not run afoul of the clear language contained in the statute. The state essentially argues that Valdez's program frustrated the legislative intent of the PCA program. We have stated that in ascertaining the meaning of a statute "our primary guide is the language used, construed in light of the purpose of the enactment." Commercial Fisheries Entry Com'n v. Apokedak, 680 P.2d 486, 489-90 (Alaska 1984) (footnote omitted) citing Wien Air Alaska v. Arant, 592 P.2d 352, 356 (Alaska 1979). On its face, former AS 44.56.162(j)(2) appears to require that only payments provided to the electric utility be deducted from the actual power production costs of the utility in determining its eligibility for PCA payments. However: [Ascertainment of the meaning apparent on the face of a single statute need not end the inquiry. Train v. Colorado Public Interest Research Group, 426 U.S. 1, 10, 48 L Ed 2d 434, 96 S Ct 1938 [1942] (1976); United States v. American Trucking Assns., Inc., 310 U.S. 534, 543-44, 84 L Ed 2d [sic] 1345, 60 S Ct 1059 [1063-64] (1940). This is because the plain meaning rule is "rather an axiom of experience than a rule of law, and does not preclude consideration of persuasive evidence if it exists." Boston Sand Co. v. United States, 278 U.S. 41, 48, 73 L Ed 170, 49 S Ct 52 [54] (1928) (Holmes, J.) The circumstances of the enactment of particular legislation may persuade a court that Congress did not intend words of common meaning to have their literal effect. Watt v. Alaska, 451 U.S. 259, 266 & n. 9, 101 S.Ct. 1673, 1678 & n. 9, 68 L.Ed.2d 80, 88 & n. 9 (1981) (footnote integrated into text); see also Heppner v. Alyeska Pipeline Service Co., 665 F.2d 868, 870 (9th Cir. 1981) ("[P]lain meaning rule is no longer considered an absolute prohibition [to the consideration of legislative history], but a flexible principle for ascertaining the intent of Congress."). It is evident that one purpose of the PCA statute is to provide power cost assistance to electric power customers, just as was the purpose of Valdez's ECA program. The state legislature realized this purpose by providing power production cost assistance directly to electric utilities, which was then credited to the consumer. A second purpose of the statute is to equalize the cost of power on a statewide basis, thus resulting in rural Alaska customers paying a similar amount per kilowatt-hour for electricity as urban Alaska customers. See AS 44.83.162(a). To this end, the PCA program seeks to distribute a finite amount of financial resources where they are most needed. While Valdez may be applauded in its effort to further assist its electric customers, many municipalities are financially unable to render power cost assistance to their residents. The result in this case is that power cost assistance was duplicated for one small group of customers. This frustrates the intent of the legislature to equalize power costs on a statewide basis. Valdez customers are not entitled to state PCA funds when such funds would actually place them in a better position than other rural power customers. Therefore, PCA payments were properly withheld during the relevant period. Our conclusion is bolstered by the fact that the PCA statute was amended in 1981 to provide that "[t]he costs used in determining the power cost equalization [payments to utilities] shall exclude any other type of assistance that reduces the customer's costs of power_" AS 44.83.162(b). We view this as a clarification of the legislative intent that other power cost assistance to customers be deducted from the actual power production costs of the utility under former AS 44.56.162(j)(2). For the foregoing reasons, the trial court properly denied the CVEA's and Valdez's motions for summary judgment. B. ATTORNEY'S FEES. Both the CVEA and Valdez argue that the trial court erred in assessing attorney's fees against them because this case qualifies as public interest litigation. Therefore, no award should have been made. The parties cite Kenai Lumber Co., Inc. v. LeResche, 646 P.2d 215 (Alaska 1982), in which this court set forth several criteria useful in identifying public interest litigation. These are: (1) Is the case designed to effectuate strong public policies? (2) If the plaintiff succeeds will numerous people receive benefits from the lawsuit? (3) Can only a private party have been expected to bring the suit? Id. at 222, citing Anchorage v. McCabe, 568 P.2d 986, 991 (Alaska 1977). This case involves the alleged wrongful withholding of payments which CVEA is allegedly entitled to receive directly from the state, and which should have been credited on the customer's bill, thus lowering the cost of electricity to the citizens of Valdez. While there is admittedly a good deal of self-interest at stake for CVEA, both CVEA and Valdez sought to effectuate one policy underlying AS 44.83.162, to wit: to provide power cost assistance to electric power customers of the City of Valdez. The customers of CVEA would have received benefits from the lawsuit and CVEA was probably in the best legal position to sue, since by statute it was CVEA which was to demonstrate eligibility and receive direct payments under AS 44.-83.162. We conclude that the trial court erred in awarding attorney's fees against CVEA and Valdez. III. CONCLUSION The judgment of the trial court denying the CVEA's and Valdez's motions for summary judgment and granting APA's cross-motion for summary judgment is AFFIRMED. The award of attorney's fees is REVERSED. . The statute was renumbered as AS 44.83.162 in 1980. It has been revised substantially twice since the time this lawsuit arose. Am. ch. 118, § 8, SLA 1981; Am. ch. 133, § 1 SLA 1984. The substance of subsection (j)(2) is now contained in AS 44.83.162(b). "Of course it is true that the words used, even in their literal sense, are the primary, and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract, or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning." Cabell v. Markham, 148 F2d 737, 739 [2d Cir.] (L. Hand, J.), aff'd, 326 U.S. 404, 90 L Ed 165, 66 S Ct 193 (1945).

10343534

Raymond E. BROMLEY and Carolyn J. Bromley, Appellants and Cross-Appellees, v. John D. MITCHELL d/b/a Mitchell Marine Service; John D. Mitchell d/b/a Yacht Doc; and Jim Henson d/b/a Yacht Doc, Appellees and Cross-Appellants

Bromley v. Mitchell

1995-09-08

Nos. S-6399/6449

797

805

902 P.2d 797

902

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

Raymond E. BROMLEY and Carolyn J. Bromley, Appellants and Cross-Appellees, v. John D. MITCHELL d/b/a Mitchell Marine Service; John D. Mitchell d/b/a Yacht Doc; and Jim Henson d/b/a Yacht Doc, Appellees and Cross-Appellants.

Raymond E. BROMLEY and Carolyn J. Bromley, Appellants and Cross-Appellees, v. John D. MITCHELL d/b/a Mitchell Marine Service; John D. Mitchell d/b/a Yacht Doc; and Jim Henson d/b/a Yacht Doc, Appellees and Cross-Appellants. Nos. S-6399/6449. Supreme Court of Alaska. Sept. 8, 1995. John S. Hedland, Eric J. Brown and Amy L. Vaudreuil, Hedland, Fleischer, Friedman, Brennan & Cooke, Anchorage, for appellants and cross-appellees. John D. Mitchell, Seattle, Washington, pro se. Jim Henson, Kirkland, Washington, pro se. Before: MOORE, C.J., and RABINOWITZ, MATTHEWS, COMPTON and EASTAUGH, JJ.

4242

26623

OPINION MOORE, Chief Justice. I. INTRODUCTION Alaska resident Raymond Bromley entered into an agreement with Yacht Doc, a Washington company, to purchase a sport fishing vessel. Bromley also entered into an agreement with Mitchell Marine Service, another Washington company, to make repairs to the boat. Alleging that both the sales and the repair agreements were breached, Raymond and his wife Carolyn sued John Mitchell, d/b/a Mitchell Marine Service and Yacht Doc, and Jim Henson, d/b/a Yacht Doe. The superior court ordered the claims against Mitchell and Henson dismissed on grounds of forum non conveniens, and awarded attorney's fees to Mitchell. The Bromleys appeal these rulings. We affirm the lower court's dismissal of the claims against Mitchell and its award of attorney's fees. We reverse the court's dismissal of Henson. II. FACTS AND PROCEEDINGS Intent on purchasing a sport fishing vessel, Raymond Bromley responded by telephone to an ad in the "Northwest Boat Trader." John Mitchell returned Bromley's call, identifying himself as a representative of Mitchell Marine Service and of Yacht Doc, a brokerage firm in the business of locating and buying boats. Communication between the two men led to an agreement by which Yacht Doc agreed to procure a vessel for Bromley. Bromley and Mitchell entered into a separate, apparently oral, contract which provided that Mitchell Marine Service would repair the boat. Yacht Doe located a boat and transported it to Seattle, where Mitchell Marine Service performed the repair work. Bromley retained a third party to sail the vessel from Seattle to Anchorage. The voyage north ended in Sitka, however. The Bromleys claim that because of inadequate fuel tanks and other problems, the boat could be sailed no farther. Mitchell sued Raymond Bromley in the superior court of King County, Washington, for unpaid repairs to the boat. Before Bromley answered Mitchell's complaint, Raymond and Carolyn Bromley sued Mitchell d/b/a Mitchell Marine Service and Yacht Doc, in Anchorage, alleging that the vessel did not comport with the brokerage agreement and that the repair work had been improperly performed. Mitchell filed a motion to dismiss the Alaska case, arguing lack of personal jurisdiction and forum non conveniens. The superior court dismissed the suit for lack of personal jurisdiction. We reversed the personal jurisdiction dismissal and remanded for a determination of Mitchell's forum non conveniens claim. Bromley v. Mitchell, Mem. Op. & J. No. 0675 (Alaska, July 28, 1993). After remand, the Bromleys amended their complaint to allege that Jim Henson, who Mitchell asserted was the owner of Yacht Doc, had also violated the brokerage agreement. While the forum non conveniens issue was pending in the superior court, the Washington case was resolved in Mitchell's favor. The judgment provided that "[a]ll of the claims of the parties, or potential claims between the parties, arising from the facts referred to [in] the Plaintiffs complaint, were adjudicated and resolved." This prompted Mitchell to seek summary judgment in the Alaska ease; he argued that the Bromleys' claims were compulsory counterclaims in the Washington case, and therefore were barred under the doctrine of res judicata. In an order applicable to both Mitchell and Henson, the superior court granted Mitchell's motion to dismiss on grounds of forum non conveniens. The Bromleys then filed a motion for reconsideration. The court denied the Bromleys' motion for reconsideration and directed the Bromleys to respond to Mitchell's motion for summary judgment. The court subsequently granted the summary judgment motion in part, holding that "[t]o the extent this court's decision on forum non conveniens grounds may be reversed, those portions of the amended complaint [which consisted of repair claims against Mitchell d/b/a Mitchell Marine Service] are dismissed." After awarding Mitchell attorney's fees, the court entered final judgment. The Bromleys appeal the forum non con-veniens dismissal and the award of attorney's fees. III. DISCUSSION A. The Forum Non Conveniens Dismissal 1. Standard of review The prevailing rule regarding review of a forum non conveniens dismissal is that such a determination is committed to the sound discretion of the trial court. It may be reversed only when there has been a clear abuse of discretion; where the court has considered all relevant public and private interest factors, and where its balancing of these factors is reasonable, its decision deserves substantial deference. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257, 102 S.Ct. 252, 266, 70 L.Ed.2d 419 (1981). See also Marks v. LaBerge, 146 Ariz. 12, 703 P.2d 559, 563 (App.1985) (holding that a forum non conveniens decision is "left to the sound discretion of the trial court"); Stangvik v. Shiley, Inc., 54 Cal.3d 744, 1 Cal.Rptr.2d 556, 560, 819 P.2d 14, 18 (1991) (according trial court's decision "substantial deference"); Werner v. Wal-Mart Stores, Inc., 116 N.M. 229, 861 P.2d 270, 274 (App.1993) (leaving decision "largely to the discretion of the trial court"); West Tex. Utils. Co. v. Exxon Coal USA, Inc., 807 P.2d 932, 935 (Wyo.1991) (applying abuse of discretion standard). The Bromleys raise three objections to the forum non conveniens dismissal, however, that pose questions of law: (1) is the doctrine applicable where, as here, the plaintiff is a resident and domiciliary of the chosen forum; (2) was Mitchell estopped from pursuing a forum non conveniens dismissal after he filed a motion for summary judgment; and (3) was the court correct to apply the forum non conveniens dismissal to defendant Henson, even though Henson did not join in the motion? This court considers questions of law de novo, adopting a rule that is most persuasive in light of precedent, reason, and.policy. Guin v. Ha, 591 P.2d 1281, 1284 n. 4 (Alaska 1979). 2. The doctrine of forum non conveniens applies where the plaintiff is a domiciliary of the forum state In Crowson v. Sealaska Corp., 705 P.2d 905 (Alaska 1985), we discussed five factors relevant to a forum non conveniens determination: ease of access to proof, availability and cost of witnesses, the possibility that the forum was chosen to harass, the enforceability of the judgment, and the burden on the community of litigating matters not of local concern. Id. at 908 (citing Goodwine v. Superior Court, 63 Cal.2d 481, 47 Cal.Rptr. 201, 204, 407 P.2d 1, 4 (1965) (noting general desirability of litigating local matters in local courts)). The Bromleys argue that these factors are relevant only if the action is between non-domiciliaries of the forum state. They contend that "if one [party] is a domiciliary, forum non conveniens does not apply regardless of the other factors." Based on this assertion and their Alaska domiciliary status, the Bromleys insist that the forum non conveniens dismissal must be reversed. The Bromleys' legal premise is incorrect. Both Crowson and cases from other jurisdictions demonstrate that, while forum non conveniens motions will be granted only in exceptional cases where the plaintiff is a domiciliary of the chosen forum, the doctrine remains applicable in such circumstances. Crowson recognizes this principle when it notes that "[w]here ., plaintiff is a bona fide resident of the forum state, the doctrine of forum non conveniens has only an extremely limited application." Crowson, 705 P.2d at 908 (affirming lower court's refusal to dismiss on forum non conveniens grounds where plaintiff was Alaska corporation with principal place of business in Juneau). Thus, under Alaska law, the doctrine of forum non conveniens can apply to cases brought in Alaska by Alaskan plaintiffs. Crowson's treatment of this issue is in keeping with the vast majority of states. While the Bromleys' proposed rule was once the law in a number of jurisdictions, "Florida is apparently the only state that still holds as a matter of law that there can be no dismissal of an action if one=of the parties is a resident." 15 Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3828 n. 42 (1986). Crowson ⅛ rule is also in accord with federal law, where courts follow the principle that "[a forum non conve-niens] dismissal should not be automatically barred when a plaintiff has filed suit in his home forum. As always, if the balance of conveniences suggests that trial in the chosen forum would be unnecessarily burdensome for the defendant or the court, dismissal is proper." Piper Aircraft Co., 454 U.S. at 256 n. 23, 102 S.Ct. at 266 n. 23. In short, the doctrine of forum non conveniens is applicable. Consequently, to obtain a reversal of the dismissal of their case, the Bromleys must demonstrate that the trial court abused its discretion in dismissing the case to a more convenient forum. 3. The superior court's forum non conveniens dismissal of Mitchell was not an abuse of discretion The Bromleys offer two additional arguments that the lower court improperly granted Mitchell's forum non conveniens motion. First, they contend that the trial court was wrong to override "the weighty presumption in favor of a party's right to have access to courts of that party's residence" because this case fails to exhibit "any of the vices" which prompt courts to grant forum non conve-niens dismissals against a domiciliary plaintiff. Second, the Bromleys argue that Mitchell's forum non conveniens objection should have been barred by estoppel after he filed a motion for summary judgment. We find neither of these arguments convincing. a. The court's forum non conveniens determination was not based on an unreasonable weighing of the Crowson criteria As noted above, a court presented with a motion for forum non conveniens dismissal should consider (1) ease of access to proof, (2) availability and cost of witnesses, (3) the possibility that the forum was chosen to harass, (4) the enforceability of the judgment, and (5) the burden on the community of litigating matters not of local concern. Crowson, 705 P.2d at 908. It is true that "[ujnless the balance of these factors is strongly in favor of defendants, plaintiffs choice of forum should rarely be disturbed." Id. It is also the case, however, that we review the lower court's decision under an abuse of discretion standard, and that such an abuse exists only where the trial court's determination is "manifestly unreasonable." See Malvo v. J.C. Penney Co., 512 P.2d 575, 586-87 (Alaska 1973). The facts of this case convince us that this is one of the limited instances in which a domiciliary plaintiffs choice of forum may in the trial court's discretion be disallowed. The trial court found that the first two Crowson factors favored dismissal. It noted that except for the plaintiffs, all of the witnesses live "in Washington state or points further south." Similarly, the boat that is the subject of this dispute is in Washington. The ease of access to proof and availability of witnesses therefore indicate that this case would be more conveniently litigated in Washington. Examining the third factor, the court concluded that the "plaintiff is motivated by, or at the very least must acknowledge the reality of, harassment of the defendant." This conclusion was based on the court's observation that rather than trying the case in Washington, the Bromleys had embarked on a more expensive course which would involve sending their Alaska lawyer out-of-state to depose witnesses and paying for witnesses' travel to an Alaska trial. Moving to the fourth factor, the court remarked that "[t]here is . no evidence that any judgment obtained by plaintiff could be enforced in Alaska." With regard to the final Crowson factor, the court found that Washington "does have an interest .'.. [in] insur[ing] consistency of decisions between this case and the previously commenced Washington suit, and [in] conducting] judicial oversight of Washington business operations." A domiciliary plaintiffs choice of forum should be considered presumptively correct unless the defendant can demonstrate that the plaintiffs right to choose is outweighed by other factors. See Koster v. Lumbermens Mut Cos. Co., 330 U.S. 518, 525, 67 S.Ct. 828, 832, 91 L.Ed. 1067 (1947) (holding that a plaintiff "should not be deprived of the presumed advantages of his home jurisdiction except upon a clear showing" that another forum is appropriate). On the facts of this case, we cannot say that the superior court's decision to dismiss the case against Mitchell was an abuse of discretion. The United States Supreme Court has noted that "[i]n any balancing of conveniences, a real showing of convenience by a plaintiff who has sued in his home forum will normally outweigh the inconvenience the defendant may have shown." Koster, 330 U.S. at 525, 67 S.Ct. at 832. While this standard heavily favors the plaintiff, it also assumes that the plaintiff can make some initial showing of convenience. In the instant case, the trial court found that the "plaintiff cannot articulate a good faith rationale for bringing suit where he resides." This finding is unchallenged by the Bromleys. As we have discussed, Alaska law and the law of virtually all other jurisdictions supports the lower court's holding that "a plaintiff is generally entitled to litigate in his or her state of residence.... However . the plaintiffs residence is not so dispositive as to nullify the import of the other factors." While a domiciliary plaintiffs choice of forum will be honored when she makes a "real showing of convenience," the Bromleys have failed to provide even a minimal showing that it is more convenient for them to sue in Alaska than in Washington, and the facts of this ease indicate otherwise. On these facts, we find no abuse of discretion in the lower court's decision to dismiss this case. b. Mitchell was not estopped from pursuing a forum non conveniens dismissal The Bromleys also argue that, because Mitchell filed a summary judgment motion, he should have been estopped from pursuing his forum non conveniens objection. The Bromleys contend that theories of equitable and quasi-estoppel support this conclusion. We find these equitable doctrines inapplicable to the facts of this case. Initially, we note that a forum non conveniens motion need not be raised in the answer or in a preliminary motion to'dismiss. Rather, "there is no time limit on when a motion to dismiss on the ground of forum non conveniens can be made. However, if the litigation has progressed significantly . a defendant's belated assertion that the forum is not a convenient one is likely to be dimly viewed by the court." 15 Wright & Miller, supra, at § 3828, at 291 (1986) (citing Jenkins v. Smith, 535 A.2d 1367, 1369 n. 5 (D.C.App.1987); Snam Progetti S.p.A. v. Lauro Lines, 387 F.Supp. 322 (S.D.N.Y.1974)). Turning to the Bromleys' estoppel arguments, we find that the equitable estop-pel claim fails because, contrary to the Brom-leys' assertion, they did not detrimentally rely on any position asserted in Mitchell's summary judgment motion. While it is correct to say that the Bromleys were forced to respond to Mitchell's motion, and thereby incurred some expense, this stemmed from the trial court's decision to rule on the summary judgment issue before entering judgment. Any detriment incurred by the Brom-leys resulted from the court's procedural decision, and not from rebanee on the representations contained in Mitchell's filing. Because they did not rely on the positions asserted in Mitchell's summary judgment motion, the Bromleys' equitable estoppel argument fails. The Bromleys' quasi-estoppel charge also fails, because the summary judgment motion filed by Mitchell constituted neither a changed nor an inconsistent position in relation to the motion for forum non conveniens dismissal. Mitchell's forum non conveniens motion argued that it would be highly inconvenient to litigate a case in Alaska when nearly all the evidence — the boat itself and all witnesses, save the Bromleys — were in Washington or elsewhere. The summary judgment motion in no way contradicted this position. It did not, for example, introduce evidence in an attempt to obtain a judgment "on the merits." Rather, Mitchell's request for summary judgment raised a purely legal argument independent of any evidentiary issue: it simply claimed that the Bromleys' claims were barred because they should have been filed as compulsory counterclaims in the Washington case. Finding no changed or inconsistent position in Mitchell's summary judgment motion, we reject the Bromleys' quasi-estoppel argument. 4. The lower court failed to ensure that the Bromleys would be able to bring .this case in Washington The Bromleys have faded to show that the superior court abused its discretion in dismissing the case against Mitchell under the doctrine of forum non conveniens. We therefore affirm that holding. However, the lower court erred by failing to ensure that this suit will be allowed to proceed in Washington. The doctrine of forum non conve-niens presupposes the existence of a preferable forum in which the dispute can be resolved. 15 Wright, Miller & Cooper, supra, at § 3828, at 288 & n. 32. Accordingly, in dismissing the Bromleys' claims against Mitchell, the Alaska courts are bound to ensure that the Bromleys have the opportunity to bring those claims in Washington. We therefore direct the superior court to modify Mitchell's forum non conveniens dismissal by adding Mitchell's stipulation that he will waive any statute of limitations defense. See 15 Wright, Miller & Cooper, supra, at § 3828 n. 34 ("Generally, the conditions a defendant [seeking forum non conve-niens dismissal] must follow are . (4) waiver of statute of limitations") (quotation omitted)); see also Shewbrooks v. A. C. & S., Inc., 529 So.2d 557, 562 (Miss.1988) (explaining that "the overwhelming authority in this country requires a defendant to waive the statute of limitations" before a forum non conveniens dismissal will issue). The Brom-leys will thus be assured of the ability to bring their remaining claims against Mitchell in Washington. 5. The court erred in applying the forum non conveniens dismissal to Henson Although the forum non conveniens motion was filed by Mitchell alone, the trial court dismissed the case as to both defendants. When the Bromleys objected to the dismissal of Henson in their motion for reconsideration, the court explained that it could "decide the forum non conveniens issue without receiving specific input from defendant Henson," and that Henson's non-participation was construed as "non-opposition" to the motion for dismissal. On appeal, the Bromleys ask that their claim against Henson be reinstated. We agree that the lower court erred in dismissing the claims against Henson. It is not enough for Henson to insist on appeal that the reasons that support Mitchell's forum non conveniens dismissal apply equally to him. Henson must present his arguments in a motion to the trial court. See Alaska R.Civ.P. 77. Since Henson filed no such motion, we do not consider his arguments, and our discussion and affirmance of the lower court's forum non conveniens dismissal applies solely to Mitchell. We reverse the dismissal of Henson and remand the claims against him to the trial court. B. Attorney's Fees 1. Standard of review In reviewing an award of attorney's fees, we apply an abuse of discretion standard; such an abuse is "established only where it appears that the court's determination is manifestly unreasonable." Adoption of V.M.C., 528 P.2d 788, 795 (Alaska 1974). This standard applies to the trial court's determination of who is the prevailing party, as well as to the court's determination of the fee. First Nat'l Bank v. Enzler, 537 P.2d 517, 526 (Alaska 1975). 2. The trial court did not abuse its discretion in awarding Mitchell attorney's fees The court awarded Mitchell approximately $3,700 in attorney's fees, explaining that "since the case was dismissed with prejudice insofar as any adjudication in this court is concerned, the dismissal was on the merits for purposes of awarding attorney's fees." The Bromleys appeal the fee award. They argue that the forum non conveniens dismissal was not an adjudication on the merits, and that consequently Mitchell is not a prevailing party eligible for attorney's fees. The Bromleys' argument ignores the fact that we have previously allowed attorney's fees in cases that were dismissed without prejudice. See Miller v. Wilkes, 496 P.2d 176, 178 & n. 7 (Alaska 1972), overruled on other grounds, R.A Davenny & Assocs., Inc. v. Shinjin Motor Sales Co., 533 P.2d 1112, 1114 (Alaska 1975) (affirming Civil Rule 82 fee award after voluntary dismissal without prejudice); Hart v. Wolff, 489 P.2d 114, 119 (Alaska 1971) (affirming Civil Rule 82 fee award where discovery violation led to dismissal without prejudice). Moreover, while a forum non conve-niens dismissal is not a judgment on the merits, the trial court was correct to state that it did operate as a dismissal with prejudice "insofar as any adjudication in this court is concerned," because it finally resolved the rights of the parties in the Alaska courts. See Pastewka v. Texaco, Inc., 420 F.Supp. 641 (D.Del.1976), aff'd, 565 F.2d 851 (3d Cir.1977) (forum non conveniens ruling has pre-clusive effect, in that all other courts of equal jurisdiction in that forum are bound to abide by the conclusion that the case should be tried elsewhere); Torreblanca de Aguilar v. Boeing Co., 806 F.Supp. 139, 141 (E.D.Tex.1992) (citing Pastewka). In sum, the trial court's award is legally supported by our precedents and logically supported by the fact that Mitchell has obtained a judgment, binding on all Alaska courts, that the claims against him must be resolved in another forum. Under these circumstances, we cannot conclude that the court abused its discretion in determining that Mitchell was the prevailing party. We therefore affirm the award of attorney's fees, IV. CONCLUSION We AFFIRM the trial court's decision to dismiss the claims against Mitchell under the doctrine of forum non conveniens. We instruct the trial court, however, to modify that dismissal by adding Mitchell's stipulation that he will waive any statute of limitations defense in the event of a future lawsuit. We also AFFIRM the trial court's decision to award Mitchell attorney's fees. We REVERSE the dismissal of the Bromleys' claims against Henson, who has not filed a motion for forum non conveniens dismissal, and REMAND for further proceedings. . Mitchell made this assertion in his motion to dismiss on grounds of lack of personal jurisdiction and forum non conveniens. . Henson did not join in the motion to dismiss on grounds of forum non conveniens, however. Until he filed a brief on appeal, Henson's participation in the case was apparently limited to a letter to the superior court which "object[ed] to this court having jurisdiction" and "den[ied] all the allegations and charges made by the plaintiff." The superior court considered the letter a non-conforming answer to the Bromleys' amended complaint. . Mitchell also cross-appeals the superior court's failure to grant him full summary judgment. But as mentioned above, the summary judgment order was composed so as to become effective only "[t]o the extent [that the superior] court's decision on forum non conveniens grounds may be reversed." Since we affirm the forum non conveniens decision as to Mitchell, see part III.A., infra, the superior court's grant of partial summary judgment has no effect and will not be reviewed. . When the court subsequently awarded attorney's fees, however, it refused to find that the Bromleys had engaged in harassing litigation. . This conclusion was also based partly on the fact that the Washington case was in progress at that time. The court noted that "[i]t cannot be more economical for plaintiff to pursue dual causes of action in two locales." . While the Bromleys argue that "nothing in the ' record" indicates that they are engaged in harassment, they do not dispute the court's observation that they have failed to provide even a minimal showing that it is more convenient for them to sue in Alaska than in Washington. .The elements of equitable estoppel are "the assertion of a position by conduct or word, reasonable reliance thereon by another party, and resulting prejudice." Wright v. State, 824 P.2d 718, 721 (Alaska 1992). Quasi-estoppel does not require reliance, but applies when "the existence of facts and circumstances mak[es] the assertion of an inconsistent position unconscionable." Id. . According to defendant Henson, the statute of limitations on the Bromleys' claims expired in May of this year. We do not decide whether this is the case, but simply direct the trial court to follow the accepted practice in a forum non conveniens dismissal. . The Bromleys concede that their repair claims against Mitchell d/b/a Mitchell Marine Service were resolved in the Washington litigation. Their remaining claims against Mitchell assert that Mitchell d/b/a Yacht Doc breached the brokerage agreement and engaged in unfair trade practices. Although Mitchell argues that these claims are also barred by the Washington judgment, we have no occasion to consider that argument here. See note 3, supra. . The Bromleys also argue that they were the prevailing parties on the only issue of substance which the lower court resolved — Mitchell's summary judgment claim. The lower court clearly indicated, however, that the fee award was based on the forum non conveniens dismissal. As we described above, the superior court's summary judgment order was contingent on this court's reversal of the forum non conveniens dismissal of the claims against Mitchell. Since we affirm the forum non conveniens dismissal of the claims against Mitchell, the summary judgment order is ineffectual and there is no reason to discuss it here.

8436027

STATE of Alaska, Petitioner, v. Lawrence AVERY, Respondent

State v. Avery

2006-03-10

No. A-9031

959

965

130 P.3d 959

130

Pacific Reporter 3d

Alaska Court of Appeals

Alaska

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

CAP

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

STATE of Alaska, Petitioner, v. Lawrence AVERY, Respondent.

STATE of Alaska, Petitioner, v. Lawrence AVERY, Respondent. No. A-9031. Court of Appeals of Alaska. March 10, 2006. Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W. Márquez, Attorney General, Juneau, for the Petitioner. David K. Allen, Assistant Public Advocate, Fairbanks, and Joshua P. Fink, Public Advocate, Anchorage, for Respondent. Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.

3515

21923

OPINION COATS, Chief Judge. In Blakely v. Washington, the United States Supreme Court held that "[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt." Avery, who had been sentenced -by Acting Superior Court Judge Jane F. Kauvar before the Blakely decision, filed a motion to correct his sentence under Alaska Criminal Rule 35(a), arguing that his sentence was illegal under Blakely because Judge Kauvar had found several aggravating factors without submitting those aggravators to a jury. Judge Kauvar concluded that she should review Avery's sentence. The State argued that Judge Kauvar had no authority to review Avery's sentence because all of the aggravating factors that the court had previously found were based upon Avery's prior convictions, and therefore, Blakely did not require submission of these aggravating factors to a jury. When Judge Kauvar set a sentencing hearing to review Avery's sentence, the State filed a petition for review in this court. We granted the petition. We now conclude that all of the aggravating factors that applied to Avery's sentence were based upon his prior convictions, and therefore, Blakely did not require jury submission. On appeal, Avery raises a new issue which he did not present in the trial court. Avery argues that this prior conviction exception to Blakely relies on questionable authority— Almendárez-Torres v. United States. He urges us to anticipate that the Supreme Court will overturn Almendárez-Torres and hold that the government must prove any prior conviction that increases a defendant's maximum sentence to a jury beyond a reasonable doubt. In a related argument, Avery argues that, under Alaska law, the aggravating factors in his case, even if they were based upon his prior convictions, were elements of his offense. He argues that the State had to obtain an indictment from a grand jury and prove those aggravating factors to a jury beyond a reasonable doubt. We decline to reach these arguments because they were never presented in the trial court or raised in the petition. Factual and 'procedural background Lawrence Avery was convicted of misconduct involving a controlled substance in the fourth degree, a class C felony, for possession of cocaine. Avery was a third-felony offender for purposes of presumptive sentencing and therefore faced a presumptive term of 3 years imprisonment. Under Alaska's pre-2005 presumptive sentencing laws, the State proposed four aggravating factors: (1) AS 12.55.155(c)(7) ("a prior felony conviction considered for the purpose of invoking the presumptive terms of this chapter was of a more serious class of offense than the present offense"); (2) AS 12.55.155(c)(8) ("the defendant's prior criminal history includes conduct involving aggravated or repeated instances of assaultive behavior"); (3) AS 12.55.155(c)(15) ("the defendant has three or more prior felony convictions"); and (4) AS 12.55.155(c)(21) ("the defendant has a criminal history of repeated instances of conduct violative of criminal laws, whether punishable as felonies or misdemeanors, similar in nature to the offense for which the defendant is being sentenced under this section"). Avery did not dispute his prior convictions or the applicable aggravating factors. Judge Kauvar found all four of the aggravating factors and sentenced Avery to the presumptive 3-year term, and based upon the aggravating factors, to an additional 1-year of suspended incarceration. Avery appealed his conviction to this court. We affirmed. Avery then filed a motion under Criminal Rule 35(a) arguing that Blakely made his sentence illegal. In Blakely, the Supreme Court held: "Any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt." Avery argued that, under Blakely, which was decided after Judge Kau-var imposed the sentence, the maximum sentence for his crime was 3 years of imprisonment. He argued that Judge Kauvar could not lawfully find the aggravating factors without giving him the opportunity to contest those aggravating factors in a jury trial. In opposition, the State raised several arguments that Avery's sentence was not illegal under Blakely. Judge Kauvar concluded that, because at least some of Avery's aggravating factors were based upon his prior convictions, she had the authority to impose an enhanced sentence under Blakely. But she concluded that she should conduct another sentencing hearing and evaluate whether, given the Blakely decision, she should impose the same sentence. The State filed a motion for reconsideration, which Judge Kauvar denied. The State then filed a petition for review with this court, requesting a stay of the resentencing hearing pending resolution of the petition. In its petition, the State contended that Blakely did not make Avery's sentence illegal. Therefore, the State argued that Judge Kauvar had no authority to modify Avery's sentence. We granted the petition and ordered briefing. We now conclude that all of the aggravating factors that Judge Kauvar found were based only upon Avery's prior convictions, and there were no factual issues that Blakely would require a jury to determine. Therefore, Avery's sentence was not illegal under Blakely for Criminal Rule 35 purposes and Judge Kauvar lacked authority to modify his sentence. All of the aggravating factors were properly based on Avery's prior convictions In Milligrock v. State, we stated: Blakely expressly exempts a defendant's prior convictions from the requirement of jury trial. That is, when a defendant's prior conviction is the fact that authorizes a sentencing judge to exceed an otherwise applicable sentencing limit, the sentencing judge can rely on that prior conviction despite the normal Blakely requirement of a jury trial. Avery appears to concede that, under our prior decisions, he was not entitled to a jury trial on any of the aggravating factors because those aggravating factors were based upon his prior convictions. We agree with Avery's concession. The first aggravating factor that Judge Kauvar found was that "a prior felony conviction considered for purposes of invoking the presumptive terms of this chapter was of a more serious class of offense than the present offense." We previously addressed this aggravating factor in Milligrock. We stated: Aggravator (c)(7) — that one of the defendant's prior felonies is of a more serious class than the defendant's current offense — is expressly based on a defendant's prior convictions. Assuming that there is no dispute as to the existence of those prior felony convictions, this aggravator presents no problem under Blakely. In the present case, Avery faced sentencing for a class C felony. It is uncontested that Avery had a prior conviction for a class B felony offense. The aggravator was therefore clearly established, and under Blakely, Avery was not entitled to a jury trial. The next aggravating factor in question was that Avery had a history of aggravated or repeated instances of assaultive behavior. Avery concedes that, in Milligrock, we concluded that where the defendant has two or more convictions for assault, this aggravator has been established. It is uncontested that Avery had four prior convictions for assault. The aggravator was established based only upon Avery's prior convictions. Therefore, Judge Kauvar did not violate Blakely in finding this aggravating factor without submitting it to the jury. We next turn to aggravator (c)(15) (the defendant has three or more prior felony convictions). It is uneontested that Avery had three or more prior felony convictions. In order to find this aggravating factor, all Judge Kauvar had to do was count the prior felonies. There was no question for the jury to decide under Blakely. We accordingly conclude that this aggravating factor was clearly established and that Judge Kauvar did not violate Blakely in finding the aggravating factor without submitting it to the jury. We turn next to the fourth aggravating factor, AS 12.55.155(c)(21) — that Avery had a history of repeated instances of criminal conduct similar in nature to his present offense. This aggravator poses a potential Blakely problem because it does not necessarily require proof that the prior instances of criminal conduct led to convictions. And even when proof of this aggravator is based on prior convictions, there might conceivably be a factual dispute as to whether the conviction represented conduct similar in nature to the defendant's present offense (as opposed to a legal dispute as to whether given conduct was sufficiently "similar" for purposes of this aggravator). In Milligrock, we pointed out a similar problem with respect to aggravator (e)(8)— that a defendant has a history of repeated instances of assaultive behavior. In particular, we pointed out that this aggravator presented a Blakely problem to the extent that it might be proved by instances of assaultive behavior that did not result in convictions for assault. But we concluded that proof of this aggravator based on prior convictions for assault does not violate Blakely. In Grohs v. State, we directly addressed aggravator (c)(21) (criminal history of similar conduct). We held that, at least when a defendant did not dispute the existence of the prior convictions, "and when the State relied simply on the convictions themselves and the legal elements of those crimes, rather than attempting to introduce evidence of the particular facts underlying the prior convictions" the court could find the aggravator without violating Blakely. It is uncontested that Avery had several prior felony convictions for possession and sale of illegal drugs. Therefore, these convictions clearly established aggravator (e)(21), and there was no issue for a jury to resolve. Judge Kauvar has no authority to modify Avery's sentence Criminal Rule 35(a) allows a court to "correct an illegal sentence at any time." But, as our prior analysis demonstrates, there was nothing illegal about Avery's sentence. Criminal Rule 35(b) authorizes a court to "modify or reduce a sentence within 180 days of the distribution of the written judgment upon a motion made in the original criminal case." Under Criminal Rule 53, a court does have the authority to relax the 180-day deadline if there is a showing of manifest injustice. But a court may not relax the 180-day period by more than 10 days. We have strictly enforced the time limit provided in Criminal Rule 35(b). Avery did not file his motion for relief under Criminal Rule 35(b), and even if he had, it is uneontested that this motion would have been untimely. We conclude that Judge Kauvar has no authority to modify Avery's sentence. We therefore vacate Judge Kauvar's order setting a sentencing hearing to review Avery's sentence. We do not decide the issues that Avery did not raise either in the trial court or in his reply to the State's petition The parties raised an issue in this court that they did not present in the trial court. Avery contends that Almendárez-Torres, which allows a defendant's prior convictions to be proven to the court without a jury finding, is questionable authority. He urges us to anticipate that the Supreme Court will conclude that Almendárez-Torres was incorrectly decided and will hold that the government must prove to a jury beyond a reasonable doubt any prior conviction that increases a defendant's maximum sentence. In a related argument, which he first raises in his opening brief, Avery argues that, under Alaska law, the four aggravating factors in this case were elements of his offense, and therefore, the State had to obtain an indictment from a grand jury and prove these aggravating factors to a jury beyond a reasonable doubt. These issues were never presented to the trial court or raised in the petition for review that this court granted. We accordingly decline to address these issues. The order setting a resentencing hearing is REVERSED. COATS, Chief Judge, concurs. . 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). . United States v. Booker, 543 U.S. 220, 244, 125 S.Ct. 738, 756, 160 L.Ed.2d 621 (2005). .523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). . AS 11.71.040(a). . AS 12.55.125(e)(3). . Avery v. State, Alaska App. Memorandum Opinion and Judgment No. 4906 (Aug. 11, 2004), 2004 WL 1782553. . Booker, 543 U.S. at 244, 125 S.Ct. at 756. . 118 P.3d 11, 15 (Alaska App.2005). . Id. at 15. . Id.; Grohs v. State, 118 P.3d 1080, 1083 (Alaska App.2005); Edmonds v. State, 118 P.3d 17, 20 (Alaska App.2005). . AS 12.55.155(c)(7). 12. Milligrock, 118 P.3d at 16. . Id. . Id. . 118 P.3d 1080 (Alaska App.2005). . Id. at 1083-84. . Id. at 1084 (citation omitted). . See Alaska Crim. R. 53; Thomas v. State, 566 P.2d 630, 638-39 (Alaska 1977). . Alaska Crim. R. 35(g). . See, e.g., State v. Couch, 991 P.2d 1286, 1287-88 (Alaska App.1999); State v. Tinsley, 928 P.2d 1220, 1223 (Alaska App.1996).

8436161

Tierice KNOX, Appellant, v. STATE of Alaska, Appellee

Knox v. State

2006-03-10

No. A-8808

971

973

130 P.3d 971

130

Pacific Reporter 3d

Alaska Court of Appeals

Alaska

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

CAP

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

Tierice KNOX, Appellant, v. STATE of Alaska, Appellee.

Tierice KNOX, Appellant, v. STATE of Alaska, Appellee. No. A-8808. Court of Appeals of Alaska. March 10, 2006. Valerie Leonard, Assistant Public Defender, and Barbara K. Brink, Public Defender, Anchorage, for the Appellant. Michael Sean McLaughlin, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W. Márquez, Attorney General, Juneau, for the Appellee. Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.

1258

7816

OPINION COATS, Chief Judge. Tierice Knox was charged with six counts of misconduct involving a controlled substance in the third degree, a class B felony, for selling crack cocaine. Knox entered into a plea bargain in which he agreed to enter a no contest plea to a consolidated count of misconduct involving a controlled substance in the third degree. Knox was a third-felony offender, and faced a 6-year presumptive term. As part of the plea bargain, Knox agreed to the presumptive sentence. Superi- or Court Judge Larry D. Card accepted the plea agreement and sentenced Knox to the presumptive 6-year sentence. Knox later filed an application for post-conviction relief seeking to withdraw his plea based on two separate claims that he had received ineffective assistance of counsel. Knox claimed that one of his trial attorneys was ineffective in the way he litigated a motion to suppress the evidence. Knox also claimed that a different attorney who represented him in entering his plea misinformed him about the nature of the sentence he would receive. Knox claimed that this attorney told him that after the judge imposed the bargained-for 6-year presumptive sentence, he would actually serve only 4 years of imprisonment because of good-time credit and then would be released with no further obligation to the State. Knox claimed that he later discovered that, after serving 4 years, he would be subject to mandatory parole for the remainder of his sentence. Knox contended that he would not have entered into the plea bargain had he known that he would be subject to mandatory parole. Judge Card dismissed Knox's application for post-conviction relief. On appeal, we conclude that Knox did not establish a prima facie case that he received ineffective assistance in litigating the motion to suppress. But we conclude that Knox presented a pri-ma facie case that his other attorney did not properly advise him of the nature of his sentence and that this advice affected his decision to enter his plea. Factual and procedural background On October 2, 1999, Tierice Knox was charged with six counts of misconduct involving a controlled substance in the third degree. The charges arose out of a series of alleged drug sales occurring over a three-day period in late September and early October 1999. The indictment alleged that Knox sold crack cocaine to undercover Anchorage Police Officer Mark LaPorte on six separate occasions. On April 14, 2000, Knox's trial attorney filed a motion to dismiss two of the six counts. That motion claimed that the police lacked probable cause or reasonable suspicion to stop Knox's ear and arrest him following a drug sale. Following an evidentiary hearing, Judge Card denied the suppression motion. In his application for post-conviction relief, Knox contends that his attorney was ineffective in pursuing the suppression motion. He argues that his attorney did not raise the best arguments in litigating the motion. When we evaluate a claim that a defendant's counsel provided ineffective assistance, we apply a strong presumption that the attorney acted competently. When the defendant's attorney makes a tactical decision, "the choice will be subject to challenge only if the tactic itself is shown to be unreasonable — that is, a tactic that no reasonably competent attorney would have adopted under the circumstances." In the present case, Knox obtained an affidavit from his trial attorney. In that affidavit, the attorney stated that his decisions in pursuing the suppression motion were tactical. In his order dismissing Knox's application for post-conviction relief, Judge Card concluded that Knox's allegations in his application did not overcome the presumption of competence or show that his attorney's decisions were anything other than tactical. We agree with Judge Card's conclusion. Knox's allegation that his other attorney misinformed him about the nature of his sentence A different attorney represented Knox when he entered his plea to the consolidated count of misconduct involving a controlled substance in the third degree, a class B felony. Knox was a third-felony offender, and therefore faced a presumptive term of 6 years of imprisonment. The State and Knox agreed to the 6-year term. According to Knox, his attorney advised him that he would serve "a flat time sentence without probation or parole supervision." But, under Alaska law, because Knox's sentence was more than 2 years of imprisonment, when he was released because of good-time credit, he would serve the remainder of his 6-year sentence on mandatory parole. Knox contended that, had he been aware that he would be subject to mandatory parole, he would not have entered into the plea agreement with the State. In her affidavits and in a deposition, Knox's attorney conceded that she was unaware that Knox would be subject to mandatory parole supervision after he was released because of good-time credit. She stated that she told Knox that his 6-year presumptive sentence, with accumulated good time, would mean that he would actually serve 4 years of imprisonment. She told Knox he "would serve four years period. No probation." In her affidavit, she represented "I can unequivocally state that I affirmatively represented to Mr. Knox that he would be completely done with his flat time sentence after he served four years." She also stated that "she subjectively felt that her parole advice to Mr. Knox might have influenced him to proceed with his change of plea because Mr. Knox had continued to strongly believe that he had a triable case — despite her assessment to the contrary." In his application, Knox is making a post-sentence claim to withdraw his plea. In order to withdraw his plea, Knox must prove that withdrawal is necessary to correct a manifest injustice. One way for Knox to establish that manifest injustice has occurred is for him to demonstrate that he received ineffective assistance of counsel. In deciding whether to dismiss a claim in an application for post-conviction relief, a "court must accept as true all of the allegations in the application and inquire whether those facts, if proved, would entitle the applicant to the relief sought." If we accept all of Knox's allegations as true, we conclude that he established a prima facie case that he received ineffective assistance of counsel about the nature of the sentence he would receive if he entered into the plea bargain, and that he would not have entered into the plea bargain had he received accurate advice. We accordingly conclude that Judge Card erred in dismissing this claim. We remand the ease for further proceedings on Knox's application for post-conviction relief. REMANDED. . AS 11.71.030(a)(1). . AS 11.71.030(a)(1). . State v. Jones, 759 P.2d 558, 569 (Alaska App.1988). .Id. at 569-70 (citations omitted). . See AS 33.16.010(c); AS 33.20.030; AS 33.20.040(a). See also Hill v. State, 22 P.3d 24, 26 (Alaska App.2001) (for prisoners sentenced to serve more than 2 years, good-time credit does not constitute complete forgiveness of jail time; rather, good time credit converts time that would otherwise be spent in prison to time that will be spent on parole); Hampel v. State, 911 P.2d 517, 520 (Alaska App.1996). . Alaska Crim. R. 11(h)(3). . Alaska Crim. R. 11(h)(4)(A). . Hampel, 911 P.2d at 524 (citations omitted).

11443858

Andrew DAYTON, Appellant, v. STATE of Alaska, Appellee

Dayton v. State

2002-06-21

No. A-7724

817

821

54 P.3d 817

54

Pacific Reporter 3d

Alaska Court of Appeals

Alaska

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

CAP

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

Andrew DAYTON, Appellant, v. STATE of Alaska, Appellee.

Andrew DAYTON, Appellant, v. STATE of Alaska, Appellee. No. A-7724. Court of Appeals of Alaska. June 21, 2002. James E. McClain, Law Offices of James E. MeClain, Fairbanks, for Appellant. Naney R. Simel, 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.

2253

14119

OPINION STEWART, Judge. On August 7, 1998, Andrew Dayton broke into S.S8.'s house in Huslia and sexually assaulted her. For this misconduct, Dayton was charged with first-degree sexual assault and first-degree burglary. Dayton's first trial ended in a hung jury, but he was convicted at his retrial. In this appeal, Dayton challenges the admission of DNA evidence at his trial. At trial, Dayton challenged the reliability of a new database used for statistical analysis of DNA profile frequencies Dayton now claims the superior court erred because it did not conduct a mid-trial hearing at his retrial. Dayton also claims the superior court should have granted his motion to require the State to produce the names of the people who supplied genetic samples for that database. We conclude that we need additional findings from the superior court to resolve Dayton's claims. Facts and proceedings On the evening of August 6, Dayton attended a bachelor's party in Huslia and then walked around the village for much of the night. He asked several people where sixty-seven-year-old 8.8. lived. Near 5:00 a.m. on the morning of the 7th, Dayton knocked on S.S.'s door. S.S. thought it was her brother, so she answered the door. Dayton forced his way inside and sexually assaulted her. Later that day, Paula Bifelt, the village health aide, performed a sexual assault examination on S.S. and took samples from S.S.'s vagina for testing. Dayton was arrested the next day. As part of the investigation, the Alaska State Troopers took blood samples from Dayton. In addition, mouth swabs were obtained from S.S. and Bergman Sam, a man with whom S.S. was drinking on the night before she was sexually assaulted. Hayne Hamilton, a forensic serologist at the Alaska Scientific Crime Detection Laboratory (hereafter "the crime lab"), conducted DQ alpha and polymarker DNA analysis on the vaginal, blood, and mouth samples. Based on this testing, Hamilton eliminated S.S. and Bergman Sam as possible sources of the DNA found in the sperm fraction from the sample obtained from S.S.'s vagina. The testing showed that Dayton's DNA matched the DNA from the sperm fraction. Hamilton testified that the likelihood that the DNA profile from the sperm fraction would appear randomly is 1 in 13,000 for African Americans and 1 in 16,000 for Caucasians. Based on databases that the State had previously developed, Hamilton projected that the frequency of the DNA profile found in the sperm fraction was 1 in 8,500 for North Slope Inupiat Eskimos and 1 in 2,000 for Be-thel/Wade Hampton Yup'ik Eskimos. However, Hamilton could not calculate a DNA profile frequency for Athabascan Indians (Dayton is an Athabascan Indian) because she did not have an Athabascan database. During the first trial, Dayton defended by arguing that S.S. was drunk and did not remember events clearly and that the DNA evidence was meaningless without an Athabascan database. He also testified that he saw Bergman Sam and S.S. having intercourse that night and implied that Alvin Dayton, his brother, may have assaulted S.S. The first trial resulted in a hung jury. After the first trial, the crime lab adopted the short tandem repeat (STR) system of DNA analysis. STR examines thirteen genetic loci and is more discriminating than DQ alpha and polymarker analysis, which looks at six genetic loci. In addition, with the assistance of the Troopers, the crime lab collected samples from Athabascan volunteers in various locations within the state. Taking these newly collected samples and samples from known Athabascans already on hand, the crime lab selected samples for inclusion in the database and tested the samples using the STR protocol. Although the crime lab created the Athabascan database after the mistrial and the sample collectors avoided samples from anyone who might be related to Dayton, there was testimony at trial that the samples were not collected solely for the purpose of prosecuting this case. At Dayton's retrial before Superior Court Judge pro tem Jane F. Kauvar, the State again offered evidence that, based on Dayton's DNA profile and the DNA profile of the semen fraction collected from S.S., Dayton could not be excluded as the source of the semen. The State again offered Hamilton's testimony that Dayton was a potential sole source of the semen and that, based on DQ alpha DNA testing and statistical analysis of several databases, the likelihood of the DNA profile appearing randomly was 1 in 183,000 for Caucasians; 1 in 16,000 for African Americans; 1 in 8,500 for North Slope Inupi-at Eskimos; and 1 in 2,000 for Wade Hampton Yup'ik Eskimos. The State also offered evidence that STR analysis indicated that Dayton exhibited the same DNA profile as the sperm fraction in the sample taken from S$.S. The statistical analysis of the likelihood that this DNA profile would be repeated randomly in certain groups with existing databases was 1 in 22 billion for North American Caucausians, 1 in 6 billion for African Americans, and 1 in 413 million for Hispanics. Using the Athabascan database developed by the state crime lab, the State's expert testified that the likelihood was 1 in 2.5 million that the DNA profile from the sperm fraction taken from S.S. would be repeated randomly. Dayton objected to the use of the Athabascan database. He argued that the State had to establish the reliability of the database in a hearing outside the presence of the jury before an expert witness could use the database as a basis for providing scientific evidence. Dayton relied on Daubert v. Merrell Dow Pharmaceuticals, Inc. Judge Kauvar cited AS 12.45.0835 and ruled that a hearing was not required. She overruled Dayton's objections. At the conclusion of the State's case, Dayton asked for discovery of the names of those people who contributed genetic samples to the database. Dayton believed that a relative may have donated a sample: I do have some understanding that at least one or more of the individuals who provided [a sample] have the last name of Dayton. So that just opens up the possibility they just could be related.... [Alll I'm wanting this for, the sole reason, is . if we find out that of a significant portion of [the donors] are really related to Mr. Dayton and our expert says . that skews this[,] I think we need to have it brought out at this trial Judge Kauvar refused to order the State to disclose the individual donors' full names, although the judge said she would consider ordering the State to provide Dayton with the number of people in the database who had the last name Dayton. "Now, if you want to [find] out how many of them have last names of Dayton, I suppose we can find out just generically how many people have the last name of Dayton in the sample." Dayton did not respond to this offer. Discussion In Peters v. State, we held that DNA evidence-4i.e., evidence that a person's genetic profile matched the genetic profile of tissue samples retrieved from some other person or place-must be accompanied by population frequency statistics for that genetic profile. In other words, the proponent of DNA evidence must produce evidence of how frequently the pertinent genetic profile appears in the relevant population group. In Dayton's case, the State presented evidence of how frequently Dayton's genetic profile could be expected to appear in persons selected at random from various population groups: Caucasians, African Americans, Hispanics, Inupiat Eskimos, and Yupik Eskimos. Dayton did not challenge this evidence. However, the State also presented genetic frequency data from an Athabascan population group. Since Dayton is Athabascan, the Athabascan genetic frequency data was potentially the most probative. Dayton challenged this data by questioning whether the State had employed scientifically valid methods to "sample" this population group-ie., to select the individuals whose genetic profile would be tested and catalogued. For instance, Dayton suggested that the compilers of the database should not have accepted genetic samples from persons who claimed to be Athabascan without first requiring some independent corroboration of that claim. Under Alaska Evidence Rule 703, expert witnesses can rely on facts or data outside their personal knowledge (indeed, facts or data that would not necessarily be admissible themselves) if those facts or data are "of a type reasonably relied upon by experts in the [pertinent] field [when] forming opinions or inferences upon the subject [at issue]." As the Commentary to Evidence Rule 703 states, this rule was designed to allow experts to rely on sources of information that constitute the recognized "tools" of their profession-information that otherwise could not be introduced without "the expenditure of substantial time in producing and examining various authenticating witnesses": [This] rule is designed to broaden the basis for expert opinion, in accordance with the belief that when an expert is deemed skilled enough to assist the trier of fact, the expert should be allowed to utilize the, tools that he [or shel normally uses to practice his [or her] skills outside of the court. Thus, a physician . bases his [or her] diagnosis on general information obtained from medical journals and treatises and on information about the patient [obtained] from numerous sources . of considerably variety, including statements by patients and relatives, reports and opinions from nurses, technicians and other doctors, hospital records, and x-rays. Some of these sources would be inadmissible in evidence; most of them are admissible, but only with the expenditure of substantial time in producing and examining various authenticating witnesses. The physician makes life-and-death decisions in reliance upon [such information]. [This reliance], expertly performed and subject to cross-examination, ought to suffice for judicial purposes. In Dayton's case, the State's forensic analyst offered an opinion-based on a database of genetic frequencies among the Athabascan population-concerning the likelihood that someone other than Dayton was the source of the genetic material recovered from the victim's body. In offering this opinion, the State's expert could validly rely on the Athabascan DNA database if this database met the test of Evidence Rule if it was the type of data that experts in the field would reasonably rely on. But Dayton's trial judge refused to allow inquiry into this question, and the judge made no finding as to whether the Athabascan DNA database had been collected and analyzed in such a manner that experts would reasonably rely on it. This was error. Dayton was entitled to litigate this foundational fact. We therefore remand Dayton's case to the superior court so that this litigation can take place. The superior court shall make findings on this issue and transmit those findings to us within ninety days. Even though we are remanding Dayton's case for further proceedings, we can resolve one other claim Dayton raised at trial. After the State presented the DNA evidence, Dayton asked the superior court to disclose the names of all the individuals whose genetic material was collected and tested to create the Athabascan database. Despite the argument that this disclosure would violate these individuals' right of privacy, Dayton maintained that he needed to know this information. Dayton argued that the probative value of the database would be affected if many of the individuals whose DNA was sampled turned out to be related to Dayton. Dayton's premise is correct: the probative value of the database would be affected if a substantial portion of the sampled population was biologically related to Dayton. However, the effect on the database would favor Dayton. If Dayton's biological relatives were overrepresented in the sampled population, then the database would be over-populated with people who share significant portions of Dayton's genetic profile Thus, the database would over-report the frequency of Dayton's genetic profile. This would work in Dayton's favor. The State's case against a defendant is bolstered by proof that the defendant's genetic profile is relatively rare. Conversely, the defendant's case is bolstered by proof that many people share these same genetic characteristics. If the Athabascan DNA database was compiled from a group that had more than its expected share of Dayton's biological relatives, this statistical aberration would favor Dayton. We conclude that Judge Kauvar did not err when she denied Dayton's mid-trial request for the names of the individuals whose genetic samples were included in the Athabascan database. Conclusion We remand Dayton's case to the superior court so that the court can resolve the issue of whether the Athabascan database is the type of data reasonably relied on by experts who analyze the frequency of genetic profiles. The superior court may, in its discretion, accept additional evidence on this issue. The court shall notify the parties of its findings and shall transmit its findings to us within ninety days. After the superior court issues its findings, the parties shall have thirty days to file memoranda in response to those findings. We shall then resume our consideration of Dayton's case. We retain jurisdiction. . AS 11.41.410(a)(1) and AS 11.46.300(a)(1), respectively. . 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); see State v. Coon, 974 P.2d 386 (Alaska 1999) (establishing a test for the admissibility of expert evidence under Alaska Rule of Evidence 702 that parallels Daubert ). . 18 P.3d 1224 (Alaska App.2001). . Id. at 1226-28. . Commentary to Alaska Evidence Rule 703, fifth paragraph.

10345632

PUBLIC SAFETY EMPLOYEES ASSOCIATION, LOCAL 92, INTERNATIONAL UNION OF POLICE ASSOCIATIONS, AFL-CIO, Appellant, v. STATE of Alaska, Appellee

Public Safety Employees Ass'n, Local 92 v. State

1995-10-06

No. S-5876

1334

1336

902 P.2d 1334

902

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

PUBLIC SAFETY EMPLOYEES ASSOCIATION, LOCAL 92, INTERNATIONAL UNION OF POLICE ASSOCIATIONS, AFL-CIO, Appellant, v. STATE of Alaska, Appellee.

PUBLIC SAFETY EMPLOYEES ASSOCIATION, LOCAL 92, INTERNATIONAL UNION OF POLICE ASSOCIATIONS, AFL-CIO, Appellant, v. STATE of Alaska, Appellee. No. S-5876. Supreme Court of Alaska. Oct. 6, 1995. James A. Gasper, Jermain, Dunnagan & Owens, Anchorage, for Appellant. Virginia B. Ragle, Patrick Gullufsen, Assistant Attorneys General, and Bruce Botelho, Attorney General, Juneau, for Appellee. Before MOORE, C.J., and RABINOWITZ, MATTHEWS, COMPTON and EASTAUGH, JJ.

890

5875

OPINION COMPTON, Justice. Public Safety Employees Association (PSEA) has petitioned for rehearing of this court's decision in Public Safety Employees Association v. State, 895 P.2d 980 (Alaska 1995) (PSEA). PSEA argues that this court improperly applied the "arbitrary and capricious" standard of review to the arbitrator's decision, since the arbitration was in fact a voluntary grievance arbitration. As such, the "gross error" standard should have applied. I. FACTS AND PROCEEDINGS The factual background of this case can be found in our original opinion. See PSEA, 895 P.2d at 981-83. There we observed that it was unclear what statutory provision mandated the third arbitration proceeding (ie., whether the arbitration was grievance or interest arbitration), but that this lack of facial clarity was unimportant since (1) the arbitration was compulsory and not voluntary, and (2) the use of an interest arbitration standard of review was appropriate as the proceedings involved a dispute that was contractually formative in nature. Id. at 983 n. 3, 984-85, 987. Therefore, we reviewed the arbitrator's ruling under the "arbitrary and capricious" standard that is utilized in eases of compulsory interest arbitration. Id. at 984-85, 987. On petition for rehearing, PSEA argues that the arbitration was voluntary, not interest arbitration, and that therefore this court should have utilized the less searching "gross error" standard of review. We grant the petition for rehearing. However, we conclude that assuming PSEA's contention has merit, the result in this appeal is not affected by application of the "gross error" standard of review. II. DISCUSSION In our original opinion we explained that this court applies the "gross error" standard in reviewing grievance arbitration awards, with "gross error" being defined as '"only those mistakes which are both obvious and significant.'" Id. at 984 (quoting City of Fairbanks v. Rice, 628 P.2d 565, 567 (Alaska 1981)). However, citing (1) the compulsory aspect of the arbitration and (2) the contractually formative nature of the dispute, we reviewed the arbitrator's ruling under the less deferential "arbitrary and capricious" standard that is applied in cases of compulsory interest arbitration. Id. at 988 n. 3, 984-85, 987. PSEA argues that both of the determinations which led us to use the "arbitrary and capricious" standard were erroneous. That is, PSEA asserts that the arbitration (1) was voluntary, and (2) involved a grievance. It was not interest arbitration. PSEA argues that if either of these assertions are correct, this appeal should have been reviewed under the "gross error" standard. To determine the validity of PSEA's contention regarding the nature of the arbitration would require further briefing and argument. However, this is unnecessary. Even if PSEA's assertions are correct, they do not affect the result of this appeal. As the State argues on rehearing, the arbitrator's mistake constituted not only an arbitrary and capricious result, but gross error as well. We remarked in the original opinion that the arbitrator concluded that "absorption of the cost [of the differentials] would require reductions in force in a labor-intensive agency on which the public depends for its safety." (Emphasis added.) This invokes the appropriation requirement provisions of AS 28.40.215(a), since "monetary terms of any agreement" include those that "change . productive work hours for state employees." AS 23.40.250(4). The arbitrator ignored this statutory language. Therefore, on this basis alone, the arbitrator's decision was arbitrary and capricious. He did not consider statutory provisions that prohibit the alternative that he held the State should have pursued. PSEA, 895 P.2d at 987. For this reason, the arbitrator's opinion not only was arbitrary and capricious, but was so mistaken that the flaw was "both obvious and significant." It constituted gross error. Rice, 628 P.2d at 567. III. CONCLUSION The arbitration proceeding resulted in a mistake constituting gross error. Therefore, the superior court's refusal to enforce the arbitrator's award was not erroneous. On rehearing, the judgment of the superior court is AFFIRMED. . "Interest arbitration is a process in which the terms and conditions of the employment contract are established by a final and binding decision of the arbitration panel. It differs from grievance arbitration, which involves the interpretation of the employment contract to determine whether the conditions of employment have been breached." Municipality of Anchorage v. Anchorage Police Dept. Employees Ass'n, 839 P.2d 1080, 1081 n. 1 (Alaska 1992) (quoting Arvid Anderson & Loren A. Krause, Interest Arbitration: The Alternative to the Strike, 56 Fordham L.Rev. 153 (1987) (footnotes omitted)). . In State v. Public Safety Employees Association, 798 P.2d 1281 (Alaska 1990), we were not required to address the question whether compulsory grievance arbitration proceedings might be subject to a standard of review other than gross error. PSEA does not resolve that question, but does note that this court has applied the gross error standard to grievance arbitration proceedings. See PSEA, at 984. We choose not to address in this case whether comptdsoiy grievance arbitration proceedings might be subject to a standard of review other than gross error, as we again are not required to do so.

10343437

SPENARD ACTION COMMITTEE, Appellant and Cross-Appellee, v. LOT 3, BLOCK 1, EVERGREEN SUBDIVISION, Appellee and Cross-Appellant

Spenard Action Committee v. Lot 3, Block 1, Evergreen Subdivision

1995-08-25

Nos. S-5758, S-5797

766

783

902 P.2d 766

902

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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

CAP

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

SPENARD ACTION COMMITTEE, Appellant and Cross-Appellee, v. LOT 3, BLOCK 1, EVERGREEN SUBDIVISION, Appellee and Cross-Appellant.

SPENARD ACTION COMMITTEE, Appellant and Cross-Appellee, v. LOT 3, BLOCK 1, EVERGREEN SUBDIVISION, Appellee and Cross-Appellant. Nos. S-5758, S-5797. Supreme Court of Alaska. Aug. 25, 1995. Rehearing Denied Sept. 28, 1995. Allen M. Bailey, Law Offices of Allen Bailey, Anchorage, for Appellant and Cross-Appellee. James D. Gilmore and Brian M. Doherty, Gilmore & Doherty, Anchorage, for Appellee and Cross-Appellant. Before MOORE, C.J., and RABINOWITZ, MATTHEWS, COMPTON and EASTAUGH, JJ.

10584

64581

OPINION RABINOWITZ, Justice. Spenard Action Committee (SAC) instituted an action for abatement of a public nuisance and injunctive relief against Lot 3, Block 1, Evergreen Subdivision (Lot 3), alleging that The Chateau, a massage parlor and escort service located on the property, was operating as a house of prostitution. The superior court denied relief based on its conclusion that SAC had not shown that a public nuisance existed at the time of trial. On appeal, SAC first argues that the superior court should have established as a matter of law, as a sanction for Lot 3's alleged discovery violations, that The Chateau was a house of prostitution. Second, SAC argues that the superior court erred in concluding that the public nuisance must be shown to exist at the time of trial. Third, SAC argues that the superior court erred in determining the proper burden of proof, and in excluding certain evidence. And fourth, SAC argues that it is a public interest litigant and that the superior court's award of costs and attorney's fees to Lot 3 was therefore improper. On cross-appeal, Lot 3 argues that the superior court erred in awarding SAC $12,-000 in costs and attorney's fees as a sanction for Lot 3's discovery violations. In addition, Lot 3 argues that the superior court erred in allowing police officers to testify as experts. I. FACTS AND PROCEEDINGS SAC is a non-profit Alaska corporation organized for the purpose of discouraging prostitution in the Spenard area of Anchorage. SAC's activities include the investigation of suspected houses of prostitution and the implementation of a "camera watch" program in which volunteers observe and attempt to identify individuals who enter or leave these alleged houses of prostitution. In October 1987, the Vice Unit of the Anchorage Police Department conducted a raid on The Chateau. The police seized a number of items from the premises including 4,752 Rolodex cards with the names of, and information about, The Chateau's customers. Following the raid, L.H., an employee of The Chateau, was charged with assignation, and Mary Elstad, the owner of The Chateau, was charged with owning and operating a house of prostitution. The raid resulted in only one conviction. A jury found L.H. guilty of assignation, and the district court imposed a suspended imposition of sentence for one year. L.H.'s conviction was subsequently set aside. Elstad was acquitted of the charge against her. A few days after the raid SAC filed an action against a number of defendants, including Lot 3, for abatement of public nuisances and injunctive relief. In its complaint, SAC alleged that The Chateau was using Lot 3 "for purposes of lewdness, assignation, prostitution, or other immoral acts." Lot 3 answered, and discovery commenced. In furtherance of its discovery efforts, SAC subpoenaed Sergeant Mark O'Brien of the Anchorage Police Department for deposition and commanded him to bring the Rolodex files that the police had seized during the October 1987 raid. In October 1988, SAC served Elstad with a similar subpoena which again commanded production of the Rolodex files. Lot 3 moved for a protective order to prohibit SAC from discovering this evidence. The superior court denied Lot 3's motion in November 1988, but allowed Lot 3 to submit specific items to the superior court for an in camera review. Lot 3 subsequently submitted the Rolodex files to the superior court with a motion requesting that the superior court find all information in the Rolodex files, other than the names of The Chateau's customers, to be constitutionally protected. Following its in camera review, the superior court ruled that the name, address, telephone number, employer data, driver's license number, and social security number of each customer should be produced, but that any other information was constitutionally protected. Both SAC and Lot 3 petitioned this court for review of the superior court's order. This court denied Lot 3's petition for review, and responded to SAC's petition for review as follows: 1. The petition for review is granted. 2. The order of the superior court dated December 7, 1988, ruling that all information contained in the two rolodexes and one receipt book is protected by the constitutional right to privacy is reversed in part. 3. The information on the aforesaid documents relating to customer sexual preferences should be produced as such information is relevant to the petitioner's argument that the establishment is used for purposes [of] prostitution. The customers' privacy interests can be protected by blanking out their names and other identifying information on the copies of the documents which are produced. Spenard Action Committee v. Lot 3, Block 1, Evergreen Subdivision, Alaska Supreme Court Order No. S-3140 (Apr. 7, 1989); Lot S, Block 1, Evergreen Subdivision v. Spenard Action Committee, Alaska Supreme Court Order No. S-3118 (Apr. 7, 1989). Counsel for Lot 3 construed this order to mean that Elstad must produce photocopies of the cards with information about the customers' sexual preferences, but that she could blank out the customers' names and addresses. Counsel for Lot 3 advised Elstad in conformity with this interpretation. Accordingly, when counsel for SAC requested production of the cards themselves, counsel for Lot 3 responded that the cards need not be produced. After further discussions between counsel for both parties revealed that they disagreed as to the meaning of this court's orders, Lot 3's counsel suggested that they informally approach the court clerk and ask whether there had been some confusion concerning the orders. Counsel for SAC did not respond to this suggestion. In July 1989, Zachary Thorderson, a Mend of Elstad's fiancee, was staying at Elstad's home. Elstad and Thorderson averred in affidavits that Thorderson asked Elstad about the Rolodex files after seeing them in, the closet of the room where he was sleeping. According to the affidavits, Elstad had explained what these files were, that they were involved in this litigation, and that eventually she would have to blank out the names and addresses on the cards and produce the sexual preference information. Thereafter, while Elstad was away from home for an extended period of time, Thorderson removed the Rolodex cards, blanked out the names and addresses, and then returned the cards to the closet without telling Elstad what he had done. In their affidavits, both Elstad and Thorderson state that Elstad did not direct or request Thorderson to blank out the names and addresses. SAC filed a motion for an order directing Lot 3 to show cause why it should not be held in contempt for violating this court's April 1989 orders by failing to produce the Rolodex files. The superior court granted SAC's motion. After conducting hearings, the superior court issued an order relating to discovery. The superior court found "a reasonable basis for confusion in interpretation by the parties" of this court's April 1989 orders. The superior court construed the orders to require that Elstad produce two sets of Rolodex cards: one set containing the names, addresses, telephone numbers, driver's license numbers and social security numbers of The Chateau's customers, but with all information about sexual preferences and practices blanked out; and another set with information about the customers' sexual preferences and practices, but with all other information blanked out. Lot 3 then filed a petition for review to this court seeking review of the superior court's discovery order, but this court denied the petition. Lot 3, Block 1, Evergreen Subdivision v. Spenard Action Committee, Alaska Supreme Court Order No. S-4002 (July 23, 1990). Elstad averred in her affidavit that in approximately January of 1991 she retrieved the Rolodex files from the closet and discovered for the first time that Thorderson had blanked out the names and addresses. Lot 3 subsequently produced photocopies of the blanked-out cards. At some time afterwards, Elstad gathered the Rolodex cards into brown paper bags and placed them in her kitchen. Her fiancee, without checking with her to find out what should be done with the contents of the bags, threw them into the garbage. Thereafter, SAC filed a motion pursuant to Alaska Civil Rule 37(b) for entry of an order establishing that The Chateau operates as a house of prostitution and precluding Lot 3 from offering proof to the contrary. The superior court ordered Elstad to show cause why she should not be held in contempt of court for failure to respond to the court's discovery order. The superior court then issued an order regarding Elstad's alleged discovery violations. The superior court denied SAC's motion for an establishment-pre-elusion order on the ground that SAC failed to demonstrate that the information on the Rolodex cards was unavailable through any other source. However, the superior court also concluded that Elstad had been "so incredibly careless with the business records ordered produced that her carelessness rises to the level of being intentional or wilful failure to comply with the court's order compelling discovery of those business records." The superior court then ordered Lot 3 to pay SAC's attorney's fees from the day that SAC first subpoenaed the police to produce the Rolodex files to June 19, 1991, when SAC filed its records of actual costs and attorney's fees incurred in respect to this discovery issue. Thereafter, the superior court entered an order awarding $12,000 in attorney's fees to SAC for Lot 3's discovery violation. At trial, one of the police officers who participated in the October 1987 raid on The Chateau testified that in his opinion the premises were a place where prostitution had just occurred, but that he had formulated no opinion as to whether The Chateau was a house of prostitution. Another officer who had participated in the raid testified that in his opinion The Chateau was operating as a house of prostitution at the time the raid was carried out. At the bench trial Elstad testified that she warned any person who worked at The Chateau that if prostitution occurred on the property, the parties who engaged in prostitution would be terminated immediately. When L.H. was charged with assignation in 1987, she was immediately fired. Similarly, Elstad terminated another individual who had been arrested in 1986 for assignation, but against whom the charge had been subsequently dropped. In addition, signs were posted on the premises alerting patrons that The Chateau did not permit prostitution. The superior court also heard testimony that The Chateau was licensed by the Municipality of Anchorage as a physical culture studio, and that the Municipality had never rejected The Chateau's yearly applications for a license or for renewal. After each side presented its evidence, the superior court articulated a number of oral findings. The superior court concluded that "in October 1987 The Chateau was a business that included prostitution as one of its primary services." However, recognizing that the case did not come to trial until January 1993, approximately five years after SAC had filed its complaint, the superior court also found that SAC had not shown that The Chateau had been operated as a house of prostitution since that time: The evidence shows no offers of sex for money by Chateau employees after October 1987, although the business makes approximately the same amount of money as it did in 1987. After consideration of all of the evidence, I find that the . evidence is insufficient to prove, even by a preponderance, that The Chateau has been operated as a house of prostitution at any time after 1987. Although the evidence presented is sufficient to create suspicion, it does not support a . factual or legal conclusion to that effect. Alaska Statutes 09.50.170 to 240 authorize a citizen to bring an action to enjoin an existing nuisance_ However, neither injunction nor abatement is authorized . unless the nuisance presently exists. The evidence in this case is insufficient to show that a nuisance exists on The Chateau premises. Lot 3 then filed a motion seeking an award of $77,818 in attorney's fees. SAC opposed the award, arguing that it was a public interest litigant. The superior court denied SAC public interest litigant status and awarded Lot 3 $25,000 in attorney's fees and $3,782 in costs. SAC now appeals and Lot 3 cross-appeals from the superior court's final judgment. II. DISCUSSION A. Whether the Nuisance Must Exist at the Time of Trial In its findings of fact, the superior court concluded in part that "in October 1987 The Chateau was a business that included prostitution as one of its primary services." However, the superior court also concluded that SAC had not shown that The Chateau had operated as a house of prostitution since that time and at the time of trial. The superior court further concluded that neither an injunction nor abatement is authorized under AS 09.50.170-.240 unless the nuisance "presently exists." Because SAC failed to prove that a nuisance presently exists, the superior court denied SAC's request for an injunction and order of abatement. On appeal, SAC argues that the superior court erred because AS 09.50.170-.240, specifically AS 09.50.210, only requires that the nuisance be shown to exist at the time the complaint is filed. In response, Lot 3 argues that these statutes require that the nuisance be shown to exist at the time the trial is held. Thus, we must determine whether AS 09.50.170-240 requires that a nuisance be shown to exist at the time the complaint is filed or at the time the trial is conducted. We hold that AS 09.50.170- 240, specifically AS 09.50.210, requires that a nuisance be shown to exist at the time the complaint is filed rather than at the time of trial. Requiring that the nuisance in question be shown to exist at the time of trial would frustrate the underlying purpose of the above noted statutes. Such a holding would invite defendants in nuisance suits to evade liability by voluntarily abating the nuisance between the filing of the complaint and the date of trial. Then, after the threat .of trial has passed or the trial has been held, the defendant could resume the offensive activity with impunity. In addition, by enacting AS 09.50.170-240, the Legislature expressed its specific intent "to suppress houses of lewdness and prostitution, and to prevent persons from maintaining or conducting such houses_" Territory v. House No. 24, 7 Alaska 611, 615 (1927). Thus, we construe these statutes in a manner to avoid frustrating their remedial purpose. Our interpretation of AS 09.50.170-.240 is supported by decisions from other jurisdictions. Several courts in other states have suggested that a nuisance need not be shown to exist at the time of trial. In King v. Commonwealth ex rel. Smith, 194 Ky. 143, 238 S.W. 373 (1922), the defendant argued that the trial court should not have issued a permanent injunction against prostitution on his property because he voluntarily abated the nuisance after the suit had commenced. Id. 238 S.W. at 377. The court rejected this argument stating that the trial court "had a broad discretion to grant or withhold the injunctive remedy sought by the commonwealth." Id. The court added that it was "satisfied that [the trial court] wisely granted the permanent injunction," as "the perpetual injunction was necessary in this ease because of the nature of the business enjoined and the likelihood of it reviving under cover as soon as the stay of the court is withdrawn." Id. And in People ex rel. Bradford v. Burch, 46 Cal.App. 391, 189 P. 716, 718 (1920), the California Court of Appeals considered an action under the Red Light Abatement Law and stated that a nuisance must be shown to exist at the time of the commencement of the action. However, the court also stated that such an action should be dismissed when a nuisance has been voluntarily abated in good faith before a complaint is filed. Id.; see also People ex rel. Van de Kamp v. American Art Enters., Inc., 33 Cal.3d 328, 188 Cal.Rptr. 740, 743 n. 10, 656 P.2d 1170, 1173 n. 10 (1983). Similarly, in Coty v. Ramsey Associates, Inc., 149 Vt. 451, 546 A.2d 196, 201 (Vt.), cert. denied, 487 U.S. 1236, 108 S.Ct. 2903, 101 L.Ed.2d 936 (1988), the court held that a pig farm constituted a nuisance despite the fact that the owners abated the nuisance before the trial began. And finally, in State ex rel. Miller v. Anthony, 72 Ohio St.3d 132, 138-139, 647 N.E.2d 1368, 1373 (1995), the Ohio Supreme Court recently held that a nuisance need not be shown to exist at the time of the abatement hearing, concluding that such an interpretation would be "unnecessarily restrictive." However, a court should have the discretion to refuse to issue an injunction or an order of abatement if the defendant has voluntarily abated the nuisance after the filing of the complaint, depending on the good faith of the defendant and the circumstances of the case. For example, in Commonwealth ex rel. Funk v. Miehl, 258 S.W.2d 493 (Ky.1953), the court affirmed the denial of an injunction against a public nuisance because the nuisance had been voluntarily abated after the filing of the complaint. To this effect, the court explained: One fact always to be considered in the granting or refusal of injunctive relief is whether or not there is any reasonable necessity for the injunction.... [W]here the abatement has continued for a long period of time and the circumstances are such as to indicate that the offensive acts are not likely to be repeated, the court, in the exercise of a discretion inherent in this type proceeding, may properly conclude that the necessity for the injunction no longer exists. Id. at 494. The court added that "the application for an injunction is addressed to the sound discretion of the Chancellor." Id. Thus, we conclude that if a nuisance is found to exist at the time the complaint is filed but not at the time of trial, the trial court has the discretion not to issue an injunction or order of abatement. To this effect, the court should consider the good faith of the defendant, the likelihood of recurrence of illegal activity, and other circumstances of the case. B. The Appropriate Burden of Proof As to the appropriate burden of proof under AS 09.50.170-240, the superior court stated: The evidence in this case is insufficient to show that a nuisance exists on the defendant premises on which The Chateau is operated. The Court has utilized the burden of proof of the preponderance of the evidence standard in making this decision. There is a strong argument that the burden of proof in this case should be the higher standard of clear and convincing evidence, however, it is clear that the evidence is insufficient under either the preponderance of the evidence standard or the clear and convincing proof standard. On appeal, SAC argues that the appropriate burden of proof is a preponderance of the evidence. In response, Lot 3 seems to argue that this court should require a clear and convincing evidentiary standard under AS 09.50.170-.240. This presents a question of law to which this court applies its independent judgment, adopting the rule of law that is most persuasive in view of precedent, reason and policy. Ford v. Municipality of Anchorage, 813 P.2d 654, 655 (Alaska 1991). We hold that in regard to suits brought under AS 09.50.170-.240, the appropriate burden of proof is clear and convincing evidence. This ruling is supported by a number of decisions from other jurisdictions. In State ex rel. Miller v. Anthony, 72 Ohio St.3d 132, 139-40, 647 N.E.2d 1368, 1374 (1995), the Ohio Supreme Court held that clear and convincing evidence is the appropriate burden of proof under Ohio's nuisance abatement statute. In State ex rel. Cox v. Taft, 143 W.Va. 106, 100 S.E.2d 161 (1957), the court construed a public nuisance statute, stating "[t]he weight of authority appears to be that in a proceeding to abate a nuisance the proof necessary to establish the existence of a nuisance need not be convincing beyond a reasonable doubt, but there is respectable authority to the effect that such proof must be 'clear, convincing and satisfactory.' " Id. 100 S.E.2d at 165 (quoting 66 C.J.S. Nuisances § 127). And in State v. Henderson, 137 Ariz. 135, 669 P.2d 113, 113-14 (App.1983), the court applied the clear and convincing evidence standard under a public nuisance statute similar to the one at issue in this case. Moreover, this court has required clear and convincing evidence in other areas concerning real property such as reformation of a deed and abandonment of a mining claim. D.M. v. D.A., 885 P.2d 94 (Alaska 1994); Miscovich v. Tryck, 875 P.2d 1293 (Alaska 1994). Finally, the nature of the sanctions under the abatement statute supports our adoption of a clear and convincing standard of proof. The sanctions imposed under AS 09.50.210 are severe. All personal property used' in the nuisance must be removed and sold, and the building used in the nuisance must be closed for one year. Because the abatement law adopts severe civil remedies, we believe that the statute can be characterized as falling somewhere between a civil and a criminal statute. Thus, the standard of proof should be one which lies between the civil standard of a preponderance of the evidence and the criminal standard of beyond a reasonable doubt, that is, clear and convincing evidence. C. Sanctions for Elstad's Discovery Violations If a party fails to obey a discovery order, a trial court may impose sanctions under Civil Rule 37(b). We review a trial court's decision relating to the imposition of a discovery sanction for an abuse of discretion. Underwriters at Lloyd's London v. The Narrows, 846 P.2d 118, 119 (Alaska 1993). Where a trial court enters findings of fact in determining whether discovery sanctions are appropriate, we will not set aside such findings unless they are clearly erroneous. Alaska R.Civ.P. 52(a). "We will not declare a trial court's finding to be clearly erroneous unless, after a review of the entire record, we are left with a definite and firm conviction that a mistake has been made." Demoski v. New, 737 P.2d 780, 784 (Alaska 1987). 1. The Denial of the Establishment-Preclusion Order The superior court denied SAC's request for an order establishing that The Chateau was operating as a house of prostitution in 1987 and still operates as a house of prostitution and similarly denied its request to preclude Lot 3 from offering proof to the contrary. This ruling was based on the superior court's determination that SAC had failed to demonstrate that the information contained in the Rolodex files was unavailable by any other means. On appeal, SAC asserts that the superior court abused its discretion by failing to grant its request for an establishment-preclusion order. Conclusive resolution of an issue against a party as a sanction for discovery violations should only be invoked in extreme cases. Underwriters, 846 P.2d at 119. Thus, before issuing an establishment-preclusion order which would have the practical effect of ending litigation, a trial court must: (1) find willfulness on the part of the non-complying party; (2) undertake a reasonable exploration of possible and meaningful alternatives to litigation-ending sanctions; and (3) determine that the information is not available by any other means. Id. at 119-20; Sandstrom & Sons, Inc. v. State, 843 P.2d 645, 647-48 (Alaska 1992). To this effect, we have stated as follows: For this reason, the trial court must find that the non-complying party "willfully" violated the discovery order in question. "Willfulness" is defined as the "conscious intent to impede discovery, and not mere delay, inability or good faith resistance." We have held that before a court may impose litigation ending sanctions for discovery violations the record must clearly indicate a reasonable exploration of possible and meaningful alternatives to dismissal. Finally, the sanction must be "sufficiently related" to the discovery violation. We must determine "if the established issue is an 'element of the dispute that cannot be determined on the merits without disclosure of the evidence the court has ordered the party to produce.'" Underwriters, 846 P.2d at 119-20 (citations omitted). In support of its position, SAC points out that the superior court's October 1991 order included a finding that Elstad's discovery violations were willful. In addition, SAC argues that subsequent trial testimony showed that witness information was unavailable from any source other than the Rolodex files. The trial testimony to which SAC refers on appeal consists of Elstad's statements that she made no new entries in her Rolodexes after 1987, an opinion from SAC's president that the police have obtained few prostitution convictions since 1987, and a statement from one of the police officers that enforcing laws against prostitution was of the lowest priority- However, even assuming that Elstad's discovery violation was willful, the testimony on which SAC relies does not demonstrate that the information was unavailable by any other means. In fact, as Lot 3 points out, SAC could possibly have obtained customer names by deposing Elstad herself. In addition, SAC could have identified customers through its "camera watch" program, an operation that had run periodically from 1987 to the time of trial in which SAC volunteers filmed customers entering suspected houses of prostitution, recorded the license plate numbers of vehicles parked in front of such establishments, and used the numbers to obtain some 200 customer names through inspection of records at the Division of Motor Vehicles. Thus we conclude that the superior court's determination that SAC failed to show that the information was unavailable by any other means was not clearly erroneous. Based on the foregoing, we hold that the superior court did not abuse its discretion in rejecting SAC's request for the entry of an establishment-preelusion order against Lot 3. Additionally, SAC appears to argue that the superior court's assessment of attorney's fees against Lot 3 is too lenient a sanction. Even in the circumstance where a violation of a discovery order is willful, we have not established a standard requiring trial courts to elevate a cost sanction to one of issue preclusion. Koehring Mfg. Co: v. Earthmovers of Fairbanks, Inc., 763 P.2d 499, 508-09 (Alaska 1988). Rather, this court has stated only "minimum criteria that must be met when a court imposes issue preclusion." Id. at 508. 2. The Attorney's Fees Sanction On cross-appeal, Lot 3 argues that the superior court abused its discretion in awarding $12,000 in attorney's fees to SAC as a Rule 37(b) discovery sanction because El-stad's conduct was not willful. In addition, Lot 3 argues that the $12,000 award improperly includes costs incurred by SAC in attempting to obtain the Rolodex files from the Anchorage Police Department, an effort that preceded any alleged discovery violations on Elstad's part. We need not address Lot 3's argument that Elstad's conduct was not willful because an award of attorney's fees against Lot 3 is proper regardless of whether El-stad's behavior was willful. An award of costs and attorney's fees under Civil Rule 37(b)(2) is distinct from the Rule's list of enumerated sanctions: In lieu of any of the foregoing orders [or] in addition thereto, the court shall require the party failing to obey the order or the attorney advising that party or both to pay the reasonable expenses including the attorney's fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust. Alaska R.Civ.P. 37(b)(2) (emphasis added). Authorities construing the parallel Federal Rule of Civil Procedure 37(b)(2) consider willfulness to be relevant only as to the selection of the sanctions to be imposed, not to the imposition of attorney's fees and costs. 8A Charles A. Wright et al., Federal Practice and Procedure § 2289, at 672-74 (1994). For example, in David v. Hooker, Ltd., 560 F.2d 412, 415 (9th Cir.1977), the court reviewed a sanction of attorney's fees and expenses imposed pursuant to a party's motion for sanctions for failure to comply with a discovery order. The court noted that the controlling statutory provision was Rule 37(b) and not Rule 37(a). Id. at 419. Then, relying on the Notes of the Advisory Committee to Rule 37, the court held that willfulness is not a necessary element for the imposition of expenses and attorney's fees under Rule 37(b). Id. Likewise, we hold that willfulness is not required for a sanction of attorney's fees and expenses under Alaska Civil Rule 37(b)(2). Second, Lot 3 argues that the award of $12,000 in costs and attorney's fees improperly includes costs incurred by SAC in attempting to obtain the Rolodex files from the Anchorage Police Department. The superior court ordered Lot 3 to pay "the reasonable attorney fees and costs incurred by plaintiff from the day it subpoenaed the police officer to get the rolodex information until June 19, 1991.... " Counsel for SAC submitted an affidavit and a supplemental affidavit of attorney's fees incurred by SAC from the time the first subpoena was issued for the police sergeant who had custody of the Rolodex files. The total amount of attorney's fees was $16,426.85. The superior court subsequently ordered Lot 3 to pay SAC $14,000 in attorney's fees. The superi- or court then reduced this order to a judgment in the amount of $12,000. The judgment states in part as follows: Although the exact dollar amount at issue as a result of the defendant's (Elstad) opposition to plaintiffs submission of fees and costs are well-taken in part, even careful review by the court makes exact calcu lation nearly impossible on an activity per minute basis.... Consequently, this court has made an activity by activity estimation. Lot 3 then requested the court to reconsider the $12,000 award of attorney's fees. Lot 3 specifically objected "to all of the fees sought prior to October 24, 1988, when Ms. Elstad was served with a subpoena for her deposition." The superior court agreed to consider Lot 3's objections. Then, the superior court again reduced the award of attorney's fees in the amount of $12,000 to judgment. However, the superior court failed to make specific findings as to whether the $12,000 award includes fees incurred prior to October 24, 1988, when Elstad was served with a subpoena for her deposition and, if so, why the award includes such fees. While we agree that an exact calculation of attorney's fees is extremely difficult, we conclude that the superior court erred in failing to make findings in support of the $12,000 award. On remand, the superior court should make specific findings as to whether the $12,000 award includes fees incurred by SAC in attempting to obtain the rolodex files from the Anchorage Police Department prior to October 24, 1988, and if so, to eliminate such fees from its award. D. Evidentiary Rulings On appeal, SAC argues that the superior court erred in excluding any evidence regarding L.H.'s conviction for assignation. On cross-appeal, Lot 3 argues that the superior court erred in permitting police officers to testily as expert witnesses as to whether The Chateau was operating as a house of prostitution. We review a trial court's ruling relating to the admissibility of evidence, including the admissibility of expert testimony, for an abuse of discretion. In re D.J.A, 793 P.2d 1033, 1035-36 n. 2 (Alaska 1990); Patricia R. v. Sullivan, 631 P.2d 91, 99 (Alaska 1981). 1. Exclusion of L.H. ⅛ Conviction for Assignation As a result of the October 1987 raid, L.H., an employee of The Chateau, was tried and convicted of assignation. After receiving a suspended imposition of sentence, L.H.'s conviction was subsequently set aside upon her successful completion of a probation period. SAC sought to offer the conviction to establish that The Chateau was operating as a house of prostitution in October 1987. The superior court excluded the conviction due to the lack of privity between L.H. and Lot 3. On appeal, SAC challenges the superior court's exclusion of L.H.'s conviction. In response, Lot 3 argues that this court should uphold the exclusion of L.H.'s conviction because it was subsequently set aside, and because of the lack of privity between L.H. and Lot 3. We first address the question of whether a conviction that has been set aside may be introduced as evidence in a subsequent proceeding. Lot 3 relies on Wickham v. State, 844 P.2d 1140 (Alaska App.1993), in support of its argument that L.H.'s conviction should be excluded because it was subsequently set aside. In Wickham, the court of appeals held that a conviction set aside under AS 12.55.085 cannot be used for impeachment purposes in a future proceeding. Id. at 1144. However, the use of a conviction for impeachment purposes differs from the use of a conviction as relevant evidence that a crime or event occurred. The court's holding in Wickham was based on its conclusion that the set aside provisions of AS 12.55.085 require a substantial showing of rehabilitation, and that evidence of a conviction is inadmissi ble under Alaska Rule of Evidence 609(d)(2) if an offender has been rehabilitated. Id. at 1142-44. Because the court's decision to exclude the conviction was based on the text of Evidence Rule 609(d)(2), Wickham does not apply to this ease. A set aside does not mean that the crime, and the events surrounding the crime, never occurred. In City of St. Paul v. Froysland, 310 Minn. 268, 246 N.W.2d 435, 438 (Minn.1976), the Minnesota Supreme Court stated that "the dismissal of a charge following the period of stayed imposition of sentence is in the nature of a pardon, not a declaration of innocence." Thus, there is no reason why a set aside should render a judgment of conviction inadmissible as evidence that the crime occurred. Moreover, the Model Penal Code provides that a conviction which has been discharged and set aside may still be introduced as relevant evidence in a future proceeding. Model Penal Code § 301.5 and explanatory note (1985). Based on the foregoing, we hold that a conviction which has been set aside may be introduced as evidence in a future proceeding for certain purposes. However, we must still determine whether the criminal conviction of a non-party following trial may be admitted at a subsequent civil trial as evidence of the facts on which the judgment rests. This is a question of first impression in Alaska. In Scott v. Robertson, 583 P.2d 188 (Alaska 1978), this court held that the criminal conviction of a party is admissible in a subsequent civil trial where: (1) the prior conviction is for a serious criminal offense; (2) the defendant in fact had a full and fair hearing; and (3) it is shown that the issue on which the-judgment is offered was necessarily decided in the previous trial. Id. at 191-92 (footnotes omitted). This court further held that such convictions should be admitted as conclusive proof of the facts necessarily determined. Id. at 193. However, Scott applies to the admission of a criminal conviction of a party. Lot 3 argues, and the superior court ruled, that L.H.'s conviction is not admissible under Scott due to the lack of privity between L.H. and Lot 3. The rule of privity "states that the only persons bound by a judgment are those who are parties to the action or in privity with the parties." Pennington v. Snow, 471 P.2d 370, 375 (Alaska 1970). However, SAC sought to introduce the conviction as evidence of the facts on which it rests and not as conclusive proof of those facts. Thus, privity is not required if the conviction is admissible as evidence. Several federal courts have admitted prior criminal judgments against a non-party to the original suit as evidence of the facts on which the judgment rests. For example, Schwartz v. United States, 582 F.Supp. 224 (D.Md.1984), involved a dispute between Schwartz and the federal government over ownership of corporate stock. To prove that Schwartz did not own the stock, the government used the special verdict from a prior criminal trial in which Schwartz's associate, Irvin Kovens, had been convicted. Id. at 227-28. The jury in that trial found that Kovens owned the stock. Id. at 225. The court agreed with Schwartz that the finding in the previous trial could not estop him from asserting ownership of the stock because he had not been a party to that trial; however, the court admitted the jury's special verdict into evidence against Schwartz. Id. at 227-28; see also Hiroshi Motomura, Using Judgments as Evidence, 70 Minn.L.Rev. 979, 1012 (1986). However, in Schwartz the court relied in part upon Federal Rule of Evidence 803(22) in admitting the judgments. The Commentary to Alaska Rule of Evidence 803 notes that the Alaska rule omits an exception for criminal judgments like that contained in Federal Rule 803(22). To this effect, the Commentary states as follows: If a judgment of guilty in a criminal case, which follows proof beyond a reasonable doubt, is to have impact in subsequent cases, the impact should be by way of collateral estoppel, not by admitting the previous judgment. The judgment tells the second trier of fact nothing; that trier will either disregard it or defer to it, neither of which tactic is intended by the Federal Rule.... But the fact remains that the trier of fact in the second ease cannot know how to use the first finding. There is no reason to adopt a rule that can only confuse the trial process. Alaska Evidence Rules Commentary, Rule 803. Thus, the Alaska Rules of Evidence articulate a policy against admitting criminal judgments as evidence. Moreover, in Scott this court noted Professor McCormick's concerns that parties will tend to rely too heavily on the prior conviction and will not introduce sufficient evidence at the second trial. Scott, 583 P.2d at 191 n. 11 (citing McCormick on Evidence § 318, at 739 (2d ed. 1972)). Based on the foregoing, we hold that the criminal conviction of a non-party following trial is not admissible as evidence in a subsequent .civil proceeding. 2. Admission of Police Officers' Expert Opinions Prior to trial Lot 3 filed a motion in limine seeMng an evidentiary ruling that no Anchorage police officer should be permitted to testify as an expert witness regarding whether The Chateau was operated as a house of prostitution. The superior court denied the motion. One of the police officers who participated in the October 1987 raid testified that in his opinion The Chateau was a place where prostitution had just occurred, but that he had formulated no opinion as to whether The Chateau was a house of prostitution. Another officer who had participated in the raid testified that in his opinion The Chateau was operating as a house of prostitution at that time. On appeal, Lot 3 challenges the superior court's decision to allow the police officers to testify as experts. Lot 3 specifically argues that police officers do not qualify as expert witnesses under the criteria of Alaska Rule of Evidence -702, and that such .testimony invaded the province of the fact finder. Alaska Rule of Evidence 702(a) provides as follows: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. In the present case, the superior court permitted police officers to express specific opinions as to whether The Chateau was operating as a house of prostitution. At least one authority concludes that while experts may provide general standards, criteria, or descriptions of social frameworks, the helpfulness standard requires that experts "stop short of stating their own conclusions on [points that] the jury is at least equally capable of [determining]." 3 Christopher B. Mueller and Laird C. Kirkpatrick, Federal Evidence § 350, at 628 (1994). Thus, while courts have allowed expert testimony as to patterns of conduct in drug trafficking, criteria for determining the adequacy of a warning, and principles of handwriting analysis, courts have been reluctant to let experts state their own conclusions regarding such matters. Rather, courts prefer to let a jury apply general standards supplied by experts to the specific facts of a ease in order to reach its own conclusion. We conclude that the officers' specific opinions as to whether The Chateau was operating as a house of prostitution do not meet the criteria for scientific, technical, or other specialized knowledge which would assist the trier of fact as required by Evidence Rule 702(a). Thus, we hold that the superior court abused its discretion in permitting the police officers to express their opinions as to whether The Chateau was operating as a house of prostitution. E. SAC's Status as a Public Interest Litigant Because we reverse the superior court's judgment in favor of Lot 3 as to the merits of this case, we vacate the court's award of attorney's fees and costs. However, because the issue may arise again on remand, we address SAC's argument that it is a public interest litigant. The superior court concluded that SAC is not a public interest litigant and awarded $25,000 in attorney's fees and $3,782 in costs to Lot 3 as the prevailing party pursuant to Civil Rule 82. On appeal, SAC argues that the superior court erred in concluding that SAC is not a public interest litigant. In Gilbert v. State, 526 P.2d 1131, 1136 (Alaska 1974), this court recognized a public interest exception to Civil Rule 82 and held that "it is an abuse of discretion to award attorneys' fees against a losing party who has in good faith raised a question of genuine public interest before the courts." The public interest exception to Civil Rule 82 is designed to encourage plaintiffs acting as private attorneys general to bring issues of public interest to the courts when such issues might otherwise not be brought. Anchorage v. McCabe, 568 P.2d 986, 990 (Alaska 1977). A litigant must satisfy the following four criteria to be deemed a public interest litigant: (1) Is the ease designed to effectuate strong public policies? (2) If the plaintiff succeeds will numerous people receive benefits from the lawsuit? (3) Can only a private party have been expected to bring the suit? (4) Would the purported public interest litigant have sufficient economic incentive to file suit even if the action involved only narrow issues lacking general importance? - Citizens Coalition, 810 P.2d at 171. SAC brought this action to abate houses of prostitution in the Spenard area. The suppression of prostitution and related activities is supported by the policies and laws of this state. AS 09.50.170-.240; AS 11.66.100-.150. We therefore conclude that this action was designed to effectuate the strong public policy of suppressing prostitution in the Anchorage area. Thus, we hold that the first criterion is satisfied. Those who live in close proximity to the premises, those who drive by on a regular basis, and the community as a whole will benefit if SAC is successful in closing houses of prostitution. We therefore conclude that numerous people will benefit from the successful outcome of SAC's lawsuit. Thus, we conclude that the second criterion is met. As to the third criterion, this action could have arguably been brought by the Municipality of Anchorage or the State of Alaska. However, David Erlich, the president of SAC, averred in an affidavit that law enforcement action had not been successful in closing alleged houses of prostitution, and that the Municipality of Anchorage had refused to initiate an action to close the houses of prostitution in the Spenard area. Moreover, Sergeant Mark O'Brien of the Anchorage Police Department, who was supervisor of the General Investigation Unit responsible for investigating prostitution, gambling and street level drug trafficking, testified that prostitution was the Unit's lowest priority. He stated that he was instructed that his priorities were to focus on drugs and crack cocaine and to not work on prostitution. Thus, for all practical purposes, only a private party could have been expected to bring this suit. We therefore conclude that the third criterion is satisfied. Finally, as to the fourth criterion, in his affidavit David Erlich stated that SAC is a non-profit corporation. One of SAC's purposes is to improve the Spenard neighborhood by its efforts to bring about the closing of houses of prostitution. It is apparent that SAC will not receive any direct financial benefit from the successful outcome of this litigation. While the members of SAC may benefit indirectly based on improved property values in their neighborhood, such minimal economic interests cannot destroy a litigant's capacity to satisfy the fourth criterion. We therefore hold that SAC would not have a sufficient economic incentive to file suit even if the action involved only narrow issues lacking general importance. Thus, the fourth criterion is satisfied. Based on the foregoing, we hold that the superior court erred in concluding that SAC is not a public interest litigant. III. CONCLUSION We AFFIRM the superior court's order denying SAC's motion for an establishment-preelusion order and AFFIRM the superior court's exclusion of L.H.'s conviction for assignation. We REMAND the superior court's discovery sanction award of $12,000 in costs and attorney's fees against Lot 3 for specific findings as to whether the award includes fees incurred prior to October 24, 1988, when-Elstad was served with a subpoena for her deposition and, if so, why the award includes such fees. We REVERSE the superior court's admission of the police officers' expert opinions, and REVERSE the superior court's determination that SAC is not a public interest litigant. Finally, we REVERSE the judgment of the superior court and REMAND for rede-termination consistent with this opinion as to whether Lot 3 should be abated under AS 09.50.210 and whether an injunction should be issued under AS 09.50.180. As to these issues the determinative questions are: (1) whether a nuisance existed by clear and convincing evidence at the time SAC filed its complaint; and (2) if so, whether the equitable factors discussed earlier warrant injunc-tive relief. As to the first question, we note the superior court previously concluded that "in October 1987 The Chateau was a business that included prostitution as one of its primary services." Thus, on remand the superi- or court may give the parties the option of offering further evidence, may order sua sponte the further taking of evidence, shall enter such additional findings of fact and conclusions of law as are appropriate in the circumstances, and shall undertake such further proceedings it deems appropriate not inconsistent with this opinion. . Assignation is "the making of an appointment or engagement for prostitution or an act in furtherance of such appointment or engagement." A.M.C. 8.14.010. Assignation is punishable by a fine of up to $5,000 and imprisonment for not more than one year. A.M.C. 8.14.020; 8.50.010(A)(7). . The record also contains evidence of a 1986 police undercover operation at The Chateau during which a Chateau employee was arrested for assignation. However, the Municipality exercised its discretion under Alaska Criminal Rule 43(a) and dismissed the charge. . The superior court severed SAC's claims against other properties. Default judgments were entered against some of the properties after severance, and the claims which were severed and not defaulted were stayed pending appeal. . The record contains no information on precisely when the police returned the Rolodex files to Elstad. In the criminal proceeding against El-stad, the district court excluded the files from evidence as the fruit of an illegal search and seizure. The police retained custody of the files until the disposition of the proceeding, which was scheduled for trial in September 1988. At some point, the police returned the files to El-stad. .Neither party has designated the petitions or their supporting memoranda as part of the record on appeal. However, in its motion to the superior court for a stay pending the outcome of the petition, Lot 3 stated its position that "the documents in their entirety are protected from disclosure and discovery by the constitutional " right to privacy afforded by the Alaska Constitution to the patrons whose names and other information are contained in the documents." In a motion to the superior court for reconsideration, SAC stated its position that the additional infor mation sought — notations pertaining to a customer's sexual preferences — was not protected under the right to privacy. The superior court denied SAC's motion. . Lot 3 moved for reconsideration of the judgment, arguing that the superior court should have deducted from the award the amount of actual fees that were unrelated to the discovery of the Rolodex cards. The superior court granted the motion for reconsideration, but sustained the judgment for $12,000. . The superior court also heard testimony that the Municipality would reject a license or renewal application if the police department believed that an establishment was being operated as a house of prostitution. . The superior court subsequently issued written findings of fact and conclusions of law that paralleled its oral findings. . The rulings at issue in this appeal were made by Judges Hunt and Shortell. Judge Hunt issued the establishment-preclusion order and awarded $12,000 in attorney's fees against Lot 3. Judge Shortell ruled on the meaning of "exists," the exclusion of L.H.'s conviction, the admission of the police officers' expert testimony, and SAC's status as a public interest litigant. Judge Shor-tell also held that SAC had not met the preponderance of the evidence standard, but declined to determine the proper burden of proof. . Subsequently amended, AS 09.50.170 provided as follows: A person who erects, establishes, continues, maintains, uses, owns, or leases a building, structure, or other place used for the purposes of lewdness, assignation, or prostitution or any other immoral act is guilty of maintaining a nuisance, and the building, structure, or place, or the ground itself in or upon which or in any part of which the lewdness, assignation, or prostitution is conducted, permitted, or carried on, continues or exists, and the furniture, fixtures, and other contents constitute a nuisance and may be enjoined and abated. AS 09.50.180 provides as follows: When there is reason to believe that a nuisance as defined in AS 09.50.170-09.50.240 exists, the attorney general shall, or a citizen may, bring an action to perpetually enjoin the nuisance, the person maintaining it, and the owner, lessee, or agent of the building or group upon which the nuisance exists. Subsequently amended, AS 09.50.210 provided in part as follows: Upon judgment that a nuisance exists, an order of abatement shall be entered directing the removal from the building or place of the fixtures, furniture, and movable property used in the nuisance and their sale in the manner provided for the sale of chattels under execution. The order shall also direct the closing of the building or place against its use for any purpose for a period of one year unless sooner released. .The interpretation of a statute presents 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, policy, and reason. Zsupnik v. State, 789 P.2d 357, 359 (Alaska 1990). . At least one court has held that such statutes should be liberally construed to enable communities to protect themselves. State ex rel. English v. Fanning, 97 Neb. 224, 149 N.W. 413, 415 (1914). . See also McCarthy v. Gaston Ridge Mill & Min. Co., 144 Cal. 542, 78 P. 7, 9 (1904) (upholding court's denial of injunction because defendant had voluntarily abated nuisance after commencement of action); Commonwealth ex rel. Attorney Gen. v. Brown, 239 Ky. 197, 39 S.W.2d 223, 227 (1931) ("an abatement by defendant subsequent to the filing of the action will not prevent the granting of the permanent injunction where it is not made to appear that the abatement was in good faith, and upon that issue the character of violations and the. objects and things of which they consist may be taken into consideration") (citation omitted); Dunbar v. O'Brien, 117 Neb. 245, 220 N.W. 278, 279 (1928) (whether cessation of nuisance after filing of complaint defeats right to injunction "depends on the good faith of defendant" and the circumstances of the case); cf. United States v. W.T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 897-98, 97 L.Ed. 1303 (1953) ("the court's power to grant injunc-tive relief survives discontinuance of the illegal conduct," but the case may "be moot" and in-junctive relief should not be granted "if the defendant can demonstrate that 'there is no reasonable expectation that the wrong will be repeated' ") (quoting United States v. ALCOA, 148 F.2d 416, 448 (2d Cir.1945)). . We also note that there must be repeated or continuous prohibited activity before a nuisance can be found to exist. See Southeastern Liquid Fertilizer Co. v. Chapman, 103 Ga.App. 773, 120 S.E.2d 651, 653 (Ga.App.1961) ("The whole idea of nuisance is that of either a continuous or regularly repetitious act or condition which causes the hurt, inconvenience or injury."); State v. Glenny, 6 N.W.2d 241, 242 (Minn. 1942) ("The commission of single or isolated disorderly or immoral acts on the premises does not constitute the place a disorderly house within the meaning of the penal laws."); Tenement House Dep't of City of New York v. McDevitt, 215 N.Y. 160, 109 N.E. 88, 89 (1915) ("To make the owner liable, it must appear that the building has been 'used' for the purpose of prostitution, and this imports, not an isolated act of vice, but some measure, even though brief, of continuity and permanence."); Starview, Inc. v. Oregon Liquor Control Comm'n, 15 Or.App. 11, 514 P.2d 898, 899 (Or.App.1973) ("To constitute the offense of 'maintaining' there must be some purpose of continuity in the use of the place for the proscribed illegal conduct.") (quoting People v. Holland, 158 Cal.App.2d 583, 322 P.2d 983, 986 (1958)); State ex rel. Carroll v. Gatter, 43 Wash.2d 153, 260 P.2d 360, 364 (1953) ("To sustain the application of the [nuisance abatement] act . requires more than a showing that sporadic acts of prostitution occurred therein."). . We have articulated the difference between clear and convincing evidence and a preponderance of the evidence as follows: Where one has the burden of proving asserted facts by a preponderance of the evidence, he must induce a belief in the minds of the jurors that the asserted facts tire probably true. If clear and convincing proof is required, there must be induced a belief that the truth of the asserted facts is highly probable. Curran v. Mount, 657 P.2d 389, 391 n. 4 (Alaska 1982) (quoting Saxton v. Harris, 395 P.2d 71, 72 (Alaska 1964)). . See also Cherry Hill Tp. v. New Jersey Racing Comm'n, 131 N.J.Super. 125, 328 A.2d 653, 664 (Law Div.) ("Plaintiffs, in charging a public nuisance, assumed the burden of establishing their cause of action by clear and convincing evidence."), aff'd, 131 N.J.Super. 482, 330 A.2d 600 (App.Div.1974), cert. denied, 68 N.J. 135, 343 A.2d 423 (1975); Delaware Optometric Ass'n v. Sherwood, 35 Del.Ch. 507, 122 A.2d 424, 427 (1956) ("Evidence sufficient to warrant the enjoining of a public nuisance, must be clear and convincing."), aff'd, 36 Del.Ch. 223, 128 A.2d 812 (1957); Sullivan County v. Filippo, 64 Misc.2d 533, 315 N.Y.S.2d 519, 539 (N.Y.Sup.1970) ("It is the rule in this state that a public nuisance must be established by clear evidence before the preventive remedy will be granted."). . Under AS 09.50.230, the building may be released to the owner before expiration of the one year period if the owner posts a bond and meets several other conditions. . Courts interpreting similar public nuisance abatement laws in other jurisdictions have split on whether such statutes are civil or criminal in nature. In State ex rel. Haas v. Club Recreation and Pleasure, 41 Or.App. 557, 599 P.2d 1194, 1196-97 (1979), cert. denied, 446 U.S. 982 (1980), the defendants challenged Oregon's nuisance abatement law as imposing criminal sanctions without the safeguards provided in criminal trials. The court rejected this argument stating that "rather than circumventing the criminal statute, the civil abatement statute serves as entirely different purpose, i.e. that of providing prospective equitable relief from continuation of the nuisance." Id. 599 P.2d at 1198. However, in State ex rel. Clemens v. ToNeCa, Inc., 265 N.W.2d 909, 914 (Iowa 1978), the court stated that even though Iowa's public nuisance abatement statute "is not a criminal statute, it is penal and must be strictly construed." The court added that "[a]ctions for prohibitory injunction, although premised in equity, are criminal in nature." Id. at 916. And in Board of Supervisors of Los Angeles County v. Simpson, 36 Cal.2d 671, 227 P.2d 14, 16 (1951), the court stated that "[proceedings under the red light [nuisance] abatement act are . penal in nature." (Citations omitted.) .Alaska Civil Rule 37(b)(2) provides in pertinent part; If a party . fails to obey an order to provide or permit discovery, . the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following; (A) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order; (B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting that party from introducing designated matters in evidence; In lieu of any of the foregoing orders or in addition thereto, the court shall require the party failing to obey the order or the attorney advising that party or both to pay the reasonable expenses including the attorney's fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust. .To this effect, the superior court stated as follows: For reasons not articulated in the record, the defendant did not clearly state, with specificity, the objections that she had to the plaintiff's request for an award of attorney fees when she opposed the plaintiff's motion. Instead, she waited until after the court ruled and then as a motion for reconsideration, she was finally able to articulate the fees and activity to which she specifically objects. . For definition of "assignation," see note 1, supra. . Alaska's set aside statute, AS 12.55.085(e), provides as follows: Upon the discharge by the court without imposition of sentence, the court may set aside the conviction and issue to the person a certificate to that effect. . In Journey v. State, 895 P.2d 955 (Alaska 1995), we considered whether expunction is a necessary component of a set aside order under AS 12.55.085(e). We noted that while the collateral consequences of a set aside conviction should be limited, records of a set aside conviction can be used in certain circumstances. Id. at 959. . This court has previously stated that [B]efore privity may be found to exist, the non-party must have notice and an opportunity to be heard; the procedure must insure the protection of the rights and interests of the non-party, and he must in fact be adequately represented by the parties. Pennington, 471 P.2d at 375-76. These requirements are not met in this case. In O'Connor v. O'Leary, 247 Cal.App.2d 646, 56 Cal.Rptr. 1 (1967), the California Court of Appeal considered a case in which an employee of a drive-in theater who was acting within the scope of his employment under the doctrine of respondeat superior stabbed someone on theater premises and was subsequently convicted of involuntary manslaughter. Id. 56 Cal.Rptr. at 2-3. The court held that the theater was not in privity with the employee for purposes of applying the doctrine of collateral estoppel to the criminal conviction. Id. 56 Cal.Rptr. at 3. . Federal Rule of Evidence 803(22) provides in part that the rule against hearsay does not require exclusion of "evidence of a final judgment, entered after a trial . adjudging a person guilty of a crime punishable by death or imprisonment in excess of one year, to prove any fact essential to sustain the judgment." . In United States v. Brown, 776 F.2d 397, 400 (2nd Cir.1985), cert. denied, 475 U.S. 1141, 106 S.Ct. 1793, 90 L.Ed.2d 339 (1986), the court concluded that a police officer properly testified that street drug sales in Harlem generally involved the use of a steerer. However, the court stated that "there is something rather offensive in allowing an investigating officer to testify not simply that a certain pattern of conduct is often found in narcotics cases, leaving it for the jury to determine whether the defendant's conduct fits the pattern, but also that such conduct fitted that pattern_'' Id. at 401. . In Harris v. Pacific Floor Mach. Mfg. Co., 856 F.2d 64, 67 (8th Cir.1988), the court permitted the expert to explain the criteria he would use to judge the adequacy of a warning, but "ruled that the jury could then apply the criteria to the facts of the case for itself, without the assistance of an expert's opinion." . In United States v. Fleishman, 684 F.2d 1329, 1337 (9th Cir.), cert. denied, 459 U.S. 1044, 103 S.Ct. 464, 74 L.Ed.2d 614 (1982), the court permitted the expert to provide the jury with an extensive review of the principles of handwriting analysis, but left the juty to apply the principles to the facts of the case in order to reach their own conclusion as to the author of a note. . Harris, 856 F.2d at 67-68; Brown, 776 F.2d at 401; Fleishman, 684 F.2d at 1336-37. . SAC argues that the police officers' opinions are admissible under Alaska Rule of Evidence 704 which provides as follows: Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact. However, under Rule 704 an expert's opinion on an ultimate issue must still be of assistance to the trier of fact. Wilson v. State, 669 P.2d 1292, 1297 (Alaska 1983). Since the police officers' opinion testimony does not meet the requirements for expert testimony in the first place, the fact that it embraces ultimate issues cannot make it admissible. . In this regard the superior court found in relevant part as follows: Plaintiff is not a public interest litigant. It does not meet the third and fourth criteria for public interest status. Specifically, this lawsuit could have been brought by a governmental entity and not just a private party. Also, the plaintiff had sufficient economic incentive to file the lawsuit even if the action involved only narrow issues lacking general importance. . We review a trial court's determination as to a party's status as a public interest litigant for an abuse of discretion. Citizens Coalition for Tort Reform, Inc. v. McAlpine, 810 P.2d 162, 171 (Alaska 1991). . Based on our construction of AS 09.50.170-.240, we need not address SAC's argument that it is entitled to relief under the common law or its contention that its motion for additional findings of fact was improperly denied.

10577816

Gunter Johannas BOSEL, Appellant, v. STATE of Alaska, Appellee

Bosel v. State

1965-01-30

No. 32

651

656

398 P.2d 651

398

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T23:26:43.720746+00:00

CAP

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

Gunter Johannas BOSEL, Appellant, v. STATE of Alaska, Appellee.

Gunter Johannas BOSEL, Appellant, v. STATE of Alaska, Appellee. No. 32. Supreme Court of Alaska. Jan. 30, 1965. Lester W. Miller, of Kay & Miller, Anchorage, for appellant. James N. Wanamaker,, Dist.-Atty,, and Dorothy Awes .Haaland, Asst Dist. Atty.,, Anchorage, for appellee. . .... Before NESBETT, C. J., and DIMOND’ and AREND, JJ.

3350

20004

AREND, Justice. In January of 1960, Gunter Bosel, defendant below, was tried by jury in the-District Court for the Territory of Alaska on two charges of shooting with intent to-kill and convicted. It was alleged in the two counts of the indictment that he had shot his two small children in the head with a .32 caliber automatic pistol on Aug ust 6, 1959. Immediately after the alleged shooting of his children, he shot himself in the head with the same pistol in an attempt at suicide. The scene of the shooting was alongside Sand Lake Road near Anchorage, where the defendant had taken the children in his car and parked. Judgment was pronounced by the court on January 20, 1960, sentencing the defendant to imprisonment for twenty years. On August 7, 1963, the United States District Court for the District of Kansas granted a writ of habeas corpus to the defendant on the ground that as an indigent he had not been afforded an adequate appellate review of his conviction. Operation of the writ was suspended by the Kansas court pending the present review on appeal which we have granted in forma pauperis. The defendant presents five questions for review, grounded upon a like number of specifications of error, the first question being whether the trial court erred in refusing to grant defendant's motion for the appointment of a psychiatrist to examine him as to his mental competence to stand trial. The trial of the case had been set to commence on December 2, 1959, but a week before that date defendant's court-appointed counsel, Neil Mackay, filed a motion for a continuance to enable him "to acquire additional medical information as to defendant's mental capacity, together with the fact of organic and inorganic problems which would be relative to the present competency of the defendant." This was supplemented by another motion filed the day on which the trial was to have commenced, asking the court to order an examination as to the mental competency of the defendant pursuant to title 18 U.S. C.A. § 4244. At this time we interpolate that after the defendant had been treated for his gunshot wound in Providence Hospital at Anchorage, he was admitted to the military hospital at the Air Force Base adjacent to Anchorage for definitive neurosurgical treatment and on August 14, 1959, transferred to the psychiatric service of the hospital for further evaluation. Here he was observed by Dr. Cheatham, a major in the Air Force and chief of the neuropsychiatric service of the hospital. In his clinical report of August 21, 1959, the doctor stated that an encephalogram (x-ray of the brain) revealed no evidence of convulsive disorder in the defendant and that studies of certain psychometric and psychological examinations given him confirmed the existence of a severe character disorder but otherwise showed no evidence of any gross intellectual deterioration or of any severe mental disease. The doctor also reported that the defendant had been observed by the clinical staff to have occasional black-out spells but which did not conform with grand mal type of seizures— a pronounced form of epilepsy. The following is the doctor's diagnosis of the defendant made on August 21,1959: "Emotional instability reaction, chronic, severe; Manifested by — impulsive, aggressive and destructive acting out behavior, antisocial psychopathic personality traits, fluctuating emotional attitudes, environmental manipulation and pathological lying; Stress — unknown ; Predisposition — severe, previous history of detailed psychiatric and neurological evaluations; Impairment — moderate for social and vocational adaptation." In the "Recommendation" portion of his report the doctor wrote: "On the basis of the present period of study and evaluation, it is the opinion of the undersigned that this individual is essentially free of any severe mental disease, defect or derangement. He does suffer from a very severe character and behavior defect and would generally be classified as an individual possessing a severe psychopathic personality structure. He is regarded as being entirely competent in a legal sense and responsible for his actions and behavior. With respect to the incidents which took place on 6 August 1959 and resulted in the injury of the patient's two children and himself, there is no evidence available to substantiate a claim that he was suffering from the effects of an epileptic seizure at that time or that he was at that time in any way deprived of his mental faculties to the extent that he was unable to distinguish right from wrong or adhere to the right. It is, however, to be anticipated that he will make many claims of being unable to recount the events of the date in question or any awareness of his actions and behavior •on the above date in question and also that he will make a concerted effort to convince others that he is suffering from a severe mental or neurological condition." [Emphasis supplied.] In three affidavits in support of the motions for continuance and for an examination as to the mental competency of the defendant, Mr. Mackay stated that he had had numerous conferences with the defendant but had received from him no assistance in the preparation of a defense. Whether this was due to mental incompetency dr the perpetration of a hoax on the part of the defendant, Mr. Mackay did not know. In these affidavits Mackay related that he had tried, but without success, to get a local psychiatric evaluation of the defendant's condition other than the one given by Dr. Cheatham; and that he had, therefore, taken a trip to Seattle and there consulted with two psychiatrists, one of whom said that he would be available to examine the defendant as to both the organic and inorganic status of the disabilities of which he was complaining. In the last paragraph of the second affidavit, Mr. Mackay stated: "The prime purpose of this affidavit and the motion for continuance is to establish whether the defendant is presently insane, but is primarily to ascertain if there is anything organically wrong with the defendant which would have made him insane at the time the alleged crimes were committed." The court eventually granted a two weeks' continuance in the trial of the case "to permit defense counsel to consider certain aspects of defense"; but the motion for an examination as to present mental competency was denied. We hold that it was error to deny the motion. The motion was made pursuant to 18 U.S. C.A. § 4244, which provides, in part, that if one of the parties to a criminal proceeding has reasonable cause to believe that a person charged with an offense against the United States may be presently insane or otherwise so mentally incompetent as to be unable to understand the proceedings against him or properly to assist in his own defense, he shall file a motion for a judicial determination of the mental competency of the accused. When such a motion-is filed,', the court shall cause the accused to be examined as to his mental condition by at least' one qualified psychiatrist who has the duty of reporting back to the court If the report indicates present insanity or the requisite mental incompetency, the court then holds a hearing at which evidence as to the mental condition of the accused may be submitted. The court then makes its 'findings as to whether the accused is competent to stand trial. The state points out that the federal statute does not apply in this case because it is made applicable only in the' case, of persons charged with the commission of offenses against the United States. The defendant- here was charged with assault with intent to kill in violation of section 65-4 — 15, ACLA 1949, which constituted an- offense against the Territory of Alaska, not against the United States; so the state is correct in its view. However, it was also the rule at common law, as conceded by the state, that an accused should not be subjected to a criminal trial if he is in such a mental condition that he is unable to understand the proceedings against him or to properly assist in his own defense. Since Alaska had no statute of its own similar to 18 U.S.C.A. § 4244 at tHe time' the defendant Bosel was tried, the common, law rule prevailed by virtue of sections 2-1-2 and 65--1-3, ACLA 1949. We have painstakingly searched the record in this case and found therein no indication that any examination or judicial determination was'ever made of the defendant's mental competency to stand trial. It is quite evident that the trial judge felt that such an examination was called for under the facts and circumstances of the case, because he discussed the matter from the bench three times prior to trial. On November 30, 1959, he inquired of Mr. Mackay whether he liad received the psychiatrist's report that the defendant was competent to stand trial, and on the following day, December 1, he remarked from the bench: "The only thing that concerns the Court at this time is whether or not he [the defendant] is able to aid and assist in'- his own defense." On December 2, after Mr. Mackay had served and filed in open court his motion for an examination of the defendant as to-present competency, the following discussion ensued: "THE COURT: Mr. Anderson, what is the background as to this de fendant? Has he been examined by a •psychiatrist ? " "MR: ANDERSON- [the prosecu'tor] : Yes, -he has been examined by Dr. Cheatham.- "THE COURT: Was there a report filed in this case ? ' . . . ' "MR. ANDERSON: 'Not to my knowledge, your Honor. "THE COURT: Do you intend to 'call Dr. Cheatham? ' "MR. ANDERSON: I will if it is necessary. : "THE COURT: I think it should be. You should have in this file a report of Dr.' Cheatham. Did he ever reduce it 'to writing? "MR. ANDERSON: I have a report submitted to me by Dr. Cheatham concerning Mr. Bosel. "THE COURT [To one Mr. LaBate who had just joined -court and counsel • at the bench] : . Now, at this point, Mr. Mackay has filed a motion for examination as to the defendant's mental competency, and I have just asked Mr. Anderson whether or not he's been examined. When I say 'he,' the defendant, Mr. Anderson informs me that Dr. Cheatham has examined him, and I don't have a copy of the report but Mr. Anderson informs me and Mr. MacKay indicated in court that. Dr. Cheatham had determined that the defendant was competent to stand trial, could aid and assist in his defense, is that not true, Mr. Mackay? "MR. MACKAY: -That is my understanding from Mr.-" Whatever gave the prosecutor and the trial judge the impression that Dr. Cheat-ham determined in his report that the defendant was presently competent to stand trial we do no'know. Suffice it to say,-that the report is devoid of any such determination. The "diagnosis" and "recommendation" contained in the report, as quoted verbatim earlier in this opinion, make no mention of present competency to stand trial. The doctor did state in the "recommendation" portion of his report that the defendant "is regarded as being entirely competent in a legal'sense and responsible for his actions and behavior"; but the statement appears to relate only to the defendant's mental condition on August 6, .1959, and it is certainly not equivalent to a pronouncement that the defendant was found to be in such, a mental condition that he was able to understand the proceedings against him and properly assist in his own defense. . . The question of whether an investigation should be made to determine the present sanity or mental competence of a person accused of a crime to stand trial is generally -held to be addressed1 to the sound discretion of the trial court. In other words, the trial court may exercise its discretion in deciding whether such a doubt exists with respect to present sanity or mental competence as would require an examination of the defendant by a qualified psychiatrist. Before an examination can be justified the doubt in the mind of the judge must be real and he will not be reversed unless he abused his discretion in the matter. The trial judge must have entertained such a real doubt in this case or, we feel certain, he would not have gone the length he did to assure himself, by questioning counsel, that the defendant had been examined by a psychiatrist, and that the psychiatrist had made a report indicating that the defendant was able to aid and assist in his own defense. At the trial Dr. Cheatham was used as a witness by both the defendant and the state and testified extensively regarding the examination and tests given the defendant during the week commencing August 14, 1959, and again on January 6, 1960 — five days before the commencement of the trial. He reaffirmed the diagnosis and conclusions contained in his report of August 21, 1959, and stated that he had no cause to change the report because of any later information obtained by him, except for an additional "opinion that Mr. Bosel might be further diagnoses as a case of Munchausen's syndrome." The doctor testified that he found no evidence that the defendant was suffering from psychomotor epilepsy or any kind of convulsive disorder or epileptic condition or from any mental disease or derangement. It was his opinion that the defendant suffered from no mental defects or derangements or physical condition which would have impaired his ability on August 6, 1959, to distinguish right from wrong or to adhere to the right; that the defendant was a pathological liar; and that the defendant possessed a definite defect in his character and behavior and in his personality structure, best defined as a disturbance in his moral, not mental, faculties. This testimony of Dr. Cheatham at the trial was all very well and good as tending to show that the defendant was sane and mentally competent on August 6, 1959, but it fails, just as did the doctor's report of August 21, to answer the crucial question in the mind of the trial judge as to whether the defendant was able to aid and assist in his own defense. The test is not whether or not the defendant Bosel is legally sane, whether he can distinguish right from wrong, but rather, whether he is presently insane or otherwise so mentally incompetent as to he unable to understand the proceedings against him or properly to assist in his own defense We conclude that the verdict and judgment against the defendant must be set aside and the case remanded to the superior court. In view of the difficulty of retrospectively determining the defendant's competency to stand trial five years ago, the superior court is directed to conduct a new investigation as to the defendant's present competency to stand trial and to hold a new trial if the petitioner is found competent. There are four other errors specified by the defendant on this appeal but we need not rule upon them since they are of such a nature that they will not occur again in the event of a new trial. Reversed and remanded. . Tlie District Court for the Territory of Alaska functioned as a state and federal court for Alaska during the transitional period from territorial status to statehood, specifically, from January 3, 1959, the date on which the President proclaimed Alaska to bo a state, until February 20, 1960, when tlio Superior Court for the State of Alaska wont into operation. See Hobbs v. State, 359 P.2d 956, 958-959 (Alaska), cert. denied, 367 U.S. 909, 81 S.Ct. 1923, 6 L.Ed.2d 1250 (1961). . The defendant directed his petition for the writ of habeas corpus to the federal court in Kansas for the reason that he was serving his Alaska sentence in the federal penitentiary at Leavenworth, Kansas, by contractual arrangment between the United States and the State of Alaska. . 63 Stat. 686 (1949). The federal statute is mistakenly referred to in the defendant's motion as "Title 18, Federal Buies of Criminal Procedure, Sec. 42-42." . Dt. Cheatham in reporting on the past history of the defendant states: "This patient has a very lengthy and detailed past history of psychiatric and neurological difficulties and has previously been examined and treated in many military and Veteran Administration medical facilities. » Subsequently, in 1954, he reenlisted in the Army during which time he experienced a recurrence of his 'black-out spells.' He was then given an administrative type discharge from the Army for 'inadaptability.' " . See Ex parte Krause, 228 P. 547, 549 (W.D.Wasli.1915); United States v. Wright, 15 F.R.D. 184, 186 (D.Hawaii . 1954). . In United States v. Valentino, 283 F.2d 634 (2d Cir. 1960), the court in considering whether 18 U.S.C.A. § 4244, which had not been adopted until 1949, should be applied in the case of the defendant Valentino who had been convicted in 1932 stated at 635: "True it is that § 4244 was enacted by the Congress many years after the imposition of sentence upon Valentino in 1932. But the provisions of this Section are declaratory of the common law and it is, moreover, too plain for reasonable debate that a prisoner should not be permitted to plead guilty to a criminal charge in a court of the United States if his mental condition was such that he was unable to understand the proceedings before him or properly to assist in his own defense." . It was not until April 11, 1960, that our legislature enacted a statute providing for judicial determination of the mental competency of a person charged with the commission of a crime to stand trial. See SLA 1960, ch. 104 [now AS 12.45.-100]. The statute is patterned after 18 U.S.C.A. § 4244. . Section 2-1-2 of ACLA 1949 [now AS 01.10.010] provides: "So much of the common law as is applicable and not inconsistent with the Constitution of the United States or with any law passed or to be passed by Congress or the Legislature of Alaska is adopted and declared to be law in the Territory [now State] of Alaska"; and § 65-1-3, ACLA 1949-states "That the Common Law of England as adopted and understood in the United States in regard to criminal matters shall be in force iñ Alaska except as modified by statutory law of the Territory." . State v. Smith, 173 Kan. 813, 252 P.2d 022 (1953); Annot., 142 A.L.R. 061, 966-971 (1943). . State v. Smith, supra note 9. . State v. Smith, supra note 9; State v. Kitchens, 129 Mont. 331, 286 P.2d 1079, 10S3 (1955); State v. Stone, 111 Or. 227, 226 P. 430 (1924); Annot., 142 A.L.Il. 961, 971-972 (1943). . Dr. Cheatham, described Munchausen's syndrome as a condition pertaining to individuals who possess disturbances in character and behavior and in their personality structure and who make a practice oí frequently requesting admissions to hospitals and for medical care and treatment for which there is no apparent organic basis. These persons usually enter hospitals complaining of such things as dizziness, faintness, frequent headaches, convulsions, epileptic states, periods of depersonalization and feelings of unreality. They are universally uncooperative, demanding, and extremely dramatic in the presentation of their symptoms for the purpose of gaining sympathy. . Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed,2d 824 (1960), in which the Supreme Court agreed with the Solicitor General that the "test must be whether he [the defendant] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as factual understanding of the proceedings against him"; United States v. Valentino, 283 E.2d 634 (2d Cir. 1960); Marshall v. Territory, 2 Okl.Cr. 136, 101 P. 139, 142-143 (1909). See United States v. Westerhausen, 283 F.2d 844, 852 (7th Cir.1960).

10577910

NORTHERN COMMERCIAL CO., Appellant, v. PACIFIC & ARCTIC RAILWAY AND NAVIGATION COMPANY and National Bank of Alaska, Appellees

Northern Commercial Co. v. Pacific & Arctic Railway & Navigation Co.

1965-02-01

No. 422

662

664

398 P.2d 662

398

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T23:26:43.720746+00:00

CAP

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

.NORTHERN COMMERCIAL CO., Appellant, v. PACIFIC & ARCTIC RAILWAY AND NAVIGATION COMPANY and National Bank of Alaska, Appellees.

.NORTHERN COMMERCIAL CO., Appellant, v. PACIFIC & ARCTIC RAILWAY AND NAVIGATION COMPANY and National Bank of Alaska, Appellees. No. 422. Supreme Court of Alaska. Feb. 1, 1965. Avrum M. Gross and R. Boochever of Faulkner, Banfield Boochever & Doogan, Juneau, for appellant. R. J. Annis of Robertson, Monagle, Eas-taugh & Annis, Juneau, for appellees. Before NESBETT, C. J., and DIMOND and AREND, JJ.

1122

6897

. NESBETT, Chief Justice. On April 11, 1962, in payment of a preexisting debt, Moose Valley Lumber Co. assigned to appellant, Northern Commercial Co., an account receivable due from appellee Pacific and Arctic Railway and Navigation Company in the amount of $3500. Northern Commercial did not file notice of the assignment with the Commissioner of Administration until April 26, 1962, which was fifteen days after the event. A statute then in force provided that no assignment should be valid as against present or future creditors of the assignor unless notice of the written assignment be on file in the office of the Commissioner of Administration at the time of making the assignment or within ten days thereafter. On- August "6, 1962, appelleé National - Hank of Alaska-garnished the debt' owed "by Pacific and Arctic Railway to Moose.' "Valley Lumber Co. in an attempt to collect a debt owed to-it by Moose Valley in'an . amount in excess of $3500. . . Pacific and Arctic Railway, in an intér-pleader proceeding, deposited the sum of $3500 in court, requesting the court to determine who, as between Northern ' Commercial Co. and National Bank of Alaska was entitled do the sum and to make appropriate disposition. The. superior- court found- in favor of National Bank of Alaska on the ground that the assignment from Moose Valley to Northern Commercial was invalid because notice was filed five days later than the ten day period mentioned in the statute. Appellant contends that although the statute then in force was premised on a ten day period for filing notice of assignments, that provision did not have the effect of invalidating all assignments filed after the ten day period had passed. Appellant's argument is that filings made after expiration of the ten day period were invalid only as to creditors "without knowledge" of the assignment and that "knowledge", as used in the statute, includes constructive as well as actual knowledge. Appellees argue that the provisions of the statute were explicit and provided that no assignment would be "valid" unless notice was filed within ten days of the execution of the assignment and that since the filing of notice of the assignment was not accomplished until five days after expiration of the ten day period provided for in the statute, the assignment was not valid against National Bank of Alaska, a subse-qu'ent. attachment creditor-.' Appellees---con*-... tend that there-can be no constructive notice. " of ,an invalid assignment. As • counsel point out, state statutes such ,- as. Chapter. 90j SLA ,1951. were... originally enacted' as a -result of- the- decision -of the - United States Supreme .Court -in Corn Ex- . change -National .Bank &. .Trust Company, Philadelphia, v. - Klauder. . In -that case the trustee- in bankruptcy claimed,priority over- certain- assignees- of. accounts receivable made as security for loans contempor • raneously advanced. It was held that such assignments would be'Valid Against- a trustee • in bankruptcy only if the'assignments had been so' far perfected under thre applicable state-la-w-that-no bona fide purchaser from the debtor'arid nor creditor:'could-theteafter have acquired any rights in the property assigned superior to the rights of the assignee, as of the time of the filing of the petition in bankruptcy. Since state law was made the criterion for determining the question of priority, many states then enacted specific statutes. The general object of most such statutes was to give some protection to the assignee in what had become a rather widely employed method of financing, as against the claims of other creditors and the trustee in bankruptcy. We are of the opinion that the ten day period provided for in Chapter 90, SLA 1951 was for the convenience and protection of assignees to allow them ample time to provide the required public notice of the assignment without incurring the risk of having an intervening assignee or attachment creditor displace their priority. There seems to be no basis in reason or business expediency for holding that failure to file notice of assignment within the ten day period has the effect of forever in validating the assignment as to subsequent assignees or attachment creditors. In the case before us the assignee, appellant Northern Commercial Co., filed notice of the assignment five days after the ten day period provided for in the statute. It was not until three months later that National Bank of Alaska became an attachment creditor. During all of the preceding three months it was a matter of public record that the assignment here in question had been made. National Bank of Alaska does not allege that it was misled in any way by the lateness of Northern Commercial's filing of notice. We believe that the ten day relation back period provided for in the statute was intended for the protection of assignees not able, by reason of location or otherwise, to accomplish an immediate filing of notice of assignment. The late filing did not invalidate the filing as to the appellees under the circumstances of this case. The judgment below is reversed. . SLA 1951, ch. 90, § 3 [§ 31B-1-3 ACLA (Cum.Supp.1957)] which stated: "Notice, filing and form. No assignment of an account shall be valid as against present or future creditors of the assignor, or as against a subsequent assignee of such account, without knowledge of such assignment, unless such assignment shall be in writing and be signed by the assignor, and unless there shall be on file in the office of the filing officer, at the time of the making of such assignment or within ten days thereafter, an effective and uneancelletl notice signed by tlie assign- or and the assignee ⅜ * ⅞." Note: SLA 1951, ch. 90 was repealed by SLA 1962, ch. 114, § 10.102 when Alaska adopted the Uniform Commercial Code. . 318 U.S. 434, 63 S.Ct. 679, 87 L.Ed. 884 (1943). . See Koessler, "Assignment of Accounts Receivable", 33 Calif.L.Rev. 40 (1945); Koessler, "New Legislation Affecting Non-Notification Financing of Accounts Receivable", 44 Mich.L.Rev. 563, 593-594 (1946). . See the provision of the Michigan act quoted in In re George Stuart, Inc., 344 Mich. 34, 73 N.W.2d 293, 294r-295 (1955) as follows: "[S]uch assignment shall not be deemed to be so perfected unless at the time of the delivery thereof a notice of assignment is on file as provided in section 3 of this act, or if not then on file, until such a notice of assignment is so fllect." [Emphasis supplied.]

10416783

Artemie KALMAKOFF, Appellant, v. STATE of Alaska, COMMERCIAL FISHERIES ENTRY COMMISSION, Appellee

Kalmakoff v. State, Commercial Fisheries Entry Commission

1985-03-29

No. 7767

650

653

697 P.2d 650

697

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T23:26:33.456246+00:00

CAP

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

Artemie KALMAKOFF, Appellant, v. STATE of Alaska, COMMERCIAL FISHERIES ENTRY COMMISSION, Appellee.

Artemie KALMAKOFF, Appellant, v. STATE of Alaska, COMMERCIAL FISHERIES ENTRY COMMISSION, Appellee. No. 7767. Supreme Court of Alaska. March 29, 1985. Craig J. Tillery and Wilson A. Rice, Reese, Rice & Volland, P.C., Anchorage, for appellant. Sarah Forbes, Asst. Atty. Gen., Anchorage, and Norman C. Gorsuch, Atty. Gen., Juneau, for appellee. Before BURKE, C.J., and RABINOW-ITZ, MATTHEWS, COMPTON and MOORE, JJ.

1373

8749

OPINION RABINO WITZ, Justice. Artemie Kalmakoff lives in Ivanof Bay, a village on the southern coast of the Alaska Peninsula. His application for a limited entry permit for the Chignik purse seine salmon fishery, initially filed in 1975, was denied by the Commercial Fisheries Entry Commission (CFEC) in 1981. The commission concluded that Kalmakoff was only entitled to seventeen points, three short of the number needed for a permit to the Chignik fishery. The superior court affirmed the CFEC's determination, but this court recently reversed portions of the commission's findings and remanded the matter for a new administrative hearing. See Kalmakoff v. State, 693 P.2d 844 (Alaska, 1985). Throughout this litigation, up until the superior court's affirmation, Kalmakoff had held and renewed an interim-use permit for the Chignik purse seine fishery. After the superior court's affirmation, the commission, in accordance with its regulation 20 AAC 05.550(3), declined to issue Kalmakoff an interim-use permit pending this court's decision. The question before us here is whether 20 AAC 05.550(j) is consistent with the governing statutes. We hold that it is not. 20 AAC 05.550(j) provides in full: An applicant who has been denied an entry permit and subsequently appeals that determination to the superior court on the basis of a wrongful denial of points that could have been awarded by the commission under its regulations, may be issued an interim-use permit pending final judicial determination of the merits of that appeal if the applicant has exhausted all administrative remedies regarding the issues on appeal. An applicant denied an entry permit who subsequently appeals that determination on a basis other than wrongful denial of points will not be issued an interim-use permit. An applicant unsuccessful in superior court will not be issued an interim-use permit on further appeal. (Emphasis furnished.) The legislature has provided that the CFEC has the authority to issue interim-use permits in certain specified situations. If, in a given fishery, the "maximum number of entry permits" has not been established under AS 16.43.240, and issuance of permanent permits under AS 16.43.270 has not yet begun, the commission must issue interim-use permits "to all applicants who can establish their present ability to participate actively in the fishery." AS 16.43.-210(a). Additionally, if the "maximum number" of permanent permits has not yet been issued, the commission may issue interim-use permits to applicants who may later become eligible for an entry permit. AS 16.43.210(b). AS 16.43.220(a) specifies the terms and conditions of interim-use permits. It provides as follows: The commission shall adopt regulations specifying the dates and places of application, the procedures to be followed in renewal of the interim-use permit including the time, place of its renewal, and for any other purpose incident to the administration of interim-use permits for that fishery. An interim use permit shall expire upon the final determination of the holder's eligibility for an entry permit. (Emphasis furnished.) Kalmakoff argues that a "final determination" within the meaning of this section refers to the determination of the final authority, which is this court. We agree. Unless words have acquired a peculiar meaning, by virtue of statutory definition or judicial construction, they are to be construed in accordance with their common usage. State v. Debenhan Electric Supply Co., 612 P.2d 1001, 1002 (Alaska 1980); Horowitz v. Alaska Bar Ass'n, 609 P.2d 39, 41 (Alaska 1980). As commonly understood, final determination means a decision which is not subject to further change. Since this court can reverse both the determination of the commission and the determination of the superior court, we would clearly be modifying the plain meaning of the statutory language if we concluded that either of their decisions was the "final determination." This interpretation is consistent with and supported by AS 16.43.270(e), which is designed to protect the rights of applicants "appealing the findings of an administrative adjudication." The language of this section clearly refers to resolution by this court, since appeals are not resolved in superior court when a party decides to carry the appeal further. The "final determination" language of AS 16.43.220 and "appeals resolved" language of AS 16.43.-270(c) should be congruent, as interim-use permits are issued under AS 16.43.210(b) expressly for the benefit of applicants under AS 16.43.270. Our interpretation of AS 16.43.-220(a) is also consistent with what we perceive to be one of the central policies underlying the Limited Entry Act — to insure that those applicants who would suffer significant hardship if excluded from the fishery are not excluded. Temporary exclusion may be almost as devastating to an individual applicant wrongfully denied a permit as permanent exclusion. We think it is clear that the legislature did not intend the risk and resulting burden of error on the part of an intermediate decision making body to fall upon the applicant. The commission contends, however, that even if "final determination" in AS 16.43.220(a) refers to the decision of this court, it properly denied Kalmakoff an interim-use permit. It claims that AS 16.43.-220(a) only applies to interim-use permits issued under AS 16.43.210, and that that statute does not require it, nor even allow it, to issue any further interim-use' permits to Kalmakoff, since the "maximum number" of permits for the fishery has been established and issued. The commission argues that its authority to issue interim- use permits to applicants like Kalmakoff, depends on its own general powers and discretion. In our view, the commission has misconstrued the relevant statutory provisions in two respects. First, the commission does not have the authority to issue interim-use permits whenever it believes, after balancing the various interests involved, that such an issuance would be equitable. AS 16.43.100, which specifies the general powers of the commission, provides that it shall "issue interim-use permits as provided in AS 16.43.210 and 16.43.220." The commission's discretion is thus limited to that which is outlined in those provisions. Second, once an interim-use permit is issued pursuant to AS 16.43.210, that permit, if properly renewed, remains valid until a final determination is made. The question, therefore, is not whether the commission had the power to issue interim-use permits under that section at the time of the superior court's ruling. Rather, the relevant time is 1975, when Kalmakoff received his initial interim-use permit. For the foregoing reasons, we hold the last sentence of 20 AAC 05.550(j) invalid. . The "maximum number" of permits for a particular distressed fishery is set at the "highest number of units of gear fished in that fishery during any one of the four years immediately preceding January 1, 1973." AS 16.43.240. For the Chignik purse seine fishery that number is 80. 20 AAC 05.320(a)(6). The commission must, however, issue an entry permit to all applicants who would suffer "significant economic hardship" if excluded from the fishery. AS 16.43.250(b); AS 16.43.270(a). In accordance with this mandate, the commission has issued 90 permanent permits for the Chignik purse seine fishery. . AS 16.43.270(c) provides: If, at the time entry permits are issued, some applicants are still appealing the findings of an administrative adjudication under AS 16.43.260, a sufficient number of permits shall be reserved out of the permits to be issued to protect the rights of those applicants, assuming all the appeals will be resolved in favor of the applicants. In the event that all appeals are not resolved in favor of the applicants, the remaining entry permits shall be allocated to the next most qualified applicants as provided in (a) and (b) of this section. . AS 16.43.220(a) gives the commission the power to adopt regulations concerning the procedures (e.g. time and place) for renewal of interim-use permits. Obviously, the power to renew does not include the power to terminate, for the same section also provides that interim-use permits do not expire until a final determination upon the holder's eligibility has been made.

10572939

ALVEST, INC., Appellant, v. SUPERIOR OIL CORPORATION, Appellee

Alvest, Inc. v. Superior Oil Corp.

1965-01-21

No. 503

213

216

398 P.2d 213

398

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T23:26:43.720746+00:00

CAP

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

ALVEST, INC., Appellant, v. SUPERIOR OIL CORPORATION, Appellee.

ALVEST, INC., Appellant, v. SUPERIOR OIL CORPORATION, Appellee. No. 503. Supreme Court of Alaska. Jan. 21, 1965. Clifford J. Groh and Ronald G. Benkert, Groh & Benkert, Anchorage, for appellant. Paul F. Robison, Robison, McCaskey & Lewis, Anchorage, for appellee. Before NESBETT, C. J., and DIMOND and AREND, JJ.

1198

7295

DIMOND, Justice. Appellant was awarded first priority for an oil and gas lease at a non-competitive lease drawing conducted by the state Division of Lands. Appellee was given second priority. Later the Division of Lands can-celled the award to appellant and gave it to appellee for the reason that two of appellant's officers and directors, White and Mueller, had filed applications for themselves in the same drawing. The Division of Lands held that this action on the part of White and Mueller gave appellant more than one chance at the drawing in violation of an administrative regulation which provided : "Each drawing shall he conducted in such a manner as the Director shall determine and each applicant shall have only one chance in any one drawing." The superior court affirmed the decision of the Division of Lands and this appeal followed. A corporate officer or director stands in a fiduciary relationship to his corporation. Out of this relationship arises the duty of reasonably protecting the interests of the corporation. It is inconsistent with and a breach of such duty for an officer j or director to take advantage of a business; opportunity for his own personal profit] when, applying ethical standards of what] is fair and equitable in a particular situation,; the opportunity should belong to the corporation. Where a business opportunity is one in which the corporation has a legitimate interest, the officer or director may not take the opportunity for himself. If he does, he will hold all resulting benefit and profit in his fiduciary capacity for the use and benefit of the corporation. Whether a business opportunity is a corporate one or one within the legitimate scope of the individual interests of the officer or director depends upon the facts and circumstances of each case. Here appellant's chance to be the successful applicant at the lease drawing was a business opportunity in which appellant had expressed a definite interest. That interest was a legitimate one because appellant had made similar applications in previous drawings, and the leasing of oil and gas lands was within the scope • of appellant's corporate activities. This was a corporate opportunity which appellant's officers and directors, White and Mueller, had no right to seek for themselves. If either had been the successful applicant at the drawing he would have held the lease in a fiduciary capacity for the use and benefit of appellant. This means that appellant did not have only one chance at the drawing, but three — its own, represented by the corporate application filed on its behalf, plus two additional chances, represented by White's and Mueller's individual applications. Since appellant had more than one chance in the drawing, it was not a qualified applicant under section 507.31 of the administrative regulations. The Division of Lands was correct in holding that appellant was not entitled to the lease. Appellant argues that it had only one chance at the drawing, because the regulation would have precluded appellant from making a successful claim for the lease or its benefits against White or Mueller had either been successful at the drawing. This argument is untenable. The regulation deals with the element of chance. When a lease drawing has been concluded and the successful applicant known, the element of chance is gone. What had been chance has now become something certain. The regulation pertains only to the situation which exists while the element of chance is present, and not afterwards. The regulation would have no pertinency in an action by a corporation claiming that one of its officers or directors held a lease as constructive trustee for the corporation. What the rights would be as between those parties would not be governed by the regulation.The regulation would be relevant after a drawing had been concluded only insofar as it was established that before the drawing took place an applicant had had more than one chance to be successful. If that is established, then the regulation can be invoked to disqualify such an applicant from securing the lease. That is what was done here. Appellant contends that it could not have claimed the benefits of the lease had it been awarded to White or Mueller, because a full disclosure of their actions in filing their individual applications had been made to the corporation, and because the filing of applications by appellant's officers and directors was consistent with corporate policy. There was evidence that the members of appellant's board of directors had generally approved the appropriateness of officers and directors filing on the same land that the corporation had filed on, although it was not established that this in fact had ever been done prior to the filings in this case. But there was no evidence that the shareholders of the corporation had consented to such a policy generally, or that in this particular instance they had approved White's and Mueller's actions in filing in competition with appellant. In the absence of such approval by the shareholders, the business opportunity in this case was not within the legitimate scope of the individual interests of appellant's officers and directors. Appellant states that White and Mueller had at all times been open and above board and had acted in good faith in all their dealings here. That is apparently true. But it has no bearing on the decision of the issues in this case. A showing of bad faith is not essential to establish a duty on the part of officers or directors in connection with business opportunities which they wish to acquire for themselves. The fact that a business opportunity is of such a nature that under the particular circumstances of the case it should fairly belong to the corporation is sufficient to establish a duty on the part of an officer or director to acquire the opportunity for the corporation. The judgment is affirmed. . 11 Alaska Adm.Code § 507.31 (1964). . Diedrick v. Helm, 217 Minn. 483, 14 N.W.2d 913, 919, 153 A.D.R. 649 (1944); Durfee v. Durfee & Canning, Inc., 323 Mass. 187, 80 N.E.2d 522, 527, 529 (1948); Lutherland, Inc. v. Dahlen, 357 Pa. 143, 53 A.2d 143, 147 (1947); Guth v. Loft, Inc., 23 Del.Ch. 255, 5 A.2d 503, 510 (1939); McKay v. Wahlemnaier, 96 U.S.App.D.C. 313, 226 F.2d 35, 45-46 (1955). . American Inv. Co. v. Lichtenstein, 134 E.Supp. 857, 861 (E.D.Mo.1955); Industrial Indem. Go. v. Golden State Co., 117 Cal.App.2d 519, 256 P.2d 677, 686-687 (Dist.Ct.App.1953); Johnston v. Greene, 35 Del.Ch. 479, 121 A.2d 919, 923 (1956); Guth v. Loft, Inc., 23 Del.Ch. 255, 5 A.2d 503, 511-515 (1939); Durfee v. Durfee & Canning, Inc., 323 Mass. 187, 80 N.E.2d 522, 528-529 (1948); Henn, Corporations § 23S, at 372 (1961). . In re Lerch's Estate, 399 Pa. 59, 159 A.2d 506, 513 (1960); Remillard Brick Co. v. Remillard-Dandini Co., 109 Cal.App.2d 405, 241 P.2d 66, 74-75 (1952). . Rosenblum v. Judson Engineering Corp., 99 N.H. 267, 109 A.2d 558, 563 (1954).

10580158

Carrol L. DICKENS, Appellant, v. STATE of Alaska, Appellee

Dickens v. State

1965-02-11

No. 496

1008

1010

398 P.2d 1008

398

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T23:26:43.720746+00:00

CAP

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

Carrol L. DICKENS, Appellant, v. STATE of Alaska, Appellee.

Carrol L. DICKENS, Appellant, v. STATE of Alaska, Appellee. No. 496. Supreme Court of Alaska. Feb. 11, 1965. James K. Tallman, Anchorage, for appellant. James N. Wanamaker, Dist. Atty., and Dorothy Awes Haaland, Asst. Dist. Atty., Anchorage, for appellee. Before NESBETT, C. J., and DIMOND, and AREND, JJ.

1020

5942

NESBETT,-'Chief Justice. Appellant was indicted, tried and convicted on five counts of an indictment charging embezzlement by an agent in violation of AS 11.20.280. We gather from the record that the alleged agency status of the defendant consisted of his acting as a collector for others of accounts receivable on a percentage basis. The first point to be considered on appeal is appellant's claim that the trial court erred in permitting a police officer to remain in the courtroom throughout the trial. At the commencement of trial counsel for appellant moved the court to invoke the rule and exclude from the courtroom any of the state's witnesses not at the time under examination. The court granted the request, but stated that it would permit Officer Lancaster, who was the detective in charge of the investigation of the case, to remain in the courtroom and sit with the Assistant District Attorney. Appellant made timely objection. As counsel for appellee points out in her brief, the present Alaska, rule of court is derived from the early laws of Oregon. An almost identical provision is still the law of Oregon. The Supreme Court of Oregon has construed its statute as vesting a wide discretion in the trial judge and as not requiring the exclusion from the courtroom of parties directly interested in the result of the trial or of any witnesses whose presence might be required to assist the attorneys in the trial of their case. Although no court rule or statute existed in Arizona, the supreme court of that state held that the common law vested in the trial judge a discretionary right to exclude witnesses from the courtroom, but that generally the complaining witness, the sheriff, and peace officers assisting the prosecutor were exempt. We shall interpret Civil Rule 43(g)(3) in the light of what appears to be the better reasoned authorities and the majority rule, as outlined above. It is not disputed that Officer Lancaster was the detective in charge of investigating the case. The request of the Assistant District Attorney that the officer be permitted to remain in the courtroom to assist him in the trial of the case was based upon that fact as was the order of the judge granting the request. No error was committed. Appellant's next point is that error was committed* in refusing to dismiss the indictment because, as a matter of law, the crime of embezzlement was not committed. Appellant argues that each creditor for whom he was making collection in this case had assigned legal title to the claim to appellant and that since he was entitled to a percentage of the amount collected he was a debtor of the creditor-assignor after a collection, rather than an agent. In support of his argument appellant cites several early cases which hold that professional collectors acting under authorization from their principal are nevertheless on a different footing from other agents because they hold legal title to the claim by reason of an assignment. We are more impressed by and shall follow the rule enunciated in certain recent authorities. In State v. Atwood it was held that where the assignment of legal title had been made for collection only, the defendant could be convicted of embezzlement as an agent of the assignor, where he had withheld the assignor's two-third share of the collection with intent to defraud or deprive him of the money and convert it to his own use. Appellee's request that the court consider as abandoned those points attempted to be raised by appellant in parts I, II, IV, VI, VII, VIII, IX, X and XI of his brief is granted. The coverage of these points in the brief consists variously of the bare statement that the court erred; or that appellant's case was prejudiced; or of an argumentative interpretation of the evidence with respect to an instruction. There are no citations to the law with respect to any of these points. No arguments are advanced based on the facts of the case to show that appellant's rights have been prejudiced. The judgment below is affirmed. . The rule referred to is Civ.R. 43(g) (3) which states: , (3)' "Exclusion of Witnesses From Courtroom. At the request of any party, the court may exclude from the courtroom any witness of the adverse party not at the time under examination, so that he may not hear the testimony of other witnesses." This rule is extended to cover criminal cases by Crim.R. 26(a)' which states in part: "The admissibility of evidence shall be governed by Civil Rule 43 and by these rules, or in the absence of rule, by the principles of common law as they may be interpreted by the courts of the state in the light of reason and experience." * ⅜ ⅜ NOTE: AS 09.20.1S0 is nearly identical with CivR. 43(g) (3). . Ore.Rev.Stat. 45.510. . State v. Ede, 167 Or. 640, 117 P.2d 235 (1941) and early Oregon cases cited therein. . State v. Thomas, 78 Ariz. 52, 275 P.2d 4O8, 415-16 (1954), aff'd, 356 U.S. 390, 78 S.Ct. 885, 2 L.Ed.2d 863 (1958); overruled on another ground, State v. Pina, 94 Ariz. 243, 383 P.2d 167 (1963). . Commonwealth v. Libbey, 11 Metc. 64, 45 Am.Dec. 185 (Mass. 1846); State v. Kent, 22 Minn. 41, 21 Am.Rep. 764 (1875) where the collector of pew rents was entitled to a percentage of collections as his commission, it was held he could not be guilty of embezzlement since he was a joint owner of the funds collected. . 187 Kan. 548, 358 P.2d 726 (1961). . See also Commonwealth v. Willstein, 146 Pa.Super. 357, 22 A.2d 613 (1941); Ainsworth v. State, 105 Tex.Crim. 212, 287 S.W. 250 (1926). . Veal v. Nowlin, Inc., 367 P.2d 156, 157 (Alaska 1961); Gregory v. Padilla, 379 P.2d 951, 954 (Alaska 1963).

10580105

John CONTENTO, Jr., Petitioner, v. ALASKA STATE HOUSING AUTHORITY, a public corporation, Respondent

Contento v. Alaska State Housing Authority

1965-02-08

No. 554

1000

1002

398 P.2d 1000

398

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T23:26:43.720746+00:00

CAP

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

John CONTENTO, Jr., Petitioner, v. ALASKA STATE HOUSING AUTHORITY, a public corporation, Respondent.

John CONTENTO, Jr., Petitioner, v. ALASKA STATE HOUSING AUTHORITY, a public corporation, Respondent. No. 554. Supreme Court of Alaska. Feb. 8, 1965. Robert A. Parrish and Karl L. Walter, Jr., Fairbanks, for petitioner. David B. Ruskin, Gen. Counsel, and William J. Bailey, Staff Atty., Anchorage, for respondent. Before NESBETT, C. J„ and DIMOND and AREND, JJ.

964

5912

PER CURIAM. The superior court entered an order denying petitioner's motion for summary judgment, after making a determination of facts which were not in dispute and those which were and would have to be tried. A petition for review of such interlocutory order was denied by this court without opinion. Petitioner has requested that we give reasons for denial of the petition, Shortly after the inception of the state court system, we published opinions in two cases where petitions for review of interlocutory orders were denied. We did this in order to bring to the attention of the Bar our reasons for adopting a procedure which relaxed the traditional' concept of appellate practice, whereby appellate review was available only from final decisions and not from interlocutory orders. We pointed out that interlocutory review was not a matter of right but of sound judicial discretion, and we dismissed the considerations which would govern the exercise of that discretion. Since those decisions were rendered, we have followed the policy of not writing opinions when denying petitions for review of non-appealable orders. It seems appropriate in this case to explain the reasons for that policy. A denial of a petition for review of an interlocutory order does not mean that we either approve or disapprove of the order sought to be reviewed, but merely that we decline to pass judgment at all on the action of the trial court. Furthermore, denial of review signifies that the petitioner has not convinced us that there is need for early consideration of a non-appealable order, in accordance with the considerations governing the granting of review as outlined in Supreme Court Rules 23 and 24. The principles just discussed are apparent from our written opinions in City of Fairbanks v. Schaible and State v. Hill-strand. We' thought it unnecessary to reiterate those principles in later cases, and for that reason have adhered to the practice of not stating our reasons when denying petitions for review. -.We also consider the giving of reasons in these cases unwise. If we were to attempt to explain in each case how and why the petitioner has failed to convince, us that our discretion should be exercised in favor of granting review, there is the danger that what we would say would be construed as indicating our views on the very issue or issues which we had decided, not to pass upon. This would tend to , b.e .misleading or confusing to counsel and to .the trial court, without any good purpose having been served. This is a factor which has persuaded us that the writing of opinions in cases where interlocutory review is denied generally would be an undesirable practice. In this case we decline to elaborate further pn our reasons for denying the petition for review. . City of Fairbanks v. Schaible, 352 P.2d 129 (Alaska 1960); State v. Hillstrand, 352 P.2d 633 (Alaska 1960). . Supreme Court Rules 23 and 24 read as follows: Rule 23. Review of Non-Appealable Orders or Decisions. "An aggrieved party may petition tliis court for review of any order or decision of tlio superior court, not otk-398 P.2d — 63½ erwise appealable under Rule 6, in any action or proceeding, civil or criminal, as follows: "(a) From interlocutory orders granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions. "(b) From interlocutory orders appointing receivers or refusing orders to wind up receiverships or to take steps to, accomplish the purposes thereof, such as directing sales or other disposals of property. ' " (c) From any order affecting a substantial right in an action or proceeding which either (1) in effect terminates the proceeding or action and prevents a final judgment therein; or (2) discontinues the action; or (3) 1 , 'grants a new trial. ., 'Í (d). Where such an order or decision involves a controlling question of law as to which there is substantial ground for difference of opinion, and where an immediate and present review of such order or decision may materially advance the ultimate termination of the litigation. ' "(e) Where postponement of review until appeal may be taken from a final judgment will result in injusticé because of impairment of a legal right, or because of unnecessary delay,' ex- pense, hardship or other, related fae- tors. : ,r"Kelief heretofore available by writs of- review, certiorari, mandamus, prohibition, and other writs necessary , or -appropriate to the complete exercise ,of .this .court's jurisdiction, may be obtained by petition for review, and the procedure for obtaining such relief shall be as prescribed in Part VI of these rules." Rule 24., Considerations Governing Review. "A review shall not' be a matter of right, but will be granted only: (1) where the order or decision sought to be reviewed is of such substance and importance as to justify deviation from the normal appellate procedure by way of appeal and to require the immediate attention of this court; (2) where the • sound policy behind the general rule of requiring appeals to be taken only from final judgments is outweighed by the claim of the individual case that justice demands a present and immediate review of a particular non-appealable order or decision; or (3) where the superior court has so far departed from the accepted and usual course of judicial proceedings, or so far sanctioned such a departure by an inferior court or 'administrative tribunal; as to call for this court's power. of supervision and review." . Note 1,. supra.

10583453

Joyce Gail GORDON, Administratrix of the Estate of Timothy Taylor Gordon, Deceased, Appellant, v. BURGESS CONSTRUCTION COMPANY, an Alaska corporation et al., Appellee

Gordon v. Burgess Construction Co.

1967-04-03

No. 716

602

606

425 P.2d 602

425

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T23:26:50.304895+00:00

CAP

Before NESBETT, C. J., RABINO--WITZ, J., and SANDERS, Superior Court-Judge.

Joyce Gail GORDON, Administratrix of the Estate of Timothy Taylor Gordon, Deceased, Appellant, v. BURGESS CONSTRUCTION COMPANY, an Alaska corporation et al., Appellee.

Joyce Gail GORDON, Administratrix of the Estate of Timothy Taylor Gordon, Deceased, Appellant, v. BURGESS CONSTRUCTION COMPANY, an Alaska corporation et al., Appellee. No. 716. Supreme Court of Alaska. April 3, 1967. Robert A. Parrish, Fairbanks, for appellant. George M. Yeager and David H. Call, Fairbanks, for appellee, Howard Staley, of Merdes, Schaible, Staley & DeLisio, Fairbanks, filed a brief in support of appellee’s, legal position.

2085

13274

OPINION Before NESBETT, C. J., RABINO--WITZ, J., and SANDERS, Superior Court-Judge. NESBETT, Chief Justice. The question presented is whether the scope of employer coverage originally provided by the Defective Machinery Act has-been retained, separate from and undiminished by the coverage provided by the later enacted Workmen's Compensation Act, or whether its coverage has been correspondingly reduced by each extension of coverage given to the Compensation Act, during the-fifty years of their coexistence. In 1913, the Alaska Territorial Legislature enacted the Defective Machinery Act which made any person engaged in manu- factoring, mining, constructing, building, -or other business or occupation carried on by means of machinery or mechanical appliances liable to an employee for all damages resulting from the negligence of any of the employer's officers, agents, or employees, or by reason of defect or insufficiency "due to the employer's negligence in the machinery, appliances and works." The act also provided that the contributory negligence of the employee was no bar to recovery where his contributory negligence was slight and the negligence of the employer was gross in comparison, but that the damages awarded should be reduced in proportion to the amount of negligence attributable to the employee. This act has not been amended in any significant manner during the fifty-three years of its existence and is presently codified in the Alaska Statutes as above noted. In 1915, two years after enactment of the Defective Machinery Act, the Alaska "Territorial Legislature ' enacted Alaska's first Workmen's Compensation Act. This .•act covered only employers in the mining industry who employed five or more per.sons and who had not elected to reject the provisions of the act. It also provided that the remedy granted therein was exclusive. The Workmen's Compensation Act has been amended approximately twenty-nine times in the fifty years preceding the commencement of this suit. Its coverage of -employers and occupations has been gradually extended. Since its enactment it has always provided that the remedies provided therein were exclusive. Those amendments considered to be most pertinent to the issues of this case are mentioned in the following paragraphs. SLA 1923, chapter 98 extended the coverage to include all employers of five or more employees in connection with any business, occupation, work, employment or industry except domestic service, agriculture, dairying, or the operation of railroads as common carriers. SLA 1946, chapter 9 extended the employers included to those employing three or more employees, but retained the group of "excepted" employers mentioned in the 1923 amendment above. This amendment also provided that failure of the employer to secure his liability under the act permitted the injured employee to elect to claim compensation under the act, or to maintain an action for damages. Furthermore, where the employee elected to sue for damages, the employer could not assert the common law defenses of the fellow-servant rule, assumption of risk, or contributory negligence. SLA 1953, chapter 60 extended coverage to all employers of one or more employees, excepting employers in domestic service, agriculture, dairying, or in the operation of railroads as common carriers. SLA 1959, chapter 193 repealed the Workmen's Compensation Act in its en tirety and enacted a new Workmen's Compensation Act patterned after the Federal Longshoremen's and Harbor Workers' Compensation Act. The new act excluded from coverage "Part time baby sitters, cleaning persons, harvest help and similar part time or transient help." These same exclusions are contained in the present act. Also excluded by the present act are executive officers of municipal, charitable, religious, educational, or any other non-profit corporations, who have not been brought within the coverage by the election of their employer corporations and executive officers of private business corporations who have waived coverage under the act. Since its reenactment in 1959 the Workmen's Compensation Act has provided that the liability of an employer under the act "shall be exclusive and in place of all other liability of such employer." Previously the act had always provided that the remedy was "in lieu of all rights and remedies as to such injury now existing either at common law or otherwise." The complaint filed by appellant alleged that decedent met his death while working with defective machinery provided by his employer, the appellee, whose liability for damages was charged under the Defective Machinery Act. The trial court granted appellee's motion to quash service of summons and dismiss the complaint on the ground that the court did not have jurisdiction since appellant's exclusive remedy was under the Workmen's Compensation Act. Appellant's theory on appeal is that the Defective Machinery Act provides a cause of action, where defective machinery has been employed, which is separate and apart from the coverage provided by the Workmen's Compensation Act and that the employer may not claim the benefit and pro- Appellee argues that employers covered by the Workmen's Compensation Act are exempt from any other liability; that the numerous amendments to the act over the years have extended its coverage and correspondingly narrowed that of the Defective Machinery Act, and that the two acts can and should be construed to be harmonious rather than in conflict. We are of the opinion that appel-lee's anaylsis of the proper relationship of the two acts is correct. Where a reasonable construction of a statute can be adopted which realizes the legislative intent and avoids conflict or inconsistency with another statute this should be done. When the Defective Machinery Act was enacted its coverage was comprehensive. There was no other similar coverage provided by Alaska law. Upon the enactment of the first Workmen's Compensation Act two years later, the coverage provided by the Defective Machinery Act was reduced to the extent that it no longer applied to-, employers in the mining industry employing five or more persons who had not rejected the provisions of the act. This reduction in coverage resulted from the particular wording of the compensation act, that the liability provided therein was exclusive and' "in lieu of all rights and remedies as to-such injury now existing either at common law or otherwise." The Defective Machinery Act's application to all other classes-of employers was not disturbed. As each subsequent amendment of the-Workmen's Compensation Act extended its coverage, the coverage of the Defective-Machinery Act was correspondingly reduced by reason of the provision in the: Workmen's Compensation Act that the remedies provided therein were exclusive. After the repeal and reenactment of the Compensation Act in 1959 its coverage was quite broad, yet it excepted and still excepts part time baby sitters, cleaning persons, harvest help, and similar part time or transient help as well as certain classes of corporate executive officers. Although the coverage provided by the Defective Machinery Act has been drastically reduced, it still cannot be said that its application to all classes of employers has been eliminated. We do not adopt appellant's argument that the Alaska Legislature, by continuing the Defective Machinery Act in existence after enactment of the Workmen's Compensation Act, evidenced its intent to exclude defective, dangerous machinery from the coverage of the Compensation Act in order to coerce employers to furnish safe machinery. A more logical interpretation of legislative intent, and that subscribed to by most courts, is that the remedies provided by a workmen's compensation act are intended to be in lieu of all rights and remedies as to a particular injury whether at common law or otherwise. The social philosophy responsible for workmen's compensation legislation has been well expressed by Professor Larson as follows: The ultimate social philosophy behind compensation liability is belief in the wisdom of providing, in the most efficient, most dignified, and most certain form, financial and medical benefits for the victims of work-connected injuries which an enlightened community would feel obliged to provide in any case in some less satisfactory form . The court's observation in Frick v. Horton is particularly applicable to the issue before us: In substituting certainty of compensation for the hazards of litigation of work-connected injuries, it is too clear to require discussion that the act was intended to comprehend and govern all the interacting relations of employee, fellow employee and employer. Appellant points out that the Defective Machinery Act was codified into the Compiled Laws of Alaska 1933, the Alaska Compiled Laws Annotated in 1949, and finally into the Alaska Statutes in 1962 where it is presently found. Appellant seems to-equate the codification and rccodification of the act with repeal and reenactment and appears to imply that somehow this is evidence that the legislature intended that the Defective Machinery Act supply a-remedy in this case. The answer is that the statute compilers and revisors had no authority to add' to or eliminate any of the statutes they were required to work with. Compiling,, codifying, or revising are not the same as repealing and reenacting. The fact that the Defective Machinery Act survived both: codifications and a revision does not lend support to the general position appellant has taken. The order of the trial court dismissing appellant's complaint is affirmed. .This act is now AS 23.25.010-040. AS 23.25.010 states: A person engaged in manufacturing, mining, constructing, building, or other business or occupation carried on by means of machinery or mechanical appliances is liable to an employee or, in the event of his death, to his personal representative for the benefit of his widow and children, if any, or if none, then for his parents, or, if neither widow, nor children nor parents, then for his next of kin dependent upon him, for all damages which' may result from the negligence of any of •the employer's officers, agents, or employees, or by reason of defect or insufficiency due to the employer's negligence in the machinery, appliances and works. .AS 23.25.020 states: In an action against a master or employer under § 10 of this chapter the fact that the employee may have been guilty of contributory negligence does not bar a recovery where his contributory negligence was slight and the negligence of the employer was gross in comparison, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to the employee. All questions of negligence and contributory negligence are for the jury. .SLA 1915, ch. 71. . SLA 1959, ch. 193, § 33(3). . AS 23.30.230. . AS 23.30.240. . SLA 1959, eh. 193, § 4. This provision, .See Ziegler v. Witherspoon, 331 Mich. 337, 49 N.W.2d 318 (1951); Brunette v. Bierke, 271 Wis. 190, 72 N.W.2d 702 (1955). . SLA 1915, ch. 71, § 7. .We attach no controlling significance to the fact that, in reenacting the Workmen's Compensation Act in 1959, the Alaska Legislature substituted the wording of the Longshoremen's and Harbor Workers' Compensation Act with respect to the exclusiveness of the remedy, eliminating the wording "at common law or otherwise" which had theretofore been employed. Both provisions are quoted on page 5 of this opinion. Both provisions had consistently been construed by the courts to mean that the remedies provided were exclusive in fact. E. g., Mellen v. H. B. Hirsh & Sons, 82 U.S.App.D.C. 1, 159 F.2d 461, cert. denied, 331 U.S. 845, 67 S.Ct. 1534, 91 L.Ed. 1855 (1947); Richard v. Fireman's Fund Ins. Co., 384 P.2d 445 (Alaska 1963); Aho v. Chichagoff Mining Co., 6 Alaska 528 (D. Alaska 1922); Johnson v. Kennecott Copper Corp., 5 Alaska 571 (D.Alaska 1916), aff'd, 4 Alaska Fed. 666, 248 F. 407 (9th Cir. 1918); Huff v. Alaskan Lumber & Pulp Co., Civil No. 63-93, Super.Ct. 1st Judicial Dist. Alaska, 1963. . 1 Larson, Workmen's Compensation Law § 2.20 at 5 (1966). . 21 A.D.2d 212, 250 N.Y.S.2d 83, 85-(1964), aff'd, 15 N.Y.2d 1018, 260 N.Y.S. 2d 26, 207 N.E.2d 618 (1965). . Other courts have been confronted with factual situations similar to that of this case. See Gannon v. Chicago, M., St. P. & Pac. Ry., 22 Ill.2d 305, 175 N.E.2d 785 (1961) where the court harmonized the provisions of the Scaffold Act with the later enacted Workmen's Compensation Act and Selby v. Sykes, 189 F.2d 770, 774 (7th Cir. 1951) where the court held that plaintiff's allegations of violation of Indiana's Dangerous Occupation Act did not remove his case from the jurisdiction of Indiana's Workmen's Compensation Act.

10423461

STATE of Alaska DEPARTMENT OF TRANSPORTATION AND PUBLIC FACILITIES, Appellant, v. Harold H. GRONROOS, Appellee

State Department of Transportation & Public Facilities v. Gronroos

1985-04-12

No. S-508

1047

1049

697 P.2d 1047

697

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T23:26:33.456246+00:00

CAP

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

STATE of Alaska DEPARTMENT OF TRANSPORTATION AND PUBLIC FACILITIES, Appellant, v. Harold H. GRONROOS, Appellee.

STATE of Alaska DEPARTMENT OF TRANSPORTATION AND PUBLIC FACILITIES, Appellant, v. Harold H. GRONROOS, Appellee. No. S-508. Supreme Court of Alaska. April 12, 1985. Michael A. Barcott, Faulkner, Banfield, Doogan & Holmes, Anchorage, for appellant. Law Offices of William M. Erwin, William M. Erwin, Anchorage, for appellee. Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

1166

7416

OPINION COMPTON, Justice. This case concerns whether the Alaska Workers' Compensation Board (Board) erred when it relied on subsection (2) of former AS 23.30.220 in calculating seasonal employee Harold H. Gronroos' weekly wages as a basis for determining temporary disability compensation. We hold that Mr. Gronroos' circumstances require the Board to make a "fairness determination" under subsection (3) of former AS 23.30.-220 and we therefore reverse. I. FACTUAL AND PROCEDURAL BACKGROUND Mr. Gronroos retired in 1977 from his position as a community relations officer with the United States Park Service. His salary upon retirement was approximately $42,000. Mr. Gronroos unsuccessfully sought executive employment on a full-time basis from the latter part of 1977 until April 1980. At that time, he found employment with the State of Alaska Department of Transportation and Public Facilities (State) as a field materials technician. The job was classified as a permanent seasonal position and Mr. Gronroos expected it to last about six months each year. The salary was approximately $2,000 per month. Mr. Gronroos contended that he would have preferred full-time work, but found that the seasonal job was ideal for his circumstances. The job supplemented his retirement income, yet permitted him vacation time in Hawaii. Mr. Gronroos was working for the State of Alaska on September 5, 1980 when he jarred his back while on the job. He filed a claim for temporary total disability benefits with the Board. The Board ordered the state to pay Mr. Gronroos compensation based upon the method of calculation contained in AS 23.30.220(2). The state appealed the decision with regard to the wage calculation. Superior Court Judge Milton Souter affirmed the Board's decision. The state appeals. II. DISCUSSION Prior to its 1983 amendment, AS 23.30.-220 provided alternative methods by which the Board determined the average weekly wage of the injured employee for the purpose of computing temporary disability compensation. Subsection (2) provided a mathematical formula based on the employee's most favorable earnings within the past three years. Subsection (3) provided an alternative means of calculating the wage where wages at the time of injury could not be fairly calculated under subsection (2), or could not otherwise be ascer tained without undue hardship to the employee. The Board determined that the "fairness" language of AS 23.30.220 compels the Board to calculate the employee's weekly wage under the alternative method in subsection (3) only if under subsection (2) the employee's weekly wage "cannot be calculated in a manner fair to the employee." We conclude that the Board misconstrued AS 23.30.220. Fairness must be shown to both the employee and the employer in evaluating whether the wage at the time of injury can be fairly calculated under subsection (2). We stated recently that "[i]f claimant's part-time relation to the labor market is 'clear, and above all if there is no reason to suppose it will change in the future period into which disability extends, then it is unrealistic to turn a part-time able-bodied worker into a full-time disabled worker.' " Deuser v. State, 697 P.2d 647, 650 n. 2 (Alaska 1985), quoting 2 A. Larson, The Law of Workmen's Compensation § 60.-21(c), at 10-592 (1983) (emphasis in Larson)). In Deuser, we relied upon Johnson v. RCA-OMS, Inc., 681 P.2d 905 (Alaska 1984), in holding that the Board should apply subsection (3) where a discrepancy between average weekly wages computed under subsection (2) and probable future weekly wages is "so substantial that application of the subsection (2) formula clearly does not fairly reflect [the claimant's] wage-earning capacity." Johnson, 681 P.2d at 907. The Board's subsection (2) calculation turns Mr. Gronroos, who was employed at the time of injury as a seasonal field technician, into a full-time disabled worker. His average weekly wage computed under subsection (2) would be based upon his highest annual earnings in the three years before he retired from his National Park Service community relations position. The year he retired he earned $42,-000, yielding an average weekly wage of approximately $545. At the time of injury, Mr. Gronroos' gross pay as a seasonal field technician was approximately $2,000 per month. Assuming the job lasted, as Mr. Gronroos expected, six months per year, he would have earned $12,000, yielding an average weekly wage of approximately $231. Since the annual duration of Mr. Gronroos' federal position was twice that of his seasonal position, the use of subsection (2) provides him with a compensation wage base of over twice his wage base at the time of injury. The disparity between Mr. Gronroos' salary as a full-time community relations officer and his salary as a seasonal field technician is so substantial that application of the subsection (2) formula clearly does not fairly reflect his probable future earning capacity. It is entirely reasonable to focus upon probable future earnings during the period into which disability extends when the injured employee seeks temporary disability compensation. See Deuser, 697 P.2d at 650. Where an employee has recently retired from full-time employment and takes a seasonal job at which he is injured, or the converse, a subsection (2) calculation frequently will not fairly reflect the employee's future earnings in the period into which temporary disability extends. In those circumstances, the Board must determine the average weekly wage of the injured employee under subsection (3). The judgment is REVERSED, and the case is REMANDED for further proceedings consistent with this opinion. . AS 23.30.220 as amended in 1979 provided in pertinent part: Determination of average weekly wage. Except as otherwise provided in AS 23.30.005-23.30.270, this chapter, the average weekly wage of the injured employee at the time of the injury is the basis for computing compensation, and is determined as follows: (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 the 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.... . Mr. Gronroos' intentions as to employment in the future are relevant to a determination of future earning capacity. Vetter v. Alaska Workmen's Compensation Board, 524 P.2d 264, 266 (Alaska 1974). See State v. Dupree, 664 P.2d 562, 567 n. 1 (Alaska 1983). . See Johnson v. RCA-OMS, Inc., 681 P.2d 905, 906 (Alaska 1984) (employee was earning over twice his previous military salary in a civilian position at the time of injury).

10583485

Thomas J. REXFORD, Appellant, v. Edward D. SASLOW, Appellee

Rexford v. Saslow

1967-04-03

No. 727

611

614

425 P.2d 611

425

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T23:26:50.304895+00:00

CAP

Before NESBETT, C. J., DIMOND, J., and SANDERS, Superior Court Judge.

Thomas J. REXFORD, Appellant, v. Edward D. SASLOW, Appellee.

Thomas J. REXFORD, Appellant, v. Edward D. SASLOW, Appellee. No. 727. Supreme Court of Alaska. April 3, 1967. Robert A. Parrish, Fairbanks, for appellant. Mary Alice Miller of Collins & Clasby, Fairbanks, for appellee.

1337

7540

OPINION Before NESBETT, C. J., DIMOND, J., and SANDERS, Superior Court Judge. DIMOND, Justice. Appellant brought this action for damages for injuries suffered when he was struck by appellee's car. In the first trial the jury found in appellant's favor and awarded damages of over $70,000. On appeal we reversed and remanded for a new trial because of errors in instructing the jury and in removing from the jury the question of appellant's contributory negligence. In the second trial the jury found in favor of appellee. Appellant has appealed, his contentions being that appellee's negligence was so clear that this issue should not have been given to the jury for its determination, and that appellant's freedom from contributory negligence was so apparent that this issue too ought to have been removed from jury consideration. Appellee was driving along a highway at night at a speed of about 25 to 30 miles an hour. He saw the headlights of another vehicle ahead of him. The lights were on the bright or high beam and they appeared to bob up and down, and the other vehicle appeared to be moving toward appellee in a normal manner. When appellee was about 100 feet from the other vehicle he realized that it was in his lane of traffic. Appellee immediately swerved to the right to avoid a collision. After he got past the glare of the headlights of the other vehicle, which was parked and not moving, he saw for the first time a group of people standing near the right-hand side of the road in a railroad siding and parking area. Appellee applied his brakes, but he was unable to stop before his car hit several people including the appellant who was standing on the shoulder of the highway next to the left-hand door of the vehicle which had been parked on the wrong side of the road with its headlights on. In our opinion on the first appeal in this case we observed that appellant first saw appellee's car approaching at a distance of about 500 feet, that he saw the car again when it was 100 feet away, that appellant perceived that the parked vehicle next to him was on the wrong side of the road with its headlights on, that night darkness prevailed, that no warning flares had been set out, that appellant was familiar with the area, and that as he saw appellee's car approaching it was his impression that it was traveling too fast for what appellant described as a congested area. In what we termed as these "attendant dangerous circumstances" we held that it was open to question whether appellant was not guilty of contributory negligence in placing himself in such close proximity to the vehicle parked on the wrong side of the road, and therefore that the issue of contributory negligence should have gone to the jury. After further consideration we have reached the conclusion that we were mistaken in holding that the question of contributory negligence should have gone to the jury. Although modern roads and highways are constructed with, little if any consideration being given to persons who travel on foot, the fact remains that pedestrians have the right to use such roads and highways without fear of being run down by motor vehicles. In particular, one on foot has the right to stand on the shoulder of a road without being bound to anticipate that he will be struck by a car leaving the traveled portions of the road and running on to or off the shoulder. That is the situation here. Appellant was standing on the shoulder of the road where he had a right to be. He had no reason to anticipate that appellee's car would turn of f the road to the right of the parked vehicle and strike him, rather than stopping or going to the left where about one-half to two-thirds of the roadway was available for passing. We believe that there was no room for difference of opinion among reasonable men as to whether appellant exercised reasonable prudence for his own safety. A reasonably prudent person should not have had an apprehension of danger such as to require him, at the risk of being charged with failure to exercise proper care for his own safety, to have placed himself in some particular place in the parking area adjacent to the road so as to avoid being hit by appellee driving off the road. The jury should not have been instructed as to contributory negligence on appellant's part. But since it was, and since we are unable to assess the effect such an instruction had in persuading the jury to find in favor of appellee, a new trial must be ordered. • Appellant moved for a directed verdict in liis favor on the ground that there was no evidence upon which the jury could find in favor of appellee. The trial court denied the motion, and appellant assigns this ruling as error. In determining whether error was committed, we review the evidence and the reasonable inferences therefrom in a light most favorable to appellee. From the evidence adduced, the jury reasonably could have found that appellee was traveling at a speed of from 25 to 30 miles an hour, that there was a vehicle ahead of him with its headlights on high beam facing him, that the headlights appeared to be bobbing up and down and the vehicle appeared to be moving toward appellee, that appellee first discovered that the other vehicle was in his lane of traffic when he was about 100 feet from it, that as he drew close to the vehicle he could not see too much because the headlights facing him were shining right in his windshield, that when he ascertained that the other vehicle was in his lane of traffic he decided to get off the road, that he slowed down by braking his car, that he went off the road to the right in order to avoid a collision, that after turning off the road he did not see anyone until he got past the glare of the headlights, that when he did see people ahead of him he jammed on his brakes, and that since he thought that the vehicle ahead of him was moving, he had no reason to believe that anyone was on the outside of the vehicle on the right side of the road. From these circumstances we are of the opinion that fair-minded jurors could reasonably have differed on the question of appellee's negligence. A jury question was presented as to whether appellee was negligent in not observing earlier than he did that the vehicle ahead of him was stopped in his lane of traffic, and as to whether appellee was negligent in the manner in which he operated his car immediately before the accident. Under our decisions in Mallonee v. Finch and McCoy v. Alaska Brick Co., we hold that the trial court ruled correctly in denying appellant's motion for a directed verdict. This holding disposes of appellant's last specification of error that the trial court erred in failing to instruct the jury that appellee was negligent as a matter of law. The judgment is reversed and the case remanded for a new trial. . Saslow v. Rexford, 395 P.2d 36 (Alaska 1964). . Id. at 41. . See Camp v. Wilson, 258 Mich. 38, 241 N.W. 844, 845 (1932). . We recognize, of course, that in instructing the jury on contributory negligence the trial court was only doing what we required it to do in our opinion on the first appeal in this case. .Mallonee v. Finch, 413 P.2d 159, 161 (Alaska 1966); Otis Elevator Co. v. McLaney, 406 P.2d 7, 9 (Alaska 1965). . 413 P.2d 159 (Alaska 1966). . 389 P.2d 1009 (Alaska 1964).

8362749

ALASKANS FOR A COMMON LANGUAGE, INC., Appellant, v. Moses KRITZ, et al., Appellees; Alaskans for a Common Language, Inc., Appellant, v. Henry Alakayak, et al., Appellees

Alaskans for a Common Language, Inc. v. Kritz

2007-11-02

No. S-10590

183

226

170 P.3d 183

170

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T22:55:53.240550+00:00

CAP

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

ALASKANS FOR A COMMON LANGUAGE, INC., Appellant, v. Moses KRITZ, et al., Appellees. Alaskans for a Common Language, Inc., Appellant, v. Henry Alakayak, et al., Appellees.

ALASKANS FOR A COMMON LANGUAGE, INC., Appellant, v. Moses KRITZ, et al., Appellees. Alaskans for a Common Language, Inc., Appellant, v. Henry Alakayak, et al., Appellees. No. S-10590. Supreme Court of Alaska. Nov. 2, 2007. Kevin D. Callahan and Douglas J. Ser-dahely, Patton Boggs LP, Anchorage, for Appellant Alaskans for a Common Language, Inc. Douglas Pope, Pope & Katcher, Anchorage, for Kritz Appellees. Eric D. Johnson, Association of Village Council Presidents, Bethel; Heather Kendall-Miller, Native American Rights Fund, Anchorage; and William E. Caldwell, Alaska Civil Liberties Union, Fairbanks, for Alaka-yak Appellees. Jan Hart DeYoung, Assistant Attorney General, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for Appellee State of Alaska. Peter M. Tiersma, Loyola Law School, Los Angeles, California and Nikole Nelson, Anchorage, for amicus curiae Linguistic Society of America. Before: BRYNER, Chief Justice, MATTHEWS, EASTAUGH, FABE, and CARPENETI, Justices.

26105

165502

OPINION - CARPENETI, Justice. I. INTRODUCTION Alaskans for a Common Language, Inc. appeals from a decision of the superior court that the Official English Initiative, AS 44.12.300-.390, violates speech rights protected by the federal and Alaska Constitutions. We hold that a portion of the statute's principal provision violates constitutionally protected speech. We also hold, however, that this unconstitutional portion of the statute may be severed from the remainder of the principal provision and that the remainder, if given a narrowing construction, is constitutional. We therefore affirm in part, and reverse in part, the judgment of the superior court. II. FACTS AND PROCEEDINGS In 1998 Alaskans for a Common Language, Ine. (ACL), an Alaskan non-profit corporation, sponsored a ballot initiative to adopt English as the state's official language and to require its sole use in "all government functions and actions." The Official English Initiative (OEI or the initiative), entitled "Requiring Government to Use English," was described on the ballot as follows: This bill requires the state to use English in all government functions and actions. State records must be in English,. "The state" means the legislature, all state agencies, local governments, school districts, public corporations and the university. Those entities may use non-English languages for international trade, emergencies, teaching languages, court suits, criminal inquiries, for elected officials to talk to constituents or to comply with federal law. Costs of non-English records must be identified. Persons who speak only English may not be denied state jobs or services. The bill does not affect private see-tor use of non-English languages. The OEI was approved by the voters on November 3, 1998 and was subsequently codified at AS 44.12.300-.390 to become effective March 3, 1999. Accordingly, this case requires us to interpret a statute enacted pursuant to the people's power of the initiative. Following passage of the initiative, two sets of plaintiffs filed suit against the state to block its implementation. The Kritz plaintiffs consisted of Moses Kritz, Stanley Active, and Frank Logusak, all of whom are lifelong residents of Togiak. Kritz and Active are both public officials, the former proficient in English and Yupik and the latter only in Yupik. Logusak is a citizen who is fluent in both languages. The Alakayak plaintiffs are a group of Alaska residents from various cities and native villages, many of whom are either bilingual in English and Yupik, Inu piaq,. or Spanish, or proficient only in their native languages and unable to communicate in English. The lead plaintiff, Henry Alaka-yak, is a member of the city council for the City of Manokotak who has limited proficiency in English and performs his job exelusively in Yupik. Both sets of plaintiffs alleged that implementation of the OEI would adversely affect numerous Alaskans who are themselves bi- or multi-lingual government officials or employees, or citizens who rely on such individuals to communicate with or participate in local and state government. The cases were consolidated and, in March 1999, Superior Court Judge Fred Torrisi granted the plaintiffs' motion for a preliminary injunction, enjoining implementation of the initiative pending further order of the superior court or of this court. ACL then sought to intervene as a defendants The superior court denied ACL's motion, explaining that its interests would be adequately represented by the state and that it could advance its positions as an amicus curiae. Noting that some might question whether the state was committed to defending the constitutionality of the initiative in light of unfavorable sentiments expressed by the attorney general's office and then-Governor Tony Knowles, we ordered the superior court to permit ACL to intervene in the lawsuit. All parties then moved for summary judgment, agreeing that the matter could be resolved without an evidentiary hearing. In March 2002 Judge Torrisi granted the plaintiffs' motions for summary judgment, finding that the OEI violated the free speech clause of the Alaska Constitution because "it is impossible to restrict the initiative's reach to the speech of government as an employer, and because even viewed in this way it is not justified by a legitimate interest." The court further stated that "[the wide reach of the initiative chills the exercise of protected speech, and there is no construction that can cure this problem." The superior court rejected the argument that the initiative was purely symbolic and that it did not prevent anyone from speaking languages other than English, concluding that ACL failed to demonstrate how the initiative could be reasonably construed to permit government employees to routinely speak a language other than English, except in limited cireumstances. Relying upon the Ninth Circuit's statement that in any language is still speech and the decision to speak in another language is a decision involving speech alone," the court concluded that the OEI is a restriction on speech that violates the free speech rights of public officials and employees. With respect to elected officials, the superior court found that the OBI limits their ability to "freely speak" and thus violates article I, section 5 of the Alaska Constitution. As for non-elected employees and officials, the court explained that any restriction on their free speech rights would have to be Justified by a "strong [sltate interest." While the court recognized the validity of the OEI's goals of "promoting, preserving and strengthening" the use of English as Alaska's common language and of reducing the costs of conducting government business in multiple languages, the court found these interests insufficient to justify the "blanket prohibition on public employees speaking languages other than English." Concluding that the initiative failed to meet the stringent standard required under Alaska law to justify an infringement upon the speech rights of Alaska citizens, the superior court declined to make any findings regarding whether the OEI was content-based or to address the plaintiffs' equal protection arguments. However, the court noted that an overbreadth analysis would lead to the same conclusion because the initiative swept in too much constitutionally-protected speech to be construed narrowly. Finally, the court considered whether the initiative could be saved by severing the unconstitutional provisions and concluded that, while a severed construction "might capture the 'spirit of the measure,' " it was not "evident that voters would prefer the measure as altered." Accordingly, the court declared the Official English Initiative void as violative of article I, section 5 of the Alaska Constitution. ACL appealed. Following oral argument, we asked the parties to submit supplemental briefing on the issue of severability. The state had declined to participate in the original appeal but, at our request, submitted briefing on the issue of severability. III STANDARD OF REVIEW We apply our independent judgment to questions of constitutional law and review de novo the construction of the Alaska and federal Constitutions. We also apply our independent judgment to questions of statutory interpretation and "adopt[] the rule of law that is most persuasive in light of precedent, reason and policy." We review a grant of summary judgment de novo and will affirm the judgment if there are no contested issues of material fact and if the moving party is entitled to judgment as a matter of law. In reviewing the superior court's decision to grant summary judgment, we are "not bound by the reasoning articulated by the lower court, and . can affirm a grant of summary judgment on alternative grounds, including grounds not advanced by the lower court or the parties." We may consider any issue contained in the record, even if not considered by the superior court, in defense of the judgment. iV. DISCUSSION There are now English-only laws in twenty-four states. The content of these laws varies significantly. Some are simply policy statements that English is the state's official language. Others designate English as the language of all official public documents, ree-ords or meetings. Still others state that government shall not be required to provide documents, information, or literature in other languages, but permit government employees to communicate in other languages for a wide range of reasons. In stark contrast stand an English-only amendment to the Arizona constitution, a proposed English-only statute in Oklahoma, and the OEL These three English-only laws share the same basic structure: a declaration that English is the official language of the state, a requirement that only English be used by the state and its political subdivisions, and enumerated exceptions permitting the use of other languages. In its decision striking down the Arizona amendment, the Arizona Supreme Court noted that the law had been characterized as the nation's "most restrictively worded official-English law to date. That court held that the proposed amendment was a pure speech ban that infringed upon the rights of elected officials and public employees to communicate with the public, the rights of non-English speakers to participate in political affairs, and the Fourteenth Amendment's guarantee of equal protection. The Ninth Cireuit had earlier reached a similar conclusion when it too struck down the amendment, stating that the amendment's "ban on the use of languages other than English by persons in government service could hardly be more inclusive" because the amendment applied to the legislative, judicial, and executive branches of both state and local government and to "all government officials and employees during the performance of government business." The Oklahoma Supreme Court likewise struck down that state's proposed English-only initiative on state constitutional grounds. The court found that the initiative's broad seope sought "to prevent citizens of limited English proficiency from effectively communicating with government officials and from receiving, when available, vital information about government." Alakayak and Kritz ask that we strike down the OEI on a constitutional basis similar to that used by the Arizona and Oklahoma courts. To determine whether the initiative is a constitutional regulation of speech we must determine (1) the seope of the law, (2) whether it burdens any constitutionally-protected rights, and, if so, (8) whether it withstands the appropriate level of judicial scrutiny given the nature of the rights it implicates. Determining the scope of the OEI requires us to construe its meaning. In Part IV.A., we conclude that the first sentence of AS 44.12.320 broadly requires the use of English by all government officials and employees in all levels of government. Next, determining whether the statute burdens any constitutionally-protected rights requires us to evaluate its impact on the rights of private citizens, elected government officials, and government employees. In Part IV.B., we conclude that the same sentence impacts the constitutionally-protected speech of each of these groups. Third, determining whether the OEI withstands the appropriate level of serutiny is a two-step process. In Part IV.C., we first identify and evaluate the government interest in prescribing the use of English; second, we determine how closely the means chosen by the OEI fit the ends it serves. We conclude that while the OEI serves a compelling governmental interest, the means it uses are not sufficiently narrowly tailored to satisfy the federal or Alaska Constitutions. In Part IV.D., we consider whether any unconstitutional provisions can be severed to preserve a portion of the law. We conclude that the first sentence of AS 44.12.9320 can be severed, allowing the second sentence of that section to stand. Finally, in Part IV.E. we set out the general principles for analyzing the other sections of the law. A. The OEI Requires the Use of English in All Government Functions and Actions. 1. The language of the statute The parties vigorously dispute the scope and effect of the law. We begin our analysis with its text: See. 44.12.3001 Findings and purpose. The people of the State of Alaska find that English is the common unifying language of the State of Alaska and the United States of America, and declare a compelling interest in promoting, preserving and strengthening its use. See. 44.12.8310. Official language. The English language is the official language of the State of Alaska. Sec. 44.12.3820. Seope. The English language is the language to be used by all public agencies in all government functions and actions. The English language shall be used in the preparation of all official public documents and records, including all documents officially compiled, published or recorded by the government. Sec. 44.12.330. Applicability. AS 44.12.300-44.12.390 apply to the legislative and executive branches of the State of Alaska and all political subdivisions, including all departments, agencies, divisions and instrumentalities of the State, the University of Alaska, all public authorities and corporations, all local governments and departments, agencies, divisions, and instru-mentalities of local governments, and all government officers and employees. See. 44.12.8340. Exceptions. (a) The government, as defined in AS 44.12.3830, may use a language other than English when necessary for the following purposes: (1) to communicate health and safety information or when an emergency requires the use of a language other than English; (2) to teach another language to students proficient in English; (3) to teach English to students of limited English proficiency; (4) to promote international relations, trade, commerce, tourism or sporting events; (5) to protect the constitutional and legal rights of criminal defendants; (6) to serve the needs of the judicial system in civil and criminal cases in compliance with court rules and orders; (7) to investigate criminal activity and protect the rights of crime victims; (8) to the extent necessary to comply with federal law, including the Native American Languages Act; (9) to attend or observe religious ceremonies; | (10) to use non-English terms of art, names, phrases, or expressions included as part of communications otherwise in English; and , (11) to communicate orally with constituents by elected public officials and their staffs, if the public official or staff member is already proficient in a language other than English. (b) An individual may provide testimony or make a statement to the government in a language other than English, if the individual is not an officer or employee of the government, and if the testimony or statement is translated into English and included in the records of the government. See. 44.12.350. Public accountability. All costs related to the preparation, translation, printing, or recording of documents, records, brochures, pamphlets, flyers, or other material in languages other than English shall be defined as a separate line item in the budget of every governmental agency, department, or office. See. 44.12.360. Non-denial of employment or services. (a) No governmental entity shall require knowledge of a language other than English as a condition of employment unless the requirements of the position fall within one of the exceptions provided in AS 44.12.340, and facility in another language is a bona fide job qualification required to fulfill a function included within one of the exceptions. (b) No person may be denied services, assistance, benefits, or facilities, directly or indirectly provided by the government, because that, person communicates only in English. See. 44.12.370. Private sector excluded. AS 44.12.300-44.12.390 shall not be construed in any way that infringes upon the rights of persons to use languages other than English in activities or functions conducted solely in the private sector, and the government may not restrict the use of language other than English in such private activities or functions. See. 44.12.8380. Private cause of action authorized. Any person may bring suit against any governmental entity to enforce the provisions of AS 44.12.800-44.12.390. See. 44.12.8390. Severability. The provisions of AS 44.12.300-44.12.390 are independent and severable, and if any provision of AS 44.12.8300-44.12.390, or the applicability of any provision to any person or cireumstance, shall be held to be invalid by a court of competent jurisdiction, the remainder of AS 44.12.300-44.12.8390 shall not be affected and shall be given effect to the fullest extent practicable. 2. The Meaning of the Statute ACL argues that the superior court misconstrued the purpose of the OEI, and that the law would have little impact on government because it was never intended as a categorical ban on communication in other languages. ACL claims that any potential constitutional problems can be avoided if we interpret the OEI as requiring the use of English only in the "formal" and "official" acts of government rather than as a categorical ban on speech in other languages in all aspects of government. The superior court, agreeing with Kritz and Alakayak, rejected ACL's proposed interpretation as unsupported by the text of the initiative itself or by the other ballot materials provided to voters on or before November 8, 1998. a. Principles of statutory construction Our precedent clearly establishes that "courts should if possible construe statutes so as to avoid the danger of unconstitutionality." To this end, "[a] party raising a constitutional challenge to a statute bears the burden of demonstrating the constitutional violation. A presumption of constitutionality applies, and doubts are resolved in favor of constitutionality." Thus, if we are able to avoid a finding of constitutional infirmity by construing the OEI to apply only to the "official" acts of government, our case law directs that we must do so. However, we may not read into a statute that which is not there, even in the interest of avoiding a finding of unconstitutionality, because "the extent to which the express language of the provision can be altered and departed from and the extent to which the infirmities can be rectified by the use of implied terms is limited by the constitutionally decreed separation of powers which prohibits this court from enacting legislation or redrafting defective statutes." While we often look to legislative intent to construe the meaning of ambiguous statutes, we take a slightly different approach when interpreting initiatives enacted by the voters. When we construe a statute, we look at both its plain language and at its legislative history and, whenever possible, we construe a statute in light of its purpose. While "[s}tatements made by a bill's sponsor during legislative deliberations are relevant evidence when the court is trying to determine legislative intent{,]" we have also observed that "[where a statute's meaning appears plain and unambiguous . the party asserting a different meaning bears a correspondingly heavy burden of demonstrating contrary legislative intent." By contrast, when we review a ballot initiative, we look to any published arguments made in support or opposition to determine what meaning voters may have attached to the initiative. But we will not accord special weight to the stated intentions of any individual sponsor that are not reflected in the content of the legislation itself To the extent possible, we attempt to place ourselves in the position of the voters at the time the initiative was placed on the ballot, and we try to interpret the initiative using the tools available to the citizens of this state at that time. ACL has urged this court to consider the affidavits of the OET's drafters and sponsors as we construe the initiative. Kritz responds that it would be inappropriate to rely on these affidavits as evidence of voter intent because materials which were not published and distributed to the electorate "do not carry the indicia of trustworthiness from having been presumptively distributed to and read by each and every voter. We agree. Because we must construe an initiative by looking to the materials considered by the voters themselves, we cannot rely on affidavits of the sponsors' intent"" Accordingly, we will rely only upon materials that Alaska voters had available and would have relied upon to determine the seope and impact of the OEI. b. The OEI was presented to voters as an English-only law. The parties dispute whether the OEI is properly characterized as an English-only law. ACU's statement in support of the initiative stated that "this bill will have no impact on public or private use of Alaska Native languages," that the initiative will impose a limit only on the government, and that "[plrivate citizens will still be able to use any language they want, anywhere, at any time." (Emphasis in original.) The summary described English as "our official language," "a symbol" which reminds "Alaskans of every race, religion, and background of what we all have in common." In contrast, the opposition statement of the American Civil Liberties Union (ACLU) warned that, if enacted, the law "will have severe consequences for the many non-English speaking residents and citizens of Alaska." Highlighting some of these consequences, the statement cautioned that the law would not protect the use of Native languages, that it would require government employees to communicate with non-English speakers only in English even if they were able to speak the individual's language, that it would bar non-English speakers from receiving many services to which they are entitled, and that it would violate the constitutional rights of each Alaskan "to speak in the language of their choice," "to petition their government for redress of grievances," and "to equal protection of the laws." We agree. The OEI, presented to voters as Ballot Measure 6, was entitled "Requiring Government to Use English." The ballot measure contained a neutral summary prepared by the lieutenant governor, a Legislative Affairs Agency summary, a copy of the full text of the proposed statute, a statement in support of the statute drafted by its sponsor ACL, and a statement in opposition to the statute drafted by the ACLU. The neutral summary stated: This bill requires the state to use English in all government functions and actions. State records must be in English. "The state" means the legislature, all state agencies, local governments, school districts, public corporations and the university. Those entities may use non-English languages for international trade, emergencies, teaching languages, court suits, erimi-nal inquiries, for elected officials to talk to constituents or to comply with federal law. Costs of non-English records must be identified. Persons who speak only English may not be denied state jobs or services. The bill does not affect private see-tor use of non-English languages. The Legislative Affairs Agency summary explained that the OEI would require each public office, including each office of the state, public corporations and local governments, to use English in all functions, except in eleven enumerated cireumstances. It further explained: "A person who is not a public officer or employee may make a statement to the government in another language if it is changed into English and made a part of the record." (Emphasis added.) The summary concluded: "The government may not stop the use of another language in a private function. A person may sue to enforce this measure." c. The OEI, as enacted, governs more than the "official" or "formal" acts of government. ACL argues that AS 44.12.310 and .320, when read together, support its argument that the OEI was meant to apply only to the "official" or authorized acts of the State, and prove that the OEI recognizes a "common sense" distinction between "formal" and "informal" acts of government. These sections of the initiative provide: Sec. 44.12.8310. Official language. The English language is the official language of the State of Alaska. See. 44.12.820. Scope. The English language is the language to be used by all public agencies in all government functions and actions. The English language shall be used in the preparation of all official public documents and records, including all documents officially compiled, published or recorded by the government. (Emphasis added.) According to ACL, if the first sentence of section .320 applied to all acts by government employees, the see-ond sentence would be unnecessary; thus its inclusion plainly modifies the reach of the initiative to govern only "official" state fune-tions. ACL maintains that the OEI's language "plainly contemplates a category of informal, unofficial, written documents which it does not purport to govern." ACL argues in addition that because the OEI contemplates instances in which the government may use informal written materials in languages other than English, it is reasonable to construe the statute to permit informal oral communication in languages other than English as well. While ACL concedes that the government must act through its officers and employees, it claims that the OEI requires only that they use English to the extent that they are carrying out the "government functions and actions" of "public agencies"-that is, only to the extent they are performing official, authorized acts of government. We disagree regarding the first sentence of AS 44.12.5320. A similar argument was attempted-unsuccessfully-by proponents of English-only laws before the highest courts of both Arizona and Oklahoma. The Arizona court addressed the distinction between "official" and "unofficial" acts of government in Ruiz v. Hull, after the Arizona Attorney General, in defending the law, argued that only "official acts of government" would be affected by the implementation of Article XXVIII of the Arizona Constitution (the amendment). While somewhat more broadly applied than the OEI, the amendment similarly provided that English must be the language of "all government functions and actions," that all employees of the state must act in English, and that all government documents must be written in the English language. The attorney general maintained that "the Amendment should not be read to prohibit public employees from using non-English languages while performing their public functions that could not be characterized as official." The court noted the inconsistency of that interpretation with both the language of the amendment, which applied to "all government functions and actions," and with the ordinary meaning of those terms, which "do not impose such a limitation." The Ruiz court concluded: By its express terms, the Amendment is not limited to official government acts or to the "formal, policy making, enacting and binding activities of the government." Rather, it is plainly written in the broadest possible terms, declaring that the "English language is the language of . all government functions and actions" and prohibiting all "government officials and employees" at every level of state and local government from using non-English languages "during the performance of government business." The Supreme Court of Oklahoma reached a similar conclusion in In re Initiative Petition No. 366. The initiative at issue in Oklahoma required that "[all official doeu-ments, transactions, proceedings, meetings, or publications issued, which are conducted or regulated by, on behalf of, or representing the state and all of its political subdivisions shall be in the English language." The court construed this provision to "prohibit all governmental communications, both written and oral, by government employees, elected officials, and citizens, of all words, even those which are of common usage, in any language other than English when conducting state business." The court concluded that this restriction prevented non-English speakers from effectively communicating with government officials and from receiving vital information about government. The same issues are presented in this case. The first sentence of AS 44.12.320 requires the use of English in "all government fune-tions and actions." Because the plain language of the initiative is so clear, ACL "bears a correspondingly heavy burden of demonstrating contrary [voter] intent." We next turn to an examination of the ballot materials to determine whether ACL has met this burden. ACL points to no ballot materials that indicate that the voters might have contemplated distinctions between "official" and "unofficial" or "formal" and "informal" acts of government when they enacted the OEI. The Legislative Affairs Agency summary explicitly stated that, pursuant to the OEI, every public officer or employee of the state would be required to use English in all functions, except in situations governed by the eleven enumerated exceptions. While ACL's statement in support of the initiative claimed that it would limit only government speech and would have no effect on the speech of private individuals, it did not state that the initiative would allow government employees to engage in informal or unofficial conversation with private citizens regarding government business in a language other than English. Because the meaning of the first sentence of AS 44.12.320 appears plain and unambiguous, and because ACL has not offered suffi-client evidence of contrary voter intent, we have no basis to find that the voters shared what ACL calls its "common sense" reading of the initiative. The first sentence of Seetion .820 plainly mandates the use of English by government officers and employees in the performance of their jobs, whether communicating with English or non-English speakers, except in specific cireumstances. According ly, we reject ACT's contention that the plain language of the first sentence of AS 44.12.320, permits the "unofficial" or "informal" use of languages other than English by state officials or employees in the performance of their duties. d. The second sentence of AS 44.12.320 does not prohibit the use of non-English languages in unofficial or informal public documents. The same principles we applied to the first sentence of the OEI apply here as well. A "presumption of constitutionality applies, and doubts are resolved in favor of constitutionality." If we can save a statute, or part of one, via a narrowing construction, we must do so. This presumption is limited, though, by our reluctance to step into the shoes of the legislature and redraft legislation. In contrast to the first sentence of .320, the second sentence is capable of a narrow reading that is supported by its text and by the ballot materials. The text of the second sentence includes the word "official," thus "plainly contemplat[ingl," as ACL argues, "a category of informal, unofficial written documents" outside the reach of the OEL. Furthermore, the part of the neutral ballot summary addressing the second sentence of 320 states only, "State records must be in English." It does not require that all state records must be in English, at least suggesting that those state records that are not official are not within the reach of the OEI. Since the text of AS 44.12.320 and the ballot materials demonstrate that the second sentence of section .320 is capable of a narrow construction, we are bound by our rules of statutory interpretation to use that construction. Of what, then, does this "category of informal, unofficial written documents" consist? We agree with ACL's position that the distinction between "official" and "unofficial" is "a conceptual distinetion, not a laundry list." Looking at the record, we are met with various examples of documents that appear to be "unofficial" or "informal." They are not published to the public but rather are written for an individual or a private audience. They lack indicia of formality such as seals or binding. They may even be handwritten. This category of unofficial or informal documents would include such documents as a note in Spanish from a teacher to a monolingual Spanish-speaking parent; a letter from a city councilor in Yupik responding to a constituent inquiry; a letter in Tlingit from a public health employee offering medical advice; or an invoice prepared in Yupik by a city mechanic for services rendered. None of these documents is an "official public document" in the sense that each one is individually tailored, is geared to address a private inquiry, and is generally not released to the public. These enumerated examples are neither exelusive nor comprehensive; nor by the discussion of these specific examples do we mean to provide a definitive holding as to their nature. This case presents, after all, only a facial challenge to the statute. Furthermore, we construe the second sentence of AS 44.12.320 to mean that multilingual official documents are not prohibited so long as an English version of the document is published. The second sentence states that "[the English language shall be used" in official documents. The first sentence, in contrast, states that English is "the language" to be used. We take this to mean that the first sentence of AS 44.12.3820 intends an exclusivity of English and has a prohibitory function. The second sentence, in contrast, has a permissive aspect, allowing the use of non-English languages in documents so long as English is also used. Thus, the OEI would allow a fisheries notice to be posted in English and Yupik; it would allow the Department of Labor and Workforce Development to provide written information in English, Tagalog, and Spanish; and it would allow the Department of Motor Vehicles to give examinations in multiple languages. In keeping with this narrow construction, we believe, contrary to the argument of Alaka-yak, that the second sentence would not prohibit the publication of "monograms of graduate student dissertations children's books written in Yupik . ads and messages placed in the Anchorage Blue Book . or assorted messages and notes tacked to a community bulletin board in a Yupik village." This construction is the basis for our holding that unconstitutional portions of the OEI may be severed from constitutional portions. B. Section .320 Impacts Constitutionally-Protected Speech. Having determined that the first sentence of AS 44.12.320 broadly requires the use of English by all government officers and employees in all government functions and actions at the state and local levels, we next examine whether this mandate impacts rights protected by the Alaska or federal Constitutions. The protections for speech provided by the Alaska and federal Constitutions are numerous and sometimes overlapping, and nearly all of them are relevant to official-English laws. The federal Constitution provides that "Congress shall make no law . abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." The Alaska Constitution provides that "[elvery person may freely speak, write, and publish on all subjects, being responsible for the abuse of that right." The Alaska Constitution also provides that "[the right of the people peaceably to assemble, and to petition the govern ment shall never be abridged." We have previously stated that the Alaska Constitution protects free speech "at least as broad{[ly] as the U.S. Constitution" and "in a more explicit and direct manner." 1. Section .320 controls more than the content of the government's own speech. ACL argues that the OEI has no impact on constitutionally-protected speech because the government can determine the content, form, and manner of its own speech. According to ACL, since the OEI governs only government speech, no individual liberty interests are implicated. In support of this argument, ACL cites four U.S. Supreme Court cases for the proposition that "when the state is the speaker, it may make content-based choices . [because the government may] regulate the content of what is or is not expressed when it is the speaker or when it enlists private entities to convey its own message." ACL argues that under this "state-as-speaker" doctrine, the government's ability to "make value, policy, or content choices for its own speech" is "undisputed." Alakayak acknowledges the state's discretion to control its own speech, but it argues that ACL places more weight on the state-as-speaker doctrine than it can bear. It also disputes ACL's characterization of the OEI as investing a monolithic state government with a single pro-English message conveyed by every public official, employee, and agency at both the state and local levels at all times. First, Alakayak argues that ACL mischar-acterizes the state-as-speaker doctrine, which Alakayak claims has never been extended further than messages communicated by a narrow sector of government (ie., the grantees of a single federally-funded program or a specific class of organization, such as universities ). Alakayak contends that the OEI, by contrast, requires that the "State speak[ ] with a unitary voice through all of its employees and officers at all times," thus "chill{ing] all debate and discussion by public officials, employees, and the public, and . casting] a 'pall of orthodoxy' over our entire system of government and society." Alakayak also argues that the state-as-speaker doctrine would not apply to communications by "all local governments and departments, agencies, divisions, and instrumentalities of local governments," and all their "officers and employees," since they are not typically authorized to speak for the state as its representative, officer, employee, or agent. Second, Alakayak charges that ACL overreaches in characterizing the OEI as a "message." Alakayak argues that the government "messages" that have been upheld by the U.S. Supreme Court in government-as-speaker cases have been narrow and related to a specific objective of a specific government program." Alakayak argues that the OEI's sweeping scope goes far beyond discrete, affirmative steps to advance the goal of promoting the acquisition. of English-language skills, and instead "imposes across-the-board impediments on the ordinary functioning of existing public institutions." Ala-| kayak argues that imposing one message-communication in English-on all state and local government employees distorts the functioning of government entities created to serve entirely unrelated purposes, especially elected bodies, agencies, and schools, in a way never contemplated by the government-as-speaker cases. 'We agree that ACL overstates the scope of the government-as-speaker doctrine. The government actors/speakers in these federal cases were narrowly defined (specific funding grantees, universities ) and the government messages and programs involved were specific (family planning; legal representation for welfare clients ). This presents a marked contrast to the OEI, in which a "message"-that communication must occur in the English language-is to be conveyed by every state and local government official and employee in every single interaction such persons have with the public. While there are undoubtedly numerous highly specific situations in which the state could invoke the state-as-speaker doctrine to justify a requirement that government speech be in English, these situations would represent only a tiny fraction of the total speech that the OEI covers. For example, the state could publish all official government documents in English or require driver licensing examinations to be conducted solely in English; but the OEI requires the use of English in virtually every interaction between Alaska's citizens and their government. ACL's argument, that all speech restricted by the OE1 can be characterized as "government speech" subject to the state-as-speaker doctrine, must fail. While we have not previously been required to articulate the contours of the state-as-speaker doctrine, we cannot conclude that the U.S. Supreme Court intended this doctrine to justify a speech ban affecting every elected official and employee in the legislative and executive branches, all departments and offices of state government, and all subordinate local" governments. Rather, it appears that the state-as-speaker doctrine governs communications made by a defined group of government employees or agents in the pursuit of narrowly-focused policy goals. Accordingly, the OEI cannot be justified as a limit on the government's own speech. 2. Section .320 impacts the speech rights of private citizens and government officers and employees. Having determined that the OEI is not exempt from scrutiny as a regulation of the government's own speech, we must next de termine what speech rights it implicates. For the reasons discussed below, we conclude that the OEI impacts the speech rights of three distinct groups: non-English speaking citizens who seek to participate in public life, elected officials, and public employees. a. Section .320 impacts the recipient speech rights of non-English speaking citizens and their right to petition the government. Alakayak and Kritz argue that the OEI infringes the recipient speech rights of Alaska citizens. Recipient speech rights are predicated on the idea that the First Amendment ensures "public access to discussion, debate, and the dissemination of information and ideas." As such, "the Constitution protects the right to receive information and ideas," because this is "a necessary predicate to the recipient's meaningful exercise of his own rights of speech, press and political freedom." Protection of recipient speech rights was a primary reason that the Arizona and Oklahoma Supreme Courts and the Ninth Cireuit struck down the English-only laws in Arizona and Oklahoma. In all three cases, the courts found that the laws impacted the recipient speech rights of citizens with limited English proficiency by preventing them from communicating with bilingual employees who would have been otherwise able and willing to provide them with information about the government. The supreme courts of Arizona and Oklahoma also held that the prohibition constituted an infringement of the right of citizens to petition the government. While those courts were careful to clarify that their decisions in no way conferred a right to multilingual services, they all suggested the importance of a citizen's right to meaningfully receive important information that a government employee was able and willing to provide at no cost to the state. As the Ninth Cireuit stated: [TIhere is no claim of an affirmative right to compel the state to provide multilingual information, but instead only a claim of a negative right: that the state cannot, consistent with the First Amendment, gag the employees currently providing members of the public with information and thereby effectively preclude large numbers of persons from receiving information that they have previously received.! " Alakayak urges us to find the OEI unconstitutional on similar grounds because, it asserts, information about government is essential to full participation in civic life, and there are many bilingual or multilingual employees who could willingly provide this information if they were allowed to do so. Alakayak and Kritz also argue that the OET restricts the ability of Alaska's citizens to petition their government, a right protected both by the First Amendment to the federal constitution and by article I, section 6 of the Alaska Constitution." Alakayak reasons that because the OEI forbids govern ment employees from communicating in languages other than English, non-English speakers will face impediments to the full exercise of their right to seek redress for their grievances or even to communicate effectively with government officials. Such obstacles could arise when a non-English speaking citizen attempts to communicate with an elected official or government employee in a language other than English, but the government agent is required to respond in English, even if the agent is conversant in the other language, and even if it is clear that the citizen will not understand what is being communicated. ACL does not address the argument that the OEI restricts the right to petition the government. Rather, it objects to appel-lees' recipient rights analysis because, it claims, these rights exist only if there is a "willing speaker," which, it asserts, by virtue of the OEI, the state is not." According to ACL, because the law requires government officials and employees to communicate only in English, there is no speaker willing to speak in another language to give rise to a recipient's right to receive a message. ACL's argument is not persuasive. The trial court's factual findings contain numerous examples of the ways in which multi-lingual government officials and employees assist and provide information to non-English speaking citizens in the course of performing their jobs. For example, Henry Alakayak, a member of the city council and local community school committee in Ma-nokotak, regularly uses Yupik in the course of his government duties to assist his village and constituents; several educators indicated that they would not be able to perform their jobs properly if they could not use other languages to communicate with students and parents; and an employee of the Alaska State Ferry System communicates with both co-workers and passengers in Spanish,. The pleadings and affidavits submitted by appel-lees offer numerous additional examples of such behavior. No court has held that a government is constitutionally required to provide services to its citizens in a language other than English, and we intimate no such requirement. But it is an altogether different matter whether government may constitutionally prohibit the use of other languages by government employees who are capable and willing to provide services in such languages. A similar sentiment was expressed by Judge Brunetti in his concurrence in Ymiguez: While I feel there may be some tension between the public interest in receiving Yniguez's public services in Spanish as described by the majority, and our prior cases which hold that there is no right to receive government services in a language other than English, our holding today does not conflict with those prior cases.... As the majority carefully describes, we are only considering the interest of the public in receiving speech when govern ment employees exercise their right to utter such speech, and we do not create an independently enforceable public right to receive information in another language. " We agree with Kritz and Alakayak that the OEI adversely affects the recipient speech rights of Alaska citizens with limited English proficiency, and that it impedes their ability to effectively petition the government. b. Section .320 impacts the speech rights of legislators and other elected officials. The right of elected officials to speak freely and to communicate with their constituents is firmly grounded in constitutional law. In Bond v. Floyd the U.S. Supreme Court held that "[the manifest function of the First Amendment in a representative government requires that legislators be given the widest latitude to express their views on issues of policy." The Court explicitly rejected the argument that the First Amendment protects only free debate about government among citizens, noting that legislators have an obligation to speak about controversial issues to inform and fully represent their constituents. Four justices of this court reached a similar conclusion in finding that the First Amendment protects the right of the governor to write and speak to answer his detractors. The Arizona Supreme Court and the Ninth Cireuit struck down the Arizona English-only law in part because it infringed upon the free-speech rights of legislators. The superior court ruled similarly in this case. Alaska Statute 44.12.340(a)(11) provides a limited exception to the English-only requirement: It allows elected officials and their staffs to communicate orally with their constituents in a language other than English if the speakers are already proficient in the language used. But this exception for oral communication does not allow legislators to exercise their full speech rights to speak with each other in a language other than English, or even to communicate with their constituents if the elected officials are not already proficient in that language; in these respects it violates Bond v. Floyd. Moreover, it violates Thoma v. Hickel by restricting the ability of elected officials and their staffs to communicate in writing. ACL does not address Bond, but it argues that Thoma is irrelevant because, under ACL's "official/unofficial" construction, the OEI touches no protected speech. We have already rejected ACL's contention that the OEI governs only the most formal written acts of government; as discussed in Part TV.A.2., this argument is wholly unsupported by the text of the initiative or the materials presented to the electorate. Because the OEI limits the ability of public officials to communicate with each other or their constituents in a language other than English, we hold that it infringes upon their right to speak freely and to fully represent their constituents. c. Section .320 impacts the speech rights of public employees. In Wickwire v. State we analyzed the speech rights of Alaska's public employees using the test articulated by the U.S. Supreme Court in Pickering v. Board of Education of Township High School District 205, Will County, Ilinois. The Pickering test assumes that employees have speech rights, and it analyzes speech-related employment decisions by balancing "the interests of the [employeel, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." In contrast to the speech of citizens on matters of public concern, speech by a government employee on matters of only personal interest is generally not thought to enjoy First Amendment protection. ACL reasons that when a government employee exercises his or her free-speech rights, he or she speaks "as a citizen" and not as an employee; therefore such speech is the employee's private speech, which is specifically excepted from the reach of the OEI in AS 44.12.370. According to ACL, because the OEI requires officials and employees to speak only in English when conducting the business of government, it implicates only government speech. Effectively, this argument reduces to the claim that since the government as employer can control the content of its own speech, and since the OEI requires the government to speak in English, the OEI implicates no private speech. We disagree with ACL's reasoning. As we noted in Part IV.B.1., the OEI governs more than merely the government's own speech. And a broad ex ante prohibition on communication runs afoul of our prior construction of Pickering. We have previously noted the difficulty 'of predicting in advance what types of employee speech will turn out to be protected, stating that "[dJue to the wide variety of situations in which public employee free speech issues may arise, the [Pickering] court expressly declined to establish a general standard against which the statements of all public employees could be judged"; rather, Pickering articulates a balancing test that is applied on a case-by-case basis. In addition, Alaska law is more protective of employee speech than is federal law. Shortly after the U.S. Supreme Court in Conmick v. Myers rejected a public employee's claim that she was fired for commenting on a matter of public concern, and instead characterized her speech as an "employee grievance concerning internal office policy," we stated that: [We believe it appropriate to construe the "public concern" criteria broadly to encompass speech on a wide range of subjects. From a public policy standpoint, it makes sense to encourage employee speech about the operations of government since employees often are in the best position to offer informed opinions. Our reading of Conmick suggests that there may be instances where we would find that certain speech addressed a matter of public concern and was protected under Alaska's Constitution even though a federal claim might yield a contrary result." Alaska constitutional law posits that a public employee's speech on matters of public concern may indeed be most valuable when contributed by an employee as an employee; it does not recognize a strict division between the speaker as citizen and as employee. Because ACL concedes that the intent of the OEI is to restrict the speech of public employees as public employees, we conclude that the OEI implicates employee speech rights. The Ninth Circuit reached a similar conclusion in Ymigues, a case in which the named plaintiff was a bilingual state employee who feared disciplinary action if she continued to communicate in Spanish with Spanish-speaking clients" The Ninth Circuit acknowledged that the employee's claims did not fit easily into the Pickering/Conmick "citizen speech vs. employee speech" framework, precisely because the same speech in Spanish that was of great concern to non-English-speaking members of the public was also the speech that constituted the performance of the employee's official duties" As the Ninth Cireuit explained, The employee speech banned by the [Arizona amendment] is unquestionably of public import. It pertains to the provision of governmental services and information. Unless that speech is delivered in a form that the intended recipients can comprehend, they are likely to be deprived of much needed data as well as of substantial public and private benefts We agree that a wholesale prohibition on speech in languages other than English by all state and local government employees creates an untenable risk of preventing employees from speaking freely on matters of public concern. To the extent that the OEI bars elected officials and public employees from helping citizens secure available services and participate fully in civic life, it touches upon matters of public concern. Having determined that the OEI infringes upon protected speech, we turn next to whether this infringement may be upheld. C. The OEI Is Not Narrowly Tailored To Serve a Compelling State Interest. Having determined that a provision of the OEI impacts the speech rights of the public, of elected officials, and of public employees, we next address whether the act survives constitutional serutiny. This is a multi-part inquiry. First, we consider Row the OEI impacts protected speech, for this will tell us the level of serutiny to which the law must be subjected. Next, we identify and evaluate the government's interest in prescribing the use of English in communications between government and its constituents. Finally, we determine how closely the means chosen by the OEI fit the ends served by the law. 1. The OEI is subject to strict seruti-ny. How the OEI impacts protected speech determines the state's burden in upholding the law's constitutionality. ACL argues that the OEI affects only the form and not the content of government speech, and that it affects neither the form nor content of citizen speech. Alakayak and Kritz respond that the OEI constitutes a content- and viewpoint-based restriction, as well as a prior restraint, both in its parts and as a whole. The latitude accorded the government to regulate speech depends upon several factors, including the cireumstances involved and the nature of the speech. But because "the principle of content neutrality [is] at the core of First Amendment analysis," we begin with this issue. It is exceedingly rare that any law restricting speech based on its content or viewpoint will be upheld, for the United States Supreme Court has stated that "[clontent-based regulations are presumptively invalid." Such restrictions are subject to the strictest seruti-ny, and "only a regulation which impinges on the right to speak and associate to the least possible degree consistent with the achievement of the state's legitimate goals will pass constitutional muster." 'Restrictions that are content-neutral, on the other hand, are subject to intermediate serutiny, which means that they are "valid provided that they are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information." But even a content-neutral restriction will be subject to strict scrutiny if it imposes a prior restraint on speech. "A prior restraint is an official restriction imposed upon speech or other forms of expression in advance of actual publication." This stands in contrast to a punishment imposed after a communication has been made." Both the federal and Alaska Constitutions look with disfavor on broad-based prior restraint rules that forbid public employees from engaging in wide categories of speech, whether related to their official duties or not; such restraints bear a heavy presumption against their constitutionality because of their chilling effect on potentially protected speech." Laws prohibiting communication in languages other than English are difficult to categorize. We can readily agree with the Ninth Cireuit that such a restriction affects more than conduct, because "[s)peech in any language is still speech, and the decision to speak in another language is a decision involving speech alone." But the question whether a law specifying that only one language may be spoken should be classified as content-based is a closer one. The OEI does not present the classic example of a content-based restriction, such as a prohibition on political protest based upon the viewpoint represented or a restriction on sexually explicit television programming." But clearly such a restriction affects more than the form of speech. Communication begins with language, and a non-English-speaking Alaskan could be absolutely precluded from speaking or otherwise communicating with the government by the OEI. As the Arizona Supreme Court noted when confronted with a similar question, a law forcing communication only in English bars communication itself; such a restriction cannot be content-neutral because that designation, "by definition, and require[s] the availability of alternative means of communication." Thus, like the Arizona Court, we conclude that the OEI is a content-based restriction on language." But the precise label we attach to the law for analytical purposes is not critical when viewed in light of the OEI's sweeping impact. The OEI prohibits speech itself: It defines a broad category of speech-speech in languages other than English-and simply forbids it. If all government communications must be in English, some voices will be silenced, some ideas will remain unspoken, and some ideas will remain unchallenged. Such a requirement harms "society as a whole, which is deprived of an uninhibited marketplace of ideas." "Complete speech bans, unlike content-neutral restrictions on time, place, or manner of expression, are particularly dangerous because they all but foreclose alternative means of disseminating certain information." Such a restriction violates the core values protected by the First Amendment and article I, section 5 of the Alaska Constitution. Because the OEI literally restricts speech itself-both oral and written communications in languages other than English-it must overcome a significant hurdle to justify its constitutionality.' Specifically, to withstand constitutional serutiny the OEI must be narrowly tailored to achieve a compelling government interest. We thus turn to the question whether the State of Alaska has a compelling interest in forbidding the use of languages other than English in the conduct of all government activities. 2. The interests underlying the OEI are compelling. The purpose of the OEI is described in AS 44.12.300, which states: The people of the State of Alaska find that English is the common unifying language of the State of Alaska and the United States of America, and declare a compelling interest in promoting, preserving and strengthening its use. ACL argues that the OEI also serves the goal of "promoting unity among Alaskans with diverse backgrounds through a common language" and of "empower[ing]" Alaska's non-English-speaking population with knowledge of the English language. ACL further claims that the OEI promotes efficiency by limiting "the growth of government services in multiple languages, thereby conserving limited public resources." ACL argues that while some might believe, as did the superior court, that "laws about language don't accomplish much," such a belief "does not provide a constitutional basis to disparage the purposes of the Act as suspect or illegitimate, still less to reject them a priori as ineffective." Ap-pellees do not address whether the state's interests in the challenged legislation are compelling. Courts have historically found a broad range of governmental interests to be compelling. During one recent term alone, the United States Supreme Court acknowledged as compelling the government's interests in promoting racial diversity in education, its interest in protecting children from pornography, and its interest in ensuring fair elections. And this court, in turn, has recently found that the state had a compelling interest in protecting juveniles and curbing juvenile crime, in maintaining order in its jails, and in regulating campaign finance. Turning to the specific governmental interests involved in this case, courts have recognized the importance of promoting linguistic unity in a diverse society and of helping non-native English speakers to acquire English language skills. As the Supreme Court of Arizona noted in Ruiz, "in our diverse society the importance of establishing common bonds and a. common language between citizens is clear." That court went on to say, "We recognize that the acquisition of English language skills is important in our society." The importance of English language literacy has been recognized by the United States Congress through legislation regarding naturalization and instruction in English as a second language. And the United States Supreme Court, in a recent decision on access to educational opportunities, noted that "[elffective participation by members of all racial and ethnic groups in the civic life of our Nation is essential if the dream of one Nation, indivisible, is to be realized." We conclude that the OEI's stated purposes of "promoting, preserving and strengthening" the use of English, encouraging the acquisition of English-language proficiency, and increasing the efficiency of government, are, as stated in the OEI itself, compelling interests. Accordingly, we turn to the question whether the state can achieve its objective through less restrictive means. 3. The OEI is not sufficiently narrowly tailored to achieve its ends. We have held that in order for a law to survive strict serutiny, it must be narrowly tailored to promote a compelling governmental interest and be the least restrictive means available to vindicate that interest. The government is constrained by how it may pursue its valid objectives: "[Tlhe means chosen to accomplish the [government's] asserted purpose must be specifically and narrowly framed to accomplish that purpose." Accordingly, we look to the enumerated goals of the OEI and we consider whether the means employed to reach them are the least restrictive available to do so. The OET's first enumerated goal is "promoting, preserving and strengthening the use of English." The means chosen, prohibiting the use of other languages in most instances, is considerably broader than other available alternatives. For example, the state could create and fund programs promoting English as a second language. The goal of arming non-English speakers with knowledge of English could directly be achieved by teaching English to non-English speakers. The goal of conserving public resources by limiting the use of other languages could be achieved by legislation that clearly relieves the state of the responsibility of providing services in languages other than English. We conclude that the prohibition on the use of all languages other than English in the conduct of all levels of government in Alaska is not the least restrictive means available to meet the valid interests of the OEL Indeed, not only is the OEI insufficiently narrowly tailored to pass constitutional muster, but the methods it employs in support of its admirable goals may be of questionable efficacy. While the statement in support of the ballot measure noted that "[wle need to help people learn English," the OEI does not create or expand programs to teach English to non-English speakers, but merely creates an incentive to learn English by making it more difficult for people to interact with their government. Nor does it appear that the OEI will increase efficiency if it prohibits the cost-free use of a language other than English by government officials and public employees. . ACL argued below that it was unnecessary to make provisions for English-language education since other state laws address general and bilingual education. Instead, ACL explained, "the very purpose of AS 44.12.8320 and the Law generally is to encourage English-learning by sending a clear message to the public, and by preventing the government from discouraging English-learning by unchecked expansion of non-English services." In Meyer v. State of Nebraska, the U.S. Supreme Court held that goals similar to the OET's were insufficient to justify a law forbidding schools from teaching foreign languages before the eighth grade. That the state may do much, go very far, indeed, in order to improve the quality of its citizens, physically, mentally and morally, is clear; . but this cannot be coerced by methods which conflict with the Constitution-a desirable end cannot be promoted by prohibited means." Because the OEI attempts to coerce its lawful objectives by methods that conflict with the core protections of the United States and Alaska Constitutions, the law cannot withstand constitutional serutiny. There are less restrictive ways to promote civic unity and to promote, preserve, and strengthen the use of English. We therefore conclude that ACL has not met its burden of justifying the resulting restrictions on the free speech rights of government officers and employees and the recipients of their speech, and on the rights of citizens to petition their government. D. The Unconstitutional Provisions Can Be Severed. Having decided that the OEI unconstitutionally infringes upon the speech rights of government officials and employees, and that it limits Alaskans' ability to participate fully in public life, we must next determine if the law can be saved by severing any unconstitutional provisions. After oral argument, and in light of our initial reservations about the constitutionality of the OEIT's broad reach, we asked the parties to submit additional briefing on whether any potentially unconstitutional provisions of the OEI could be severed. Our review of the parties' helpful briefing on severance has convinced us that the unconstitutional provision of the initiative-the first sentence of AS 44.12.320-may be severed from the remainder of the initiative and that the remainder should be preserved under the standards established by our precedents. A proper measure of respect for lawmaking by the people through the initiative process requires that only those portions of initiated laws that are unconstitutional should be struck down. We have previously held that striking the whole of an initiative "rather than excising the invalid portion would place an unwarranted constriction on the rights of the people to express their will by popular vote." This is especially true where, as in this case, the initiative contains a severability clause requiring that only offending portions be stricken and that the rest of the law be retained. But severance, as distinct from striking down an initiative in its entirety, is only permissible when established standards are satisfied. 'In answering whether this is an appropriate case for severance, we first consider the various severance tests we have used in past cases and determine the proper standard for a statute that has been enacted through the initiative process. We then determine whether the initiative in this case, as redacted, meets those standards. 1. Lynden Transport is the test for severability of enacted measures, whatever their source. We originally established standards for determining whether a statute is severable in Lynden Transport, Inc. v. State In that case, we considered a statute that had been enacted by the legislature. The Lynden Transport test asks (1) whether "legal effect can be given" to the severed statute and (2) if "the legislature intended the provision to stand" in the event other provisions were struck down. But neither party in this case looks to Lynden Transport for the test for severance. ACL urges that we use the test articulated in McAlpine v: University of Alaska and most recently applied in Alaska Action Center v. Municipality of Anchorage in determining severability, and the Alakayak appel- lees assume its applicability. In those cases, we were faced with initiative proposals that had not yet been voted upon by the electorate. The McAlpine test is substantially similar to the Lynden Transport test except in that it also requires us to look to the "spirit of the measure." We have never had the occasion to determine whether the standard applied in McAlpine and Alaska Action Center for the pre-election review of an initiative should also apply to an initiative after it has been approved by the voters. In other words, we have not decided which sev-erability test to apply to enacted initiatives. We conclude that there is no compelling reason to apply a different severability analysis to statutes enacted by the people from those enacted by the legislature. Thus, there is no reason that McAlpine should apply to enacted initiatives. Whether a statute was enacted by vote of the legislature or vote of the people, the risk involved in severing a statute is that an erroneous judicial reading of the intent of those who enacted the statute will result in a statute that no one wanted. While this risk is real, it is not qualitatively different for a statute enacted by the legislature and one enacted by the voters. Thus, there is no need for a different test. Several other states treat statutes the same for the purposes of severability regardless of the manner in which the statute was enacted. For example, the California Supreme Court has stated that, in matters of severability, "we can discern no meaningful distinctions between statutes 'enacted' by the people and statutes enacted by the Legislature." Likewise the Washington Supreme Court has stated that it "interpret[s] initiatives based on the same rules of construction we apply to statutes passed by the legislature." For these reasons, we conclude that the proper test to apply in determining severability of the EOI is that set out in Lynden Transport. We turn now to application of that test. 2. The redacted initiative satisfies the test for severability. a. The severability clause places the burden on the challengers to show that the Lynden Transport test is not satisfied. At the outset it is important to note the consequences of the voters' approval of the severability clause in the initiative, AS 44.12.390. The severability clause places on those challenging the statute the burden of showing that the Lynden Transport test is not satisfied by a redaction. In Lynden Transport we adopted with approval the following language of the United States Supreme Court: In the absence of [a severability clause], the presumption is that the Legislature intends an act to be effective as an entirety-that is to say, the rule is against the mutilation of a statute; and if any provision be unconstitutional, the presumption is that the remaining provisions fall with it. The effect of the [severability clause] is to reverse this presumption in favor of inseparability, and create the opposite one of separability. [In the absence of a sever-ability clause], the burden is upon the supporter of the legislation to show the separability of the provisions involved. [In the presence of a severability clause], the burden is shifted to the assailant to show their inseparability . [With a severability clause], the presumption must be overcome by considerations which establish "the clear probability that the invalid part being eliminated the Legislature would not have been satisfied with what remains." The emphasis was added by the Lynden court. We applied this rule in Kenai Peninsula Borough School District v. Kenai Peninsula Borough School District Classified Association, where we held that the opponents to a school board collective bargaining ordinance had not shown that the school board "would not have enacted the constitutional portions, had it known that two restrictions would be found unconstitutional." One justice disagreed with this conclusion but nonetheless agreed with the placement and expression of the burden under a statutory severability clause, concluding "that the record establishes the 'clear probability' that the board 'would not have been satisfied ." Thus, our analysis begins with the understanding that the burden is on the challengers to show that the voters did not intend the remaining provisions to be given effect. b. The remaining provisions of the initiative can be given legal effect. The first part of the Lynden Transport test for severability, determining whether "legal effect can be given" to the remaining provisions of the statute, requires us to examine whether the severed statute requires action or if it is merely a statement of public policy. This is a relatively low threshold test that merely requires an enforceable command to implement the law. So, for instance, a statute reduced to the statement that English is the official language of the State of Alaska could not be given legal effect because it would be only a statement of public policy. On the other hand, a statute that required the use of English in all official public documents and records could be given legal effect since it would require action by government officials and employees. As noted above the OEI must be redacted by severing the first sentence of AS 44,12.320. Thus limited, it would still require that English "be used in the prepara tion of all official public documents and records, including all documents officially compiled, published or recorded by the government." This mandate is consistent with the OEI's purpose of promoting English as the "common unifying language" of Alaskans. Moreover, it would require action on the part of "the legislative and executive branches of the State of Alaska and all political subdivisions," and it could be enforced through a private right of action. Contrary to the suggestion of the dissent, this court does not hold that severance "is justified because the . second sentence of section .820 . still serves a useful purpose." Rather, the redacted section imposes a substantial obligation on the part of state and local governments, and it reflects the complete scheme that several states have enacted to accomplish their purposes. The first part of the Lynden Transport test-if, "standing alone, legal effect can be given to" the provisions that remain after severance of an invalid provision -is clearly met here. c. The voters intended the remaining parts of the statute to stand. The second part of 'the Lynden Transport severability test asks whether the voters "intended the provision to stand" in the event that portions of it were struck down. As we noted in Sonneman v. Hickel, "[the key question is whether the portion remaining, once the offending portion of the statute is severed, is independent and complete in itself so that it may be presumed that the [voters] would have enacted the valid parts without the invalid part." We answer this question in the affirmative. First, as discussed above, the initiative contains a severability section: "The provisions of [the act] are independent and severa-ble, and if any provision . shall be held to be invalid by a court of competent jurisdiction, the remainder . shall not be affected and shall be given effect to the fullest extent practicable." In other words, the voters have told us that they did intend the remaining provision to stand in the event that por tions of the initiative were struck. We dealt with a similar provision in State v. Alaska Civil Liberties Union, where in reference to a severability clause built into a campaign financing reform act we stated: "The Act contains a severability clause. Its imelusion indicates that the legislature intended the remainder of the Act to stand if part of it were invalidated." This conclusion is buoyed by our analysis of the overarching purposes of the initiative: unification of our diverse state. In attempting to make English the official language of the state of Alaska, the initiative proceeds on the assuniption that a common language is thought to exert a unifying foree. As the statement in support noted: "Like our flag, the pledge of allegiance, and our national anthem, English as our official language is our symbol. These symbols remind Americans and Alaskans of every race, religion, and background of what we all have in common." The initiative, as redacted, continues to reflect the voters' belief in the unifying force of a common language and their intent that provisions establishing a common language be upheld "to the fullest extent practl— cable." Moreover, the voters had the benefit of the sponsors' statement in the election pamphlet, and it is clear that the sponsors of the initiative-who drafted the severability clause-favored preservation of the constitutional provisions of the initiative. Alaskans for a Common Language has filed a supplemental brief so indicating: To the extent this court may now conclude that certain provisions, such as the first sentence of AS 41[44].12.820, might otherwise give rise to an unintended unconstitutional application of the act, ACL respectfully submits that both the Initiative itself and this Court's precedents require that any such provision should be severed. Such severance, rather than invalidation of the act, would give effect to the meaning of the Initiative as set forth in the Act and its stated purposes as adopted by the voters. The intent and desire of the sponsors, is therefore clear. And apart from the voters' indication of intent in the severability clause, we do know that the initiative was well received. It passed with the approval of more than sixty-eight percent of the voters. It is difficult to construct an argument as to why a version of the initiative shorn of the unconstitutional provisions but still establishing English as the official language of the state and requiring that English be used in all official documents and records would be any less favorably received. The opponents of the initiative before this court have not attempted to make a case as to why this might be so. They have thus failed to meet their burden of showing, by a clear probability, that the voters would not have supported the initiative as redacted. We conclude that the initiative is severa-ble, because (1) the remaining provisions can be given legal effect and (2) the voters intended that they be given effect. The requirement that the government use English in official documents can be given legal effect and is enforceable. Indeed, as noted, many official English acts in other states are limited to similar provisions. The initiative's challengers have not met their burden of showing the "clear probability" that severance was not intended by the voters. The presumption in favor of severability leads us to conclude that the voters intended that, if a court were to strike the first sentence of AS 44.12.8320, the second sentence of that section should stand. E. The Remaining OEI Provisions Must Be Construed Narrowly. In this opinion we have decided the constitutionality of the principle provision of the OEI, AS 44.12.320, striking the first sentence of that section but upholding the second sentence. Because the remaining provisions of the OEI relate to section .320, our holdings as to the constitutionality of that section have implications for the remainder of the OEI. Some provisions may be rendered superfluous or hortatory. Others may present similar constitutional concerns to the ones we thus far have considered. As such the parties may desire that we analyze and parse each line of the OEI in a search for a definitive constitutional ruling on each. We are mindful, however, that the case comes to us as a facial challenge to the statute. In such cases it is our practice to reserve as many questions for as-applied challenges as possible, in keeping with the legislative policy stated in AS 01.10.0830: Any law heretofore or hereafter enacted by the Alaska legislature which lacks a severability clause shall be construed as though it contained the clause in the following language: "If any provision of this Act, or the application thereof to any person or cireumstance is held invalid, the remainder of this Act and the application to other persons or cireumstances shall not be affected thereby." This provision further animates our decision to sever the unconstitutional provision of the OEI rather than invalidate the entire act. We have consistently severed laws rather than invalidating them when construing this general severability clause. The presence of a specific severability provision in the OEI only strengthens our conclusion in this regard. When we consider the facial invalidity of a statute, we require the party seeking to invalidate the statute to bear the burden of demonstrating the necessity of invalidation. Similarly, a party seeking to invalidate a statute in whole rather than in part bears the burden of demonstrating the unconstitutionality of the entire act. We do not believe that the appellees have met this burden as to the remainder of the OEI We are further bolstered in our inclination not to consider each of the other sections of the OEI at this time by the state's apparent willingness to implement the OEI with clarifying regulations, including a regulation to clarify that the second sentence of AS 44.12.8320 does not prohibit oral communication between state employees and the public in languages other than English Any further consideration of the OEI we leave to as-applied challenges, confident that setting out the relevant interpretive principles in this opinion as a guide will assist the parties and the courts to resolve such challenges. v. CONCLUSION Because a portion of the Official English Initiative-the first sentence of AS 44.12.320-violates the federal and Alaska constitutional rights to free speech and to petition the government, we hold that the Official English Initiative is unconstitutional as enacted. Because, however, the unconstitutional provision is severable from the initiative, and the remainder of the section is capable of a constitutional construction, we uphold the constitutionality of the second sentence of AS 44.12.320. We find it unnee-essary at this time to consider in greater dépth other sections of the law, other than to note that, in the event of a future challenge, they must be construed narrowly if possible to avoid unconstitutionality. We thus AFFIRM in part, and REVERSE in part, the judgment of the superior court. . 'The wording of the initiative summary was the subject of a 1998 lawsuit by ACL against then-Lieutenant Governor Fran Ulmer. See Alaskans for a Common Language, Inc. v. Kritz, 3 P.3d 906, 910 (Alaska 2000) (describing history of passage of OEI). Ulmer prevailed. Id. The quoted excerpt reflects in part the information provided to the voters at the time of the election. . Auaska Const. art. XL, § 1. The law-making powers granted to the people are similar to those assigned to the legislature. See Araska Const art. XIL, § 11. . Alaskans for a Common Language, Inc., 3 P.3d at 910. . Id. at 910 & n. 8. . Id. at 913-14. . Id. at 916. . Yniguez v. Arizonans for Official English, 69 F.3d 920, 936 (9th Cir.1995) (en banc), vacated as moot sub nom. Arizonans for Official English v. Arizona, 520 U.S. 43, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997). . Alaska Const. art. I, § 5 provides: "Every person may freely speak, write, and publish on all subjects, being responsible for the abuse of that right." The court also observed that the OEI would likely be found to violate the First Amendment of the U.S. Constitution, but determined it to be unnecessary to reach this issue in light of its decision that the initiative violated the rights guaranteed to elected officials under the Alaska Constitution. . State, Dep't of Revenue v. Andrade, 23 P.3d 58, 65 (Alaska 2001). . Alaska Gen. Alarm, Inc. v. Grinnell, 1 P.3d 98, 100 (Alaska 2000) (quoting Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979)). . Sopko v. Dowell Schlumberger, Inc., 21 P.3d 1265, 1269 (Alaska 2001). . Id. (quoting Wright v. State, 824 P.2d 718, 720 (Alaska 1992)). . Id. . Ala Const amend. 509; Ark.Code Ann. § 1-4-117 (1987); Cal. Const. art. II, § 6; Colo. Const. art. II, § 30a; Fla. Const. art II, § 9; Ga.Code Ann. § 50-3-100 (1996); Haw. Const. art. XV, § 4 (also designating Hawaiian as official language); 5 Ill. Come. Star. 460/20 (1991); Inp.Copz. § 1-2-10-1 (1984); Towa Cope Arm. § 1.18 (West 2002); KyRev.Star. Ann. § 2.013 (1984); Miss.Copz Ann § 3-3-31 (1987); Mo. Ann. Stat. § 1.028 (West 1999); Mownt.Cope. Aww. § 1-1-510 (1995); Nes. Const. Art. 1, § 27; NH.Rev.Star Ann § 3-C:1 (1995); N.C. Gen.Smr § 145-12 (1987) ND. CEnt.Copne § 54-02-13 (1987); S.C.Cope Ann. § 1-1-696 (1987); S.D. Coptrien Laws Ann. § 1-27-20 to 1-27-26 (1995); Tenm.Cope Ann. § 4-1-404 (1984); Urax Cope Ax. §'63—13—1.5 (2000); Va. CopE Ann. § 7.1-42 (1996); Wyo. Stat. Ann. § 8-6-101 (1996). . See, eg., Ark.Code Ann. § 1-4-117 (1987); Inp. Cope § 1-2-10-1 (1984) KyRevSnar Amn. § 2.013 (1984); N.C. Gen.Smar § 145-12 (1987); ND. CentCops § 54-02-13 (1987); S$.C.Cope Ann. § 1-1-696 (1987). . See, e.g., N.H.Rev.Smt. Amn. § 3-C:1 (1995); S.D. Codified Laws Ann. § 1-27-20 (1995); Tenn. Cope Ann. § 4-1-404 (1984). . See, e.g., Wyo. Stat. Ann. § 8-6-101 (1996). . See Ariz. Const. art. XXVIII, This provision was struck down first by the Ninth Circuit, Yniguez v. Arizonans for Official English, 69 F.3d 920, 924 (9th Cir.1995) (en banc), vacated as moot sub nom. Arizonans for Official English v. Arizona, 520 U.S. 43, 117 S.Ct 1055, 137 L.Ed.2d 170 (1997), and then by the Arizona Supreme Court. Ruiz v. Hull, 191 Ariz. 441, 957 P.2d 984, 987 (1998). . See In re Initiative Petition No. 366, 46 P.3d 123, 129-30 (Okla.2002) (text of proposed initia tive). The petition was invalidated by the Oklahoma Supreme Court prior to placement on the ballot because the court determined that the petition would be unable to survive a constitutional attack. Id. at 125. . See Ariz. Const. art. XXVII; In re Initiative Petition No. 366, 46 P.3d at 129-30 (text of proposed initiative); AS 44.12.300-.390. . Ruiz, 957 P.2d at 994 (quoting Michele Arington, Note, English Only Laws and Direct Legislation: The Battle in the States Over Language Minority Rights, 7 J.L. & Pol. 325, 337 (1991)). . Id. at 997-98, 1002. . Yniguez, 69 F.3d at 932 (quoting Ariz. Const. art. XXVIII, § 2). . In re Initiative Petition No. 366, 46 P.3d at 129. . Id. at 127. . State, Dep't of Revenue v. Andrade, 23 P.3d 58, 71 (Alaska 2001) (quoting Kimoktoak v. State, 584 P.2d 25, 31 (Alaska 1978) (citations omitted) (explaining that "the legislature, like the courts, is pledged to support the state and federal constitutions and that the courts, therefore, should presume that the legislature sought to act within constitutional limits")). . Id. (quoting Baxley v. State, 958 P.2d 422, 428 (Alaska 1998)). . State v. Campbell, 536 P.2d 105, 111 (Alaska 1975), overruled on other grounds by Kimoktoak v. State, 584 P.2d 25, 31 (Alaska 1978); see also Gottschalk v. State, 575 P.2d 289, 296 (Alaska 1978) (to imply into statute what is not apparent on its face "would be stepping over the line of interpretation and engaging in legislation"). . See, e.g., Falcon v. Alaska Pub. Offices Comm'n, 570 P.2d 469, 472 n. 6 (to construe initiative passed by voters, court will look to published arguments for indication of voter intent) (citing State v. Lewis, 559 P.2d 630, 637-38 (Alaska 1977)). . State v. Alex, 646 P.2d 203, 208 n. 4 (Alaska 1982) (discussing origin of Alaska's "sliding scale approach" to statutory interpretation, in which plain language of statute is considered in light of 'any accompanying indications of legislative intent). . Beck v. Dep't of Transp. & Pub. Facilities, 837 P.2d 105, 117 (Alaska 1992). In addition, in situations in which "the legislative purpose can be ascertained with reasonable certainty, the maxims of construction . are secondary to the rule that a statute should be construed in light of its purpose." Id. . Id. at 116-17. . State v. Alaska State Employees Ass'n/AFSCME Local 52, 923 P.2d 18, 23 (Alaska 1996) (quoting Univ. of Alaska v. Geistauts, 666 P.2d 424, 428 n. 5 (Alaska 1983)). . See Falcon, 570 P.2d at 472 n. 6 (citing Lewis, 559 P.2d at 637-38 (Alaska)). . See Alaska State Employees Ass'n/AFSCME Local 52, 923 P.2d at 24 (refusing to accord weight to stated personal intentions of legislation sponsor that did not reflect content of law as enacted). . Cf. Hickel v. Halford, 872 P.2d 171, 177-81 (Alaska 1994) (attempting to construe term "administrative proceeding" as used in amendment to Alaska Constitution by looking at language of provision, purpose of amendment, statement in support of amendment published in voter pamphlet, and language used in related statutory provisions}. . Cf. Falcon, 570 P.2d at 472 n. 6. . ACL objected to the language of the summary, arguing that it incorrectly presented the initiative's enumerated exceptions as exclusive, and that it did not explicitly indicate that the use of Native languages would be protected by the Native American Languages Act (NALA). See Alaskans for a Common Language v. Kritz, 3 P.3d 906, 909 (Alaska 2000). Lieutenant Governor Ulmer amended the language describing the exceptions, but her decision not to reference NALA was upheld by the superior court. Id. at 910. . 191 Ariz. 441, 957 P.2d 984 (1998). . Id. at 992. . Unlike the OEI, the Arizona amendment applied to the judicial branch as well as the legislature and the executive. See Ariz Const. art. XXVII, § 1(3)(a)(i). . Ariz. Const. art. XXVIII, § 1(2). . Ariz Const. art. XXVII, § 1(3)(a)(iv). . Ariz. Const. art. XXVIII, § 3(1) provides in relevant part: Except as provided in subsection (2): (a) This State and all political subdivisions of this State shall act in English and in no other language. (c) No governmental document shall be valid, effective or enforceable unless it is in the English language. . Ruiz v. Hull, 191 Ariz. 441, 957 P.2d 984, 992 (1998). . Id. at 993. . Id. (Emphases in original.) . 46 P.3d 123 (Okla.2002). . Id. at 127. . Id. . Id. . State, Alaska Hous. Fin. Corp. v. Employees Ass'n/AFSCME Local 52, 923 P.2d 18, 23 (Alaska 1996). . State, Dep't of Revenue v. Andrade, 23 P.3d 58, 71 (Alaska 2001). . Bonjour v. Bonjour, 592 P.2d 1233, 1237 (Alaska 1979). As we observed in that case: Statutes validly enacted by the legislature come to this court with a presumption of constitutionality. If constitutional issues are raised, we have a duty to construe the statute, where it is reasonable to do so, to avoid dangers of unconstitutionality. Larson v. State, 564 P.2d 365, 372 (Alaska 1977); Hoffman v. State, 404 P.2d 644, 646 (Alaska 1965). Where a narrow construction of a statute will avoid constitutional infirmity without doing violence to the manifest legislative intent, we will interpret the statute accordingly. Gottschalk v. State, 575 P.2d 289, 296 (Alaska 1978); State v. Campbell, 536 P.2d 105, 110-11 (Alaska 1975); State v. Martin, 532 P.2d 316, 321 (Alaska 1975). If a statute is susceptible of no reasonable construction avoiding constitutional problems, this court is under a duty to nullify the statute or, if possible, the particular provision found offensive to the constitution. Campbell, 536 P.2d at 110-11. The separation of powers doctrine prohibits us from enacting legislation or redrafting patently defective statutes. Id. at 111; Gottschalk, 575 P.2d at 296. . Gottschalk, 575 P.2d at 296 (court cannot "step[] over the line of interpretation and en-gagle] in legislation"). . U.S. Const. amend. I. . Araska Const. art. I, § 5. . Araska Const. art. I, § 6. . Vogler v. Miller, 651 P.2d 1, 3 (Alaska 1982). . Messerli v. State, 626 P.2d 81, 83 (Alaska 1980). . Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 121 S.Ct. 1043, 149 L.Ed.2d 63 (2001); Bd. of Regents of the Univ. of Wis. Sys. v. Southworth, 529 U.S. 217, 120 S.Ct. 1346, 146 L.Ed.2d 193 (2000); Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995); Rust v. Sullivan, 500 U.S. 173, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991). . E.g., Rosenberger, 515 U.S. at 832, 115 S.Ct. 2510 (citing Widmar v. Vincent, 454 U.S. 263, 276, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981) and Rust, 500 U.S. at 194, 111 S.Ct. 1759). . E.g., Rust, 500 U.S. at 193, 111 S.Ct. 1759 (upholding restriction on federal funding for family planning services). . Southworth, 529 U.S. at 229, 120 S.Ct. 1346; Rosenberger, 515 U.S. at 833, 115 S.Ct. 2510. . Keyishian v. Bd. of Regents of the Univ. of State of New York, 385 U.S. 589, 603, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967). . AS 44.12.330. . See, e.g., Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995) (when government disburses funds to private entities to convey its message, it may regulate its own message, but governmental speech was not implicated by state university's decision to fund independent student newspa pers, so state could not refuse to fund newspaper with religious content); Rust v. Sullivan, 500 U.S. 173, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991) (federal government may prevent federally-funded family planning programs from discussing abortion with clients if government wishes to promote pregnancy prevention and childbirth as opposed to abortion}. . Rust, 500 U.S. at 193, 111 S.Ct. 1759. . Bd. of Regents of the Univ. of Wis. Sys. v. Southworth, 529 U.S. 217, 120 S.Ct. 1346, 146 L.Ed.2d 193 (2000). . Rust, 500 U.S. at 193, 111 S.Ct. 1759. . Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 540-42, 121 S.Ct. 1043, 149 L.Ed.2d 63 (2001). . This is especially true of local governments, because they are not merely mouthpieces of the state. See Alaska Const. art. X, § 1 (providing for maximum local self-government and liberal construction of powers of local government); Araska Const. art. X, § 11 (home rule borough may exercise all legislative powers not prohibited by law or by charter). While Alaska at one time adhered to the "local activity rule," in which the ordinance of a municipality could conceivably trump a state statute if the subject matter was traditionally considered one of purely local concern, see Municipality of Anchorage v. Repasky, 34 P.3d 302, 321 (Alaska 2001) (Bryner, J., dissenting); Chugach Elec. Assoc. v. City of Anchorage, 476 P.2d 115, 122 (Alaska 1970), even today, local ordinances that conflict with statutes will be upheld unless they are "substantially irreconcilable" with state law. Repasky, 34 P.3d at 321-22 (Bryner, J., dissenting). These principles indicate that while the state government is unquestionably superior, local governments often speak on their own behalf and are not merely "branch offices" that speak on behalf of the state when so ordered. . First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765, 783, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978). See also Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 756, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976) ("where a [willing] speaker exists, the protection afforded is to the communication, to its source and to its recipients both"). . Stanley v. Georgia, 394 U.S. 557, 564, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969). . Bd. of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853, 867, 102 S.Ct. 2799, 73 L.Ed.2d 435 (1982) (emphasis in original). . Yniguez v. Arizonans for Official English, 69 F.3d 920, 940-41 (9th Cir.1995) (en banc), vacated as moot sub nom. Arizonans for Official English v. Arizona, 520 U.S. 43, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997); Ruiz v. Hull, 191 Ariz. 441, 957 P.2d 984, 997 (1998); In re Initiative Petition No. 366, 46 P.3d 123, 127 (Okla.2002). . Yniguez, 69 F.3d at 940-42; Ruiz, 957 P.2d at 997-98; Petition No. 366, 46 P.3d at 127-28. . Ruiz, 957 P.2d at 997-98; Petition No. 366, 46 P.3d at 127-28. . Yniguez, 69 F.3d at 936-37; Ruiz, 957 P.2d at 1002-03; Petition No. 366, 46 P.3d at 129. . Yniguez, 69 F.3d at 936-37. . U.S. Const. amend. I ("Congress shall make no law . abridging . the right of the people . to petition the Government for a redress of grievances."); Alaska Const art. I, § 6 ('The right of the people . to petition the government shall never be abridged."). . A person has a right to hear speech only if there is a willing speaker. See Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 756, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976). . Id. . For instance, Manuel Macedo, a middle school teacher, often communicates in Spanish with his students and their parents; James Gil-man, a citizen, receives information from state workers regarding benefit programs in Yupik; Leo and Ruthie Beaver receive information about their daughter's education from her teachers in Yup'ik; and Minnie Mark, a city coordinator/clerk for the City of Quinhagak, translates for city officials and members of the public doing business with the city both in individual encounters and during public meetings. Similarly, Peter Lockuk, Sr., a land planner for the City of Togiak, interacts with citizens in Yup'ik, and Kirk Kenrud, the supervisor of the city's Shop & Road Maintenance Department, explains repairs and prepares invoices for non-English-speaking citizens in Yup'ik. . Numerous federal and state courts have addressed this issue and none has held that such a policy is constitutionally required. See, e.g., Toure v. U.S., 24 F.3d 444, 446 (2d Cir.1994); Soberal-Perez v. Heckler, 717 F.2d 36, 41-44 (2d Cir.1983); Frontera v. Sindell, 522 F.2d 1215, 1220 (6th Cir.1975); Carmona v. Sheffield, 475 F.2d 738, 739 (9th Cir.1973); Jara v. Mun. Court for the San Antonio Judicial Dist. of Los Angeles County, 21 Cal.3d 181, 145 Cal.Rptr. 847, 578 P.2d 94, 96-97 (1978); Guerrero v. Carleson, 9 Cal.3d 808, 109 Cal.Rptr. 201, 512 P.2d 833, 838-39 (1973). . 69 F.3d 920, 957 (9th Cir.1995) (en banc) (Brunetti, J., concurring) {emphasis in original), vacated as moot sub nom. Arizonans for Official English v. Arizona, 520 U.S. 43, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997). . 385 U.S. 116, 87 S.Ct. 339, 17 L.Ed.2d 235 (1966). . Id. at 135-36, 87 S.Ct. 339. . Id. at 136-37, 87 S.Ct. 339. . Thoma v. Hickel, 947 P.2d 816, 821 (Alaska 1997) (Matthews, J. & Eastaugh, J., concurring) (governor entitled under First Amendment to respond to critical speech), 826 (Carpeneti, J., dissenting in part, with whom Rabinowitz, J., joined) (governor entitled under First Amendment to respond to critical speech, but not to access confidential public safety criminal database to gather information about critic). . Yniguez v. Arizonans for Official English, 69 F.3d 920, 940-41 (9th Cir.1995] (en banc), vacated as moot sub nom. Arizonans for Official English v. Arizona, 520 U.S. 43, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997); Ruiz v. Hull, 191 Ariz. 441, 957 P.2d 984, 998 (1998). . Alaska Const. art. II, § 6 provides that "(legislators may not be held to answer before any other tribunal for any statement made in the exercise of their legislative duties while the legislature is in session." This protects neither statements made while the legislature is not in session nor communications with constituents not immediately connected with legislation. See Schultz v. Sundberg, 759 F.2d 714, 717 (9th Cir.1985) (Alaska Constitution requires protected activity to (1) be integral part of committee or house proceedings and (2) address proposed legislation or some other topic within legislature's constitutional jurisdiction}. . 385 U.S. 116, 135-36, 87 S.Ct. 339, 17 L.Ed.2d 235 (1966). . See Thoma, 947 P.2d at 821, 826. . 725 P.2d 695, 700 (Alaska 1986). . 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). . State v. Haley, 687 P.2d 305, 311 (Alaska 1984) (quoting Pickering, 391 U.S. at 568, 88 S.Ct. 1731). . Wickwire, 725 P.2d at 702 (citing Connick v. Myers, 461 U.S. 138, 147, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983)). . This section provides that: the OEI "shall not be construed in any way that infringes upon the rights of persons to use languages other than English in activities or functions conducted solely in the private sector, and the government may not restrict the use of language other than English in such private activities or functions." . City & Borough of Sitka v. Swanner, 649 P.2d 940, 943 (Alaska 1982) (construing Pickering, 391 U.S. at 568, 88 S.Ct. 1731). . Id. . 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). . Id. at 154, 103 S.Ct. 1684. . Wickwire v. State, 725 P.2d 695, 703 (Alaska 1986). . Yniguez v. Arizonans for Official English, 69 F.3d 920, 924-25, 940 (9th Cir.1995) (en banc), vacated as moot sub nom. Arizonans for Official English v. Arizona, 520 U.S. 43, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997). . Id. at 939-40. . Id. at 940. . We note that the dissent in Yniguez conceded that the English-only law in Arizona "makes it harder for many Arizonans to receive government services. A successful challenge might be raised by those whose ability to deal with their government is thereby impaired." Id. at 963 (Kozinski, J., dissenting). . See, e.g., Marks v. City of Anchorage, 500 P.2d 644, 647 (Alaska 1972) (listing instances in which speech can be restricted on basis of circumstances involved and type of speech at issue, for example, fighting words, obscenity, and speech in courtroom while court is in session). . Erwin Chemerinsky, Content Neutrality as a Central Problem of Freedom of Speech: Problems in the Supreme Court's Application, 74 So. Cal. L.Rev. 49, 55 (2000). See Turner Broadcast Sys., Inc. v. F.C.C., 512 U.S. 622, 642, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994)("At the heart of the First Amendment lies the principle that each person should decide for himself or herself the ideas and beliefs deserving expression, consideration and adherence." Consequently, "the First Amendment . does not countenance government control over the content of messages expressed by private individuals.") (citing R.A.V. v. City of St. Paul, 505 U.S. 377, 382-83, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992)). See also Texas v. Johnson, 491 U.S. 397, 414, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989) ("Nor may the government, we have held, compel conduct that would evince respect for the flag. 'To sustain the compulsory flag salute we are required to say that a Bill of Rights which guards the individual's right to speak his own 'mind, left it open to public authorities to compel him to utter what is not in his mind.' "). (Citation omitted.) . R.A.V., 505 U.S. at 382, 112 S.Ct. 2538. . Vogler v. Miller, 651 P.2d 1, 5 (Alaska 1982). See also Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753, 761, 115 S.Ct. 2440, 132 L.Ed.2d 650 (1995) (reciting federal rule that state "may regulate expressive content only if such a restriction is necessary, and narrowly drawn, to serve a compelling state interest") (emphasis in original). . Clark v. Comty. for Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984). . See, e.g., Org. for a Better Austin v. Keefe, 402 U.S. 415, 419, 91 S.Ct. 1575, 29 L.Ed.2d 1 (1971). . State v. Haley, 687 P.2d 305, 315 (Alaska 1984) (citing Emerson, The Doctrine of Prior Restraint, 20 Law & Contemp. Pross. at 648 (1955)). . Id. . U.S. v. Nat'l Treasury Employees Union, 513 U.S. 454, 467-68 & n. 11, 115 S.Ct. 1003, 130 L.Ed.2d 964 (1995); Haley, 687 P.2d at 315. . Yniguez v. Arizonans for Official English, 69 F.3d 920, 936 (9th Cir.1995) (en banc), vacated as moot sub nom. Arizonans for Official English v. Arizona, 520 U.S. 43, 117 S.Ct 1055, 137 L.Ed.2d 170 (1997). . See, e.g., Boos v. Barry, 485 U.S. 312, 108 S.Ct. 1157, 99 L.Ed.2d 333 (1988). . See, e.g., U.S. v. Playboy Entm't Group, Inc., 529 U.S. 803, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000). . Ruiz v. Hull, 191 Ariz. 441, 957 P.2d 984, 998 (1998). . Id. at 999. . Virginia v. Hicks, 539 U.S. 113, 119, 123 S.Ct. 2191, 156 L.Ed.2d 148 (2003). . Ruiz, 957 P.2d at 999 (quoting 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 501, 116 S.Ct. 1495, 134 L.Ed.2d 711 (1996)). . Police Dep't of Chicago v. Mosley, 408 U.S. 92, 101, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972) ("statutes affecting First Amendment interests [must be] narrowly tailored to their legitimate objectives"); cf. State, Dep't of Health & Soc. Servs. v. Planned Parenthood of Alaska, Inc., 28 P.3d 904, 909 (Alaska 2001) ("if 'the objective degree to which the challenged legislation tends to deter [exercise of constitutional rights]' is significant, the regulation cannot survive constitutional challenge unless it serves a compelling state interest") (citation omitted). . Mosley, 408 U.S. at 101, 92 S.Ct. 2286; Planned Parenthood, 28 P.3d at 909. . Because we characterize the OEI as a direct prohibition on speech, it is unnecessary to consider the question whether the law also acts as a prior restraint on speech. We note that the superior court did not reach this issue. . Grutter v. Bollinger, 539 U.S. 306, 123 S.Ct. 2325, 156 L.Ed.2d 304 (2003). . Ashcroft v. Am. Civil Liberties Union, 542 U.S. 656, 124 S.Ct. 2783, 159 L.Ed.2d 690 (2004). . McConnell v. Fed. Election Comm'n, 540 U.S. 93, 124 S.Ct. 619, 157 L.Ed.2d 491 (2003). . Treacy v. Municipality of Anchorage, 91 P.3d 252 (Alaska 2004). . Larson v. Cooper, 90 P.3d 125 (Alaska 2004). . State v. Alaska Civil Liberties Union, 978 P.2d 597 (Alaska 1999). . See, e.g., Yniguez v. Arizonans for Official English, 69 F.3d 920, 923 (9th Cir.1995) (en banc), vacated as moot sub nom. Arizonans for Official English v. Arizona, 520 U.S. 43, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997). . See, e.g., Ruiz v. Hull, 191 Ariz. 441, 957 P.2d 984, 990 (1998). . Id. . Id. . See id. (discussing naturalization legislation, Equal Education Opportunity Act, and Immigration Reform and Control Act). . Grutter v. Bollinger, 539 U.S. 306, 332, 123 S.Ct. 2325, 156 L.Ed.2d 304 (2003). . AS 44.12.300. . E.g., U.S. v. Playboy Entm't Group, Inc., 529 U.S. 803, 804, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000); State v. Alaska Civil Liberties Union, 978 P.2d 597, 603 (Alaska 1999). . Grutter, 539 U.S. at 333, 123 S.Ct. 2325 (quoting Shaw v. Hunt, 517 U.S. 899, 908, 116 S.Ct. 1894, 135 L.Ed.2d 207 (1996)). . AS 44.12.300. . "Learning English empowers people to better jobs and to integrate into Alaskan society.... We need to help people learn English, not discourage them." Statement in Support of Ballot Measure No. 6. . "[This bill will prevent the increased bureaucracy and costs due to offering documents and services in multiple languages.... By making English the official language, we make sure that Alaska will not end up like California, where they offer driver's license exams in 33 languages." Statement in Support of Ballot Measure No. 6. . Amicus the Linguistic Society argues that many of those who are not proficient in English understand the advantages of learning English, and they participate in classes when they are available. . 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923). . Id. at 403, 43 S.Ct. 625 (striking down state law prohibiting teaching of foreign languages). While the Court supported the law's goals of promoting "civic development" and ensuring that the English language should become the "mother tongue" of the state's citizens, it struck down the law as an unconstitutional means to achieve those goals. Id. at 400-03, 43 S.Ct. 625. . Id. at 401, 43 S.Ct. 625. . We were particularly concerned with the first sentence of AS 44.12.320, which states that "[the English language is the language to be used by all public agencies in all government functions and actions." . McAlpine v. Univ. of Alaska, 762 P.2d 81, 94 (Alaska 1988). . AS 44.12.390. See supra at 192-93. . 532 P.2d 700, 713 (Alaska 1975). . Id. at 702. . Id. at 713 (quoting Dorchy v. Kansas, 264 U.S. 286, 290, 44 S.Ct. 323, 68 L.Ed. 686 (1924)). . 762 P.2d 81, 94-95 (Alaska 1988). . 84 P.3d 989 (Alaska 2004). . McAlpine, 762 P.2d at 82. Alaska Action Center, 84 P.3d at 990. . Alaska Action Center, 84 P.3d at 995 (quoting McAlpine, 762 P.2d at 94-95). . There is, however, one slight modification of the Lynden Transport test that must be made in applying it to an approved initiative. Lynden Transport's second part asks whether, following severance, "the legislature intended the provision to stand." Lynden Transp., Inc. v. State, 532 P.2d 700, 713 (Alaska 1975). The McAlpine test asks whether, after the unconstitutional provision of an initiative is removed, it is evident that 'the sponsors and subscribers would prefer the measure to stand as altered, rather than to be invalidated in its entirety." McAlpine, 762 P.2d at 95. This question is appropriate for pre-election severance because the parties with a stake in an initiative prior to an election are the initiative's sponsors and subscribers. As McAlpine notes, direct democracy would be seriously impeded if sponsors and subscribers could not be confident that their proposals would go before the voters. Id. at 92-93. However, after an initiative is enacted, the relevant intent is that of the voters rather than the sponsors and/or subscribers. Thus, for the second prong of the Lyn-den Transport test, we will look to the intent of the voters to determine whether the severed statute can stand on its own. . Santa Barbara Sch. Dist. v. Superior Court, 13 Cal.3d 315, 118 Cal.Rptr. 637, 530 P.2d 605, 618 n. 7 (1975). . Parents Involved in Cmty. Schs. v. Seattle Sch. Dist., No. 1, 149 Wash.2d 660, 72 P.3d 151, 168 (2003); see also Portland Gen. Elec. Co. v. Bureau of Labor & Indus., 317 Or. 606, 859 P.2d 1143, 1145-47 & n. 4 (1993); Abrams v. United States, 531 A.2d 964, 971 (D.C.1987). . The statute provides: Severability. The provisions of AS 44.12.300-44.12.390 are independent and severable, and if any provision of AS 44.12.300-44.12.390, or the applicability of any provision to any person or circumstance, shall be held to be invalid by a court of competent jurisdiction, the remainder of AS 44.12.300-44.12.390 shall not be affected and shall be given effect to the fullest extent practicable. . 532 P.2d at 711-12. 165. Id. at 711-12 (quoting Carter v. Carter Coal Co., 298 U.S. 238, 312, 56 S.Ct. 855, 80 L.Ed. 1160 (1936)) (emphasis added in Lynden Transport). . 590 P.2d 437 (Alaska 1979). . Id. at 442. . Id. at 443 n. 1 (Rabinowitz, J., dissenting). . Lynden Transp., Inc. v. State, 532 P.2d 700, 713 (Alaska 1975). . See McAlpine v. Univ. of Alaska, 762 P.2d 81, 94 (Alaska 1988) (initiatives must be used to enact laws, not statements of public policy). . Id. . The dissent finds fault with this severance, but its concerns are based on a misperception of what this court has done. The dissent mischar-acterizes this court's action as "rewrit[ing] section .320," (Dissent at 215) which leads to "a radically rewritten law' (Dissent at 217) with "a newly declared meaning." (Dissent at 216) In truth, the court simply strikes the first sentence of section .320 and gives to the second sentence of that section its plain meaning. . AS 44.12.320. . AS 44.12.330. . AS 44.12.380. . Dissent at 220. . See, e.g., N.H.Rev.Stat, Anw. § 3-C:1 (1995); S.D. CopiriEp Laws Ann. § 1-27-20 (1995) ("[English] is designated as the language of any official public document or record and any official public meeting."); Tenm.Cope Ann. § 4-1-404 (1984) ("All communications and publications . produced by governmental entities in Tennessee shall be in English."); Wyo. Stat. Ann. § 8-6-101 (1996). . Lynden Transp. Inc. v. State, 532 P.2d 700, 713 (Alaska 1975). . The dissent utterly fails to address the first part of the Lynden Transport test. Instead, it faults the court for failing to focus on the initiative's original intent and purpose. (Dissent at 220) But as noted above, the redacted statute still serves the general purpose of the OEI: It promotes English as the "common unifying language" of Alaskans. The statute, by its own terms, states its purpose as "promoting, preserving and strengthening" the use of English in Alaska, AS 44.12.300, and there is no doubt that the redacted statute still serves this purpose and in so doing tends to promote English as the common language of the state. The dissent argues that the court takes the second sentence of AS 44.12.320 out of context, suggesting that the court fails to consider whether its "interpretation [does] violence to the initiative's original intent and purpose." (Dissent at 220; see also id. at 222 n. 40). But this is clearly not so. The initiative intended to "promot[el, preserv{e] and strengthen[]" the use of the English language. AS 44.12.300. There can be no doubt that the severed statute, in requiring that English be used in all official public documents and records, serves these purposes. Finally, the first part of the Lynden Transport test merely requires a court to determine if legal effect can be given to the remaining provisions. But the dissent, in adopting the challengers' view that the severed provision is "the centerpiece of the initiative," concludes that its deletion somehow impermissibly changes the meaning of what remains. (Dissent at 220) This analysis is wrong, for the remaining statute still promotes and strengthens the use of English in the state, and it goes far beyond the first part of the Lynden Transport test, which asks only whether the remaining provision can be given legal effect. . Lynden Transp., 532 P.2d at 713. . 836 P.2d 936, 941 (Alaska 1992). . AS 44.12.390. . In addition to the voters' adoption of a sever-ability clause in the initiative they enacted, Alaska law contains a general savings clause. Alaska Statute 01.10.030 provides: Any law . enacted by the Alaska legislature which lacks a severability clause shall be construed as though it contained the- clause in the following language "If any provision of this Act . is held invalid, the remainder . shall not be affected thereby. We have previously held that the existence of this general savings clause creates a weak presumption in favor of severability. Lynden Transp., 532 P.2d at 712. But the presumption of severability is stronger where, as here, the statute in question contains a severability clause. Id. . 978 P.2d 597 (Alaska 1999). . Id. at 633 (emphasis added). . AS 44.12.390. . See supra at n. 178 and accompanying text. . See Lynden Transp., Inc. v. State, 532 P.2d 700, 713 (Alaska 1975). . Indeed, the supplemental briefs of ACL and the state have assumed that we would decide the constitutionality of every section of the act. . See, e.g., State v. Alaska Civil Liberties Union, 978 P.2d 597, 633 (Alaska 1999); State v. Kenaitze Indian Tribe, 894 P.2d 632, 639 (Alaska 1995); State v. Palmer, 882 P.2d 386, 388-89 (Alaska 1994); Sonneman v. Hickel, 836 P.2d 936, 940 (Alaska 1992); McAlpine v. Univ. of Alaska, 762 P.2d 81, 94-95 (Alaska 1988); Lynden Transp., Inc. v. State, 532 P.2d 700, 715 (Alaska 1975). We construe the OEI's specific severability clause in light of this general policy. . AS 44.12.390. . State, Dep't of Revenue v. Andrade, 23 P.3d 58, 71 (Alaska 2001) (citing Baxley v. State, 958 P.2d 422, 428 (Alaska 1998)). . Lynden Transp., 532 P.2d at 711-12. . In light of our discussion of the extent of the English-only requirement imposed by a redacted section .320, see supra at 197-98, and given that the current challenge is a facial one and thus there are limited facts before us, we do not believe that the appellees have established at this time that there is a "realistic danger" that sections .340(a)-(b) and .380 will chill the free exercise of speech. See City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 801, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984) (concluding there must be "realistic danger" statute will significantly compromise First Amendment protections of parties not before court to be facially challenged on overbreadth grounds).

8363982

Clarito VILLAFLORES, Appellant, v. ALASKA STATE COMMISSION FOR HUMAN RIGHTS, Appellee

Villaflores v. Alaska State Commission for Human Rights

2007-11-16

No. S-12309

663

666

170 P.3d 663

170

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T22:55:53.240550+00:00

CAP

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

Clarito VILLAFLORES, Appellant, v. ALASKA STATE COMMISSION FOR HUMAN RIGHTS, Appellee.

Clarito VILLAFLORES, Appellant, v. ALASKA STATE COMMISSION FOR HUMAN RIGHTS, Appellee. No. S-12309. Supreme Court of Alaska. Nov. 16, 2007. Clarito Villaflores, Anchorage, pro se. William E. Milks, Assistant Attorney General, and Talis J. Colberg, Attorney General, Juneau, for Appellee. Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.

1425

9106

OPINION EASTAUGH, Justice. I. INTRODUCTION Clarito Villaflores applied for a job with an Anchorage public utility and was not hired. Villaflores filed a complaint with the Alaska State Commission for Human Rights, alleging that he had been discriminated against based on his age and race. The commission, through staff, determined that Villaflores's complaint was not supported by substantial evidence because the utility hired an applicant of the same race and age class as Villaf-lores, and because Villaflores was not qualified for the job. In seeking reconsideration, Villaflores did not dispute the commission's rulings regarding his race and age discrimination claims, but continued to argue that he was discriminated against and that he was the most qualified applicant. The commission did not reopen his case, and the superior court denied his appeal. Because it is undisputed that the utility hired an applicant of the same race and age class as Villaflores, he failed to make out a prima facie case of discrimination. We therefore affirm. II. FACTS AND PROCEEDINGS Clarito Villaflores applied for a job as a human resources supervisor with Anchorage Water & Wastewater Utility (AWWU) in April 2004. According to AWWU's job posting, the minimum qualifications included a bachelor's degree in human resources or a related field and three years of human resources experience, including one year of experience in conducting investigations or settling grievances. Villaflores was not interviewed, and another applicant was hired. Villaflores then filed a complaint with the Alaska State Commission for Human Rights alleging that he was discriminated against based on his race (Asian) and his age (forty-five). AWWU responded that it had hired an applicant who, like Villaflores, was Asian and over forty years old; that it did not interview Villaflores because he lacked the minimum qualifications for the job; and that the analyst who determined that Villaflores was not qualified did not know Villaflores's age and race. AWWU provided affirmative action data on all of the candidates who applied, as well as copies of the applications filed by Villaflores and the two women who received job offers. The commission's staff determined that Villaflores's complaint was not supported by substantial evidence because the hired applicant was of the same race and age class as Villaflores. Commission staff also seemed to agree with AWWU that Villaflores did not meet the minimum qualifications. The commission closed Villaflores's case. Villaflores asked the commission to reconsider that decision and to reopen his case because, although he no longer disputed "the issues of race and age discrimination," he disputed the commission's ruling that he was unqualified. He did not claim that he was discriminated against based on his membership in a protected group. The commission's executive director declined to reopen his case. Villaflores appealed to the superior court, where he argued that although he was in the same protected class as the hired applicant, he could "still pursue [his] case that [he was] intentionally discriminated against by AWWU based on [his] qualifications and/or credentials." The superior court affirmed the commission's decision to close Villaf-lores's case, concluding that AWWU's minimum requirements and its decision that Vil-laflores was not the most qualified applicant were reasonable. Villaflores appeals pro se. III. DISCUSSION A. Standard of Review We independently review the merits of administrative decisions. "We review an agency's factual findings to determine whether they are supported by substantial evidence." "We review questions of law not involving agency expertise under the substitution of judgment test." B. The Superior Court Did Not Err when It Concluded that Villaflores's Complaint Was Not Supported by Substantial Evidence. Villaflores argues that although there are no issues of race or age discrimination, he is still entitled to legal relief under Millbrook v. IBP, Inc., a case from the Seventh Cireuit Court of Appeals. The commission responds that Villaflores failed to state a prima facie case of discrimination, that his allegations of discrimination were not supported by substantial evidence, and that Millbrook does not support his position. Alaska Statute 18.80.220(a)(1) in pertinent part prohibits employers from discriminating on the basis of a person's race or age. To prove employment discrimination in a case in which there is no direct evidence of discriminatory intent, such as this one, the complaining party must first "establish a pri-ma facie case of discrimination." If the employer has filled the position, the complainant must prove that "(1) the complainant belongs to a protected class; (2) the complainant applied for and was qualified for a job for which the employer was seeking applications; (8) the complainant was rejected despite the complainant's qualifications;" and (4) the employer hired "an individual [who was] not within the same protected class as the complainant." Villaflores's argument seems to assume that he did not need to prove that the utility discriminated against him based on his membership in a protected class. The first element of the prima facie case is evidence that the complainant belongs to a protected class. Villaflores is Asian and was over the age of forty when he applied for the position, so he has established the first element. But the fourth element of his prima facie case required him to show that the person actually hired did not belong to the same protected class (or classes) as the complainant. As the commission argues, the applicant who was hired was also Asian and over the age of forty, so she belonged to the same protected classes as Villaflores. Because Villaflores has failed to make out a prima facie case, the commission did not err when it found that Villaflores's complaint was not supported by substantial evidence, and the superior court did not err when it affirmed this determination. Villaflores argues that he is entitled to prevail under the rule announced in Millbrook. He seems to argue that Millbrook requires an employer to hire the most qualified applicant. We disagree with this reading of the case. The court in Millbrook held that to prevail on a discrimination claim, the employee must establish a prima facie case of discrimination. "[A] jury verdict for the employee {[on a discrimination claim] cannot stand if the jury is simply disagreeing with the company as to who is best qualified." Millbrook extends a great deal of deference to an employer's decisions unless there is "evidence of discrimination beyond the relative qualifications of the candidates." In any event, Millbrook requires a complainant to make out a prima facie discrimination case before qualifications can even be discussed, and Villaflores failed to do so. IV. CONCLUSION Because Villaflores did not make out a prima facie case of discrimination, we AFFIRM. . The utility permitted applicants without these qualifications to substitute pertinent work experience or higher education on a year-for-year basis. . His reconsideration motion stated: "While I do not dispute on the issues of race and age discrimination, the issue at bar is on qualifications." . Raad v. Alaska State Comm'n for Human Rights, 86 P.3d 899, 903 (Alaska 2004) (stating standard of review in employment discrimination case in which Lebanese Muslim woman alleged she was not hired because of national origin, religion, and gender). . Id. . Id. at 903-04. . Millbrook v. IBP, Inc., 280 F.3d 1169, 1184-85 (7th Cir.2002) (entering judgment as a matter of law against black applicant who was not discriminated against because company hired white applicant with better credentials). . Raad, 86 P.3d at 904. . Id. (citing Alaska State Comm'n for Human Rights v. Yellow Cab, 611 P.2d 487, 490 (Alaska 1980) (holding that taxi company illegally discriminated against women by refusing to hire them)). . Id. at 904-05 (citing Yellow Cab, 611 P.2d at 492). . Id. at 904. . Id. at 904-05. . Millbrook, 280 F.3d at 1177. Villaflores argues that we must follow Millbrook under the doctrine of stare decisis. Millbrook is not binding precedent in this case because it involves an interpretation of a federal law, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., not the state law, AS 18.80.220(a)(1), that we construe here. . Millbrook, 280 F.3d at 1178. . Id. (citations omitted). . In Millbrook, the plaintiff made out a prima facie case, and when the employer claimed it hired the most qualified applicant, he argued that his qualifications were superior to those of the person actually hired. Id. at 1174-75.

8212034

Emanual L. ITTA, Appellant, v. STATE of Alaska, Appellee

Itta v. State

2008-09-05

No. A-9873

1013

1016

191 P.3d 1013

191

Pacific Reporter 3d

Alaska Court of Appeals

Alaska

2021-08-10T23:30:04.149797+00:00

CAP

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

Emanual L. ITTA, Appellant, v. STATE of Alaska, Appellee.

Emanual L. ITTA, Appellant, v. STATE of Alaska, Appellee. No. A-9873. Court of Appeals of Alaska. Sept. 5, 2008. George J. Dozier Jr., Eagle River, for the Appellant. Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Col-berg, Attorney General, Juneau, for the Ap-pellee. Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.

1525

9466

OPINION COATS, Chief Judge. Emanuel L. Itta was convicted of assault in the first degree for participating in an assault that seriously injured Ulak Hope Jr. Itta raises two issues on appeal. Itta's first issue arises from the fact that, at trial, the State asked permission to introduce evidence of Itta's other assaultive conduct under Alaska Evidence Rule 404(b)(1). The trial judge, Superior Court Judge Mark I. Wood, ruled (based on the content of the State's case-in-chief) that the probative value of the proposed evidence was outweighed by its potential for unfair prejudice, and thus it would not be admitted. However, Judge Wood stated that if the defense presented a case, he might have to re-evaluate the admissibility of this evidence, depending on the content of the defense case. Itta's attorney pressed Judge Wood for a firm ruling on whether, if Itta testified that he acted in defense of others, the judge would allow the State to introduce evidence of Itta's prior assaultive conduct. Judge Wood repeated that, from what he knew so far, he "would [probably] preclude that evidence." But he told the defense attorney, "[UJntil I hear what your client is going to say, I can't be sure." Itta did not present a defense, so Judge Wood made no further ruling on the admissibility of the other-crimes evidence. In this appeal, Itta argues that Judge Wood was obliged to give him a definitive answer on the admissibility of the other-crimes evidence before Itta decided whether to exercise his right to testify. Itta asserts that Judge Wood infringed his right to testify' when the judge declared that his final answer on this issue would depend on the content of the defense case—thus forcing Itta to make his decision whether to testify without knowing the final resolution of this evidence question. The State, relying on the Alaska Supreme Court's decision in State v. Wickham and this court's decision in Sam v. State, argues that Itta forfeited his right to pursue this issue on appeal when he decided not to testify. But Wickham and Sam are not directly on point. Both Wickham and Sam involved instances where the trial judge issued a firm ruling that the State would be allowed to introduce certain impeachment evidence if the defendant took the stand. Wickham and Sam hold that, if a defendant wishes to appeal this type of ruling (i.ean advance ruling regarding the scope of impeachment), the defendant must take the stand and suffer the impeachment. But in Itta's case, Judge Wood never ruled that the State's other-crimes evidence was admissible or would be admissible if Itta took the stand. Although Itta argues on appeal that Judge Wood should have ruled that the other-crimes evidence would be inadmissible regardless of the content of Itta's testimony, Itta's basic claim in this appeal is that he was entitled to a firm answer on the admissibility of this evidence—regardless of whether that answer was "yes" or "no"—before he made his decision whether to testify. This claim—the assertion that Itta was entitled to demand that Judge Wood issue a final ruling on this matter before Itta made his decision whether to testify—is preserved for appeal. There is nothing speculative about this claim: Itta contends that the error was Judge Wood's refusal to make a final ruling. He argues that a defendant is entitled to know a judge's final decision on the admissibility of evidence before the defendant makes the decision whether to testify. We therefore conclude that Itta is entitled to pursue this claim on appeal. However, we reject Itta's claim on its merits. As this court has repeatedly explained in cases dealing with Evidence Rule 404(b)(1), once the State has identified one or more valid non-propensity purposes for the proposed other-crimes evidence, the question then becomes one of balancing the probative value of the evidence versus its potential for unfair prejudice under Evidence Rule 403. And when a trial judge assesses the probative value of the other-crimes evidence, the judge can properly consider the importance of the evidence toward impeachment of a witness's testimony—including the defendant's own testimony, if the defendant chooses to testify. As the Alaska Supreme Court explained forty years ago, The general rule excludes evidence of prior crimes in a criminal trial because the [admission] of such evidence tends to [produce] confusion of issues, unfair surprise, and undue prejudice. But there are exceptions to the rule. Such evidence may be admissible when it is particularly probative in showing such things as intent, an element in the crime, malice, motive, a system of criminal activity, . or when the defendant has testified and the state seeks to impeach his credibility.[ ] Thus, even though Judge Wood had ruled (based on the content of the State's ease-in-chief) that the State's proposed other-crimes evidence should not be admitted, it was proper for Judge Wood to warn Itta that his ruling on this issue might change, depending on the content of Itta's testimony—because the content of Itta's testimony might alter the balance between the probative value of the evidence and its potential for unfair prejudice. Indeed, the rule that Itta proposes would create grave problems. If trial judges were required to give a defendant definitive rulings on these evidentiary matters before the defendant made the decision whether to take the stand, and if the defendant's testimony truly altered the balance between the probative value of the evidence and its potential for unfair prejudice, then either the trial judge would be powerless to amend the earlier ruling or the defendant could plausibly claim that he was improperly enticed to take the stand. For these reasons, we reject Itta's argument that a trial judge must provide a definite and unalterable answer to the admissibility of other-crimes evidence before a defendant chooses whether to take the stand. Instead, we conclude that Judge Wood acted properly and forthrightly when he informed Itta and the defense attorney that his decision concerning the admissibility of this evidence might change, depending on the content of Itta's testimony. Itta's remaining claim is that the State presented insufficient corroboration of the testimony offered by his accomplices. The major evidence against Itta was the testimony of the other participants in the assault. Alaska Statute 12.45.020 declares that a defendant may not be convicted based on the testimony of an accomplice unless that testimony "is corroborated by other evidence that tends to connect the defendant with the commission of the crime." In Oxenberg v. State, the Alaska Supreme Court interpreted this statute to require sufficient corroborative evidence to induce "in the minds of the jurors a rational belief that the accomplice was speaking the truth when he implicated the defendant in the criminal event." At Itta's trial, Fairbanks Police Officer David Elzey testified that he interviewed Itta following the assault. Itta told Officer Elzey that he was present when Hope was assaulted, and he ultimately admitted participating in the assault by hitting Hope in the chest. Trevor Britain also testified that Itta admitted his participation in the assault. In addition, the State presented evidence that the bottoms of Itta's shoes matched footprints that the police found at the scene of the assault. This evidence was sufficient to corroborate the accomplices' testimony that Itta was a participant in the assault. Itta further contends that this corroborating evidence was insufficient to show that he committed assault in the first degree (as opposed to a lesser degree of assault). Itta argues that, apart from the accomplice testimony, the evidence was insufficient to show that he was criminally responsible for the serious injuries that Hope suffered to his head and face. But as we explained in Brown v. State, "[tjhere is no requirement that every element of an offense testified to by an accomplice be independently corroborated by other evidence." Rather, AS 12.45.020 requires only independent corroboration of the defendant's "connection] . with the commission of the crime." For these reasons, the judgment of the superior court is AFFIRMED. . AS 11.41.200(a). . 796 P.2d 1354 (Alaska 1990). . 842 P.2d 596 (Alaska App.1992). .Wickham, 796 P.2d at 1358; Sam, 842 P.2d at 599. . See, e.g., Kenison v. State, 107 P.3d 335, 344 (Alaska App.2005); Morrow v. State, 80 P.3d 262, 268 (Alaska App.2003); Beaudoin v. State, 57 P.3d 703, 707-08 (Alaska App.2002). . Gargan v. State, 805 P.2d 998, 1003-04 (Alaska App.1991) (other-crimes evidence relevant to impeach a defendant's testimony as to a material issue). See also McIntyre v. State, 934 P.2d 770, 773 (Alaska App.1997); Jansen v. State, 764 P.2d 308, 310-11 (Alaska App.1988); Moor v. State, 709 P.2d 498, 506-07 (Alaska App.1985). . Mead v. State, 445 P.2d 229, 234 (Alaska 1968) (footnotes omitted). . 362 P.2d 893 (Alaska 1961). . Id. at 897. . 693 P.2d 324 (Alaska App.1984). . Id. at 329.

10442549

Ignacio M. ALVARADO, Appellant, v. STATE of Alaska, Appellee

Alvarado v. State

1981-04-17

No. 5133

582

583

626 P.2d 582

626

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T20:56:53.427674+00:00

CAP

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

Ignacio M. ALVARADO, Appellant, v. STATE of Alaska, Appellee.

Ignacio M. ALVARADO, Appellant, v. STATE of Alaska, Appellee. No. 5133. Supreme Court of Alaska. April 17, 1981. Paul J. Nangle, Nangle, Clark & Mimms, Philip P. Weidner, Drathman & Weidner, Anchorage, for appellant. James V. Gould, Asst. Dist. Atty., Larry R. Weeks, Dist. Atty., Anchorage, Wilson L. Condon, Atty. Gen., Juneau, for appellee. Before RABINOWITZ, C. J., CONNOR, BURKE and MATTHEWS, JJ., and DIMOND, Senior Justice.

391

2522

OPINION PER CURIAM. Ignacio M. Alvarado was convicted of two counts of lewd and lascivious acts toward a child, committed in violation of former' AS 11.15.134. He was sentenced to concurrent eight year terms, with three years suspended. In this appeal Alvarado claims that bis sentence is excessive. We are not convinced that the superior court was clearly mistaken. McClain v. State, 519 P.2d 811 (Alaska 1974). Accordingly, Alvarado's sentence is AFFIRMED. RABINOWITZ, C. J., joined by DIMOND, Senior Justice, dissents. COMPTON, J., not participating. . Alvarado, a 48-year-old man, invited two female children, ages 11 and 12, to spend the night with him at a motel. During their stay he showed them pornographic materials, fondled the bare breasts of both children, engaged in an act of cunnilingus with one and had her sit on his pelvic region until he ejaculáted, while the other child watched. While no force was involved, and the children were apparently willing to participate, the serious nature of Alvarado's conduct is obvious.

8952917

Kemone D. RODGERS, Appellant, v. STATE of Alaska, Appellee

Rodgers v. State

2005-04-22

No. A-8841

358

359

111 P.3d 358

111

Pacific Reporter 3d

Alaska Court of Appeals

Alaska

2021-08-10T23:30:11.855759+00:00

CAP

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

Kemone D. RODGERS, Appellant, v. STATE of Alaska, Appellee.

Kemone D. RODGERS, Appellant, v. STATE of Alaska, Appellee. No. A-8841. Court of Appeals of Alaska. April 22, 2005. Bethany P. Spalding, Assistant Public Defender, Fairbanks, and Barbara K. Brink, Public Defender, Anchorage, for the Appellant. Jill S. Kinsley, Assistant District Attorney, Jeffrey A. O’Bryant, District Attorney, Fairbanks, and Gregg D. Renkes, Attorney General, Juneau, for the Appellee. Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.

599

3764

OPINION MANNHEIMER, Judge. A Fairbanks police officer believed that he saw Kemone D. Rodgers run a stop sign, so the officer stopped Rodgers to issue him a citation. This traffic stop ultimately led to Rodgers's convictions for driving under the influence and breath-test refusal. In this appeal, Rodgers argues that the traffic stop was unlawful and that all the ensuing evidence against him should be suppressed. When this issue was litigated in the district court, District Court Judge Winston S. Burbank concluded that Rodgers had, in fact, stopped for the stop sign, and that the officer was mistaken in believing that Rodgers failed to stop. At the same time, however, Judge Burbank found that the officer acted in the good-faith belief that Rodgers ran the stop sign, and the judge further concluded that the officer's belief, although erroneous, was reasonable under the circumstances. For these reasons, Judge Burbank ruled that the officer "was justified in stopping Rodgers for a traffic violation". On appeal, the State argues we should interpret this quoted language as equivalent to a ruling that the officer had reasonable suspicion to stop Rodgers's car. But under the circumstances of this case, "reasonable suspicion" is not enough to justify the traffic stop. In Alaska, investigative stops are governed by the test announced by our supreme court in Coleman v. State, 553 P.2d 40 (Alaska 1976). Under the Coleman test, the police are not allowed to conduct an investigative stop whenever, .they have reasonable suspicion that someone has broken the law. Rather, an investigative stop must be supported by "reasonable suspicion that imminent public danger exists or [that] serious harm to persons or property has recently occurred". Even assuming that the officer had a good-faith and reasonable belief that Rodgers had just run the stop sign, the State never argued — and the district court never found— that the remainder of the Coleman test was satisfied. That is, the State never argued that Rodgers's act of running the stop sign provided reasonable suspicion of the existence of an imminent public danger, or reasonable suspicion that'serious harm to persons or property had recently occurred. The State's failure to prove this component of the Coleman test means that the traffic stop was improper if the officer had only reasonable suspicion that Rodgers ran the stop sign. However, if the officer had probable cause to believe that he had just observed Rodgers run the stop sign, the ensuing traffic stop would be legal. Because we can not tell whether Judge Burbank employed a "probable cause" analysis when he made his ruling, we must remand Rodgers's case to the district court. Judge Burbank shall determine whether the traffic stop was supported by probable cause to believe that Rodgers had just run the stop sign. The judge shall make findings on this issue, and he. shall transmit those findings to this Court within 60 days. The parties shall then have 30 days to file simultaneous memoranda addressing Judge Burbank's findings. After we have received Judge Burbank's findings and the supplemental memoranda of the parties, we shall resume our consideration of this case. . Coleman, 553 P.2d at 46. . See State v. Moran, 667 P.2d 734, 735 (Alaska App.1983).

8362778

STATE of Alaska and Laura Glaiser, Director of the Division of Elections, Appellants, v. Michael I. JEFFERY and Nancy Nolan, Appellees

State v. Jeffery

2007-11-09

No. S-12101

226

249

170 P.3d 226

170

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T22:55:53.240550+00:00

CAP

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

STATE of Alaska and Laura Glaiser, Director of the Division of Elections, Appellants, v. Michael I. JEFFERY and Nancy Nolan, Appellees.

STATE of Alaska and Laura Glaiser, Director of the Division of Elections, Appellants, v. Michael I. JEFFERY and Nancy Nolan, Appellees. No. S-12101. Supreme Court of Alaska. Nov. 9, 2007. Joanne M. Grace, Assistant Attorney General, Anchorage, and David W. Mirquez, Attorney General, Juneau, for Appellants. Jonathon A. Katcher, Pope & Katcher, Anchorage, for Appellee Michael I. Jeffery. Eric T. Sanders, Feldman Orlansky & Sanders, Anchorage, for Appellee Naney Nolan. . Before: MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.

13932

90177

OPINION EASTAUGH, Justice. I. INTRODUCTION The question presented here is whether two sitting Alaska judges complied with AS 15.85.070 and .110, which require judges seeking retention in office to file "declarations of candidacy for retention" with the Alaska Division of Elections "no later than August 1." The two judges filed their declaration of candidacy forms after the statutory filing deadline had passed. The Division of Elections determined that both judges were ineligible to stand for retention. The superi- or court ultimately concluded that the division had abused its discretion in making that determination because the judges had substantially complied with the filing requirements. Because we conclude that the division's determination was supported by the facts and had a reasonable basis in law, we reverse and order the judges to vacate their seats within ninety days after this opinion takes effect per Appellate Rule 507(b). It is easy and natural to be sympathetic to the appellees, given both the harshness of the result and the appellees' outstanding ree-ord for public service as judges, but the outcome here is compelled by unambiguous statutes. I. FACTS AND PROCEEDINGS Alaska judges wishing to retain their offices periodically stand for retention. The Alaska Judicial Council (the council) is the agency charged with evaluating judges seeking retention and providing the public with information about those judges. In November 2003 the council began the evaluation process for all possible 2004 retention candidates by sending questionnaires to each of the twelve judges who were potentially required to stand for retention in the 2004 general election. The questionnaires requested certain background information from the judges, such as the types of cases they had handled in the previous term of office and whether they were involved in any legal or disciplinary matters. Both Superior Court Judge Michael I. Jeffery and District Court Judge Naney Nolan promptly returned their completed questionnaires to the council. Two of the other ten judges required to stand for retention in 2004 if they wished to retain their judgeships did not return the questionnaires and informed the council they would not stand for retention. In January 2004 the council began the evaluation process for the ten judges seeking retention, including Judge Jeffery and Judge Nolan. On June 8, 2004 the Division of Elections (the division) asked the council for the mailing addresses of the judicial retention candidates so the division could send them information about the Official Election Pamphlet. The council replied that same day by emailing the division the addresses for the ten judges, including Judge Jeffery and Judge Nolan. The following day, the division sent letters to the ten judges reminding them of the August 7 deadline for submitting their materials for inclusion in the voter pamphlet. The division's letter came in two versions. The version sent to Judge Jeffery and Judge Nolan began with the introductory clause "[allthough you have not yet filed for judicial retention," and then reminded them that "August 1 is the deadline to file for judicial retention." The other version, sent to judges who had already filed for retention, instead stated, "you have filed for retention." In early July the council completed its evaluations of the ten judges, and on July 15 it e-mailed the division its retention and rejection recommendations for inclusion in the election pamphlet. This July 15 e-mail included the council's recommendations regarding both Judge Jeffery and Judge Nolan. Because the council found both judges to be qualified, the council members unanimously recommended that they both be retained. The statutory deadline for filing judicial declarations of candidacy for retention with the division was August 1. Neither judge filed a declaration of candidacy with the division by that date. On August 16 Judge Jeffery wrote a letter to the division requesting an extension of the filing deadline and enclosing his declaration of candidacy form. The letter stated that "I realize these documents are late." He had executed his declaration on August 16. On August 19 Judge Nolan wrote a letter to the division enclosing her declaration of candidacy form. Her letter stated that "[tloday it came to my attention that I failed to timely file the Declaration of Candidacy for the 2004 judicial retention election." She had executed her declaration on August 19. In response, the division informed Judge Jeffery it could not extend the deadline and informed Judge Nolan it would not place her name on the ballot. The two judges then filed separate complaints seeking injunctive and declaratory relief. Each sought and obtained a temporary restraining order and preliminary injunction requiring the division to put their names on the 2004 ballot and to accept their submissions for the election pamphlet. In the November 2004 election both judges were retained by their respective electorates. The judges' cases were consolidated and all parties moved for summary judgment. The superior court concluded that because both judges had substantially complied with the statutory filing requirements the division had abused its discretion in not placing their names on the ballot. The state and the Director of the Division of Elections appeal. III. STANDARD OF REVIEW We review the superior court's grant of summary judgment de novo, drawing all factual inferences in favor of, and viewing the facts in the light most favorable to, the non-prevailing party. Questions regarding the interpretation and application of a statute are questions of law to which we apply our independent judgment. If the question of law involves agency expertise, however, we will apply the rational basis test and defer to the agency's interpretation as long as it is supported by the facts and has a reasonable basis in law. A "statutory construction adopted by those responsible for administering a statute should not be overruled in the absence of weighty reasons." We interpret the Alaska Constitution and the Alaska Statutes "according to reason, practicality, and common sense, taking into account the plain meaning and purpose of the law as well as the intent of the drafters." IV. DISCUSSION A. Judge Jeffery and Judge Nolan Did Not File Declarations of Candidacy by the Statutory Deadline. Alaska Statute 15.85.070 provides: "[elach judge seeking retention in office shall file with the director a declaration of candidacy for retention no later than August 1 before the general election at which approval or rejection is requisite." Alaska Statute 15.35.110 provides: "[elach district judge seeking retention in office shall file with the director a declaration of candidacy for retention no later than August 1 before the general election at which approval or rejection is requisite." The "director" means the "director of elections." The Division of Elections concluded that Judge Jeffery failed to comply with AS 15.35.070 and that Judge Nolan failed to comply with AS 15.35.110. The question here is whether that conclusion is correct. The judges raise two main arguments on appeal. First, they argue that they strictly, and not just substantially, complied with the August 1 filing deadline by virtue of the June 8 and July 15 communications between the council and the division. Alternatively, they argue that we should apply the substantial compliance standard to judicial retention election filing deadlines and hold that they substantially complied with the August 1 deadline when they filed their declaration of candidacy forms in mid-August. We address these arguments in turn. 1. The June 8 and July 15 communications between the council and the division were not the judges' declarations of candidacy. The superior court found that both judges failed to "supply the Division with a formal statement declaring their candidacy." It nevertheless concluded that the judges met their statutory filing obligation because "Itlhe documents filed with the Division in the context of the judges' performance of other mandatory acts constituted" substantial compliance with the requirements of AS 15.35.070 and .110. On appeal Judge Jeffery and Judge Nolan do not argue that the two communications the council sent to the division on June 8 and July 15 merely substantially complied with the statutory requirements; they instead argue that those communications strictly complied with the statutory requirements. They argue that because the Election Code, Title 15 of the Alaska Statutes, does not define "declaration of candidacy," we must interpret that phrase in accordance with its commonsense meaning. They argue further that the June 8 and July 15 communications between the council and the division qualify as declarations of candidacy under this commonsense definition because the communications "clearly relayed to the Division the fact that these judges had told the Council that they personally had declared their candidacy for retention." Their argument contains two contentions. First, that the judges "unambiguously declared their candidacy" to the council by completing the council's questionnaire. Second, that in its June 8 and July 15 e-mails, the council "unambiguously advised the Division that [Judge Jeffery and Judge Nolan] had stated their intent to stand for retention." The judges reason that the council's two communications are "declarations of candidacy" because each communication contained all the requisite information. The Judiciary Article of the Alaska Constitution specifies that every superior court judge shall be subject to a retention vote in the first general election held more than three years after appointment and every sixth year thereafter. It also states that a superior court judge's office becomes vacant ninety days after an election for which the judge fails to file a "declaration of candidacy" to succeed himself or herself. The framers of the constitution left the "details of such declaration such as its form and the time limits for its filing" to the legislature. In response, the legislature established identical requirements for declarations of candidacy at every level of the judicial system: each judge must "file with the director [of the division] a declaration of candidacy for retention no later than August 1 before the general election at which approval or rejection is requisite." The legislature only authorized the division to place on the ballot the names of judges who "properly filed a declaration of candidacy for retention." But other than requiring judges to designate the district in which they will seek retention, the statutes are silent with regard to what substance a filing must have to be considered a judge's "declaration of candidaCy." That the legislature provided little guidance to the division as to whether a given communication qualifies as a "declaration of candidacy" necessarily grants the division a certain degree of discretion in making that determination. In other words, whether a given filing satisfies the statutory requirement that each judge file with the director a declaration of candidacy is a question that involves the division's expertise. We will defer to an agency's interpretation of a question of law that involves agency expertise so long as the interpretation is supported by the facts and has a reasonable basis in law. Here, the division did not consider the June 8 or -July 15 communications by the council to be the judges' declarations. of candidacy. The judges argue and the superior court concluded that this was an abuse of the division's discretion. But because its determination was supported by the facts and had a reasonable basis in law, the division is entitled to deference for both its interpretation of the constitution and the applicable statutes and for its application of the law to the cireumstances presented in this case. As Judge Jeffery and Judge Nolan observe, the Election Code does not define the term "declaration of candidacy." Because these words have not "acquired a peeu-lar meaning, by virtue of statutory definition or judicial construction, they are to be construed in accordance with their common usage." Black's Law Dictionary defines a declaration as "[al] formal statement, proclamation, or announcement, [especially] one embodied in an instrument." Webster's Dictionary similarly defines a declaration as "a formal statement; proclamation." Further, the Election Code refers to the declaration as something that each judge shall "file," which Black's Law Dictionary defines as a verb meaning "[to deliver a legal document to the court clerk or record custodian for placement into the official record." The division contends that the phrase "declaration of candidacy" refers to a document that, at a minimum, must "contain a personal, affirmative declaration of the judge to be a candidate." We defer to this definition because it comports with common usage of the terms "file" and "declaration." The superior court's conclusion that both judges failed to "supply the Division with a formal statement declaring their candidacy," if correct, would therefore be fatal to the judges' argument that they filed "declarations of candidacy." The superior court's conclusion in this regard appears to be supported by the evidence. The two documents that the judges claim qualify as their declarations are an emailed address list of judges sent by the council to the division on June 8 and the council's recommendations regarding the ten judges (some of whom had already filed their declarations of candidacy with the division), sent on July 15. Neither communication expressly declared that either Judge Jeffery or Judge Nolan held a present intent to stand for retention. Neither communication indicated that it was being made for the purpose of conveying any such intent or for the purpose of satisfying AS 15.85.070 and AS 15.35.110. Neither communication referred to the declaration statutes at all, and the July 15 e-mail referred instead to the "Council's contribution to the voter pamphlet," a subject governed by a different statute and a different deadline. Neither communication indicated that the council was discharging any duty imposed on either judge to communicate with the division, or that the judges had given the council permission to do so. The council's purpose for the communications was most obviously to satisfy the council's own constitutional and statutory obligations; nothing implied a purpose of satisfying the candidates' own obligations to the division. And if the council had actually also intended to satisfy the declaration statutes, one would expect the council's communications to have expressly invoked the declaration statutes and mimicked the operative statutory language. The meticulous care the council took in informing these judges of their duty to file a declaration with the division by August 1 is inconsistent with reading the two communications to be those declarations. The division's determination that the judges failed to file declarations of candidacy is a reasonable interpretation of the constitu tional and statutory requirements and is supported by the facts. It was therefore error for the superior court to conclude that the division abused its discretion in determining that the council's two communications did not qualify as the judges' declarations of candidacy. To the extent the judges and the dissent seem to argue that the judges "declared" their candidacies by responding to the council's evaluation in November 2003, we are unpersuaded. The controlling statutes require that the declarations be filed with the division of elections, not with the judicial council. We are also unconvinced by the dissent's contention that the council's evaluations can be considered to be declarations of candidacy and that "since the Council is obligated by law to act on and inform the Division of the judge's declaration, a judge who submits an official declaration of candidacy to the Council meets the burden of making an affirmative declaration no less effectively than by submitting it directly to the Division." First, it fruitlessly confuses the inquiry, and the relevant terminology, to say that a judge submitted a "declaration" to the council. A response to the questionnaire is no "declaration" within the meaning of the controlling statutes. Nothing requires or permits a judge to submit a "declaration" of any sort to the council, much less a declaration satisfying the two declaration statutes at issue here. Moreover, because we hold in Part IV.A2 that AS 15.35.070 and AS 15.35.110 require strict compliance, even if we assume that the council could satisfy the declaration statutes, it certainly could do so only if it indeed filed a "declaration" satisfying the division, and presumably only after the judges gave it authority to do so. The council, by performing its own specified duties, has no implicit or explicit incidental authority or responsibility to convey declarations of candidacy to the division. And, as we will see in the next part of our discussion, there is no evidence in this case contemporaneous with the filing deadline that suggests the candidates had given the council authority to declare their candidacies, or that they thought the council's communications with the division had relieved them of their duty to file declarations of candidacy with the division. 2. Strict compliance with the filing deadline is required. The judges also argue that, even if we hold that the June 8 and July 15 communications did not satisfy the statutory requirements, we should affirm the superior court on the alternative ground that judicial retention candidates need only substantially comply with election filing deadlines. The judges argue that strict compliance is only appropriate with regard to non-judicial candidates because they have to supply much more information than their judicial counterparts, presumably because information about judges is already available in the public ree-ords. They also point out that strict compliance is justified in the political arena because it prevents potential "gamesmanship," by which a candidate could otherwise wait until the last minute to decide to run after first seeing who else filed. This concern does not carry over to judicial retention elections because judicial candidates are unopposed. The judges substantially complied with the August 1 deadline, they argue, when they filed their declaration of candidacy forms with the division in mid-August. The judges argue that those filings substantially complied with the deadline because the division "was not hampered in its preparations for the election" since the council had previously provided the necessary information. Further, they contend that although their mid-August filings were after the deadline, they were filed "comfortably before the Division's deadlines for printing ballots and election pamphlets." "[Where the election statutes fix a date for filing petitions or certificates of candidacy, such documents must be filed before the expiration of the time fixed, and [the] election officials may not exercise any discretion in the matter." In Falke v. State we stated that it is "well established, both in Alaska and in other jurisdictions, that election law filing deadlines are to be strictly enforced. Strict compliance is the rule, and substantial compliance the rare exception." Because filing dates are mandatory, "substantial compliance is not sufficient, absent substantial confusion or 'impossibility.' Thus far we have permitted substantial compliance with an election filing deadline in only one case. In Silides v. Thomas, the candidate did not strictly comply with the deadline for filing his financial disclosure statement. 'We held that the election statutes that required Silides to simultaneously file his financial disclosure statement in Anchorage and his declaration of candidacy in Juneau were inherently unclear and impossible to comply with. Because of the "lack of clarity inherent in" the statute and "the impossibility of compliance," we departed from the "normally salutary doctrine that election deadlines must be strictly construed and strictly enforced" and held that substantial compliance was sufficient. In Division of Elections v. Johnstone, we did not rely on a substantial compliance theory, but we allowed Judge Johnstone to remain on the bench even though he failed to file his declaration of candidacy by the deadline. We excused Judge Johnstone's failure to timely file his declaration of candidacy because we concluded that the Alaska Constitution was ambiguous with regard to when he was required to stand for retention. Judge John-stone was not given any special treatment, however, because of his status as a judge. He was effectively given the same treatment as Silides, a non-judge. In both Silides and Johnstone, we did not require strict compliance. But in both cases we held that statutory or constitutional ambiguity, and not a candidate's oversight, justified departure from the strict compliance standard. Because the August 1 declaration deadlines cannot reasonably be considered ambiguous or impossible to comply with, there is no justification for departing from the strict compliance standard here. The dissent may reason that the statutory retention process was confusing or that the statutes were somehow ambiguous. There is no ambiguity in the clear language of AS 15.85.070 or AS 15.85.110 or in any of the procedures. There is no basis for importing a substantial compliance factor into their text. As confirmation of that proposition, it is clear that no one was confused in June or July, or before August 19, 2004, or had any doubt about what the declaration statutes required. On June 9 the division sent the two judges letters stating "you have not yet filed for judicial retention.... August 1 is the deadline to file for judicial retention." In comparison, the division sent different letters to those judges who had filed a declaration; those letters stated "you have filed for retention." On July 15, the same day the council sent its July 15 e-mail to the division, the council also sent a memo to the ten judges, explaining both the duty to file a timely declaration and the consequences of failing to file on time: In order to continue as a judge past next January, state statutes require you to file with the Director [of Elections] a declaration of candidacy . no later than August 1.... If you do not file this declaration of candidacy with the Director of Elections on or before August 1, your name will not appear on the ballot this fall and your term as judge will end ninety days after the election. This message unambiguously conveyed the clear statutory requirements and consequences. Given this message from the council to the judges, neither the council nor the judges could have thought any communication between the council and the division could satisfy the declaration statutes. And on August 16, 2004, when Judge Jeffery submitted his declaration of candidacy to the division, he stated in his accompanying letter "I realize these documents are late." On August 19, 2004, when Judge Nolan submitted her declaration of candidacy, she stated in her letter "(today it came to my attention that I failed to timely file the Declaration of Candidacy." These communications are inconsistent with any notion that the statutes or the procedures were ambiguous or confusing or that the council or reasonable persons could have thought that communication by the council with the division would relieve or had relieved the judges of their statutory duty to file declarations of candidacy with the division. Furthermore, the declaration statutes effectively require a candidate to communicate to the division the candidate's current intention to stand for retention. The August 1 deadline chosen by the legislature is late enough in the election sequence that it provides an accurate declaration of each candidate's current intentions, unlike anything that might be inferred from whatever the judge may have told the council the prior November, before the evaluation process began. Likewise, the August 1 declaration deadline allows jurists previously interested in retention to silently drop out before publication of any adverse evaluation by the council or adverse information from the Judicial Conduct Commission. This might explain why the legislature adopted the August 1 deadline for declaring candidacy for retention and the August 7 deadline for submitting information for inclusion in the election pamphlet. A substantial compliance standard is thus inconsistent with both the text of the controlling declaration statutes and with the way the division, the council, and even the judges interpreted the declaration statutes on or before August 19, 2004. B. The Judges Must Vacate Their Seats Within Ninety Days. Having determined that the judges failed to file declarations of candidacy by the statutory deadline, we now consider the appropriate remedy. The superior court concluded that the forfeiture sanction would be inappropriate. It reasoned that because it had found that the judges' "filing snafus" would not impact the election process, the hardship that vacation would cause on both the judges personally as well as the "constitutional retention election system and the electorate" would be too severe. On appeal Judge Jeffery and Judge Nolan argue that, under Johnstone, we should weigh the hardship of our remedy on the judges and on the electorate against the hardship caused to the public from the judges' failure to timely file their declarations of candidacy. They note the personal hardship that would be imposed on them if they were required to forfeit their offices. More importantly, they argue, the public was unharmed by their actions because it had ample time to consider whether to support or oppose their candidacies. They observe that the council: (a) treated the judges as candidates when it conducted surveys in early 2004, (b) held a public hearing on the judges in May 2004, (c) issued a press release announcing that it supported the judges' retention on July 26, and (d) listed the judges as candidates on its website "many months before the election." The constitution states in part that a superior court judge's office "becomes vacant ninety days after the election . for which he fails to file his declaration of candidacy to succeed himself." The legislature mirrored this wording when it enacted the two statutes that regulate when a superior court or district court judge's office becomes va-cant. We interpret the Alaska Statutes "according to reason, practicality, and common sense, taking into account the plain meaning and purpose of the law as well as the intent of the drafters." The plain meaning of the constitution and the statutes is that vacation is the mandatory consequence for a judge's failure to file a declaration of candidacy. Johnstone can be differentiated from this case. In Johnstone we held that we were establishing a new principle of civil law. We therefore analyzed the hardship to Judge Johnstone and the electorate to determine whether our holding should only apply prospectively. If our holding had not established a new principle of law, however, in the sense that it had not "overrule[d]) prior law or decide[d] an issue of first impression," the threshold test for prospective application would not have been met and our analysis of the hardship of our holding would not have been triggered. Here, the law is clear that, absent statutory ambiguity, strict compliance with election filing deadlines is required, and the penalty for noncompliance is mandatory vacation of office. We have no doubt that requiring Judge Jeffery and Judge Nolan to vacate their office will lead to personal hardship. This must seem like a bitter reward for years of extraordinary public service by both judges. But because we are not establishing a new principle of law by holding that the judges' failure to meet the filing deadline triggered the mandatory vacation sanction, our decision is constrained by the controlling legal principles. It was error to rule that the hardship to the judges and electorate precluded application of the forfeiture sanction. v. CONCLUSION Because the division's determination that Judge Jeffery and Judge Nolan failed to file declarations of candidacy by the August 1 deadline was supported by the facts and had a reasonable basis in law, we REVERSE the superior court's judgment and ORDER the appellees to vacate their seats within ninety days after this opinion takes effect per Alaska Appellate Rule 507(b). FABE, Chief Justice, not participating. . Alaska Const. art. IV, § 6 ("[elach supreme court justice and superior court judge shall, in the manner provided by law, be subject to approval or rejection"); AS 15.35.030 ("[elach supreme court justice shall [periodically] be subject to approval or rejection"); AS 15.35.053 ("{elach judge of the court of appeals shall [periodically] be subject to approval or rejection"); AS 15.35.060 ("[eJach superior court judge shall [periodically] be subject to approval or rejection"); AS 15.35.100 ("[eJach district judge shall [periodically] be subject to approval or rejection"). . AS 22.10.150 (regarding superior court judges); AS 22.15.195 (regarding district court judges). . The scores on the Judicial Council's retention survey were consistently very high for both judges. Judge Jeffery's overall average score was 4.3 and Judge Nolan's overall average score was 4.4. . AS 15.35.070 (regarding superior court judges); AS 15.35.110 (regarding district court judges). . Lewis v. State, Dep't of Corr., 139 P.3d 1266, 1268-69 (Alaska 2006). . Catholic Bishop of N. Alaska v. Does 1-6, 141 P.3d 719, 722 (Alaska 2006). . W. States Fire Prot. Co. v. Municipality of Anchorage, 146 P.3d 986, 989 (Alaska 2006) (citing Tesoro Alaska Petroleum Co. v. Kenai Pipe Line Co., 746 P.2d 896, 903 (Alaska 1987)). . Storrs v. State Med. Bd., 664 P.2d 547, 552 (Alaska 1983) (internal quotations omitted). . Native Vill. of Elim v. State, 990 P.2d 1, 5 (Alaska 1999). . AS 15.35.070. . AS 15.35.110. . AS 15.60.010(3). . Alaska Const. art. IV, § 6. AS 15.35.100(a) imposes the same requirement on district court judges, except that it provides that district court judges must stand for retention in the first general election held more than two years after their appointment and every fourth year thereafter. . Alaska Const. art. IV, § 7 ("The office of any supreme court justice or superior court judge becomes vacant ninety days after the election at which he is rejected by a majority of those voting on the question, or for which he fails to file his declaration of candidacy to succeed himself."); see also AS 22.15.170(e) (applying same consequences to district court judges who fail to file declarations of candidacy). . 6 Proceedings of the Alaska Constitutional Convention (PACC) App. V at 13 (December 5, 1955). . AS 15.35.040 (regarding supreme court justices); AS 15.35.055 (regarding court of appeals judges); AS 15.35.070 (regarding superior court judges); AS 15.35.110 (regarding district court judges). . See, eg., AS 15.35.090 ('The director shall place the name of a superior court judge who has properly filed a declaration of candidacy for retention on the ballot...."); AS 15.35.130 ("The director shall place the name of a district judge who has properly filed a declaration of candidacy for retention on the ballot. ."). . AS 15.35.080 (regarding superior court judges); AS 15.35.100(b) (regarding district court judges). . Judge Jeffery and Judge Nolan concede that "[uJnquestionably, the Division of Elections has the authority to exercise certain discretion in administering the election statutes." . W. States Fire Prot. Co. v. Municipality of Anchorage, 146 P.3d 986, 989 (Alaska 2006) (citing Tesoro Alaska Petroleum Co. v. Kenai Pipe Line Co., 746 P.2d 896, 903 (Alaska 1987)). . Div. of Elections v. Johnstone, 669 P.2d 537, 539 (Alaska 1983) (citing State v. Debenham Elec. Supply Co., 612 P.2d 1001, 1002 (Alaska 1980); Lynch v. McCann, 478 P.2d 835, 837 (Alaska 1970); AS 01.10.040 (providing in part: "Words and phrases shall be construed according to the rules of grammar and according to their common and approved usage.")). . Black's Law Dictronary at 436 (8th ed.2004). . Webster's New World College Dictionary at 375 (4th ed.2004). . AS 15.35.070 (regarding superior court judges); AS 15.35.110 (regarding district court judges). . Black's Law Dictionary at 660 (8th ed.2004); Silides v. Thomas, 559 P.2d 80, 88 (Alaska 1977). . Alaska Const. art. IV, § 9 (stating that the council must perform duties assigned by law); AS 22.10.150 (requiring the council to "conduct an evaluation of each [superior court] judge before the retention election and shall provide to the public information about the judge . 60 days before the retention election"); AS 22.15.195 (requiring the council to "conduct an evaluation of each [district court] judge before the retention election and shall provide to the public information about the judge . 60 days before the election"). . Because we hold that the division did not abuse its discretion in determining that the judges failed to file declarations of candidacy, we do not need to decide whether the council could file a declaration of candidacy with the division on a judge's behalf. . Dissent at 245. . Falke v. State, 717 P.2d 369, 374 (Alaska 1986) (quoting Andrews v. Sec'y of State, 235 Md. 106, 200 A.2d 650, 651 (1964) (citation omitted)); see also Silides v. Thomas, 559 P.2d 80, 87 (Alaska 1977). . Falke v. State, 717 P.2d 369, 373 (Alaska 1986) (citations omitted). . State v. Marshall, 633 P.2d 227, 235 (Alaska 1981) (holding that declaration of candidacy filed ten minutes late was not "timely") (citing Silides, 559 P.2d at 86); see also Falke, 717 P.2d at 373 (substantial compliance standard improper unless statute ambiguous). . Silides v. Thomas, 559 P.2d 80, 82 (Alaska 1977). . Id. at 86. . Id. . Div. of Elections v. Johnstone, 669 P.2d 537, 542-45 (Alaska 1983). . Id. at 544. . Id.; Silides, 559 P.2d at 86. . Dissent at 243, 245. . The dissent contends that it is incorrect to assume "that the goal of a declaration requirement is to elicit a 'final decision,' rather than fust a clear declaration of present intent." Dissent at 247. This contention is problematic. Whether or not a declaration is to be a "final decision," the statutes implicitly require a current decision, a present-day expression contemporaneous with the date it is filed. They seem inconsistent with conveying a stale decision, such as reflected in any information in the questionnaire responses sent to the council nearly eight months before. The dissent's contention may also assume that the council's communications with the division somehow amounted to a "clear declaration of present intent." But the July 15 communication is not a "declaration" at all. Nor is it a "clear" declaration, or a declaration of "present intent." This contention also seems to depend on the council's discharge of its obligations in conducting and forwarding the evaluation results. The council's executive director explained in an affidavit filed in the superior court that "it would only be upon an affirmative statement by the judge that he or she did not intend to stand for retention that the judicial council would refrain from evaluating a judge who was required to stand for retention." Thus, the council would treat both a judge who altogether failed to respond to the November questionnaire and a judge who responded the same: It would evaluate both judges and forward the evaluation results for both to the division for inclusion in the election pamphlet. Therefore the council itself does not treat questionnaire responses as a declaration critical to triggering or discharging the council's duties. . AS 22.30.011(h) (providing in relevant part that after a "judge has filed a declaration for candidacy for retention in office, the [Judicial Conduct Commission] shall report . each public reprimand, suspension, or public censure received by the judge"). In selecting the August 7 deadline it seems improbable that the legislature intended that by supplying the evaluation and conduct information for the election pamphlet by August 7, the council would have any role in satisfying the August 1 declaration obligation the legislature imposed on the candidates. . AS 15.35.070 (requiring declaration by superi- or court judge by August 1); AS 15.35.110 (requiring declaration by district judge by August 1). . AS 15.58.050 (providing in relevant part that "[nlo later that August 7 . the judicial council shall file . a statement including . the evaluation of each justice or judge conducted by the judicial council . [and al statement describing each public reprimand, public censure, or suspension"). . It is therefore unnecessary to consider whether the judges substantially complied with the declaration statutes. We nonetheless are unconvinced by any assertion that the judges substantially complied when the council conveyed the evaluation and conduct information on July 15. Not only must the division receive the critical information-a straightforward expression of the candidate's intent, held at the moment of filing, to stand for retention-but the requirement of a "declaration" implies some degree of formality beyond a message to be inferred from the council's submissions for inclusion in the election pamphlet. . Div. of Elections v. Johnstone, 669 P.2d 537, 545-45 (Alaska 1983). . Alaska Const. art. IV, § 7. . AS 22.10.100(b) (regarding superior court judges); AS 22.15.170(e) (regarding district court judges). . Native Vill. of Elim v. State, 990 P.2d 1, 5 (Alaska 1999). . 669 P.2d at 544. . Id. at 545-46. . Commercial Fisheries Entry Comm'n v. Byayuk, 684 P.2d 114, 117-18 (Alaska 1984) ("[WJhether the holding overrules prior law or decides an issue of first impression{ ] serves as a threshold test to determine whether a purely prospective application of a new rule of law is even at issue."). . See, e.g., Falke v. State, 717 P.2d 369, 373 (Alaska 1986); Silides v. Thomas, 559 P.2d 80, 86 (Alaska 1977). . See Alaska Const. art. IV, § 7 (regarding superior court judges); AS 22.10.100(b) (regarding superior court judges); AS 22.15.170(e) (regarding district court judges). . We note that although Judge Jeffery and Judge Nolan failed to timely file declarations of candidacy, the judgments they have issued or will issue in the interim period between when they were supposed to vacate their office {ninety days after the November 2004 election) and when they are now ordered to vacate (ninety days after this opinion takes effect per Appellate Rule 507(b)) are protected from collateral attack under the de facto judge doctrine. See Gates v. City of Tenakee Springs, 954 P.2d 1035, 1038-39 (Alaska 1998). . Alaska Appellate Rule 507 provides: (a) The opinion of the appellate court, or its order under Rule 214, shall constitute its judgment, and shall contain its directions to the trial court, if any. No mandate shall be issued. (b) Unless the opinion or order expressly states otherwise, the judgment of the appellate court takes effect and full jurisdiction over the case returns to the trial court on the day specified in Rule 512(a) for return of the record. However, in an appeal under Appellate Rule 207 relating to release prior to judgment, the judgment of the Court of Appeals takes immediate effect and full jurisdiction over the case returns to the trial court on the day the Court of Appeals issues its opinion or order deciding the appeal. (c) A motion to stay the effect of the judgment of the appellate court beyond the day specified in Rule 512(a) shall be made to that court. Alaska Appellate Rule 512(a) provides in pertinent part: (3) In a case decided by the supreme court, the record shall be returned: [al on the day after the time for filing a petition for rehearing expires, if no timely petition for rehearing is filed; or [b] on the day after the supreme court disposes of the case on rehearing, if a timely petition for rehearing is filed.

8363866

Barbara SHEPHERD, Appellant, v. George HARALOVICH, Appellee

Shepherd v. Haralovich

2007-10-26

No. S-11692

643

655

170 P.3d 643

170

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T22:55:53.240550+00:00

CAP

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

Barbara SHEPHERD, Appellant, v. George HARALOVICH, Appellee.

Barbara SHEPHERD, Appellant, v. George HARALOVICH, Appellee. No. S-11692. Supreme Court of Alaska. Oct. 26, 2007. James E. Curtain, Juneau, and Vance A. Sanders, Law Office of Vance A. Sanders, LLC, Juneau, for Appellant. George J. Haralovich, pro se, Juneau. Before: BRYNER, Chief Justice, MATTHEWS, EASTAUGH, FABE, and CARPENETI, Justices.

7617

47272

OPINION PER CURIAM. I. INTRODUCTION Alleging that her income had declined following her divorcee from George Haralovich, Barbara Shepherd asked the superior court to recalculate child support. Shepherd's income had declined in part because she had sold rent-producing property that she had been awarded in the divorcee. The superior court found that Shepherd's income was effectively the same as before. When Shepherd moved for reconsideration, the trial court considered that income Shepherd could realize from reinvesting net proceeds from the rental property sale would compensate for the small decline in her net income and denied reconsideration. Shepherd appeals the denial of her reconsideration motion and, among other things, argues that because she was not voluntarily underemployed, it was error to impute any income to her. We affirm the court's imputation of investment income because imputation does not require underemployment. But we remand the matter to the superior court to determine Shepherd's federal tax Hability and recalculate her adjusted annual income to account for that tax liability. II. FACTS AND PROCEEDINGS Barbara Shepherd and George Haralovich divorced in 2002 after a marriage of seventeen years. Shepherd was awarded primary physical custody of the parties' three children. The divorcee decree set Haralovich's base child support obligation at $1,654 per month. As part of the divorcee, Shepherd received the family home and also received a rental property estimated in 2002 to be worth $235,000. The rental property carried two mortgages totaling about $110,000. Shepherd sold the rental property for $265,000 in 2003. In July 2008 the oldest child moved away from home. In December the court issued a new custody order for the two children still at home which set out a week on/week off schedule. In April 2004 the superior court issued a new child support order ending Har-alovieh's child support obligation for the oldest child and also changing the custody arrangement for the two remaining children. Child support was based on one child living week on/week off with both parents, while the other child resided primarily with Shepherd. The April 2004 order also noted that Shepherd's January 2004 child support affidavit reflected less income than her 2002 affidavit, partly because she did not list any rental income in 2004. Shepherd's 2002 affidavit had listed her gross income as including $50,000 in wages, $21,288 in rental income, and $2,050 from other sources. The April 2004 order stated that the court would rely on Shepherd's 2002 affidavit in calculating income to compute child support unless Shepherd submitted supplemental information, including "her full 20083 federal tax return," that explained her decreased income. Based on Shepherd's 2002 affidavit, in April 2004 the superior court determined that Shepherd's net income was $51,639 after allowable deductions. In response to the April 2004 order, Shepherd submitted an affidavit explaining that she had sold the rental property and declaring that "my income from rentals has gone from $21,288 to zero." She did not submit a tax return or equivalent documents. In July 2004 the superior court issued another order regarding child support. The court used a January 2004 pay stub to estimate Shepherd's net income at $44,126; this was $7,513 less than the amount set out in the April order. The $44,126 figure did not include any income from rental property or any investment income from funds generated by the sale of the rental property. The superior court declared that "[wJhile Ms. Shepherd indicates that she sold her income-producing property, the court assumes that she could have continued to receive that income and/or that she re-invested those funds in such a way that is as or more financially advantageous as was previously the case." The superior court in its July order thus seemed to impute $7,518 in investment income to Shepherd. The court indicated that in calculating child support it would use an adjusted annual income figure of $51,639 for Shepherd. The superior court noted that Shepherd had still not submitted her 2003 federal tax return "and all attachments" or any "explanation under oath as to the amount and disposition of the proceeds of the income-producing property." The court announced that barring a request for reconsideration and submission of that information, it would issue a support order based on the prior calculation. Shepherd then moved for reconsideration and submitted her affidavit attaching her 2002 and 2008 federal tax returns. Her 2008 tax return reflected a taxable wage income of $44,421 and a $95,893 capital gain from the sale of the rental property. She stated in her affidavit that the rental property "was not producing enough income to justify [her] holding it long-term." She also stated that the sale was made necessary by a poor financial position partially caused by Haralovich's failure to pay child support. She asserted that she did not re-invest any proceeds of the sale in a way that would provide her a regular income. In September 2004 the superior court issued a third order, addressing Shepherd's reconsideration motion. Based on the financial information newly submitted by Shepherd with her reconsideration motion, the superior court calculated her adjusted net annual income at $50,780. The superior court noted that this figure was only $909 less than the net income of $51,639 it had used in the two prior orders. The superior court denied Shepherd's motion for reconsgid-eration; it reasoned that although her annual wages were $909 less than the court had previously assumed (excluding the $95,000 capital gain ), "it is reasonable to assume that at least some portion" of the proceeds of the sale of the rental property would be invested "in such a way as to net at least $909 per year." The superior court therefore concluded that "[the $51,639 net annual income" listed in Shepherd's 2002 Civil Rule 90.3 affidavit "appears to be at least that income that best reflects [Shepherd's] current income and/or income producing ability-fi Shepherd appeals from the September order denying her reconsideration motion. IIL STANDARD OF REVIEW We review a trial court's denial of a motion for reconsideration for abuse of discretion. We review decisions to impute income for abuse of discretion. Whether a trial court has abused its discretion depends on whether "we are left with a definite and firm conviction, after reviewing the whole record, that the trial court erred in its ruling." But "[wlhether the trial court used the correct method of calculating child support is a matter of law, therefore we give no deference to the trial court's decision." We apply our "independent judgment when reviewing a lower court's interpretation of statutes and other related legal questions." IV. DISCUSSION A. The Superior Court Did Not Abuse Its Discretion by Considering the Income-Producing Capability of Funds from the Sale of the Rental Property. Shepherd argues that the superior court erred by imputing income to her and that "income may only be imputed to 'a parent who voluntarily and unreasonably is unemployed or underemployed.'" Shepherd argues that "as a matter of law the trial court must make a determination of voluntary and unreasonable unemployment or underemployment" before imputing income. We first observe that there is some question whether the superior court's final order denying reconsideration, issued in September, actually imputed any income to Shepherd. This uncertainty may stem from the three orders issued by the superior court. The April order imputed no income to Shepherd and was based on Shepherd's earlier statement that she had received approximately $21,000 in rental income. The July order may have imputed income of about $7,500 to Shepherd, but that order was superseded by the September order issued after Shepherd moved for reconsideration. Shepherd appeals the September order denying reconsideration. In its April 2004 order, the superior court relied on Shepherd's 2002 child support affidavit and provided that child support would be based on her net income of $51,639. The superior court denied reconsideration in its September order because it found that Shepherd's financial information indicated her current income was $50,730. Therefore, the superior court's final order imputed, at most, $909 of investment income to Shepherd, the difference between $50,730 and the $51,639 referred to in the April 2004 order. It is probable, however, that the superior court's consideration of potential investment income is not an imputation at all. If imputation is appropriate, a court typically finds the specific income to be imputed to the parent and uses this figure to calculate child support. The superior court here simply looked to the earning power of "at least some portion" of the proceeds from the rental property sale, and assumed they would "net at least $909 per year," in order to confirm that there was no significant difference between the income figure the court had used in its July order and the income figure described in Shepherd's reconsideration motion. This was an appropriate way for the superior court to decide whether to grant Shepherd's motion for reconsideration. There was a difference of only $909 between the prior net income figure and the net income figure revealed in Shepherd's reconsideration affidavit. Shepherd's 2008 tax return listed the gross sales price of the rental property as $265,000. Given that the court had previously been informed that there were existing mortgages of approximately $110,000 on the property, it was reasonable to think that some net. proceeds from the sale of the property could have been safely reinvested and that the investment income would more than compensate for the relatively small difference in net income. The superior court therefore did not abuse its discretion in concluding in September that the $51,639 net income figure the court used in the April and July orders to caleulate child support "reflects [her] current income and/or income producing ability." The court did not use the net of the sale proceeds to impute income. In deciding the reconsideration motion, the court instead appears to have relied on the net proceeds only to conduct a reality check to determine whether there was a significant difference between Shepherd's income as previously determined in April and her income as represented in her motion for reconsideration, and thus to determine whether Shepherd's Civil Rule 77 reconsideration motion should be granted. In any event, it would not have been an abuse of discretion to impute some investment income to Shepherd from the sale proceeds of the rental property. Her primary argument, that investment income ean "only be imputed to a parent who voluntarily and unreasonably is unemployed or underemployed," misreads Alaska Civil Rule 90.3. Alaska Civil Rule 90.8(a)(4) states: The court may calculate child support based on a determination of the potential income of a parent who voluntarily and unreasonably is unemployed or underemployed. . Potential income will be based upon the parent's work history, qualifications, and job opportunities. The court also may impute potential income for non-income or low income producing assets. (Emphasis added.) "Also" indicates that imputing income from underproducing assets differs from imputation based on underemployment. In effect, Rule 90.8(a)(4) provides that a court may impute employment income when there is unreasonable underemployment and may impute investment income when there is a non-income or low-income producing asset. The rule does not expressly or implicitly condition imputation of investment income on unemployment or underemployment. Shepherd cites several cases discussing the unemployment or underemployment of parents and asserts that "[the unifying theme in these opinions is . that income may only be imputed to 'a parent who voluntarily and unreasonably is unemployed or underemployed.'" These cases are not on point because they only discuss employment income and do not discuss underperforming assets. Shepherd cites nothing to suggest that the "voluntarily and unreasonably . underemployed" finding that Rule 90.3 requires before imputing employment income is also required if income is to be imputed from underperforming assets. Moreover, our decisions indicate that it is not necessary to find underemployment before imputing asset income. In Laybourn v. Powell, we held that "the superior court properly imputed income to Laybourn based on his efforts to disguise actual earnings and conceal assets," even though there was no finding that he was underemployed or unemployed. We noted that underreporting income or hiding assets is "functionally equivalent to voluntary underemployment." We did not discuss whether a finding of deliberate underemployment is necessary for imputation of income from assets (and presumably the parties had not argued this), but we had no difficulty affirming an imputation of income to someone who was fully employed but hiding assets. In Ogard v. Ogard, we noted that "where an obligor parent has reduced his or her income by liquidating income-producing assets and applying the proceeds to the mortgage on his or her dwelling," a trial court might have good cause to impute earnings. The American Law Institute (ALT) recommends imputation of asset income without regard to whether the parent is underemployed. The Institute's Principles of the Law of Family Dissolution: Analysis and Recommendations states that "[iln calculating a parent's income, the court may . (b) impute an ordinary rate of return to an asset that yields less than an ordinary rate of return." The ALI further explains that a "court should impute an ordinary rate of return" on a stock portfolio producing little or no income even for someone who is employed and "earns a substantial salary." Given Rule 90.8(a)(d)'s statement that "tlhe court also may impute potential income for . low income producing assets" and our precedents, it would not have been error to impute investment income to Shepherd without first finding deliberate underemployment. i Shepherd also briefly argues that investment income should not be imputed because she did not unreasonably and voluntarily forgo income-producing assets. She contends that selling the rental property was reasonable and that "given her then-extant economic cireumstances, it would be difficult to conclude that selling the property was actually voluntary." The voluntary and unreasonable requirements set out in Rule 90.3 for imputation expressly apply only to unemployment and underemployment. Thus, in Ogard, we noted that the trial court could impute earnings if a parent sold income-producing assets in order to reduce mortgage payments. Such a reinvestment would not be unreasonable, but selling one investment to offset Habilities would presumably improve the parent's financial situation, and it is not obvious why it would be reasonable to decrease that parent's share of child support based on the "loss" of the asset. Also, the issue is not whether it was unreasonable for Shepherd to sell the property. It is whether, having sold the property, Shepherd could fail to use any of the net sales proceeds to generate income. Shepherd has not squarely disputed that issue. She did not demonstrate below that the sales proceeds were exhausted or that the superior court erred in stating that "it is reasonable to assume that at least some portion of this money will be invested in such a way as to net at least $909 per year." Given the evidence before the court on reconsideration, the court could reason that it would have been unreasonable to use none of the sales proceeds to generate some nominal replacement income. Shepherd argues in the alternative that even if the superior court did not err by imputing some investment income, it erred in determining the amount of Shepherd's adjusted income for child support purposes. Shepherd asserts that the net rental income of approximately $21,000 would have been reduced by the cost of a "handyperson" because she could not have performed building maintenancé herself. She also asserts that the $21,000 figure she listed for 2002 was wrong because it was for "all" of the parties' rental properties, not just the rental property awarded to her. Hence "[tlo impute future income from property Ms. Shepherd did not then own is simply unsupported by case law, this record, or common sense." Third, she asserts that the rental income should have been averaged over a two- or three-year period. These three contentions are all based on her assumption that the superior court imputed rental income to Shepherd. But the court did not impute rental income. At most, the superior court imputed income from some portion of the net sale proceeds. Finally, Shepherd argues that the court erred in considering the proceeds from the sale of the rental property because they re sulted from a one-time sale and were not regular income. Rule 90.83, Commentary III(A) suggests treating capital gains as income only if they "represent a regular source of income." The superior court did not treat the one-time capital gain as income; the court only considered the nét sale proceeds insofar as they could have been reinvested to provide a source of regular income. The commentary to Rule 90.3 III(A) states that "one-time gifts and inheritances should not be considered as income, but interest from the principal amount should be considered as income." By implication, there is nothing wrong with treating investment income from a one-time capital gain as income. B. It Was Error To Calculate Child Support Based on the Assumption that Shepherd Would Have No Federal Income Tax Liability. In calculating allowable deductions for child support determination purposes, the superior court assumed that Shepherd would pay no federal income taxes on her income. The superior court noted in its September order: In 2002, Ms. Shepherd owed no federal income taxes. In 2003, she owed $14,335 in federal income taxes. However, these high taxes are tied to her sale of the rental property and receipt of $95,893 in capital gains.... Since her actual tax liability for 2002 was zero, that number (zero) appears to most closely approximate actual projected federal income tax lability. A threshold question is whether the correctness of the trial court's assumption in calculating child support that there would be no federal income tax Hability has been raised and argued sufficiently so as to be properly before us on appeal. In her brief, Shepherd raises the question whether the record supports the trial court's calculation of imputed income and points out that she sought reconsideration of the trial court's decision, submitting both her 2002 and 2008 income tax returns and attachments from both returns. And in her statement of the case, Shepherd contends that she explained to the trial court "that she did not have tax liability for 2002 because that year she incurred significant legal expenses in relation to properties at issue in the divorcee. She indicated that the legal expenses were deductible for federal tax purposes in tax year 2002 only. No one challenged this valid deduction." Shepherd further maintains in her brief that she informed the trial court that she "used the proceeds from the sale [of the rental property] to pay $14,835 in federal taxes for 2008." Shepherd then points out that "[the trial court failed to mention or discuss why Ms. Shepherd did not incur income tax liability for 2002; the one-time expense of legal services related to the preservation of her income-producing property. Instead, it used the aberration of property sale-related taxes in 2003 to justify no tax liability or deductions in 2004." Shepherd further maintains in her brief that "[t]he trial court also rejected the use of standard deductions since Ms. Shepherd itemizes deductions and has three exemptions for income tax purposes. The court believed that since Ms. Shepherd's tax liability for 2002 was zero, that amount should be used as it 'appears to most closely approximate actual projected federal income liability.'" "Based on this flawed analysis," Shepherd complains, "the trial court concluded that 'the $51,639 net annual income Ms. Shepherd represented as adjusted net income in her 2002 ARCP 90.8 affidavit appears to be at least that income that best reflects current income and/or income producing ability' and thus denied Ms. Shepherd's motion for reconsideration." Although these arguments are made under the heading of "statement of the case," rather than in the argument section of Shepherd's brief, we conclude that they are adequate to raise the claim on appeal. But Shepherd also argues two major legal points in the argument section of her brief: (1) that the trial court erred in imputing rental income, and (2) that, even if income could be imputed, the record failed to support the court's caleulation of the amount of her imputed income. In addressing the see-ond point, her alternative claim of computational error, Shepherd specifically argues: [Slhould the court be otherwise inclined to impute non-existent net rental income, it should average that income. As demonstrated by Ms. Shepherd's 2002 and 2008 federal tax returns, rental income from the Grant Street property varied from $8,904 (in 2002) to 0 in 2003, for a two-year annual average of $4,452. Since the property was sold in 2008, though, Ms. Shepherd will receive no rental proceeds from it in 2004, or hereafter and a three year average would yield an average annual rental income of $2,968. This argument squarely addresses the computational flaw that Shepherd describes in her statement of facts: the superior court's failure to recognize that Shepherd's 2002 zero federal tax liability was a one-time event. Shepard's argument for averaging hinges on the validity of her claim that the 2002 tax deduction was non-recurring. While Shepherd's argument does not draw this connection explicitly, the point is implicit, and her minimal treatment of it seems unsurprising given that the reason for the zero tax liability in 2002 has apparently never been questioned. In responding to a question from this court at oral argument, Shepherd maintained that the superior court's September order was erroneous because the court assumed Shepherd's normal federal income tax liability was zero. For all of these reasons, we conclude that the issue of Shepherd's tax Hability is properly before us, and we therefore turn to the merits. Under Civil Rule 90.8(a)(1)(A)G), federal income tax is to be deducted from a parent's gross income in order to determine the parent's adjusted annual income. We have previously directed that federal income tax liability should be deducted from imputed income. Therefore, we remand this case to the trial court to determine the amount that should be deducted from Shepherd's income. On remand, the trial court may take into account the actual tax liability of Shepherd as reflected in her tax returns. v. CONCLUSION For the reasons stated above, the superior court's imputation of investment income is AFFIRMED but the case is REMANDED so that the trial court may determine the amount of Shepherd's federal income tax liability and recalculate Shepherd's adjusted annual income to account for that tax liability. EASTAUGH, Justice, with whom CARPENETI, Justice, joins, dissenting in part. . Alaska Civil Rule 90.3, Commentary III A(16) suggests capital gains should be treated as income only "to the extent they represent a regular source of income." . Neal & Co., Inc. v. Ass'n of Vill. Council Presidents Reg'l Hous. Auth., 895 P.2d 497, 506 (Alaska 1995). . O'Connell v. Christenson, 75 P.3d 1037, 1039 (Alaska 2003) (citing Rhodes v. Rhodes, 754 P.2d 1333, 1335 (Alaska 1988). . Peter Pan Seafoods, Inc. v. Stepanoff, 650 P.2d 375, 378-79 (Alaska 1982). . Turinsky v. Long, 910 P.2d 590, 594 n. 10 (Alaska 1996) (citing Charlesworth v. State, Child Support Enforcement Div., 779 P.2d 792, 793 (Alaska 1989)). . Paxton v. Gavlak, 100 P.3d 7, 10 (Alaska 2004). . Quoting Alaska Civil Rule 90.3, Commentary III(C). . See, e.g., O'Connell, 75 P.3d at 1038 (explaining that superior court imputed income of $43,550.13 to O'Connell and then calculated his support obligation based on this amount). . Shepherd's brief cites: Nunley v. State, Dep't of Revenue, Child Support Enforcement Div., 99 P.3d 7 (Alaska 2004); Olmstead v. Ziegler, 42 P.3d 1102 (Alaska 2002); Robinson v. Robinson, 961 P.2d 1000 (Alaska 1998); Vokacek v. Vokacek, 933 P.2d 544 (Alaska 1997); Kowalski v. Kowalski, 806 P.2d 1368 (Alaska 1991); and Pattee v. Pattee, 744 P.2d 658 (Alaska 1987). Pattee is the only one of these cases to mention sale of assets, but Pattee did not involve imputation of asset income, and it was decided under the framework existing before Rule 90.3, which was adopted by Supreme Court Order No. 833 (April 30, 1987), and became effective in August 1987. See Pattee, 744 P.2d at 662. . Quoting Alaska Civil Rule 90.3, Commentary III(C). . Laybourn v. Powell, 55 P.3d 745, 746 (Alaska 2002). . Id. at 747. . Ogard v. Ogard, 808 P.2d 815, 819 n. 6 (Alaska 1991). . American Law Institute, Princmpess or tur Law or Famiy Dissorurion: Anatysts amp Recommenpations § 3.14(4) (2002). . Id. at § 3.14 cmt. d. . 'The court may calculate child support based on a determination of the potential income of a parent who voluntarily and unreasonably is unemployed or underemployed." Alaska Civil Rule 90.3(a)(4). . Ogard, 808 P.2d at 819 n. 6. . Rodvik v. Rodvik, 151 P.3d 338, 351 (Alaska 2006).

10443387

Terry NEWELL, Appellant, v. STATE of Alaska, Appellee

Newell v. State

1980-12-05

No. 4453

680

683

620 P.2d 680

620

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T20:55:45.820913+00:00

CAP

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

Terry NEWELL, Appellant, v. STATE of Alaska, Appellee.

Terry NEWELL, Appellant, v. STATE of Alaska, Appellee. No. 4453. Supreme Court of Alaska. Dec. 5, 1980. Richard Yospin, Asst. Public Defender, Ketchikan, and Brian Shortell, Public Defender, Anchorage, for appellant. Dean J. Guaneli, Asst. Atty. Gen., Daniel W. Hickey, Chief Prosecutor, and Avrum M. Gross, Atty. Gen., Juneau, for appellee. Before RABINOWITZ, C. J., CONNOR, BURKE ana MATTHEWS, JJ., and DIMOND, Senior Justice.

1283

8101

OPINION PER CURIAM. Terry Newell's parole was revoked. At the hearing of the Parole Board at which this decision was made, Newell's parole officer, who had recommended revocation, was allowed to sit in on the Board's deliberations. Newell claims that this action by the Board denied him his rights to due process of law. We agree. Newell was convicted of forgery in 1975, and was sentenced to four years. He was paroled in May, 1977. On October 17,1977, Newell's parole officer, Barton Penny, submitted to the Board a field report listing six alleged parole violations by Newell and recommending parole revocation. In response to this report, William Lyons, a Board member, on November 17 issued a warrant for Newell's arrest, and Newell was arrested on November 24. A preliminary hearing was held before Sam Trivette, the Board's executive director, on November 28, and Trivette found probable cause for revocation. He ordered Newell incarcerated pending the final hearing before the Board. The final hearing was held on January 27, 1978. Trivette, who was present on behalf of the Board summarized the case before the Board, but did not actually argue for revocation. Barton Penny, who was also present, summarized the evidence and expressed his view that Newell was not amenable to parole. When the Board retired for deliberations, both Trivette and Penny were allowed to remain, although Newell and his attorney were excluded. The Board subsequently decided to revoke parole with no provision for further review. In April, 1978, Newell applied for post-conviction relief, alleging several flaws in the revocation procedure. He was released on bail pending adjudication of his claims, but in October the superior court summarily denied his application. Bail has been continued pending this appeal so that there is still a live controversy. We find that the dispute here is governed by our decision in In re Robson, 575 P.2d 771 (Alaska 1978). In that case we held that Robson had been denied due process in disciplinary proceedings before the Alaska Bar Association's Board of Governors because of the presence of the Association's executive director during the Board's deliberations. The director had not presented the case against Robson, and we had "no question but that the purposes of her attendance were entirely ethical." Id. at 775. We nevertheless concluded that "the proceedings violated due process as to the fact or appearance of impartiality during the deliberations" because the executive di rector supervised the bar counsel who had presented the bar's case. Id. The state seeks to distinguish Robson by offering an extremely narrow reading of our holding therein. It contends that Robson forbids only the presence of counsel who have prosecuted the case. According to the state, "if the person [present during deliberations] acts on behalf of the deliberating body only to make a preliminary investigation and recommendation in the case, or if he appears as a witness, then due process is not violated." The state is correct with respect to the person making a preliminary investigation and recommendation. See Robson at 774: "Making such preliminary investigations to determine whether charges should be filed is quite different from participating in the prosecution stage of grievance proceedings." But there is no language in Robson to support the state's argument about the presence of witnesses; to the contrary, the opinion clearly implies that anyone "participating in the prosecution stage of grievance proceedings" must be excluded from the adjudicating body's deliberations. The question thus becomes whether Parole Officer Penny participated in the prosecution. There was no actual prosecutor for the state here as there was for the bar in Robson. The Ketchikan district attorney argued the case for revocation at the preliminary hearing, and apparently felt that his presence was not necessary at the final hearing. But the absence of a formal prosecutor here does not mean that a Robson -type violation is impossible. As noted, the bar executive director in Robson had not directly prosecuted the bar's case, but her position as the prosecuting attorney's supervisor gave the deliberations an appearance of partiality. In our opinion a far stronger appearance of partiality is created when the person sitting in on deliberations is the person who initially recommended revocation and whose reports and testimony form the bulk of the evidence supporting revocation. We cannot realistically regard such a person as other than part of the prosecution. The state also contends that Robson, if not distinguishable, should not be applied retroactively to Newell's parole revocation hearing. We cannot agree. The question of retroactivity arises only when a decision creates a new rule of law, State v. Glass, 596 P.2d 10, 12 (Alaska 1979), and in our view, Robson did not create a new law. Rather, Robson rests on the well-established premise that due process includes the right to an impartial fact finder, a premise that Morrissey v. Brewer, 408 U.S. 471, 485-86, 92 S.Ct. 2593, 2602-2603, 33 L.Ed.2d 484, 497 (1972), had already held applicable to parole revocation proceedings. The state's final argument is that if Penny's presence was error, that error was harmless, because the evidence of Newell's parole violations was clear. Had the Board simply revoked parole, we might agree, because the questioning by all the Board members during the hearing indicates that they all considered Newell's infractions serious enough to warrant revocation. But the Board went beyond simple revocation; it revoked parole with no provision for further review, the most stringent action it could take. We certainly cannot say that the Board would have reached this decision in the absence of Penny, with his view that Newell is not amenable to parole. We observe that the Board's discussion was "considerable," suggesting that the Board's initial position might not have been unanimous, as the final decision was. We thus must grant Newell's application for post-conviction relief, and remand the case for a new Parole Board hearing. But we cannot grant the full relief requested by Newell, namely, that his revocation proceedings on remand be held before a court-appointed board or before the superior court itself. We have only limited power to review Parole Board decisions, and cannot usurp the authority of the Board as Newell requests. Moreover, we agree with the state that any taint resulting from Penny's presence is by now negligible, as the disputed proceedings were held over two years ago. The Board will also have much new evidence to consider, to wit, Newell's conduct during the last two years. REVERSED and REMANDED for further proceedings. BOOCHEVER, J., not participating. . U.S.Const., amends. V and XIV; Alaska Const., art. I, § 7. . In other words, Newell would serve the remaining two years of his sentence, less good time credits. . This language probably explains why Newell does not challenge the presence of Trivette during the Board's deliberations. . See also note 11 of Robson, at 774, distinguishing Klinge v. Lutheran Charities Ass'n of St. Louis, 523 F.2d 56, 62-63 (8th Cir. 1975). That case held that no due process violation resulted when a hospital's lawyer presided over a hearing to terminate a doctor's hospital practice rights. Klinge was distinguished because "[t]here was no indication . . that the attorney was associated with the prosecution of the case against the doctor." (emphasis added). .Penny's summarization of the evidence before the Board sounds to us very much like a prosecutor's closing argument.

8207458

Kevin M. STOCK, Appellant, v. STATE of Alaska, Appellee

Stock v. State

2008-08-22

No. A-9732

153

163

191 P.3d 153

191

Pacific Reporter 3d

Alaska Court of Appeals

Alaska

2021-08-10T23:30:04.149797+00:00

CAP

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

Kevin M. STOCK, Appellant, v. STATE of Alaska, Appellee.

Kevin M. STOCK, Appellant, v. STATE of Alaska, Appellee. No. A-9732. Court of Appeals of Alaska. Aug. 22, 2008. Brian T. Duffy, Assistant Public Advocate, 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.

5517

34111

OPINION COATS, Chief Judge. Kevin M. Stock was convicted, after a jury trial, of assault in the first degree, a class A felony. The State alleged that Stock invited David Lynch back to his apartment, where he beat up Lynch with a boot east that belonged to Lynch. On appeal, Stock asserts that Superior Court Judge Eric Smith erred in admitting his statements to the police. He contends that the police violated his constitutional rights in obtaining the statements. Stock also argues that Judge Smith erred in allowing Lynch's mother to testify, in response to a question submitted by a juror, about whether she noticed injuries to Lynch that resulted from the assault. Stock argues that Lynch's mother had insufficient personal knowledge to answer the question and that her testimony introduced a new theory of the case (that Lynch suffered protracted impairment of his health as a result of the assault). For the reasons explained here, we reject Stock's claims of error. Factual and 'procedural background On May 12, 2005, Palmer Police Officers Jamie Hammons and Kelly J. Turney responded to a 911 call reporting a disturbance at an apartment building in Palmer. Upon arrival, Officer Hammons placed Stock in handcuffs and asked him some questions while Officer Turney attempted to get a statement from Lynch, who was injured. Because Turney was unable to get a coherent statement from Lynch, he left Lynch with the medics and joined Hammons in questioning Stock. Hammons told Turney that he had established that Stock had asked Lynch to leave his apartment. Stock stated that he told Lynch to leave four times. Turney asked Stock why he had not called the police. Stock responded that he wanted to see if Lynch would leave on his own. At this point, Turney asked Hammons whether he had given Stock Miranda warnings. When Ham-mons said he had not, Turney read Stock his Miranda rights. After reading Stock his Miranda rights, Officer Turney asked Stock whether he understood each of his rights. Stock affirmatively answered, "Yes, sir." Turney then asked Stock, "Having those rights in mind, do you want to answer some questions for me?" Stock responded, "It depends what the questions are." Turney suggested "go[ing] one [question] at a time." Stock responded by stating, "Ask me one." From this point on, Stock chose to answer some questions but not others. In refusing to answer one question, Stock stated, "I know my rights." He refused to answer some questions by simply not answering. At other times, he told Turney, "Ask me another question." During this questioning, Stock stated that Lynch was a hitchhiker that he picked up and brought to his apartment. They consumed some alcohol. Lynch then tried to steal some of Stock's things. Stock told Lynch to leave several times. When Lynch refused to leave, Stock defended himself. Turney asked Stock several times what happened. But Stock refused to answer some of those questions, either by remaining silent or telling Turney to ask another question. Toward the end of this interview, Stock stated that he was tired of answering questions. Stock: I'm tired of answering questions. Officer Turney: You're tired of answering questions? Stock: That's my right, right? Officer Turney: Of course it is. So you'll tell me everything except for how he got hurt. That's what I don't understand. But no one else was in the apartment but you two? Stock: Yes, sir. Officer Turney: So obviously . Stock: And . Officer Turney: Did he hurt himself? Stock: (inaudible reply) [Note: From listening to the tape, it is clear that Stock remains silent here.] Officer Turney: Did he break his own arm and cut his own head? Stock: The arm, I don't know now. Officer Turney: Okay. Then how did he— did he cut his own head? Stock: (inaudible reply) [Note: From listening to the tape, it is clear that Stock remains silent here.] Officer Turney: Did he hit himself with that boot by himself? Stock: I'm tired of answering questions. At this point, Turney placed Stock under arrest and transported him to the police station. At the police station, Turney asked Stock several questions about his sobriety and asked Stock to take a breath test to determine his level of sobriety. Turney told Stock that the jail needed to do the test to determine if Stock was sober enough to be placed in the general population of the jail. Stock refused to take a breath test. He told Turney that he was "not sober." The critical part of the interview occurred next. After booking, Stock was placed in a holding cell. He was interviewed in the holding cell about one-half hour after the interview in which he asserted his right to silence. Officer Turney initiated the interview in the following manner: Officer Turney: Hi, Kevin. Stock: Hi. Officer Turney: Can I come in and talk to you for a minute? Stock: Sure. Have a seat. Officer Turney: Okay. Okay. Remember your Miranda rights I read you before we left the apartment building? Stock: (inaudible reply) [Note: From listening to the tape, it is clear that Stock remains silent here.] Officer Turney: Remember? That I read-that I read to you, do you remember those? Stock: Yeah. Officer Turney: Okay. Stock: So I can deny any questions that yon do ask me. Officer Turney: That's correct. You understand all those still? Stock: Well (indiscernable). Officer Turney: Okay. Well, I'm just asking if you still understand. Stock: Yes. Officer Turney: Okay. I'd like to ask you a couple more questions if I can. Is that okay with you? And we can go question by question again, like you talked about. Stock: And I can refuse to answer? Officer Turney: Of course you can. Of course you can. Stock: All right. All right. During this interview, Stock made several self-incriminating statements. Stock told Turney that, when Lynch refused to leave, he "wanted to kill him," and that he "wanted him dead." Stock stated that he wished Lynch "was fucking dead, the cocksucker." Before trial, Stock moved to suppress all his statements. He argued that the police had taken the statements in violation of his Miranda rights. Judge Smith granted Stock's motion in part. Judge Smith suppressed the statements that Stock made before Stock received Miranda warnings. He ruled that the later statements that Stock made to Officer Turney were admissible up to the time when Stock affirmed that he was tired of answering questions. Judge Smith suppressed the ensuing statements Stock made at the apartment, as well as the statements Stock made at the police station when Turney asked him to take a breath test. But Judge Smith held that the statements Stock made to Turney later in the holding cell were admissible. Stock appeals this decision. He asserts that the entirety of the interview in the holding cell should have been suppressed. At trial, Stock also challenged the admissibility of the testimony of Ronilee Batey, Lynch's mother. Over Stock's objection, Judge Smith allowed Batey to answer a question submitted by a juror regarding whether she had noticed any increased injuries from the assault. Judge Smith also allowed the prosecutor to ask Batey a followup question about what specific injuries she had noticed. Stock appeals these decisions. Why we uphold Judge Smith's ruling admitting Stock's statements to the police On appeal, Stock does not challenge the portions of Judge Smith's ruling that were favorable to him: the suppression of Stock's pre-Miranda warning statements, the suppression of the portion of Officer Turney's first interview that occurred after Stock asserted his right to silence, and the suppression of Stock's statements made during booking. Stock argues that these violations "tainted" his later confessions, and that the resolution of this case turns on an analysis under Brown v. Illinois or Oregon v. El-stad. Under the Brown test, which was superseded by Elstad under federal law, if a suspect made an unwarned confession, then any post-Miranda warning statement was presumptively inadmissible. To rebut the presumption that the later statements were tainted by the suspect's initial admissions, the government needed to show that there was a break in the chain of events. But in Elstad, the United States Supreme Court held that an initial failure of law enforcement officers to administer Miranda warnings, without more, did not presumptively taint a subsequent confession obtained after the suspect had been fully advised of and waived those rights. Alaska courts have not ruled which test, Elstad or Brown, applies as a matter of Alaska constitutional law. Judge Smith found a Miranda violation and suppressed Stock's initial statements. Stock asserts that his pre-Miranda warning statements tainted all his post-M-irawfo warning statements. We think it is plausible that Officer Hammons's pre-Miranda warn ing questions were on-the-seene questions and not custodial interrogation. But even if we accept Judge Smith's ruling that there was a Miranda violation, nothing that Stock said during this initial portion of the interview "let the cat out of the bag." In other words, Stock did not make any significantly incriminating statements prior to being given Miranda warnings. He told Hammons only that he had asked Lynch to leave his apartment, that he had asked Lynch to leave four times, and that he did not call the police to get Lynch to leave the apartment because he wanted to see if Lynch would leave on his own. Even under Brown, we think Officer Turney's subsequent full advisement of Miranda warnings was sufficient to dissipate any taint from these pre-Miranda warning statements. But the crux of Stock's argument is not resolved by either Brown or Elstad. Stock argues that Turney's failure to respect Stock's invocation of his right to silence tainted not only the remainder of the initial interview, but also the subsequent interview in the holding cell. The parties do not contest that, prior to these statements in the holding cell, Stock had exercised his right to silence by asserting that he was "tired of answering questions." In Elstad, the Supreme Court made clear that cases "concerning suspects whose invocation of their rights to remain silent and to have counsel present were flatly ignored while police subjected them to continued interrogation" are "inapposite" to the discussion in Elstad. The pertinent analysis is whether Stock's right to cut off questioning was "scrupulously honored," as required by Michigan v. Mosley Under Miranda, once a person in custody "indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease." As recognized in Mosley, this passage could be interpreted to prohibit all subsequent custodial interrogation by any police officer, at any time or place, on any subject. Or the passage could require merely the immediate cessation of questioning and allow resumption after a momentary respite. In order to avoid the "absurd and unintended results" from either of these possible interpretations, the Mosley Court concluded that the admissibility of statements obtained after a person in custody asserts the right to remain silent depends on whether the right to cut off questioning was "scrupulously honored." In Mosley, the Supreme Court stated: The critical safeguard . is a person's "right to cut off questioning." Through the exercise of his option to terminate questioning he can control the time at which questioning occurs, the subjects discussed, and the duration of the interrogation. The requirement that law enforcement authorities must respect a person's exercise of that option counteracts the coercive pressures of the custodial setting. We therefore conclude that the admissibility of statements obtained after the person in custody has decided to remain silent depends under [Miranda ] on whether his "right to cut off questioning" was "scrupulously honored." [ ] In the Mosley opinion, the Court reviewed the circumstances leading to Mosley's confession and determined that "his 'right to cut off questioning' was fully respected." After being fully advised of his rights, Mosley stated that he did not wish to discuss the robbery offense for which he was being held, and the interrogation promptly stopped. More than two hours later, a different officer carefully advised Mosley of his Miranda rights, obtained a waiver, and questioned Mosley on an unrelated homicide. The police, in summary, "immediately ceased the interrogation, resumed questioning only after the passage of a significant period of time and the provision of a fresh set of warnings, and restricted the second interrogation to a crime that had not been a subject of the earlier interrogation." The Court held that the statements made during the second interrogation were admissible and did not violate the principles of Miranda. Whether Stock's right to silence was "scrupulously honored" turns on our application of Mosley to Stock's case. Stock exercised his right to silence at the end of the first interview with Officer Turney by asserting that he was "tired of answering questions." Tur-ney did not stop the first interview until Stock had asserted twice that he was tired of answering questions. About one-half hour later, Turney re-initiated an interrogation on the same subject matter as the first interrogation—after reminding Stock of his Miranda rights, but not fully repeating them. Some courts have interpreted Mosley literally and strictly. For example, the Tenth Circuit has stated that, "[Ojfficers can reinitiate questioning only if: (1) at the time the defendant invoked his right to remain silent, the questioning ceased; (2) a substantial interval passed before the second interrogation; (3) the defendant was given a fresh set of Miranda warnings; [and] (4) the subject of the second interrogation was unrelated to the first." Under this test, Stock's statements in the holding cell would be suppressed. However, the Tenth Circuit has acknowledged that reasonable judges could conclude that Mosley does not require such a broad restriction on the resumption of custodial interviews. In an unpublished decision, the Tenth Circuit concluded that the Kansas Supreme Court's more flexible interpretation of Mosley was not unreasonable. Most courts have not interpreted Mosley as dictating a list of requisites, but instead as providing guidance for a case-by-case inquiry into all the relevant facts to determine whether the suspect's rights have been respected. As the Fourth Circuit stated, "Mosley does not prescribe a bright-line test to determine whether a suspect's right to cut off questioning was 'scrupulously honored.' Instead, the touchstone is whether a 'review of the circumstances' leading up to the suspect's confession reveals that his 'right to cut off questioning was fully respected.' " Some courts have determined that before an accused's previously asserted right to remain silent may be deemed to have been "scrupulously honored," law enforcement officers must, at a minimum, re-administer Miranda warnings. For example, in State v. Hartley, Hartley was arrested and stated, after being advised of his Miranda rights, "I don't believe I want to make a statement at this time." The authorities asked Hartley no questions at that time. More than one hour later, the same agent told Hartley that he wanted him "to reconsider and now is the time if you are going to make a statement." Subsequently, Hartley gave a full confession. The New Jersey Supreme Court held that an assertion of the right to silence can be scrupulously honored only if, at a minimum, the suspect is given fresh Miranda warnings. Because the agent re-interviewed Hartley without re-administering Miranda warnings, the court concluded that the right to remain silent was not honored and that Hartley's statement "must therefore be deemed to have been unconstitutionally compelled." The New Jersey court declared that administering fresh Miranda warnings is "indispensable to a permissible resumption of custodial interrogation of a previously-warned suspect." Similarly, the Ninth Circuit in United States v. Hsu, found that re-administration of Miranda warnings was the most important Mosley factor. In Hsu, a DEA agent arrested Hsu, read him his Miranda rights, and obtained a waiver. But after answering a few questions, Hsu asked if he could remain silent. The agent promptly stopped the interview. Subsequently, another agent placed Hsu in her car, drove him to a co-defendant's house, and conducted a search of that house. After the search, another agent, who did not know that Hsu had previously invoked his right to remain silent, advised Hsu of his Miranda rights, obtained a waiver, and interrogated Hsu—obtaining a confession. The parties agreed that the amount of time between the interviews was at most thirty minutes. On appeal, Hsu argued that, because such a short period of time elapsed between the first and second interviews and because the agent questioned him on the same subject matter, the second interrogation violated the Fifth Amendment. The Ninth Circuit concluded that while the short passage of time "might ordinarily incline us toward a conclusion that [the] right to cut off questioning was not respected," they rejected a bright-line rule barring any questioning that takes place within an hour of an invocation of Miranda rights. The Ninth Circuit emphasized that the most important factor—or perhaps even "[t]he crucial factor"—was the provision of a fresh set of Miranda warnings. The court determined that the fresh warnings and a valid waiver, in addition to the deferential conduct of the agents involved, "militat[ed] toward a finding that Hsu's right to cut off questioning was scrupulously honored." But other courts view the question of whether the suspect was re-advised of his Miranda rights as just one factor to consider when determining if the suspect's rights were "scrupulously honored." In State v. Murphy, the North Carolina Supreme Court considered a case in which a defendant waived his Miranda rights and talked with police agents regarding the events that led to termination from his job. When the agents informed Murphy that he was going to be charged with the murder of his previous co worker, Murphy twice denied knowing anything about the homicide and eventually stated, "I got nothing to say." The agents immediately ceased the interrogation, charged Murphy with the murder, and turned him over to another agent for booking. Within fifteen minutes of the conclusion of the first interrogation, the booking agent initiated a conversation with Murphy, without re-administering Miranda rights, in which he encouraged Murphy to "'tell the truth' so that the 'bad feeling in his stomach' would go away." Murphy responded, "Man, you know the position I'm in, I can't tell you about it." The North Carolina Supreme Court emphasized that the question of whether the defendant had been re-advised of Miranda rights was just one factor to consider when determining if the defendant's rights were scrupulously honored. But the court reversed Murphy's conviction because the police resumed the interrogation within fifteen minutes of the time Murphy invoked his right to remain silent, the second interrogation involved the same subject matter as the earlier interrogation, and the defendant was not re-advised of his Miranda rights. In Weeks v. Angelone, the Fourth Circuit concluded that the Supreme Court of Virginia had reasonably applied the Mosley test when the Virginia court concluded that the police had "scrupulously honored" a defendant's right to remain silent even though the officer asked Weeks only if he remembered his rights prior to the second interrogation, and Weeks responded that he did. At 7:40 a.m., Weeks was read his Miranda rights, and after he invoked his right to remain silent, the questioning immediately ceased. At 6:00 p.m., Weeks was brought to the lounge of the prosecutor's office and interviewed again by the same officer. The officer asked Weeks whether he remembered the rights he had been read earlier in the day, and Weeks answered affirmatively. The officer then proceeded to summarize the evidence against Weeks and explained to Weeks that this was his opportunity to provide his explanation of what happened at the shooting. Weeks then confessed. On appeal, Weeks argued that three of the Mosley factors had been violated: a significant amount of time had not passed between interrogations, no new Miranda warnings were given, and the second interrogation concerned the same crime that was the subject of the first interrogation. In addressing Week's challenge, the Fourth Circuit noted that whether the police waited a significant period of time does not require a durational minimum—instead courts look "to what degree the police 'persist[ed] in repeated efforts to wear down [the suspect's] resistance and make him change his mind.' " The court found it reasonable for the Supreme Court of Virginia to conclude that more than ten hours was sufficient in this case. With regard to the fact that Weeks had not received a fresh set of Miranda warnings prior to the second interview, the court noted that, "The fact that incomplete Miranda warnings, or no warnings at all, are given prior to the second interrogation is not decisive." The court found this principle particularly apt in this situation, where "Weeks apparently was aware of his Miranda rights and voluntarily chose not to exercise them." The fact that Weeks chose to speak with the same officer to whom he had previously asserted his right to cut off questioning was evidence that Weeks was comfortable exercising his rights—an indication that his decision to talk to the officer was a product of volition rather than coercion. Lastly, with regard to whether the second interrogation concerned a crime that was the subject of the first interrogation, the court concluded that when other factors indicate that a defendant's right to cut off questioning was "scrupulously honored," questioning about the same crime "does not necessarily render a confession derived from the second interrogation unconstitutionally invalid under Mosley." Overall, looking at the totality of the circumstances, the Fourth Circuit found it reasonable for the Supreme Court of Virginia to conclude that the police "scrupulously honored" Weeks's right to cut off questioning. Having considered all of the foregoing authorities, we find ourselves in agreement with those jurisdictions that do not view Mosley as creating a set of hard-and-fast requirements. We conclude that the Mosley decision points to the factors that must be considered when assessing whether a suspect's right to cut off questioning was scrupulously honored. Each of these factors must be considered, but no single factor is determinative, either in its presence or its absence. Under this interpretation of Mosley, there are several problematic aspects of Officer Turney's renewed interview with Stock in the holding cell. Turney was the same officer who had interviewed Stock the first time. This second interview took place about one-half hour after the first interview. Moreover, the second interview focused on the same subject matter as the first—and it is clear that Turney was attempting to get Stock to answer the type of question that Stock had previously refused to answer: questions dealing with how Lynch had come to be injured at Stock's apartment. And finally, Turney did not re-administer full Miranda warnings to Stock; rather, he simply reminded Stock of the earlier advisement of rights. On the other hand, several aspects of the situation support the superior court's ruling. When Turney came to Stock's holding cell, he asked Stock for permission to enter, and Stock's immediate response was, "Sure. Have a seat." Even though Turney did not repeat the full set of Miranda warnings, when Tur-ney asked Stock whether he remembered his Miranda rights, Stock's response showed that he did recall his right to remain silent— Stock immediately asserted (and Turney agreed) that he could refuse to answer any questions. Turney then proposed that the holding cell interview proceed in the same manner as the earlier interview: with Stock having the right to decide, on a question-by-question basis, whether he would answer Turney's inquiries. Stock replied, "All right. All right." Weighing all of these factors, we conclude that Turney satisfied Mosley's mandate of "scrupulously honoring" Stock's right to cut off questioning. Accordingly, we affirm the superior court's decision to allow the State to introduce the statements Stock made during the holding cell interview. Stock also argues that his statements were not voluntary. But Stock never obtained a ruling from Judge Smith on this issue. He therefore did not preserve this issue for appeal. We find no plain error. The record shows that Stock was a relatively sophisticated defendant who knew his rights and exercised them. Why we conclude that Judge Smith did not abuse his discretion in admitting the testimony of Lynch's mother We next address Stock's claim that Judge Smith erred by admitting the testimony of Ronilee Batey, the victim's mother. By the time of Stock's trial, David Lynch had died from causes unrelated to the injuries he received from Stock's assault. The State called Lynch's mother, Batey, as a witness. Batey explained how, prior to the assault in this case, Lynch broke his ankle when he slipped in her driveway. He had surgery on the ankle and was using a cane and wearing a hard plastic boot cast to protect the ankle. Judge Smith had established a procedure where he allowed jurors to submit proposed questions for witnesses. A juror submitted a proposed question for the court to ask Batey: "Did you notice increased injuries from the assault?" In a bench conference, Stock's attorney objected to this question. She asserted that Lynch "led a very unhealthy lifestyle." She argued that Batey's answer to this question would not have any foundation and would open up Lynch's lifestyle of alcohol abuse. But Judge Smith allowed the question. In response to the question whether she noticed increased injuries from the assault, Batey simply answered "Yes." Judge Smith asked whether Lynch was on any pain medication. Batey again answered 'Tes." When Judge Smith asked how strong the medication was, Batey responded that she thought he was taking codeine. At this point, the prosecutor asked Batey what specific injuries from the assault she had noticed. Stock's attorney again objected. But Judge Smith overruled the objection, directing Batey to restrict her answer to what she personally knew, and not to testify about what Lynch or the doctor had told her. Batey testified that there was "a definite change in [Lynch] after the assault." She stated that he had gone to the hospital several times, was in the hospital four days, and the doctors had run all kinds of tests. She said that the tests were inconclusive but that they were "based upon head injuries." She stated that Lynch would sit at home, cry, and just kind of "space out." Stock's attorney again objected. Although she initially asked for a mistrial, she ultimately asked for either a mistrial or the opportunity to cross-examine Batey about Lynch's lifestyle to provide an alternative explanation for his post-assault behavior. She also asked for discovery of Lynch's medical records. Judge Smith allowed Stock's attorney to cross-examine Batey about the limits of Batey's knowledge of Lynch's injuries and her knowledge of his severe alcoholism as an explanation for his post-assault symptoms. Judge Smith told Stock's attorney that she could subpoena the hospital records and that he would allow her to further develop explanations for Lynch's post-assault behavior based on those records. On appeal, Stock argues that Batey's testimony introduced an entirely new theory of assault in the first degree. One of the elements that the State had to prove to convict Stock of assault in the first degree was that Stock caused serious physical injury to Lynch. By statute, there are two ways to show serious physical injury. First, the State could show that Stock caused physical injury to Lynch by "an act performed under circumstances that create[d] a substantial risk of death." Second, the State could show that Stock had inflicted physical injury to Lynch that caused "serious and protracted impairment of health." Stock argues that the State had only asserted the first theory of serious physical injury—"physical injury caused by an act performed under circumstances that create[d] a substantial risk of death." Stock argues that Batey's testimony interjected the second theory of serious physical injury into the case—that Lynch suffered "protracted impairment of [his] health." He argues that he was prejudiced. But Stock never objected to Batey's testimony on this ground. And he never objected to the jury instructions that allowed the jurors to consider both theories of serious physical injury. He therefore did not preserve this issue for appeal, and we do not find plain error. There remains Stock's objection that Judge Smith abused his discretion in allowing Batey to testify about Lynch's post-assault injuries. But, as we have previously set out, the only remedy Stock's attorney ultimately asked for was to cross-examine Batey about Lynch's unhealthy lifestyle to provide an alternate explanation for his post-assault symptoms. Judge Smith allowed this cross-examination and left open the possibility that Stock could present other evidence if Lynch's medical records supported additional cross-examination. Stock never asked for additional cross-examination. We accordingly conclude that Stock did not preserve this issue for appeal. We do not find plain error. It appears that Stock may well have had a tactical reason for bringing out Lynch's unhealthy lifestyle and alcoholism to suggest alternative explanations for how he was injured and the extent of his injuries. Conclusion We conclude that Judge Smith did not err in allowing the State to introduce Stock's statements into evidence. The State did not violate Stock's Miranda rights in obtaining the statements. We also conclude that Judge Smith did not commit plain error in allowing Lynch's mother to testify about her son's post-assault behavior. The judgment of the superior court is AFFIRMED. . AS 11.41.200(a)(1), (b). . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). . 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975). . 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985). . Brown, 422 U.S. at 603-04, 95 S.Ct. at 2261-62. . Elstad, 470 U.S. at 300, 105 S.Ct. at 1288. . Halberg v. State, 903 P.2d 1090, 1099 (Alaska App.1995). . See id. . See id. at 1093. . See Munson v. State, 123 P.3d 1042, 1046-49 (Alaska 2005) (holding that a suspect's statement, "Well, I'm done talkin' then," was an unequivocal invocation of his right to silence). . Elstad, 470 U.S. at 314 n. 3, 105 S.Ct. at 1296 n. 3. . 423 U.S. 96, 104, 96 S.Ct. 321, 326, 46 L.Ed.2d 313 (1975). . Miranda, 384 U.S. at 473-74, 86 S.Ct. at 1627. . Mosley, 423 U.S. at 101-02, 96 S.Ct. at 325-26. . Id. at 102-04, 96 S.Ct. at 326. . Id. at 103-04, 96 S.Ct. at 326 (internal citations omitted). . Id. at 104, 96 S.Ct. at 326-27. . Id. at 104, 96 S.Ct. at 327. . Id. at 97-98, 96 S.Ct. at 323-24. . Id. at 106, 96 S.Ct. at 327. . Id. at 107, 96 S.Ct. at 328. . United States v. Rambo, 365 F.3d 906, 911 (10th Cir.2004) (quoting United States v. Glover, 104 F.3d 1570, 1580 (10th Cir.1997)). Accord United States v. Alexander, 447 F.3d 1290, 1294 (10th Cir.2006). . Robinson v. Attorney General of State of Kansas, 28 Fed.Appx. 849, 853, 2001 WL 1515841 at *3-4 (10th Cir. Nov.29, 2001). . See, e.g., Weeks v. Angelone, 176 F.3d 249, 267-68 (4th Cir.1999); Kelly v. Lynaugh, 862 F.2d 1126, 1130 (5th Cir.1988); State v. Murphy, 342 N.C. 813, 467 S.E.2d 428, 435 (1996). . Angelone, 176 F.3d at 268 (quoting Mosley, 423 U.S. at 104, 96 S.Ct. at 326-27) (other citations and internal quotation marks omitted). Accord Dewey v. State, 169 P.3d 1149, 1154 (Nev. 2007) (holding that the Mosley factors are not inflexible constraints but instead are "relevant factors to be considered in determining if the police 'scrupulously honored' the defendant's right to remain silent" (citing United States v. Hsu, 852 F.2d 407, 410 (9th Cir.1988))). . 103 N.J. 252, 511 A.2d 80 (1986). . Id. at 83. . Id. . Id. . Id. at 84. . Id. at 85. . Id. at 88. . 852 F.2d 407 (9th Cir.1988). . Id. at 409. . Id. . Id. at 411. . Id. at 409. . Id. at 412. . Id. at 411. . Id. (quoting United States v. Heldt, 745 F.2d 1275, 1278 n. 5 (9th Cir.1984)). . Id. . 342 N.C. 813, 467 S.E.2d 428 (1996). . Id. at 433. . Id. . Id. . Id. . Id. at 435. . Id. . 176 F.3d 249 (4th Cir.1999). . Id. at 267. . Id. . Id. at 267-68. . Id. at 268 (alteration in original) (quoting Mosley, 423 U.S. at 105-06, 96 S.Ct. at 327). . Id. . Id. (citations omitted). . Id. at 269. . Id. . Id. (citations omitted). . Id. . See, e.g., Marino v. State, 934 P.2d 1321, 1327 (Alaska App.1997) (finding that a defendant cannot raise an issue on appeal if he chose to proceed at trial without seeking a ruling on the merits of his motion on that issue); Erickson v. State, 824 P.2d 725, 733 (Alaska App.1991) ("[I]n order to properly preserve this issue for appeal, it was [the defendant's] duty to insist that the trial court rule on his motion."). . AS 11.41.200(a)(1) and AS 11.81.900(b)(56)(A). . AS 11.41.200(a)(1) and AS 11.81.900(b)(56)(B).

10443566

Harold F. GREENWAY, Appellant, v. STATE of Alaska, Appellee

Greenway v. State

1980-11-07

No. 4754

1060

1062

626 P.2d 1060

626

Pacific Reporter 2d

Alaska Supreme Court

Alaska

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CAP

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

Harold F. GREENWAY, Appellant, v. STATE of Alaska, Appellee.

Harold F. GREENWAY, Appellant, v. STATE of Alaska, Appellee. No. 4754. Supreme Court of Alaska. Nov. 7, 1980. Dick L. Madson, Cowper & Madson, Fairbanks, for appellant. Natalie K. Finn, Asst. Dist. Atty., Harry L. Davis, Dist. Atty., Fairbanks, Avrum M. Gross, Atty. Gen., Juneau, for appellee.

1393

8385

OPINION Before RABINOWITZ, C. J., CONNOR, BURKE and MATTHEWS, JJ., and DIMOND, Senior Justice. PER CURIAM. Harold Greenway was convicted of raping his thirteen year old stepdaughter. The rape occurred in July, 1978, on the banks of the Yukon River, near Green way's summer fish camp. According to the victim, Green-way threatened to kill her if she told anyone about the rape and, as a result, she told no one other than her mother until September, when she reported the rape to her school counselor. At trial the State, over Greenway's objections, presented testimony by the victim's mother and her school counselor concerning her complaints of rape. Greenway now contends that the trial court's failure to exclude this testimony as inadmissible hearsay constituted reversible error. The State contends that the statements in question were admissible under the special hearsay exception concerning complaints of the victim in sex crimes. We find this argument persuasive. We recognized this exception in Torres v. State, 519 P.2d 788, 793 n.9 (Alaska 1974): [A]s Wharton points out, statements concerning the crime of rape or sexual assault, shortly after the commission of the act are admissible as a recognized exception to the hearsay rule: In a prosecution for a sex crime, such as rape or assault with intent to rape, it may be shown by testimony of the prose-cutrix or by that of some other witness, that the prosecutrix made complaint of the crime shortly after its commission. Such evidence tends obviously to indicate the truth of the charge and is corroborative thereof; conversely, evidence of the failure to make a prompt complaint casts doubt upon the truth of the claim that a crime had been committed. 2 F. Wharton, Criminal Evidence § 313, at 113-114 (13th ed. Charles E. Torcia 1972) (footnotes omitted). See also 4 J. Wigmore, Evidence § 1134-36 (Chadbourn rev. ed. 1972) (discussingi at length the justifications behind the exception). It is true that, other than the disputed complaint made to her mother approximately three days after the incident, the victim here did not complain of the rape until September, over a month after its commission. However, her delay is both explained and excused by Greenway's threats against her and her young age. See, e. g., Hunt v. State, 213 So.2d 664 (Ala.App.), cert. denied, 213 So.2d 666 (Ala.1968) (delay of nine months does not bar admission of testimony, in light of, inter alia, defendant's threats to kill victim); State v. Twyford, 85 S.D. 522, 186 N.W.2d 545 (1971) (delay of over two months not reason to exclude testimony, since victim was only twelve years old). We therefore conclude that the trial judge did not err in admitting the testimony of the rape victim's mother and her school counselor concerning her complaint of rape. The conviction is AFFIRMED. MATTHEWS, J., with whom RABINO-WITZ, C. J., joins, concurs. . There is conflicting testimony as to whether or not the victim actually told her mother of the rape. The victim testified that she told her mother of the rape about three days after the incident but the mother interpreted this conversation differently and denied that she knew of the rape until after the victim told her school counselor in September. A social worker also testified that she and the mother had discussed the victim's rape and that the mother had indicated that her daughter had told her of the rape shortly after the incident. The mother admitted to having several conversations with the social worker but again denied admitted knowledge of the rape prior to her daughter's report to the school counselor. . Appellant also claims as error the admission of the testimony of the victim that she had told her mother, best friend, social service worker and her school counselor about the rape. However, no objection was made to this testimony and, in fact, the appellant agreed that it should be admissible. Therefore, this claim of error was waived. . We realize that the list of hearsay exceptions found in our present Rule 803, Alaska R. Evid., does not include this exception. This omission, however, was more in the nature of an oversight on our part, and not a repudiation of Torres; we shall refer the question of whether the rules should be amended to include the exceptions noted in Torres to our standing committee on the Evidence Rules. In any event, Evidence Rule 803 was not in effect at the time of Greenway's trial, and so does not govern this appeal. . We find no merit to appellant's argument that the victim's testimony went beyond the "fact of the complaint" limitation which is part of the special hearsay exception concerning complaints of the victim in sex crimes. Appellant argues that it was error to allow the victim to testify that she had mentioned the location of the event and, impliedly, the perpetrator, to third persons. Testimony from either the victim or witnesses pertaining to "details" of the victim's complaint is generally not admissible. See generally 4 J. Wigmore, Evidence § 1136, at 306 (Chadbourn rev. ed. 1972). However, in her testimony the victim did not, in fact, state anything about the rape or the name of the perpetrator in her complaints to third persons. The victim's testimony was only to the effect that she had told third persons of the rape. She gave no details pertaining to her complaints and nothing else in the record indicates that either the victim or the witnesses gave such testimony.

10442557

Walter ROTH, Appellant, v. STATE of Alaska, Appellee

Roth v. State

1981-04-16

No. 5116

583

586

626 P.2d 583

626

Pacific Reporter 2d

Alaska Court of Appeals

Alaska

2021-08-10T20:56:53.427674+00:00

CAP

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

Walter ROTH, Appellant, v. STATE of Alaska, Appellee.

Walter ROTH, Appellant, v. STATE of Alaska, Appellee. No. 5116. Court of Appeals of Alaska. April 16, 1981. Christopher E. Zimmerman, Fairbanks, for appellant. Paul E. Olson, Asst. Dist. Atty., Fairbanks, Larry R. Weeks, Dist. Atty., Anchorage, Wilson Condon, Atty. Gen., Juneau, for appellee. Before BRYNER, C. J., and COATS and SINGLETON, JJ.

1004

6155

OPINION PER CURIAM. Appellant was tried and convicted of operating a motor vehicle while under the influence of intoxicating liquor on November 27, 1978, and appealed his conviction to the superior court where it was affirmed on December 10, 1979. He renews his appeal in this court alleging two errors: first, that the district court erred in failing to grant a mistrial when the jury was inadvertently informed of appellant's refusal to take a breathalyzer test; and second, that the district court committed prejudicial error in permitting the district attorney to cross-examine appellant to show bias by inquiring about the possibility of future litigation arising out of the accident which led to his apprehension. We have reviewed the record in this case and have concluded that the judgment should be affirmed. On August 24, 1978, Roth drove his van into a barricaded ditch in Fairbanks. A police officer responded to the accident, extricated Mr. Roth from the ditch and, after a brief intermission at a hospital where Roth was examined by a physician, charged him with driving a vehicle while under the influence of intoxicating liquor and transported him to the Fairbanks office of the Alaska State Troopers where he was videotaped. During the course of the videotaping, he refused to take a breathalyzer test. Thereafter appellant successfully moved for an order in limine barring disclosure to the jury of his refusal to take the test. The court ruled that the videotape would be played to the jury, but the audio portion was to be turned off when the breathalyzer was offered and refused. Defendant objected to this procedure. The parties stipulated that the bailiff would control the audio portion. Nevertheless, through what appellant concedes was inadvertence, the bailiff erred and Mr. Roth was heard to say in the presence of the jury, "I refuse to take that test." In Puller v. Anchorage, 574 P.2d 1285, 1288 (Alaska 1978), the Alaska Supreme Court held that a refusal to take a breathalyzer examination could not be used as evidence against a defendant on the issue of his intoxication. The trial court here attempted to comply with that direction. Nevertheless, the jury heard the tainted evidence. Whether to grant a mistrial is committed to the sound discretion of the trial court, and its decision will only be overturned where clearly erroneous. Maze v. State, 425 P.2d 235, 239 (Alaska 1967). The trial judge has the opportunity to observe the tainted evidence in the context in which it is received by the jury. He, far better than we, can tell whether substantial prejudice has been done. The jury was specifically told not to consider the refusal of the test on the issue of guilt or innocence. See Anderson v. State, 438 P.2d 228, 232-33 n.15 (Alaska 1968) citing the general rule that "where the trial judge withdraws improper testimony from the jury's consideration, such an instruction is presumed to cure any error which may have been committed by its introduction." We do not consider this a case where the evidence of guilt was so weak and the tainted evidence so important on the main issue and so highly prejudicial that the curative instruction was insufficient to remove the error. See Anderson v. State, id. Generally, inadvertent disclosures to the jury in OMVI prosecutions regarding breathalyzer and blood tests have not been held too prejudicial to be cured by an instruction. See State v. Johnson, 190 Kan. 795, 378 P.2d 167 (1963) and Keener v. State, 522 P.2d 250 (Okl.Crim.App.1974). We hold that the curative instruction in the context in which it was given and under the circumstances of this case cured any error. Appellant's second claim of error concerns the court's permitting the prosecution to cross-examine him regarding a possible law suit against the City of Fairbanks. The state countered that this was proper cross-examination to show bias. A defendant who elects to testify and take the witness stand is subject to cross-examination to the same extent as any other witness regarding possible bias, provided that the trial court should, in its discretion, exclude relevant evidence where its probative value is outweighed by the danger of unfair prejudice. Alaska R.Evid. 403. Here the trial court could have reasonably concluded that the defendant's fear that a misdemeanor conviction would handicap a major civil suit involving the same facts, might increase his bias and be relevant to the credibility of his testimony. See Scott v. Robertson, 583 P.2d 188 (Alaska 1978). The only prejudice defendant alleges is the risk that a Fairbanks jury might be overly concerned as taxpayers with the community's exposure in civil litigation. We are not able to say that the trial judge abused his discretion and committed clear error in concluding that the probative value of the questioned testimony outweighed any prejudicial effect. The judgment of the superior court affirming the judgment of the district court is hereby AFFIRMED. . The trial court discussed curative instructions with counsel and then instructed the jury as follows: (Instruction 9A) A person who is arrested for the offense of operating a motor vehicle while under the influence of intoxicating liquor, may be offered an opportunity to take one or more tests to determine the percentage, if any, of alcohol in his blood. A person so arrested, has the right to elect not to take any of these tests. The defendant's election not to take the tests cannot be considered by you in determining his guilt or innocence. . We note that Dr. Marshall was apparently permitted to testify without objection that defendant refused a number of medical tests including a blood test to determine intoxication immediately after the accident. Thus the evidence complained of would appear cumulative.

8952725

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Petitioner, v. Asa DOWDY and Barbara Dowdy, Respondents

State Farm Mutual Automobile Insurance Co. v. Dowdy

2005-04-22

No. S-10946

337

343

111 P.3d 337

111

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T23:30:11.855759+00:00

CAP

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

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Petitioner, v. Asa DOWDY and Barbara Dowdy, Respondents.

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Petitioner, v. Asa DOWDY and Barbara Dowdy, Respondents. No. S-10946. Supreme Court of Alaska. April 22, 2005. Paul W. Waggoner, Law Offices of Paul Waggoner, Anchorage, for Petitioner. Jonathon A. Katcher, Pope & Katcher, Anchorage, for Respondents. Before: BRYNER, Chief Justice, MATTHEWS, EASTAUGH, FABE, and CARPENETI, Justices.

3660

22829

OPINION PER CURIAM. I. INTRODUCTION In this petition for review, we address whether an arbitrator should decide two disputed insurance coverage issues. This matter arises in the context of an insurance policy's arbitration clause that provides for arbitration by written request of the insured or the insurer as to either of two questions: (1) "Is the insured legally entitled to collect damages from the owner or driver of the uninsured vehicle or under insured motor vehicle"; and (2) "if so, in what amount?" Barbara and Asa Dowdy requested arbitration of their negligent infliction of emotional distress (NIED) and loss of society claims, including the question whether they were covered under the policy. The trial court granted the Dowdys' motion to stay the judicial proceedings and referred the matter to arbitration. State Farm filed a petition for review, which we granted. We hold that the coverage issues do not fall within the policy's arbitration clause and are not inextricably intertwined with issues of liability and damages committed to arbitration under the policy. We therefore reverse the trial court's decision to refer the policy coverage issues to arbitration. II. FACTS AND PROCEEDINGS On September 30, 2000 at 3:00 p.m., Kirk Jackson, driving with a blood alcohol content of at least .292, crossed over the centerline of the road and caused a head-on collision with seventeen-year-old Heather Dowdy. Troopers contacted Heather's mother, Barbara Dowdy, at 5:00 p.m. and informed her that Heather was in a serious accident. Barbara Dowdy went to Fairbanks Memorial Hospital and waited in the chapel until she was informed by a doctor at 6:20 p.m. that her daughter had died. During the three and one-half hours, the doctors had performed a series of medical procedures on Heather, including intubating, ventilating, abdominal surgery, shaving her skull, drilling a hole in her skull, and using an electrical saw on her skull. Barbara Dowdy first saw and identified her daughter after she had died. In her affidavit she states: I remember screaming and shouting and I lost all rationality.... I lost track of time and space.... I was in such a state of shock that I was unable to operate a telephone to call my daughter Jennifer to tell her of Heather's death. My hands were shaking so strongly that I could not operate the buttons on the phone. I was crying so hard that I could not see the buttons through my tears. I was so disoriented that I could not remember Jennifer's phone number of many years. After the phone call I could not remember how to get back to the room where Heather was.... I had to be physically supported in order to walk back to Heather's room_I continue to have problems with my short term memory since seeing Heather in the hospital. Heather's father, Asa Dowdy, learned of the accident at 8:00 p.m. and rushed to the hospital. He was told that Heather had died and then saw his daughter. He describes his emotional response in his affidavit: I started to cry and I physically felt a painful change in my chest as if there was a hole in my heart. I continued to feel this physical pain in my chest for five or six weeks after seeing Heather in the hospital. When I saw [her] . I felt a weakness in my body that forced me to sit down. I wept. The Dowdys assert that Heather died as a result of Jackson's reckless and outrageous conduct, and that they suffered negligently inflicted emotional distress and the loss of society of their minor child. Jackson was insured by Allstate, which paid one $50,000 liability policy limit, plus add ons, to the Estate of Heather Dowdy to settle its claims for wrongful death, and one $50,000 liability policy limit, plus add ons, to the Dowdys to settle their claims for NIED, loss of society, and punitive damages. The Dowdys had three State Farm policies, each of which included underinsured motorist (UIM) policy limits of $100,000 per person/$300,000 per accident. State Farm paid the Estate of Heather Dowdy three $100,000 UIM per person policy limits plus add ons. The Dowdys claim that there are separate limits available for NIED, loss of consortium, and punitive damages. They assert that State Farm should pay each of them a separate $100,000 UIM per person policy limit, for a total of $200,000 plus add ons. The Dowdys also maintain that their claims must be adjudicated by arbitration pursuant to the following arbitration agreement in their State Farm policy: Deciding Fault and Amount — Coverages U and U1 Two questions must be decided by agreement between the insured and us: 1. Is the insured legally entitled to collect damages from the owner or driver of the uninsured motor vehicle or un-derinsured motor vehicle; and 2. If so, in what amount? If there is no agreement, these questions shall be decided by arbitration.... State Farm filed a declaratory judgment on July 12, 2002 to establish the rights of the parties under the State Farm policy. On January 2, 2003, Superior Court Judge Niesje J. Steinkruger granted the Dowdys' motion to stay judicial proceedings and referred the matter "to arbitrators to resolve all factual and legal issues arising from this dispute." State Farm filed this petition for review. III. DISCUSSION State Farm argues that the disputed coverage issues in this case should not be arbitrated because the public policy in favor of developing precedent and maintaining uniformity in decision making requires judicial determination of coverage issues. State Farm also contends that its insurance policy's arbitration clause does not submit the disputed coverage issues to arbitration. The Dowdys respond that all issues should be arbitrated because the central coverage question, whether they suffered "bodily injury" in the "same accident" as their daughter, is inextricably intertwined with issues of liability and amount of damages that the policy commits to arbitration. The Dowdys also argue that they will endure excessive delay if they are forced to wait for adjudication of coverage issues before they can present their testimony to arbitrators. We will proceed to consider the parties' arguments following our statement of the standard of review. A. Standard of Review Whether a dispute is arbitrable is a question of law that we will review de novo. On questions of law, we will adopt the rule of law that is most persuasive in light of precedent, reason, and policy. B. The Coverage Matters at Issue in this Case We first consider our previous decisions on the issue of separate "per person" limits for NIED and loss of society claims to provide a context for understanding the matters of coverage particular to this case. Although we have not yet defined conclusively the parameters for these claims, we addressed the question whether NIED claims qualify for separate policy limits in State Farm Mutual Automobile Insurance Co. v. Lawrence, In Lawrence, the phrasing of the coverage provided by the UIM policy for bodily injury was identical to that in the Dowdys' policy. We determined that under such a policy two requirements must be met in order for the victim's parents to be eligible for separate policy limits: The parents must demonstrate that (1) they suffered "bodily injury"; and (2) they were injured "in the same accident" as the victim. We did not ultimately assess whether the Lawrences had met these requirements because we determined that State Farm had waived both the issue of whether the emotional distress claimed by the parents constituted "bodily injury" and the issue of whether the parents had been "in the same accident" as their child. The issue of separate policy limits for loss of consortium also arose in Wold v. Progressive Preferred Insurance Co. in connection with the question whether liability coverage had been exhausted. Heidi Wold, a passenger in Kirby Smith's car, lost her life in an accident that occurred when Smith swerved to avoid an oncoming vehicle in his lane of traffic. The Wold parents wanted to recover underinsured motorist benefits from their insurer, Progressive. Progressive denied such coverage on the basis that the liability coverage under Smith's policy with Allstate had not yet been exhausted because the Wolds' claim for loss of consortium had triggered separate "per person" policy limits under the Allstate policy. In Wold, we decided that it was unnecessary to resolve definitively whether a loss-of-society claim should trigger separate "per person" coverage because Progressive and Allstate both viewed "a claim for loss of consortium or society — as opposed to a claim for NIED — as a derivative claim that would not trigger a separate 'per person' Allstate policy limit." Because both parties agreed on the proper treatment of the claim it was unnecessary for us to rule on the question of whether separate "per person" policy limits should generally apply to loss of consortium. In a footnote to the opinion, we recognized that the issue may not be amenable to a definitive resolution, since much of the case law cited by the parties in their supplemental briefing seems to suggest that whether a loss-of-soeiety claim should trigger separate "per person" coverage may hinge more on a particular policy's definition of the scope of its bodily injury coverage than on the inherent nature of a cause of action for loss of society.[ ] An added layer of complexity in determining these coverage issues, therefore, is that many variations exist in policy language and scope. As our footnote in Wold suggests, these variations may prevent the court from making a broad or general determination as to whether separate policy limits apply and may require a specialized analysis of the policy language in question. C. The State Farm Insurance Policy Does Not Commit the Disputed Coverage Issues to Arbitration. By its terms, the State Farm arbitration clause does not include the disputed coverage issues in this case. The policy language commits two questions to arbitration: 1. Is the insured legally entitled to collect damages from the owner or driver of the uninsured motor vehicle or un-derinsured motor vehicle; and 2. If so, in what amount? By focusing on the insured's right "to collect damages from the owner or driver " (emphasis added), the arbitration clause unambiguously excludes questions relating solely to the right to collect from the insurer. Here, the disputed coverage claims involve the Dowdys' right to recover from State Farm, not from the owner or driver of the vehicle. The language of the policy therefore does not submit the disputed coverage issues to arbitration. The Dowdys assert that their claim should nevertheless be arbitrated because the coverage matters in question are inextricably intertwined with the issues of fault and damages committed to arbitration under the policy. They also argue that if the coverage issues are not arbitrated they will confront hardship due to delays associated with adjudication. We address each of these contentions below. D. Although Undue Delay Due to Bifurcation Is a Valid Concern, It May Be Addressed Through an Alternative Approach. The Dowdys argue that if the coverage matters involved in this case are not arbitrat ed they will have to endure excessive delay. The Dowdys point out that in Lawrence, which also involved NIED and loss of society coverage claims, the bifurcated case took almost seven years to finally resolve. The Dowdys maintain that if they are forced to wait for the superior court's resolution of their case and the likely Alaska Supreme Court appeal, they will not be able to put the terrible event of their daughter's death behind them for several more years. They argue that "[o]ut of respect for [their] grief the court should allow them to promptly present to the arbitrators their testimony about the terrible ordeal of September 30, 2000." The Dowdys are correct in their assessment of the delaying effects of court adjudication of coverage issues before arbitration of liability and damages. But commentators have recognized an alternative approach that addresses this problem of delay. For example, in his treatise, Uninsured and Underinsured Motorist Insurance, Professor Alan Widiss suggests that courts should have flexibility in determining the order of bifurcated proceedings: There seems to be little, if any, reason why coverage issues — which insurers insist on resolving within the judicial' system — must or should be decided first. To the extent that arbitration in fact provides an efficient and expeditious resolution process, it seems preferable to pursue that adjudication first.[ ] We agree with Professor Widiss that in some cases it may be preferable to allow .arbitration to precede adjudication of coverage issues. Application of such an approach could allow plaintiffs to be heard on the adjudicated factual issues on a more expedited basis. We leave discretion to trial courts to allow arbitration of liability and damages to proceed before or even concurrently with court adjudication of coverage in order to alleviate concerns regarding delay. E. The Policy Coverage Issues Are Not Inextricably Intertwined with Issues of Fault and Liability in this Case. The Dowdys also contend that the policy coverage issues are inextricably intertwined with the issues of fault and liability committed by contract to arbitration. They argue that an arbitrator should therefore decide all these issues together. Several courts have determined that arbitration is appropriate where underinsured motorist coverage questions are inseparable from issues of fault and damages included in the policy's arbitration clause. A number of other courts considering arbitration policies ⅛ the context of business contracts have determined that arbitration is necessary when nonarbitrable claims are inseparable from arbitrable matters. These cases help persuade us that coverage matters not committed to arbitration by the terms of the policy should nevertheless be arbitrated where they are inextricably intertwined with matters committed by contract to arbitration. Where the findings committed to the arbitrator would decide the coverage question, then the coverage question should be subject to arbitration. The Dowdys' NIED and loss of society claims are not inextricably intertwined with the policy coverage issues. To prevail before the arbitrator on their NIED sensory observation claims, the Dowdys must show that (1) the defendant negligently caused injury to a close relative, (2) the plaintiffs experienced shock as the result of a sudden sensory observation of the relative's injuries more or less contemporaneously with learning of the nature of the victim's injury, and (3) the harm suffered was severe, but need not have resulted in physical illness or injury. To prevail on their parental loss of society claim, the Dowdys must show that the defendant negligently caused the injury or death of their child and that they suffered mental distress as a result. The coverage issues raised by both the NIED and loss of society claims center on whether the Dowdys suffered "bodily injury" and whether they were injured "in the same accident" as their daughter under the terms of the policy. The arbitrator's determination of fault and liability will not necessarily resolve the coverage issues in this case. The meaning of "in the same accident" under the policy is a coverage question that is clearly distinct from the determinations to be made by the arbitrator. Because neither the NIED nor the loss of society claims require a showing of physical injury, it is not necessary for the arbitrator to determine whether the Dowdys suffered "bodily injury." The coverage issues are therefore not inextricably intertwined with the fault and liability questions to be arbitrated. If the arbitrator finds liability on either or both claims, the assessment of damages may, but need not, include findings regarding whether the Dowdys suffered various physical symptoms alleged in their affidavits. Although whether the Dowdys suffered "bodily injury" under the policy remains a question for the court, the court should give collateral estoppel effect to fact determinations made by the arbitrator and these determinations, if made and necessary to the issues properly before the arbitrator, can serve to establish the underlying facts on which the court must base its coverage determination. IV. CONCLUSION We hold that the disputed coverage issues do not fall within the ambit of the policy's arbitration clause and that these coverage questions are not inextricably intertwined with the fault and liability issues committed to arbitration under the policy. We therefore REVERSE the trial court's order to refer the policy coverage issues for resolution by an arbitrator. On remand, the superior court has the discretion to allow arbitration of liability and damages to proceed before or even concurrently with court adjudication of the coverage issues to alleviate concerns regarding delay. . For purposes of the petition for review, we take as true the facts asserted by the Dowdys. . The Dowdys assert their NIED claim under Beck v. State, 837 P.2d 105, 109-11 (Alaska 1992), their loss of society claim under Gillispie v. Beta Constr. Co., 842 P.2d 1272 (Alaska 1992), and their punitive damages claim under State Farm Mut. Auto. Ins. Co. v. Lawrence, 26 P.3d 1074, 1079-81 (Alaska 2001). This petition for review requires that we consider whether the claims should be arbitrated or judicially tried, not to assess the merits of the liability claims. The parties' arguments regarding the merits of their claims, therefore, will be addressed only to the extent that they are relevant to determining whether or not the coverage claims should be arbitrated. . Ahtna, Inc. v. Ebasco Constructors, Inc., 894 P.2d 657, 660 (Alaska 1995). . Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979). . 26 P.3d 1074 (Alaska 2001). . The policies each stale as follows: Under "Each Person" is the amount of coverage for all damages due to bodily injury to one person. "Bodily injury to one person " includes all injury and damages to others resulting from this bodily injwy. Under "Bodily Injury'— Each Accident" is the total amount of coverage, subject to the amount shown under "Each Person", for all damages due to bodily injury to two or more persons in the same accident. Id. at 1077. . Lawrence, 26 P.3d at 1077 (citing Crabtree v. State Farm Ins. Co., 632 So.2d 736, 745 (La.1994)). . ⅛ at 1077. . 52 P.3d 155, 166 (Alaska 2002). . Id. at 157. . Id. at 166. . Id. . . Id. at 166 n. 36. In the footnote that followed, we also commented that [b]ecause we have limited our decision to the propriety of allocating the Wolds' loss-of-society settlement to separate "per person" limits under the Allstate policy, we express no view as to the proper handling of these individual claims under the specific terms of Progressive's UM/UIM policy — an issue that the parties have not addressed and that we think should properly remain open for consideration by the superior court in the first instance, if it arises. Id. at 166 n. 37. . Id. at 166 n. 36. The suggestion that the superior court should first consider these coverage issues under the Progressive policy alludes to the need for courts to decide this issue, however, because a request for arbitration was not at issue, it may not be fair to conclude that this statement favored court adjudication over arbitration. . Cf. United Servs. Auto. Ass'n v. Turck, 156 N.J. 480, 721 A.2d 1, 4-6 (1998) (holding coverage questions arbitrable where policy committed to arbitrator disputes over whether "a covered person . is legally entitled to recover damages under this endorsement" but suggesting that coverage questions would not be arbitrable where policy limits arbitration to disputes over whether the insured "is legally entitled to recover damages from the owner or operator of an uninsured highway vehicle"). . We do not reach State Farm's alternative argument that public policy considerations favor judicial determination of disputed coverage issues. . 2 Alan I. Widiss, Uninsured and Underinsured Motorist Insurance § 24.6, at 403 (Rev.2d ed. 2000). . See Klimek v. Horace Mann Ins. Co., 14 F.3d 185, 188 (2d Cir.1994); Rocca v. Pennsylvania Gen. Ins. Co., 358 Pa.Super. 67, 516 A.2d 772 (1986); see also 1 Martin Domke, Domke on Commercial Arbitration § 13:12 (Gabriel M. Miller rev. ed., 2003) ("Under a standard clause that authorizes arbitration if the parties disagree as to the insured's legal entitlement to recover damages from the owner or operator of an uninsured motor vehicle, disputed damage questions may implicate the question of the insured's duty to provide underinsured motorist coverage.... In other words, the issues of coverage and damages may be so inextricably intertwined that the entire dispute will fall within the scope of the arbitration clause. In such a case, the preliminaiy question of coverage is subject to arbitral resolution.") (citing Klimek, 14 F.3d at 187). . See Harvey v. Joyce, 199 F.3d 790, 795-96 (5th Cir.2000). The federal courts have further determined that nonsignatories may compel a signatory to arbitrate under an estoppel theoiy if the claims are "intimately founded in and intertwined with the underlying contract obligations." Thomson-CSF, S.A. v. Am. Arbitration Ass'n, 64 F.3d 773, 779 (2d Cir.1995) (citation omitted). . See Mattingly v. Sheldon Jackson Coll., 743 P.2d 356, 365 (Alaska 1987) (noting requirement that plaintiff and victim be closely related and that shock must follow closely on heels of accident); Chizmar v. Mackie, 896 P.2d 196, 201-04 (Alaska 1995) (noting that physical injury is not required for NIED sensory observation claims like that recognized in Mattingly). . Gillispie, 842 P.2d at 1273-74. . Lawrence, 26 P.3d at 1077. .The Restatement of Judgments establishes several requirements to give preclusive effect to arbitral decisions, including adequate notice to persons who are to be bound by the decision. While today's decision puts the parties on notice that the arbitrator's factual determinations will be given preclusive effect later in court, such effect would be appropriate only if the arbitration meets the other elements of fair adjudication. See Restatement (Second) of Judgments § 83(2) (1982) (listing criteria necessary to grant preclusive effect to quasi-judicial decisions).

8362665

ESTATE OF Patroky POLUSHKIN by David POLUSHKIN, Personal Representative of the Estate, Appellant, v. Roland MAW, Appellee

Estate of Polushkin ex rel. Polushkin v. Maw

2007-10-26

No. S-11775

162

173

170 P.3d 162

170

Pacific Reporter 3d

Alaska Supreme Court

Alaska

2021-08-10T22:55:53.240550+00:00

CAP

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

ESTATE OF Patroky POLUSHKIN by David POLUSHKIN, Personal Representative of the Estate, Appellant, v. Roland MAW, Appellee.

ESTATE OF Patroky POLUSHKIN by David POLUSHKIN, Personal Representative of the Estate, Appellant, v. Roland MAW, Appellee. No. S-11775. Supreme Court of Alaska. Oct. 26, 2007. Michael Hough, Homer, for Appellant. Peter R. Ehrhardt, Kenai, for Appellee. Before: BRYNER, Chief Justice, MATTHEWS, EASTAUGH, FABE, and CARPENETI, Justices:

6271

38130

OPINION MATTHEWS, Justice. I. INTRODUCTION In October 1989 Patroky Polushkin purchased an Upper Cook Inlet salmon drift fishery permit from Roland Maw. An addendum to the purchase agreement provided that Maw would retain all rights to claims or benefits resulting from the March 1989 Exxon VampEz oil spill that were associated with the permit. The question presented in this case is whether Maw is entitled to damages resulting from the oil spill that Polushkin suffered after the transfer of the permit. We answer in the negative because the language of the addendum is ambiguous, extrinsic circumstances suggest that the clause was intended to ensure that Maw's right to damages was not transferred with the permit, and reading the addendum to be an assignment of Polushkin's future claims to Maw would lead to unreasonable results. Because there is no relevant conflicting extrinsic evidence, we conclude that summary judgment should be entered in favor of Polushkin's estate. II, FACTS AND PROCEEDINGS A. Facts In the fall of 1989 commerbial fisherman Roland Maw listed his Upper Cook Inlet salmon drift fishery permit for sale. Patroky Polushkin offered to buy it. With the help of their brokers (Bruce Martinson of the Seattle brokerage firm GSI for Maw and Rose-leen Moore of the Homer firm Northern Enterprises Boat and Permit Brokerage for Polushkin), the parties agreed on Maw's asking price of $186,000 and executed an earnest money agreement in October 1989. Maw testified that there had been no "haggling" over the sales price. According to Moore, the price was a bit high but was within about $10,000 of the going market price for Upper Cook Inlet salmon drift net permits at that time. At the same time that they signed the earnest money agreement, Maw and Polush-kin, as well as their brokers, signed an addendum to the agreement. The text of the addendum follows: By their signatures below, the buyer and seller agree to modify their agreement regarding the sale of Alaska Cook Inlet Salmon Drift Gillnet Entry Permit number S08H61467Z as follows: Seller shall retain all rights of ownership and effect associated with the above referenced Alaska Entry Permit, to claims, settlements, and/or benefits resulting from the March 1989 Exxon oil spill, against the vessel Exxon Valdez, and the 1987 Glacier Bay oil spill. Maw testified that he directed his broker, Martinson, to draft the addendum. According to Maw, one of the GSI brokers characterized the addendum as "boiler plate." Maw also stated that "Polushkin himself suggested that the parties and the brokers all sign the addendum in order to avoid issues and misunderstandings about it in the future." Polushkin fished the permit in 1990, 1991, and 1992. He died in October 1992. The permit was then transferred to another person, who is not a party to this case. David Polushkin, Patroky's son, serves as the personal representative of Patroky's estate. The 1987 GractEr Bay oil spill referred to in the addendum involved the spill of oil from the vessel Gmactsr Bay into Cook Inlet The record does not indicate that claims were made that this oil spill caused damage after October 1989. The Exxon VauoEz oil spill occurred in March 1989 in Prince William Sound. Some of the oil drifted into Cook Inlet and caused state fisheries regu lators to cancel the drift gillnet salmon fishery in the inlet for 1989. Both the GuaciER Bay spill and the Exxon VaupEz spill resulted in class-action litigation in which holders of Cook Inlet drift permits were class members. In 1991 and 1992 Maw received three separate payments, totaling $54,945.57, for damages for the Guacisr Bay oil spill These funds were to compensate Maw for the reduction to his 1987 fishing income caused by the spill, and Maw was obliged to pay from these funds the percentage he owed to crew members who were percentage shareholders in his 1987 fishing income. Polush-kin did not claim any interest in these funds. The Exxon VaupEz spill was much larger than the Gracisr Bay spill and the litigation it engendered was more complex. A multi-billion dollar punitive damages award to class members only now may be nearing a final resolution. In 1997 a plan of distribution of present and future recoveries in the Exxon Vampez litigation in favor of Upper Cook Inlet salmon drift net claimants was approved by the United States District Court for the District of Alaska. This plan explains the types of claims held by Upper Cook Inlet fishermen. The largest claims are for seasonal lost income. The season with the greatest loss is the 1989 season, and the greatest allocation of the anticipated proceeds is made for that year. Smaller allocations are made for seasonal funds for 1990, 1991, 1994, and 1995. Concerning the 1990 and 1991 seasonal funds, the plan of distribution notes that the price of salmon "was negatively impacted as a result of the spill . resulting in lost income to UCI salmon drift claimants." According to the plan, the 1994 and 1995 seasonal funds were created not because the price of salmon in those seasons had been reduced but because of poor predicted returns for those seasons said to be the result of "overescapement into the Kenai River system" resulting "in long-term damage to the salmon stocks from that system." The plan also provides a method of compensating permit holders for the devaluation of permits sold between the second quarter of 1989 and the fourth quarter of 1992. According to the plan, disbursements will be proportioned to the amount by which actual market values of permits fall short of what they would have been without the spill. The shortfall is based on economic studies and is set forth in tabular form in the plan. According to the plan, the predicted value in the fourth quarter of 1989 for an Upper Cook Inlet permit was $192,881 and the actual value was $180,500. Without the oil spill, according to the table, the value in the fourth quarter of 1992 should have been $284,873, but the actual value was $88,250. Thus, a hypothetical seller who sold in the fourth quarter of 1989 suffered a projected loss of $11,881, whereas the buyer of the same permit at that time would have suffered an actual loss as of the fourth quarter of 1992 of $97,250 ($180,500 less $83,250) and a projected loss of $151,123. A third fund is created to compensate for the spill-eaused decline in market value of fishing vessels used in the fishery. Distributions from this fund are said to be based "on market values rather than individual vessel values" because "[alecounting for variations in individual vessel values would be unresa-sonably, if not prohibitively, expensive and time-consuming." Every owner of a vessel used in the fishery between March 24, 1989, and December 31, 1992, is eligible. Fund proceeds are to be distributed to vessel owners in a manner proportional to the amount by which vessels are estimated to have declined in value "from March 24, 1989 through December 81, 1992, using loss in permit values as a measure." In December 1992 an attorney from Faegre & Benson, a law firm in Minneapolis representing both the class in the Exxon litigation and Maw, wrote to David Polushkin seeking confirmation that he had no objection to "Maw's obtaining your father's 1990 and 1991 fishing records from the Commercial [Fisheries Entry] Commission for Mr. Maw's use in pursuing his claim against Exxon." The attorney stated: "As you are probably aware, Mr. Maw retained rights to recover all damages aceruing under the permit at the time he sold it to your father." According to Maw's affidavit filed in connection with the summary judgment motion in this case, the requested records were provided by the estate without comment. But Maw contradicted this affidavit in his deposition, stating he had no knowledge of what David Polushkin did in response to the letter; all he knew was that his claims were submitted. In December 1994 David Polushkin was given a payment of $2,837.56 by a Kenai law firm disbursing funds from a partial settlement with the Alyeska Pipeline Service Company, a co-defendant in the Exxon case. This payment was for his father's lost fishing income in the 1990 and 1991 fishing seasons and was based on his father's catch history on the permit in question. Maw received two payments from Faegre & Benson funded by the same partial settlement: the first was in January 1994, and the second was in July 1995, totaling $7,558.64. According to the letter transmitting the January 1994 payment the breakdown for the initial payment to Maw was as follows: Net Allocation for 1989: $3869.22 Net Allocation for 1990: $1293.68 Net Allocation for 1991: $1118.41 Net Allocation for permit devaluation: $ 813.27 In late 2002 a Seattle law firm, Davis Wright Tremaine, administering the Exxon Qualified Settlement Fund, sent two letters to the estate's attorney. In the first letter the Davis Wright firm asserted that the plain language of the addendum granted all claims to Maw, "whether such claims arose before or after the sale of the permit." The second letter, dated December 4, 2002, acknowledged that the estate's counsel disputed the Davis Wright interpretation. It warned that unless the estate presented a release of claims signed by Maw by February 15, 2003, Davis Wright would "honor Mr. Maw's lien against the estate's claims on behalf of Mr. Polushkin. B. Proceedings On March 18, 2008, David Polushkin, as the personal representative of the Estate of Patroky Polushkin, filed a complaint against Maw. The complaint sought a declaratory judgment that Polushkin and derivative claimants (such as crew members) are entitled to the Exxon litigation claims that arose after Polushkin acquired the permit in October 1989. After answering the complaint, Maw moved for summary judgment. Polushkin opposed the motion and cross-moved. While the motions for summary judgment were pending, Maw removed the case to the United States District Court for the District of Alaska. Both the estate and Maw renewed their motions for summary judgment in the district court, but the court remanded the case to state court without deciding the motions. Once back in state court the parties again renewed their motions. Superior Court Judge Harold M. Brown granted summary judgment in Maw's favor, without comment, ordering that Maw shall retain all rights of ownership to all claims, payments and settlements from the 1989 Exxon Oil Spill relating to Permit # S0O8H61467Z, whether such claims arose before or after the sale of the permit to Patroky Polushkin. Mr. Maw is entitled to all claims, payments and settlement funds from that case relating to this permit. The superior court also denied Polushkin's cross-motion for summary judgment. Po-lushkin appeals. III. STANDARD OF REVIEW "We review the grant or denial of summary judgment de novo to determine whether there are any genuine issues of material fact and whether the moving party is entitled to judgment as a matter of law on the established facts. !" "We draw all reasonable inferences of fact against the moving party and in favor of the non-moving party. " Questions of contract interpretation are generally questions of law which will be reviewed de novo. However, fact questions are created when the meaning of contract language depends on conflicting extrinsic evidence. The question of the meaning of a written contract, including a review of the extrinsic evidence to determine whether any of the extrinsic evidence is conflicting, is a legal question which we review de novo. IV. DISCUSSION A. The Addendum Is Ambiguous. When interpreting a contract, our duty is to "ascertain and give effect to the reasonable intentions of the contracting parties. " We determine the parties' reasonable intentions by "resortling]l to the language of the disputed provision and other provisions, relevant extrinsic evidence, and case law interpreting similar provisions. " It is not necessary to find that an agreement is ambiguous before looking to extrinsic evidence as an aid in determining what it means. " Both parties presented extrinsic evidence to aid in interpreting the addendum. We have held that [Interpreting a written contract is generally a task for the trial court; however, interpretation becomes a task for the trier of fact when the parties present extrinsic evidence to clarify a contract's meaning, when this evidence points toward conflicting interpretations of the contract, and when the contract itself is reasonably susceptible of either meaning. In such cases, the trial court initially determines whether the extrinsic evidence meets the bfiteria to create a jury question; when the court finds that the extrinsic evidence does not conflict or is incompatible with the terms of the written contract, interpretation remains a question of law for the court's determination." " The 1989 addendum states that Maw will "retain all rights of ownership and effect associated with the . Permit, to claims, settlements, and/or benefits resulting from the March 1989 Exxon oil spill, against the vessel Exxon Valdez, and the 1987 Glacier Bay oil spill." The estate argues that this language was designed to ensure that the transfer of the permit did not carry with it the claims for losses that Maw had suffered as a result of the oil spills. Maw, on the other hand, contends that the language was meant to assign to him future damages that Polushkin might suffer as a result of the spills. The language of the addendum conceivably could support the interpretation of either party. On the one hand, the verb "retain" suggests that only claims that Maw had at the time of transfer were the subject of the transaction. He could hardly "retain" claims for damages that Polushkin might suffer in the future though Polushkin might assign those claims to him. On the other hand, the "all rights" language with no explicit time cut-off could suggest that an assignment of future claims was intended. The language of the addendum is therefore ambiguous. Rules in aid of contract interpretation must be employed in an effort to determine its meaning. B. Relevant Extrinsic Circumstances Indicate That No Assignment of Future Claims Was Intended. The rules in aid of contract interpretation are set out in section 202 of the Restatement (Second) of Contracts. The first and generally most important rule is that "[wlords and other conduct are interpreted in the light of all the cireumstances, and if the principal purpose of the parties is ascertainable it is given great weight. " 1. Maw's account of his subjective intent is not probative. In support of his motion for summary judgment Maw filed an affidavit explaining his view of the purpose of the addendum. The affidavit states in relevant part: At the time of entering into and signing the agreement and addendum it was the intent of Mr. Polushkin and I and we understood and agreed that Polushkin had no interest in my Exxon or Glacier Bay claims and that I was to receive all proceeds or money from those claims. (Emphasis added.) Polushkin's counsel argues that the emphasized language indicates that the addendum was only intended to apply to existing claims. He argues: Mr. Polushkin, if he were alive, would hardly state it better: "Mr. Polushkin had no interest in my (Mr. Maw's) Exxon or Glacier Bay claims and that I (Mr. Maw) was to receive all proceeds or money from those claims." The operative words are "my claims", and "those claims", referencing "my claims". Although this argument has some plausibility, we do not view Maw's affidavit as an admission that the addendum was only intended to cover claims suffered by Maw. Given Maw's theory that he reserved all claims for past and future losses, his use of the term "my claims" could simply be a reference to the full scope of what he contends he contracted for. In a later affidavit, made after Polushkin made the argument noted above, Maw offered a modified account regarding the intent of the parties: At the time of entering into and signing the agreement and addendum it was the intent of Mr. Polushkin and I that Polush-kin had no interest in any claim, settlement or benefit resulting from the March 1989 Exxon oil spill against the vessel Exxon Valdez and the 1987 Glacier Bay oil spill and that I retained all rights to those claims. It was understood and agreed between Mr. Polushkin and myself that those were my claims not his and I was to receive all future proceeds or money from those claims. Further, in subsequent deposition testimony Maw interpreted the agreement using these words: "I kept those rights, that was a part of the agreement from day one. Nobody knew where this thing was going to go, but wherever it went, those were mine." None of these post-itigation statements are probative extrinsic evidence. Statements as to the subjective intent of parties to a contract made during litigation do not create issues of fact regarding the meaning of the contract. As we stated in Still v. Cunningham: [We are . justified in disregarding parties statements made during litigation as to their subjective impressions or intent at the time of a transaction 'unless the party in some way expressed or manifested his understanding at the time of contract * In a footnote to this statement we set forth the following language from the seminal case of Peterson v. Wirum: Differences of opinion among the parties as to their subjective intent, expressed during the litigation, do not establish an issue of fact regarding the parties' reasonable expectations at the time they entered into the contract, since such self-serving statements are not considered to be probative. Rather, the court must look to the express manifestations of each party's understanding of the contract in attempting to give effect to the intent behind the agreement." " Maw's testimony as to what was understood or intended at the time of the transaction does not relate what was stated or written between the parties at the time of contract formation. It is thus not probative extrinsic evidence as to the meaning of the addendum. 2. Extrinsic evidence indicates that a normal allocation of claims was intended. Maw's testimony as to what was said during the transaction is entitled to weight. Maw stated that he was told by his broker that the addendum language was merely "boiler plate." This means that the addendum was thought to be a part of a normal, as distinct from an unusual, allocation of claims between a buyer and seller of a permit. Polushkin's broker in the transaction, Ro-seleen Moore, testified by affidavit that while she did not recall this specific transaction, she would have read the addendum to mean that Maw would keep the damages that he suffered as a result of the spills and that Polushkin would have any damages he might suffer in the future. Moore also testified that such an allocation would be normal for the industry. She testified that she participated in perhaps 100 or more similar transactions involving Cook Inlet drift permits and has never been involved in any permit sale in which the seller kept the right to future damages caused by the Exxon VaupEz or Guacisr Bay spill. Moore made it clear that the reason for claims retention clauses was so that sellers would not be thought to have transferred their rights to damages they suffered to permit buyers: When the Exxon spill happened, as well as to a lesser degree when the Glacier Bay oil spill occurred in 1987, sellers of permits were concerned about making sure they kept whatever rights they had regarding the damages they suffered as a result of the spills. The sellers wanted to be sure their rights to damages did not pass with the permit. Moore also detailed some reasons why it would be atypical for a seller to retain damages accruing after a permit is sold. She stated: I believe it would be very unusual that a seller would retain future damages after the permit was transferred because those damages would be based on the participation and catch history of the purchaser. The future losses and damages, primarily lost income, would be based on eatch and price and consider the size of the crew the purchaser used, his or her expenses, use of a spotter pilot, the markets available to the purchaser, whether the permit holder was experienced in the fishery, whether the vessel used was ideal for the specific fishery and other variables all focused on the abilities and participation of the purchaser. Moore's testimony as to the normal allocation of claims in permit transfer transactions is not refuted. Maw, at his deposition, could not think of any other permit transfer transaction in which a seller claimed to be retaining future damage suffered by a buyer. Maw did not attempt to refute Moore's account as to the normal allocation of claims between sellers and buyers of Cook Inlet permits. There is therefore uncontested evidence suggesting that both Maw's broker and Po-lushkin's broker regarded the allocation of claims that the addendum addressed to be normal for transfers of Cook Inlet permits. The evidence is also uncontested that the normal allocation for such permits is that claims accrued as of the time of transfer are retained by the seller whereas losses that might be suffered in the future belong to the buyer. 3. Extrinsic evidence indicates that the price for the permit was not discounted. Another undisputed item of extrinsic evidence relates to the price of the permit. The price of the permit was slightly above the average. Moore testified that the price Po-lushkin paid to Maw, $186,000, was, in her view, a slight premium price and that it was not discounted. Maw testified at his deposition that he did not know of any sales at the time of this particular sale where a permit had been sold for a higher price. If the transaction were intended to entail an assignment of Polushkin's future claims to Maw, one would expect that the sales price would be discounted. Permits are fungible, there is an active market in them, and there is no reason why Polushkin would have assigned his claims to Maw without receiving compensation in the form of a reduced sale price. Yet it is clear that there was no such compensation as Polushkin paid a market price for the permit rather than a discounted price. This, in turn, suggests that no assignment was intended. 4. There is no probative course of performance evidence. Maw claims that there is extrinsic evidence concerning the parties' course of performing the contract that indicates that post-transfer claims for losses suffered by Polushkin were meant to be assigned to Maw. Extrinsic evidence of a course of performance can be an aid in interpreting the meaning of a contract. Subsection 202(4) of the Restatement (Second) of Contracts states concerning course of performance: "Where an agreement involves repeated occasions for performance by either party with knowledge of the nature of the performance and oppor tunity for objection to it by the other, any course of performance accepted or acquiesced in without objection is given great weight in the interpretation of the agreement." Comment g explains that the rationale for the use of course of performance evidence is that "[the parties to an agreement know best what they meant, and their action under it is often the strongest evidence of their meaning." But the comment goes on to state that action on a single occasion or the action of one party only is not entitled to weight: The rule of Subsection (4) does not apply to action on a single occasion or to action of one party only; in such cases the conduct of a party may be evidence against him that he had knowledge or reason to know of the other party's meaning, but self-serving conduct is not entitled to weight. The Uniform Commercial Code-Sales adopted in Alaska also requires repeated occasions for course of performance evidence. " The reporter's comment with respect to course of performance states that "[a) single occasion of conduct does not" course of performance. " The Uniform Commercial Code-Sales governs the sale of "goods," a broad term that nonetheless does not encompass limited entry permits. But this does not mean that the UCC is irrelevant. This court has previously relied on the UCC to resolve contract disputes not strictly governed by the act. " Other courts have done the same. "[The UCC is regarded as a modern restatement of the law of contracts that has the seal of legislative approval. Consequently, there is a very strong tenden-ey to apply the UCC to non-UCC contracts either directly or by way of analogy. In light of these considerations we believe that it is appropriate to be guided by the provisions of the UCC-Sales statute and the consistent principles of the Restatement (Second) of Contracts § 202 in considering whether there is relevant course of performance or practical construction evidence in this case. As course of performance evidence Maw claims that David Polushkin, on behalf of the estate, provided Maw's counsel with Patroky Polushkin's fishing records for 1990 and 1991. This is not course of formance evidence for two reasons. First, David Polushkin was not a party to the contract and thus did not know what the parties meant when they made the agreement. His performance, therefore, would not be evidence of Patroky Polushkin's understanding of the meaning of the addendum. Second, David Polushkin's action occurred on only a single occasion. Course of performance evidence to be relevant requires repeated occasions." Maw also claims that his receipt of the Guractsr Bay oil spill proceeds is relevant course of performance evidence. This argument lacks merit because all the GuaciBrRr Bay proceeds were for losses incurred prior to the transfer. Finally, Maw claims that his receipt of Alyeska settlement proceeds for the years 1990 and 1991 is relevant course of performance evidence. This argument also lacks merit. This is self-serving conduct of one party only. As such, as the commentary to the Restatement makes clear, it is not entitled to weight. C. Interpreting the Addendum To Be an Assignment of Polushkin's Future Losses Would Be Unreasonable. One important guide to the meaning of a contract is that interpretations that give a reasonable meaning to a contract are preferred to those that impart an unreasonable meaning. As section 203(a) of the Restatement (Second) of Contracts provides: "[AJn interpretation which gives a reasonable, lawful, and effective meaning to all the terms is preferred to an interpretation which leaves a part unreasonable, unlawful, or of no effect." The commentary to this section further explains this rule: "In the absence of contrary indication, it is assumed that each term of an agreement has a reasonable rather than an unreasonable meaning, and that the agreement is intended to be lawful rather than unconscionable, fraudulent or otherwise illegal." 4 Interpreting the addendum to be an assignment of Polushkin's future claims to Maw would have unreasonable, arguably unconscionable, consequences. Focusing only on the decline in value of the permit, Maw's projected loss was $11,881. His actual loss was only about half that because he sold the permit to Polushkin for a slight premium. By contrast, Polushkin's actual loss between the time of his purchase and the time of his death was $102,750, and his projected loss was $151,123. To construe the addendum to assign losses of this magnitude to Maw would be unreasonable, given that Maw paid nothing for an assignment and will be fully compensated for the losses that he suffered. The same is also true with respect to Maw's claim for the loss in value to Polushkin's fishing boat. Polushkin did not buy his boat from Maw, yet Maw claims that he acquired the right to claim damages for its spill-related depreciation. Again, and for the same reasons as those previously expressed with respect to the decline in value of the permit, such a claim is unreasonable. Maw's claim to loss of income suffered by Polushkin on account of Polushkin's fishing endeavors in 1991 is also unreasonable for the same reasons." v. CONCLUSION Although the words used in the addendum to the purchase agreement arguably could support the interpretation offered by either party, the relevant extrinsic evidence and the rule that contracts should be interpreted to have a reasonable meaning in the absence of a contrary indication demonstrate that the addendum was not meant to assign losses suffered by Polushkin to Maw. Since there are no genuine issues of material fact, the Estate of Patroky Polushkin is entitled to summary judgment on this issue. Accordingly, the judgment of the superior court is REVERSED, and this case is REMANDED for further proceedings in accordance with this opinion. . Neither party has been able to locate Martin-son. . A handwritten "client activity log" apparently kept by Maw's broker, GSI, includes the following entry by "DF" for October 11, 1989: "Drafted Addendum Re: Exxon Benny's. Faxed to Roland Maw." . See In re The Glacier Bay, 71 F.3d 1447, 1449 (9th Cir.1995). . Id. . See In re The Exxon Valdez, 472 F.3d 600 (9th Cir.2006). . See In re Exxon Valdez, 490 F.3d 1066 (9th Cir.2007) (denial of rehearing en banc). Exxon has filed a petition of writ of certiorari to the United States Supreme Court. . In re Exxon Valdez, No. A89-095-CV (D.Alaska Apr. 22, 1997). . The table provides in relevant as follows: Predicted-Predicted Actual Actual Seller's Buyer's Year Otr Value Value Gap Share Share 1989.2 $184,764 $173,353 ($ 11,411) 7.55% 92.45% 1989.3 $188,573 $176,927 ($ 11,646) 7.71% 92.29% 1989.4 $192,381 $180,500 ($ 11,881) 7.86% 92.14% 1990.1 $210,597 $197,591 ($ 13,006) 8.61% 91.39% 1992.1 $183,651 $ 90,091 ($ 93,560) 61.91% 38.00% 1992.2 $202,306 $ 89,207 ($113,099) 74.84% 25.16% 1992.3 $218,340 $ 86,229 ($132,111) 87.42% 12.58% 1992.4 $234,373 $ 83,250 ($151,123) 100% 0% . Copies of these letters were sent to Maw in care of Faegre & Benson. . Zok v. Collins, 18 P.3d 39, 41 (Alaska 2001). . Id. . Burns v. Burns, 157 P.3d 1037, 1039 (Alaska 2007). . Norville v. Carr-Gottstein Foods Co., 84 P.3d 996, 1000 n. 1 (Alaska 2004). . Still v. Cunningham, 94 P.3d 1104, 1109 (Alaska 2004); Little Susitna Constr. Co. v. Soil Processing, Inc., 944 P.2d 20, 23 (Alaska 1997). . W. Pioneer, Inc. v. Harbor Enters., Inc., 818 P.2d 654, 656 (Alaska 1991). . Id. . Alyeska Pipeline Serv. Co. v. O'Kelley, 645 P.2d 767, 771 n. 1 (Alaska 1982) ("[A] court in this jurisdiction may initially turn to extrinsic evidence in construing a contract."); Peterson v. Wirum, 625 P.2d 866, 871 (Alaska 1981). . Little Susitna, 944 P.2d at 23 (citing Alaska Diversified Contractors, Inc. v. Lower Kuskokwim Sch. Dist., 778 P.2d 581, 584 (Alaska 1989); Alaska N. Dev., Inc. v. Alyeska Pipeline Serv. Co., 666 P.2d 33, 39 (Alaska 1983); Restatement (Second) of Contracts § 212(2) (1981)). . Restatement (Second) or Contracts § 202(1) (1981). . Maw gave this answer in connection with the meaning of the terms of the plan of distribution for Upper Cook Inlet drift gillnet permit holders. Maw, who was at one time the executive director of the Upper Cook Inlet Drift Fishermen's Association, participated in the development of the standards of the plan. . 94 P.3d 1104, 1110 (Alaska 2004) (quoting Norville v. Carr-Gottstein Foods Co., 84 P.3d 996, 1003 (Alaska 2004)). . Id. at 1110 n. 14 (quoting Peterson v. Wirum, 625 P.2d 866, 870 (Alaska 1981)). . The negotiations were conducted without face-to-face meetings. . The record does reveal one other case where such a claim was made. This case, which was brought to Maw's attention during his deposition, and with which Moore was also familiar, resulted in litigation and a consent judgment in which the claims were allocated between buyer and seller as of the time of transfer (except for the vessel devaluation claim where the dividing line was the calendar year of transfer). . The plan of distribution recognizes the logical relationship between an assignment of future claims and a discounted sale price. Thus the plan states as follows: In some cases, permit buyers and sellers agreed to assign litigation rights and this was taken into consideration in arriving at the permit sale price. Plaintiffs' counsel would abide by such agreements which are reflected in written contracts, (eg., contracts which contain language such as "It is hereby agreed that all right, title and interest in all claims for damages arising out of the Exxon oil spill incurred by the seller prior to and including the closing date of the sale of the permit, shall remain with the seller" or "Both parties agree that the sale and transfer shall not convey to the buyer any right, title or interest of the seller in any claim arising as a result of the Exxon Valdez oil spill on or about March 24, 1989 which claims arose prior to the sale and transfer") to the extent not disputed by the parties. To the extent the intent of such contracts are disputed by the parties, plaintiffs' counsel would hold back any affected distributions until the parties' disagreement is resolved. (Emphasis added.) . AS 45.02.208 provides: Course of performance or practical construction. (a) If the contract for sale involves repeated occasions for performance by either party with knowledge of the nature of the performance and opportunity for objection to it by the other, a course of performance accepted or acquiesced in without objection is relevant to determine the meaning of the agreement. (b) The express terms of the agreement and the course of performance, as well as the course of dealing and usage of trade, shall be construed when reasonable as consistent with each other; but if the construction is unreasonable, express terms control the course of performance and the course of performance controls both the course of dealing and usage of trade (AS 45.01.205). (c) Subject to the provisions of AS 45.02.209 on modification and waiver, the course of performance is relevant to show a waiver or modification of terms inconsistent with the course of performance. . Uniform Commercial Code (UCC) § 2-208 cmt. 4. . AS 45.02.102; AS 45.02.105(a) (defining "goods" as "all things . movable at the time of identification to the contract for sale other than . investment securities, and things in action"). As one commentator states, the "[Sales] Article does not apply to licenses, whether that term is used in the property sense or as representing a governmental grant." 2 Larry Lawrence, Lawrence's Anderson on the Unirorm Commercial Code § 2-105:74 (3d ed. rev.2004). . See Cousineau v. Walker, 613 P.2d 608, 615-16 (Alaska 1980) (analogizing to the UCC's treatment of caveat emptor in a real property contract dispute); Fireman's Fund Ins. Co. v. Sand Lake Lounge, Inc., 514 P.2d 223, 226-27 (Alaska 1973) (analogizing to UCC statute of limitations provisions in an insurance contract dispute over the interpretation of a limitations clause); Rego v. Decker, 482 P.2d 834, 838 (Alaska 1971) (drawing from the UCC's provision that a contract will not fail for indefiniteness if there is a reasonably certain basis for providing a remedy in a contract dispute involving an option contract for the sale of land); see also Veach v. Meyeres Real Estate, Inc., 599 P.2d 746, 749 n. 5 (Alaska 1979) (citing the UCC by analogy). . 1 Larry Lawrence, Lawrencr's Anderson on the Untrorm Commerctar Cope § 1-101:42 (3d ed. rev. 2003). . On this record, whether this actually occurred is in doubt, given Maw's subsequently declared lack of knowledge. But for the purpose of the present opinion we assume that David Polushkin provided the records. See supra Part ILA. In support of his argument, Maw cites Exxon Corp. v. State, 40 P.3d 786, 795-96 (Alaska 2001). In Exxon this court considered course of performance evidence in interpreting whether an agreement between Exxon and the state granted to the state the discretion to deny an enlargement of an oil-producing unit area. In affirming the state's discretionary authority we relied on course of performance evidence by Exxon acknowledging such authority on three occasions. Id. . "[Clourse of performance when employed to interpret a contract is an indicator of what the parties intended at the time they formed their agreement. It is an expression by the parties of the meaning that they gave to the terms of the contract that they made." Arthur Linton Corbin, Corbin on Contracts § 24.16, at 136 (rev. ed.1998) (emphasis added). . Although evidence of conduct on a single occasion does not amount to a course of performance, action on a single occasion by a party, as commient g to section 202 of the Restatement notes, "may be evidence against him that he had knowledge or reason to know of the other party's meaning...." Such evidence can be important because where parties have attached different meanings to an agreement "'it is interpreted in accordance with the meaning attached by one of them if at the time the agreement was made" the other party either knew or had reason to know of the meaning attached by the first party. Restate ment (SEcomp) or Contracts § 201(2)(a) & (b) (1979). But this use of conduct evidence could not be applied to David Polushkin because he was not party to the contract and thus lacked both knowledge and reason to know of the meaning atiached by Maw to the contract at the time it was made. . Restatement (SEeconp) or Contracts § 203 cmt. c. . See supra Part II.A. . See supra Part II.A. . Further, one would expect that if the contract actually contemplated that Maw would receive damages for Polushkin's future loss of fishing income, provisions requiring diligence and reporting would have been built into the contract.

8207433

Richard A. MATTOX, Appellant, v. STATE of Alaska, Appellee

Mattox v. State

2008-08-22

No. A-9949

148

153

191 P.3d 148

191

Pacific Reporter 3d

Alaska Court of Appeals

Alaska

2021-08-10T23:30:04.149797+00:00

CAP

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

Richard A. MATTOX, Appellant, v. STATE of Alaska, Appellee.

Richard A. MATTOX, Appellant, v. STATE of Alaska, Appellee. No. A-9949. Court of Appeals of Alaska. Aug. 22, 2008. Linda K. Wilson, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Col-berg, Attorney General, Juneau, for the Ap-pellee. Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.

2713

15778

OPINION STEWART, Judge. Richard A. Mattox was convicted of felony refusal to submit to a chemical test. He asks this court to reverse his conviction, arguing that there was insufficient evidence that he understood he was required to submit to a breath test to support his conviction for refusal. Having reviewed the record, we conclude there was enough evidence for a fair-minded juror to find that Mattox knew or should have known of his legal duty to submit to a breath test. Mattox also argues that his right to due process was violated in two ways: first, because the officer who arrested him for driving while under the influence did not explain that he would be charged with a crime if he refused to submit to a breath test, even if he offered a blood test as an alternative; and, second, because the superior court did not instruct the jury that the officer had a duty to explain this to him. We reject both claims. Mattox never argued in superior court that the officer violated his due process rights, so he has not preserved this claim. And to the extent Mattox preserved his attack on the superior court's jury instructions, we find no error. We therefore affirm Mat-tox's conviction. Facts and proceedings Just before noon on September 4, 2006, Kenai Police Officer Jay Sjogren was dispatched to a residence to investigate the report of an assault. Dispatch told Officer Sjogren that the suspect had driven away in a green minivan. As Officer Sjogren responded to the report, he saw a green minivan pull into a nearby driveway. Officer Sjogren saw the driver, later identified as Mattox, get out of the van and stumble and stagger to the front door. Officer Sjogren approached Mattox and tried to speak with him, but Mattox ignored him. As Mattox walked by, Officer Sjogren noticed he smelled of alcohol. After interviewing the man who reported the assault, Officer Sjogren decided to focus his investigation on Mattox because he be lieved Mattox had been driving while under the influence. Officer Sjogren asked Mattox to perform field sobriety tests, but Mattox refused. Officer Sjogren then arrested Mat-tox and transported him to Wildwood Pretrial Facility for a breath test. During the observation period preceding the breath test, Officer Sjogren read Mattox the implied consent warning informing him that he was being asked to submit to a chemical test of his breath and telling him that if he refused to take the test he would be charged with a crime. Mattox refused to sign the implied consent form. He also refused to submit to a breath test. Officer Sjogren gave Mattox several opportunities to change his mind, but Mattox stated very clearly that he would not provide a breath sample. He did, however, say, "Take my blood. Just take my blood." Officer Sjogren did not respond to this statement because he planned to read Mattox the form advising him of his right to an independent chemical test. After Officer Sjogren read the form, Mattox declined the offer of an independent test. Mattox was charged with felony driving while under the influence, felony refusal to submit to a chemical test, and driving while license revoked. In a jury trial before Superior Court Judge Harold M. Brown, Mat-tox was convicted of all three offenses. He appeals his conviction for refusal to submit to a chemical test. There was sufficient evidence to convict Mattox of refusal Mattox argues that his refusal conviction was supported by insufficient evidence that he understood his legal duty to submit to a breath test. In ruling on a claim that there was insufficient evidence to support a conviction, we must view all the evidence and the inferences from that evidence in the light most favorable to the jury's verdict. The question is whether, viewing the evidence in this light, there was enough relevant evidence for a fair-minded juror exercising reasonable judgment to find that the State met its burden of proving guilt beyond a reasonable doubt. At trial, Officer Sjogren testified that he saw Mattox pull a green minivan into a driveway, get out of the van, and stagger and stumble to the front door of the residence. When Officer Sjogren contacted Mattox, he observed that Mattox smelled of alcohol. Mattox refused to perform field sobriety tests. Officer Sjogren then arrested him and transported him to jail for a breath test. At the jail, Officer Sjogren read Mattox the implied consent warning informing him of his legal duty to submit to a breath test. That warning provided in part: You are under arrest for Operating or Driving a Motor Vehicle Under the Influence (DUI). You are being asked to submit to a chemical test of your breath to measure the alcoholic content. Refusal to submit to a chemical test can be either a class A Misdemeanor or a class C Felony. Refusal to submit to a chemical test may be used against you in a civil or criminal action or proceeding arising out of an act alleged to have been committed while operating the motor vehicle. Refusal to Submit to a Chemical Test is a crime that is separate from the crime of Driving Under the Influence. Mattox would not sign the implied consent form. He also refused to submit to a breath test, even though Officer Sjogren gave him several opportunities to comply. A recording of this contact was played to the jury. On the recording, in addition to the implied consent warning recounted above, Officer Sjogren stated: "The type of test you are requested to take is a breath test." He also said: "I'm asking you to take a breath test. You don't have to, that's your right." Mattox at first would not answer, but eventually he said: "No, no, no. I will not do that. I will not_Take my blood. Just take my blood." After concluding that Mattox had refused the breath test, Officer Sjogren advised him of his right to an independent chemical test of his blood. When he advised Mattox of this right, he reiterated: "You are refusing a breath test, right?" Mattox did not answer, but instead complained that Officer Sjogren had arrested him on the porch, on private property. Officer Sjogren eventually concluded that Mattox had also refused the offer of an independent chemical test. Mattox argues that this evidence was insufficient to convict him of refusal because he said to Officer Sjogren, "Take my blood. Just take my blood." But the jury heard evidence that Mattox refused to perform field sobriety tests, refused to sign the implied consent form, refused several times to submit to a breath test, and refused the opportunity for an independent chemical test. Given this evidence, a fair-minded juror could reasonably conclude that Mattox's statement "take my blood" did not demonstrate he was confused about his legal duty to submit to a breath test, but rather was evidence of his continued obstreperousness. We conclude that there was sufficient evidence to support Mattox's conviction for refusal to submit to a chemical test. Mattox did not preserve his claim that Officer Sjogren violated his due process rights Mattox argues that his due process rights were violated because Officer Sjogren did not give him adequate notice that he would be charged with refusal if he refused to take a breath test, even if he offered to take a blood test instead. In superior court, Mattox did not argue, in a pretrial motion or during trial, that his due process rights had been violated by Officer Sjogren's conduct, and the superior court did not rule on this issue. Mattox instead elected to argue to the jury that he should be acquitted of refusal because his statement "take my blood" was an offer to submit to a chemical test. Because Mattox never argued in superior court that his due process rights were violated, he did not preserve this claim for appeal. Nor has Mattox shown (or even argued) that the superior court committed plain error by failing to find a due process violation sua sponte. This court will not find plain error unless the error "affects a substantive right and is obviously prejudicial." The jury was instructed that it could not convict Mattox unless he knew or should have known that he had a legal duty to submit to a breath test. Thus, the jury must have found that Mattox had enough notice of his legal duty to submit to a breath test to be convicted of refusal, even though Officer Sjogren did not explain to Mattox that he could not satisfy this legal duty by offering to submit to a blood test. The court did not err in instructing the jury Mattox next challenges the superior court's responses to several questions the jury posed during deliberations. The jury's first question read: Does the law state that a blood test can be given instead of a breath test? The court responded: The law does not give the defendant an option. The law requires submission to a test of the person's breath by an approved[,] certified testing device. The law permits the defendant to request an independent blood test. The court also addressed another, related jury question: [In] Instruction # 6 [listing the elements of refusal], the term "Chemical Test of Breath" is not used in [elements] # 5, 6, & 7. Can we get you to clarify if [the] "chemi cal test" [language used in elements # 5, 6, & 7] means "Chemical Test of Breath?" The court instructed the jury that the references to a "chemical test" in the jury instruction "means chemical test of breath." Mattox argues that the statute defining the crime of refusal permits a blood test to be offered in lieu of a breath test and that the court's responses to these jury questions were wrong. But we rejected this claim in Hamilton v. Anchorage. Hamilton argued that his refusal conviction should be dismissed because even if he wilfully refused to take a breath test, his offer to take a blood test cured that refusal. In rejecting that claim, this court explained that the municipal ordinance Hamilton had been charged with violating obliged him to take a breath test, as opposed to some other chemical test. This court noted that the state refusal statute, AS 28.35.032(f), was identical in relevant respects. This court went on to rule, in line with other courts that had considered this issue, that "the due process clause does not confer on motorists the right to control or dictate the form of chemical testing." Mattox distinguishes his case from Hamilton, arguing that the relevant statutory language has changed. At the time of Hamilton's offense, the refusal statute, AS 28.35.032(f), made it a crime to "[refuse] to submit to the chemical test of breath authorized by . AS 28.35.031(a)", "the implied consent statute." The current provision, which was in effect at the time of Mattox's offense, makes it a crime to "[refuse] to submit to a chemical test authorized by . AS 28.35.031(a) or (g)." Thus, Mattox is correct that the legislature dropped the express reference to "breath" from the refusal statute. But the legislature's reason for dropping this language does not support Mattox's claim. The current statute makes it a crime to refuse a chemical test authorized under either subsection (a) or (g) of the implied consent statute. The statute at issue in Hamilton only made it a crime to refuse a test under subsection (a) (subsection (g) did not exist at that time). Subsection (a) authorizes a breath test of any person lawfully arrested for driving while under the influence. Subsection (g) authorizes a breath and blood test for any person who is involved in a motor vehicle accident that causes serious physical injury or death. Thus, the statute now makes it a crime to refuse a breath or blood test, depending on whether subsection (a) or (g) applies in the circumstances of the case. Therefore, to the extent that Mattox is arguing that the legislature dropped the "of breath" language from the refusal statute because it wanted to overrule Hamilton and give motorists the option of providing a blood test instead, that claim is without merit. The legislature dropped the "of breath" language because it added subsection (g) and now, depending on the circumstances of the case, a defendant may be prosecuted for refusal to submit to either a breath or blood test, or both. Mattox also raises a claim that was not addressed in Hamilton: that he had a due process right under the facts of his ease to be told before deciding whether to submit to a breath test that he had no right to elect the type of test. But, as discussed earlier, Mat-tox did not argue in superior court that he had this due process right; nor did he ask Judge Brown to instruct the jury that Officer Sjogren had a duty to explain that he would be charged with refusal despite his purported offer of a blood test. At trial, during discussion about how to respond to the jury's questions, Mattox did state that Officer Sjogren's conduct "probably" gave rise to a duty to explain to Mattox that he could not avoid a refusal charge by offering to submit to a blood test: Defense counsel: Well, maybe the—maybe I should have raised this earlier and maybe it's still important. And I think it is still important. Because the point is, once a person asks a question and says, take my blood instead, it seems to me there's probably an obligation to say, I'm not going to do that unless you blow first. Court: Well, you've made that argument to the jury. Defense counsel: Right, and the point is, he didn't refuse. He said, you can take a chemical test. And, you know, he wasn't told, you don't have that option, you got to do breath, you can't do blood. But he said, take it. In the above discussion, when the court characterized Mattox's argument as an argument for the jury, Mattox did not correct the court or argue that he was raising a legal issue— that is, a due process claim that he wanted the court to resolve as a matter of law. Nor did he ask the court to instruct the jury that Officer Sjogren had a duty to make clear to Mattox that he could not avoid a refusal charge by submitting to a blood test. Mat-tox therefore did not preserve this claim. And he has not shown plain error. The jury heard evidence and argument that Officer Sjogren failed to explain to Mattox that he would be charged with refusal even if he offered to submit to a blood test instead of a breath test. The jury nevertheless found that Mattox had enough notice of his duty to submit to a breath test to be guilty of the crime of refusal. Conclusion We AFFIRM Mattox's conviction. . AS 28.35.030(n). . AS 28.35.030(n). . AS 28.35.032(p). . AS 28.15.291(a)(1). . Dorman v. State, 622 P.2d 448, 453 (Alaska 1981); Brown v. State, 693 P.2d 324, 329 (Alaska App.1984). . Dorman, 622 P.2d at 453; Collins v. State, 977 P.2d 741, 747 (Alaska App.1999). . See Mahan v. State, 51 P.3d 962, 966 (Alaska App.2002) ("To preserve an issue for appeal, an appellant must obtain an adverse ruling."). . Dorman, 622 P.2d at 457 (citing Alaska R.Crim. P. 47(b)). . See Yang v. State, 107 P.3d 302, 309-11 (Alaska App.2005); Brown v. State, 739 P.2d 182, 184-86 (Alaska App.1987). . 878 P.2d 653 (Alaska App.1994). . Id. at 654. . Id. . Id. . Id. at 655. . Former AS 28.35.032(f) (pre-August 22, 1994, version). . AS 28.35.032(f). . See ch. 55, § 7, SLA 1994. . AS 28.35.031(a). . AS 28.35.031(g). . See ch. 55, § 8-11, SLA 1994. . See Mahan, 51 P.3d at 966. . See Alaska R.Crim. P. 47(b).

10442513

FAIRBANKS NORTH STAR BOROUGH, Appellant, v. Richard UNDERWOOD d/b/a Alaska Feed Co., Appellee

Fairbanks North Star Borough v. Underwood

1981-04-03

No. 4927

574

574

626 P.2d 574

626

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T20:56:53.427674+00:00

CAP

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

FAIRBANKS NORTH STAR BOROUGH, Appellant, v. Richard UNDERWOOD d/b/a Alaska Feed Co., Appellee.

FAIRBANKS NORTH STAR BOROUGH, Appellant, v. Richard UNDERWOOD d/b/a Alaska Feed Co., Appellee. No. 4927. Supreme Court of Alaska. April 3, 1981. Terrence H. Thorgaard, Asst. Borough Atty., Fairbanks, for appellant. Irwin Ravin, Fairbanks, for appellee. Before RABINOWITZ, C. J., CONNOR, BURKE and MATTHEWS, JJ., and DIMOND, Senior Justice.

316

1875

OPINION PER CURIAM. A section of the Code of Ordinances of the Fairbanks North Star Borough provides that businesses shall keep suitable records of all sales in order to determine the amount of sales taxes for which they are liable, and provides that these records shall be open for examination by borough officials. The sole question presented on this appeal is whether a civil action may be maintained under this ordinance to compel a business to open its records for an audit by borough officials. We conclude that such an action is permissible and therefore reverse the judgment of the trial court of September 7, 1979. No question is raised as to whether such documents might be privileged under the federal or state constitution and we intimate no view on that topic. The judgment is REVERSED and the case is REMANDED for further proceedings. . The section is FNSB 3.48.140(A): Record keeping duty — Investigation. A. It shall be the duty of every seller engaged or continuing in business in the borough to keep and preserve suitable records of all sales made by him, and such other books or accounts as may be necessary to determine the amount of tax for the collection of which he is liable hereunder. It shall be the duty of every such person to keep and preserve a period of three years all invoices of goods and merchandise purchased for resale, and all such books, invoices and other records as may be necessary, all of which shall be open for examination at any reasonable time by the mayor or his duly authorized agents.

10443578

Carl LA PIERRE, Appellant, v. STATE of Alaska, Appellee

La Pierre v. State

1980-11-28

No. 4425

1065

1066

626 P.2d 1065

626

Pacific Reporter 2d

Alaska Supreme Court

Alaska

2021-08-10T20:56:53.427674+00:00

CAP

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

Carl LA PIERRE, Appellant, v. STATE of Alaska, Appellee.

Carl LA PIERRE, Appellant, v. STATE of Alaska, Appellee. No. 4425. Supreme Court of Alaska. Nov. 28, 1980. Sue Ellen Tatter, Asst. Public Defender, and Brian Shortell, Public Defender, Anchorage, for appellant. Steven J. Call, Asst. Dist. Atty., Harry L. Davis, Dist. Atty., Fairbanks, and Avrum M. Gross, Atty. Gen., Juneau, for appellee. Before RABINOWITZ, C. J., and CON-NOR, BURKE and MATTHEWS, JJ.

301

1873

OPINION PER CURIAM. We have examined the transcript of the trial here and conclude that "the evidence, viewed in the light most favorable to the state, could lead a reasonable jury to conclude that [La Pierre] was guilty beyond a reasonable doubt." Stumbaugh v. State, 599 P.2d 166, 173 (Alaska 1979) (footnotes omitted). We are, however, in doubt as to whether the trial court properly increased the sentence because of its perception that the defendant had committed perjury in his testimony. We have held that it is improper to increase a sentence because a defendant has committed perjury at trial, but the fact of such perjury may be considered as relevant to the defendant's prospects for rehabilitation. Strachan v. State, 615 P.2d 611 (Alaska 1980). Accordingly, we are vacating the sentence and remanding this case for resentencing. At the resentencing the trial court should "state the manner in which the perceived perjury relates to his selection of sentence." Id. at 614. REMANDED. BURKE, J., concurs in part and dissents in part. BOOCHEVER, J., not participating.

10443583

Christopher WHITTLESEY, Appellant, v. STATE of Alaska, Appellee

Whittlesey v. State

1980-11-28

No. 5155

1066

1068

626 P.2d 1066

626